TREATISE ON THE LAW OF SLANDER AND LIBEL, AND INCIDENTALLY OF MALICIOUS PROSECUTIONS. Nescit vox missa reverti. By THOMAS STARKIE, Esq. OF LINCOLN S INN, BARRISTER AT LAW. FROM THE SECOND ENGLISH EDITION OF 1830. WITH NOTES AND REFERENCES TO AMERICAN CASES AND TO ENGLISH DECISIONS SINCE 1830. By JOHN L. WENDELL, COUNSELLOR AT LAW. VOL,. I. HARTFORD, CONN. PUBLISHED BY JOHN L. WENDELL, 1858. Entered according to Act of Congress, in the year 1843, By JOHN L. WENDELL, in the Clerk's Office of the District Court of the Northern District of New York. T WEST BKOOKFIELD, MASS. PBINTED BY THOMAS MOBEY. a. h TABLE OF CASES CITED BY THE AUTHOR. Abergavenny (Ld) v. Cartwright i 186 's (Ld) Case, i 186 Adams v. Meodew i 391 Aitken v. Head and Fleming P. D. 33 Alverton v. Tregono, i 450 Anson v. Stuart, i. 112, 159, 168, 234 Argyle v. Hunt, ii 124, 126 Archbishop of Tuam v. Robeson, i 162 Armstrong v. Jordon, ii 11 Arne v. Johnson, i 140 Ashby v. White, i 245 Ashley v. Harrison, ii 64, 65 (Sir R.) i 250 's (Sir Anthony) case ii 73 Astley v. Young, i 246, 472 Att'y-General v. Annett, ii 140 v. Eaton, ii 142, 150 v. Hive, ii 139 v. Le Merchant, ii 28, 49 - v. White, ii 201 v. Wilkes, ii 111, 158, 174, 267 Austen (Sir J.) v. Culpepper, (Col.) i 156,173 Avarillo v. Rogers, i 369 B. Baal v. Baggerley, Bagnall v. Underwood, Baker v. Peirce, 's Case, Baldwin v. Elphinstone, i 210, v. Flower, Banister v. Banister, Barbara's Case, Barnabas v. Traunter, Barnes v. Bruddell, v. Prudling, Barren v. Gibson, Barrons v. Ball, Barrow v. Llewellin, Baxter's Case, Beauchamp (Ld.) v. Croft, Beaumond v. Hastings, i 50 ii 310 i 52, 91 ii 368 358. ii 16 i 199 i 146 i 422, 424 i 26 i 298 ii 62 i 203 i 395 ii 231 i 419 i 404 Beavor v. Hides, Bell v. Byrne, v. Stone, v. Wardell, Bellingham v. Minors, Bendisli v. Lindsey, Berryman v. Wise, Bill v. Neal, Bishop's (seven) Case, Blackburn v. Blackburn, Bliss v. Stafford, Blisset v. Johnson, Blizard v. Kelly, Bolton (Sir Wm) v. Dean, Bonham's (Dr.) Case, Boston v. Tatharn, Boulton v. Clapham, Bourke v. Warren, Bradley v. Methwyn, Bridge's Case, Brigg's Case, Britbridge's Case, Uromage v. Prosser, i 74 ii 111 i 373, 378, 482 i 161, 108 i 281 i 475 i 35, 435 ii 2, 10, 310 i 121, 122 ii 20, 37, 38, 39, 208, 338 ii 323 i 145 i 370 i 449 i 173 ii 97, 270 i 19, 20 i 250 ii 325 i 157 i 48 i 108 i 464 i 373, 220 ii 85, 105 Brookbard v. Wood ley, ii 20 Brooke v. Montague, (Sir Henry) i 216, 283, 286 Brookes v. Warwick, Brown v. Croome, v. Murray, v. St. John, 283 ii 74. 78 i 214, 327 ii 86 ii 67 i B4 i 440 i 401 ii 24 - i 380 Browning v. Newman, Browulow's (Dr.) Case, Buchanan's Case, Bkinghi m v. Murray, Buckingham's (Duke of ) Case, i 182, 184, 186 Buckley v. Wood, i 248, 252, 254, 266 's Case, i 253 ii 205, 293 i 53 i 374 Burdett (Bart.) v. Abbott, Burgess v. Boucher, Burgis's Case, 667805 TABLE OF CASES. Burley v. Bethune, ii 77 Burnet v. Cod man, * i 887 v. Wells, i 413 ii 109 Burton's Case, ii 368 Busby v. Watson, i 446 Bushel's Case, ii 335 Bustwick's Case, ii 368 Butt v. Conant, ii 294 Button v Hay ward, i 16, 54, 393 Byrne v. Moore, i 448 ii 76 Hunt, C. Candell v. Loudon, Cardinal's Case, Carpenter v. Tarrant, Carr (Sir John) v. Hood, 's Case, Carrol v. Bird, Carslake v. Mapledoram, Cartwright v. Wright, Cary v. Pitt, Ceely v. Uoskins, Chalmer's Case, Chambers v. Jennings, v. Robinson, Chapman v. Lamphire, Charnel's Case, Child v. Affleck, Christie v. Cowell, v. Powell, Churchill (Lord) Clark v. Price, Clarke v. Periam Clayton v. Nelson, Cleaver v. Sarrande, Clement v. Chivis, Clendon's Case, Clerk v. James, Clissold v. Clissold, Clutterbuck v. Chaffers, Cobb v. Carr, Cockaine's (Lady) Case, Cohen v Morgan, Coleman v. Goodwin, Collis v. Malin, Collis v. Loder, Constantine v. Barnes, Cook v. Bachelor, v. Field, Cooke v. Cox. — v. Hughes v. Smith, i 19 114, i ii 17, 19 i P. D. ii ii 55 i 236, Cooper v. Hawkswell, v. Smith, Cornwall v, Ptichardson, Cox v. Humphreys, Coxeter v. Parsons, Craft v. Broite, Craig v. Hunter, Crawford v. Middleton, 279 33 20 305 28 293 115 379 ,27 49 45 127 ,78 140 77 301 85 i 410 ii 119 ii 62 ii 67 i 323, 32 i 162 ii 138 i 346 i 343 , 17 80 106 72 449 404 102 446 347 101 368 381 85 380 76 394 60 38 119 427 78 331 103 Cromwell (Lord) v. Denny, 's (Lord) Case, ii 14, ii i 33, 105, i 449 ii 444, ii i 367, i 346 P. D. i 462 i 184 235,461 Croop v. Tilney, i 157, 167, 173 Crosby's Case, ii 24 Cuddington v. Wilkins, i 19, 237, 492 Curry v. Walter, i 259, 263, 265, 269, 468,471, 472, ii 83, 86 Cutler v. Dixon, i 249 1). Dacosta v. Pym, Davis v. Gardiner Davis v. Lewis y. Noak, 's Case, i i 139, i 66, i 195, 198, 200 Dawes v. Bolton, Dean's Case, De Crespigny v. Wellesley, Delacroix v. Thevenot, Delamore v. Heskins, De la Motte's Case, Delany v. Jones, Delanny v. Mitchell, Dibdin v. Bostock, y. Swan and Bostock, ii 14 i 69, 321. ii Crofts (Sir Harbert) y. Brown, i 14, 102, 104, IOC Dobsou v. Thorstone, Dobb v. Robinson, Doncaster v. Hewson, i Dorchester's (Marquis of) Case il82, 184, 188,342, Dorrell v. Grove, i Drake v. Corderoy, i 's (Dr.) Case, i Driver y. Driver, l)u Bost v. Beresford Duncan v. Thwaites, Dunman y. Bigg, Dunne v. Anderson, Earner v. Merle, • East y. Chapman, Eaton v. Allen, Eddowes v. Hopkins, Edmonson y. Stevenson, Edwards v. Lell, i 172 ii 226, 267, 274, 19 195 231 448 199, 202 38 270 329 , n 386 28 327 67 314 142 141 403 373 344 73 415 362 124 321 269, 486 324 314 ii 91 ii 98 i 22, 23, 34, 35 ii 111 i 223, 294, 299 i 498, ii 102 (Dr.) v. Wooton, (Dr.) i 's Case, Elbrow v. Allen, Ellershaw v. Robinson and Ux England v. Bourke, Entick v. Carrington, Evans y. Brown, 153, ii 230 i 12, 210 i 193 ii 90 i 235 ii 102 ii 29,299 ii 120 TABLE OF CASES. Fairman v. Ives, i 230,287, 816 Faulkland (Ld.) v. Phipps, i 180, 188 Ferrets (Ld.) v. Shirley, ii 17, 18, 19 Fife v. Fife, P. D. -14, 45 Figgins v. Cogswell, i 418 Finnerty v. Tipper, ii 54, 100 Fleetwood (Sir Miles) v. Curl, ii 111, 419 v. Curley, ii ;V> Fletcher v. Braddyll, ii v. Webb, ii Flint v. Pike, i 2G1 , 202, 272, 485. Harman v. Delany, i 155, 68, 232 il irper (Sir J.) v . Beaumond, i 131 Q v. King, i CO. 67 v Stratton, i 76 ■ v. Thornborongh, i ".}. 71. 140, 389 Hart's I i 882 Hartley v. Herring i 203, 405, 443 ii 64 Flower v. Pcdley, • 's t !ase, Ford v. Bennett, v. Brooke, Forster v. Browning, Foster v. Lawson, Francias's Case, Freeman v. Norris, Fry v. Hill, Fysh v. Thorowgood, G. Gadd v. Bennett, Garrels v. Alexander, Gainford v. Tuke, Gerald's (Sir C.) bailiff's Case. Gerrard (Sir W.) v. Dickenson, 288,289,31 Girlington v. Pitfield, Gobbett's Case, Goddard v. Smith, Golding v. Crowle, i Goldstein v. Foss, Goodtitle v. Braham, Gordon's Case, Gould v. Ilulme, Goulding v. Herring, Greaves v. Blanchett, Green v. Bennett, Greenfield's (Sir R.) Case, Grove v. Hart, Guinn v. Phillipps, Gunstou v. Wood, Gurneth v. Derry, Gurney v. Longlands, Guy v. Livesay, II. Halford v. Smith. Hall v. Smith, Hall v. Warner, v. Weedon, 's Case, Hammond v. Kingamill, Hancock v. Winter, Harding v. Bulman, ■ ■ v. Greening, Hare v. Meller, Hargrave v. LeBreton, i 224, 320 Vol. 1. B i i i i 48, i ii i i i 8 * 71 486 374 187 365 395 347 28 343 283 481 l ii i 19, i i 192, ii ii ii 279 ii ii 305, ii ii i i i 451 17 20 195 256, 436 70 120 86 79 306 20 2 304 290 200 451 127 349 68 107 30 23 350 ii 116 i 411 ii 114 i 88 ii 138 i 121 i 373 i 242 ii 84 i 254 ii 104 Harvey \. Chamberlain, Harwood v. Astley, (Sir J.) Hawkes v. Hawkey, Hayward v. Naylor, llelly y Hender, Hensey'a | Dr.) Case, Ik-riot v. Steward, Ilea rle (Sir J.) v . Osgood, Hewlett v. Crutchley, Hext v. Yeoman, Hicks's Case i 387 i 126 442 i 416, 424 i 69 i 417 ii 24 i 142, 811, :;13, 405 122 79 63 i 13 Hicks's (Sir Baptiste) Case i 150, ii 231 , 26 Hill v. Yates, Hilsden v. .Mercer, Hilton v. Shepherd, Hinde v. Thompson, Hitchon v. Best. Hobart v. Hammond, Hodgson v. Scarlett, Holland v. Stoner, Ilollis (Sir John) v. Briscow, Holmes v. Catesby, Holt v. Scholefield, Hooker v. Tucker, Home v. Powell, Hoskins v. Ridgway, Howe v. Prinn, Hudson's Case, Hughes v. Winter, Humber v. Ainge, Humphreys v. Stansfield, Hunt v. Bell, Hunt v. Jones, v. Thimblethorpe, Hunter v. French, Hurst v. Bell, Hyde v. Seyssor, i 281 i 48 i 283 ii 124 i 343 i 281 i 65, 247, 285, 287, 294, 460 i 48 i 121 i 480 i 42,88. 421, ii 108, 111 i 486 i 74 342 133 33 i 112 i 326 i 144, 145 i 280 ii 62 119,121, ii 69 450 68 87 352 I. Incledon v. Berry, Ireland v. Blockwell, Isaacs v. Uraud, v. Howard, J. i Jacob v. Mills, ] Jefferies v. Buncombe .lolms v. Git tens, ! Johnson v. Aylmer, v. Bewick, v. Browning, 75, 77 i 448 i 282 ii 74 i 280 i 80 i 174 i 476 i 416 ii 123 36, 447 TABLE OF CASES. Johnson v. Browning, v. Evans, v. Sutton, Jones v. Heme, v. Stevens, Jordan v. Lewis, ii 69, 80 i 301 i 241,279,280,281, 436, ii 74 P. D. 71 i 24 86 ii 6 91 ii 67 Kemp v. Gee, • i 243, 245 King v. Bagg, i 49 King v. Giffin, i 158 (Col.) v. Lake, i 156 v. Lake (Sir Edward) i 155 v. Waring, i 301, 359, 443, 456, ii 60, 87, 103 Kinnersley v. Cooper, i 462 Kirk v. French, ii 67 Knight v. Germain, ii 80 Knightly (Sir John) v. Marrow, i 109 Knobell v. Fuller, ii 95, 96 Mackenzie v. Bead, Macgregor v. Thwaites, Macpherson v. Thoytes, Maitland v. Golding, v. Goldncy, Maloney v. Bartley, Manning v. Avery, v. Fitzherbert, Mason v. Jennings, v. Thompson, L. Lake v. Hatton, i 233 ii 253 Lake v. King, i 244, 253, 254, 262, 274, 460, 488 Lamb's Case, i 360 ii 16, 231, 235, 239, 351 Lancaster v. French, i 135 Lane v. Applegate, i 456, 564 v. Howman, i 478 Lawrence v. Woodward, i 109 Layer's Case, ii 24, 28,49 Leach's Case, ii 295 Ledwith v. Catchpole, ii 80 Lee v. Huson , ii 56 Legate v. Wright, ii 122 Leggatt v. Tollervey, ii 67, 68 Leicester (Earl of) v. Walter, ii 88, 89, 91, 92, 93, 97 's (Earl of) Case, i 185 Leigh v. Webb, i 449 Levi v. Milne, ii 322 Lewis v. Clement, i 261 v. Farrell, i 450 v.Walter, i 273, 337, 405, 408, 418 458, 459, 487 Lewknor v. Crutchley, i 23, 34, 35 Lilnal v. Smallman, ii 79 Lincoln's (Earl of) Case, i 182, 184 Lloyd v. Morris, ii 109 Lowfield v. Bancroft, i 416 Lowry v. Aikenhead, i 300 M. Macclesfield's (Earl of) Case, i 342 M'Cloughan v. Clayton, ii 73 M'Dougall v. Claridge, i 322, 165, 167, 252. 336 M'Leod v. Wakeley, ii 35 Matthews v. Cross, May v. Brown, Mayne v. Digle, v. Fletcher, Mead v. Daubigny, Medhurst v. Balaam, Memis v. Jopp and others, Mercer v. Sparks, Metcalf v. Markkam, Mills v. Spencer, P. D. 33 i ii 20 ii 103 i 335, 347 i 251 i 192 i 356 i 157 i 52 i 195 i 410 ii 100 i 39 ii 9 ii 56 i 199 P. D. 33 i 223 i 343 i 473 ii 98 ii 4, 9 ii 50 i 36 ii 89 i 202 i 186 i 326 i 450 Moises v. Thornton, Molony v. Bartley, Moor (Sir Geo.) v. Foster, v. Moore, Moore v. Meagher, Mordant (Lord) v. Bridges, Mordington's (Lord) Case, Morgan v. Hughes, Morris v. Langdale, i 139, 207, 478, ii 65 Morrison (Dame) v. Cade, i 430 v. Kelly, ii 67, 68 's Case, i 435 Mors v. Thacker, i 360 Mullett v. Hulton, ii 15, 87, 88, 98 Muney's Case, i 103 Mure v. Kaye, ii 73 Musgrove v. Bovey, i 126 N. Nelson v. Dixie, v. Hawkins, v. Smith, Neve v. Cross, Newman v. Aleyn, v. Bailey, i 368 ii 119 i 390 i 108 i 207 i 479 Newsam v. Carr, i 71 Newton v. Stubbs, i 364 Norfolk (Duke of) v. Anderton, i 345 Northampton's (Earl of) Case, i 69. 329, 332, 338, ii 103 (John de) Case, ii 235, 237, 269 (Mayor of) Case, ii 278 Norwich's (Bishop of) Case, i 186 Nutt's (Elizabeth) Case, ii 30, 33 Ogden v. Turner, Oldham v. Peake, Onslow v. Home, O. i 15, 40, 14, 199 ii 51 i 41, 42, 120,123, Ylb TABLE OF CASES. Orphwood v. Barkes, Osborne v. Brookes, Oliver v. Bentinck, 373 890 266 Pain v. Rochester, ii 80 Paine's (Samuel) Case, ii 288 Parkcs v. Langley, i 450 Parrott v. Fishwick, ii 76 Parry v. Collis, i 406 Pasley v. Freeman, i 224 Pasquin's • ii 100 Pattison v. Jones, i 301 Peachntn's I ii 169 Peacock v. Raynal, (Sir G.) i 1-j4 Peake v. Oldham, i 66, 65, 96, 1 '.'1 . 204, 209, 394, 429, 489 Pearce v. Whale, Peard v. Johnes, Pembroke (Karl of) v. Staniel Penfold v. Westcote, Pennyrnan v. Rabanks, Phillips v. Jausen, v. Jarwen, v. Bhaw, Pickering's (Lewis) Case, Pierpoint v. Sliapland, Pickford v. Gutch, Pigot's Case, Pine's (Hugh) Case, Pinkney v. Collins, Pitt v. Donovan, Plunkett v. Cobbett, Poe's (Dr.) Case, Pollard v. Mason, Pope v. Foster, Portman (Sir II.) v. Stowell, Powell v. Plunkett, Power v. Shaw, Preston's (Lord) Case, Prideaux v. Arthur, Prosser v. lirommage, Prynne's Case, Purcell v. Macnamara, Purdy v. Staccy, Pyne's Case, i 130 i 188 ii 51 i 317 i 183 ii 13 i 210 i 461 ii 231 ii 60, 67 ii 3 i 236 ii 186, 167, 168 i 312 i 820 ii 104 ii 33, 57 i 76, 103 i 66, 07 i 451 i 40 i 237, 304 ii 124 ii 24, 28 ii 285 - i 120 ii 53 ii 368 i 451 ii 76 i 37 i 302 Regina v. Bedford, ii 168, v. Drake, (Dr.) v. Langley, ii 1%, 198, 199, v. Nun, v. Wrightson, ii 197, Revett v. Braham, ii 26, Hex v. Abingdon, (Lord) i 213, 240, '_71 ii 246, v. Alderton, v. Almon, v. Amphlett, v. Archer, v. At wood, v. Aylett, v. Hate, v. Bayley, v. Bear, v. Deere, v. Benfield, v. Benfield and Sanders v. Berry, v. Bickerton, i 416, i ii 31, ■ ii ii 861, ii 14::, i ii 278, ii 136, c - ii 1"), ii 281, ii Birch, Bliss, Clerk, Brereton, Brewster, Brown, Browne, (Dr.) Budd, Bunts, Burdett, ii 252, 282, i 361, 875, ii 163, ii \\ Radcliffe (Lady) v. Shubley, Ram v. Landey, Rastall v. Stratton, Bavenga v. Macintosh, Read v. Hudson, Redman v. Pyne, Reed v. Taylor, Rees v. Smith, i 869 i 260 i 451 i 281 i 188 i 137 i 446 ii 74 ii 67 v. Burke, v. Carlile, v. Carter, v. Cator, v. Chappel, v. Chrichly, v. Clarke, v. Clement, v. Clerk, v. Cobbett, v. Creery, v. Creevey, ii 38, 39, 98, 304, 306, 312, ii i 261, ii 33, 143, 150, ii 42, ii 27, ii 261, i 419, ii ii 198, ii i 214, 254, 274, Cromwell, Culpepper (SirT.) Curl, v. Cuthel, v. Darby, ii 195, 196, 198, "212, v. Davison, v. Dawson, v. De Berenger and Ors, v. D'Eon v. Dudd, ii 31, v. Dormer, v. Dover, 186 382 >09, 199 27 428 306 214 . 51 49 • 111 326 257 865 234 41 303 361 370 233 290 31 186 380 162 279 173 311 366 244 364 303 263 820 237 28 286 212 188 206 .11 194 183 460 215 09 24 157 33 L99, 292 202 439 ■i-:\ 216 34 29 TABLE OF CASES. R ex v. Drakard, . v. Diaper, v. Ellis, v. Enes, v. Evans, . v. Farrington, v. Fielding, v. Finnerty, . v. Fisher, v. Fleet, v. Foster, v. Franklin, v. Fuller, v. Gilliam, v. Girdwood, v. Gordon, (Ld. G.) . t. Griffin, v. Hall, v. Hankey, . v. Harris, . v. Harrison, . v. Hart, v. Hart and White, . v. Harvey, v. Haswell, . v. Haydon, v. Hensey v. Herries, . v. Higsrins, ii 194 ii 289, 864 i in". i 325 ii 282 i 439 ii 224 ii 183 ii 291 ii 3G7 i 261, 265 ii 194 i 261,265 ii 194 i 90 Hill, Holland, Holloway and Allen, u A* J .Holt, i 407 ii 308,309, 326, 3o9 . v. Hone, . v. Home, y. Hucks, \. Hulpin, y. Hunt, y. Incledon, v. Jenneaur, , v. Jenour, y, Johnson, . v. Joliffe, v. Jones, (Gale) , y. Kearsley, . v . Kettleworth, v. Kinaston, y. Knell, y. Lambert and Perry, y Naber " ^5 v. Nutt,' (Richard) ii 161,181,342 ■ y. O'Connor, • v. Orme, - v. Osborne - v. Owen, - v. Payne, - y. Pearce, - v. Peltier, - y. Penny, - y. Phillips, - v. Pinkerton, - v. Pocock, - v. Ravensworth, - v. llayner, - v. Read, - r. Rev ell, - v. Roberts, v. Rosenstein, y. Salisbury, y. Scott, ._ v. Sedley, (Sir Chas.) y. Selby, v. Shaw, v. Sharpe, y. Sharpness, 24 ii 213,276 ii 213, 276 ii 186, 203, 342 i 451 ii 164, 165, 106 ii 19, 56 ii 218 ii 198 i 214, ii 208 ii 362 ii 198, 199, 277 i 153 ii '203 ii 156, 157, 158 ii 195, 198 D. 45, 129,1232 11254,280,363 ■ 230 ii 247 ii 183 ii 155, 157 158, 159 ii 197 i 405 ii 290 ii 361 v. Shebbeare, (Dr.J) ii 164, 165, 342 y, Lawrence, v. Leafe, v. Lee, v. Lofield, y. Lovell, y. Marsden, v. Marshall, . y. Martin, v. Mathews, y. Mayor and Dowling . y. Middleton, v. Miles, v. Mozagora, ii 326 i 56, 398, 422, 426 ii 191, 304, 306 i 451 ii 363, 364 ii 50 ii 69 i 326 ii 282 ii 214 ii 34, 35, 36, 39, 194 ii 275, 286 ii 194 ii 174 ii 69 ii 289 ii 42, 237 ii 175, 185 307, 320 ii 186 ii 199 ii 277 i 271 ii 194 i 416 ii 285 ii 310 i 420 ii 264 ii 36, 263, 264 ii 287 ii 183 2 ii 344 ii 69, 202 ii 278 ii 208 ii 284 ii 276 ii 204 ii 265, 302 ii 309, 310 v. Shelley, — v. Shipley, — v. Smith , v. Smollett, (Dr.) y. Southerton y. Sparrow. v. Staples, v. Stockdale, y. Summers, Zvlaylor! tt 137. 143, U4, 2i _ v'. Thicknesse, Esq. (Phillip) ii 278 y. Thompson and others u 338 tr Tmliim 11 43, 21Z, 116 — ;:TuS; "163,187193,340 v. Vint » 217, 219 v. Waddington, ^ ^ £» _Y.Walter, » 33, 212, 362 v.Warte, . .."^ "7— •ffa.iRjfai ii 282 i 438 ii 13,307, 311, 324 ii 199 ii 33, 274 ii 263 ii 287 i 257, 258 tVUllilliia, .... ilQn ii 41, 50, 141, 150, 174. 274 289 -,„., ' n 362, 366 v - Wllson ' . ii 354; 362 ii 291. 342, 344, 351 ii 138, 144, 145 ii 367 y. Webster, _ v. Wegener, _ y. Weltje, _ y. White, _ y. Wiatt, _ v. Willett, _ v. Williams, . v. Withers, v . Woodfall, y. Woolston, y. Wrennum, TABLE OF CASES. 9 Rex v. Wright i 257, 2C3, ii 245, 287 v. Young i 866 Reynolds v. Kennedy i 280, 281 Rich v. Holt i490, ii 109 Roberts v. Camden i 20, 58, 75, 428 ii 51 Robinson v. Jermyn Robinson v. Macdougall ii 323 Rodriguez v. Tadmore ii '.<7 Roe v. Rawlings ii 26 Rodgers v. Clifton (Sir Gcrvase) i 296 v. Gravat Ross v. Lawrence i 112 v. Mackerrel P. D. H Rowe v. Roach | U2, 482 11 v. Corne i 864 (Sir William) v. Ligon i 87 v. Macquester ii 50' S. Sachcverell's (Dr.) Case i 3G7, 368 Salisbury (Bishop of) v. Nash i 467 Salter v. Brown i 29 Samuel v. Payne ii 80 Sand well v. Sand well ii 13 Saunders v . Mills i 273 Savage v. Robery i 41:;. |jr. Savile v. Jardine i 160, 413 Saville v. Roberts i 198 ii 75 Scoble v. Lee i 40 Scott v. Baillie P. D. G4 Seaman v. Bigg i 128 Sellers v. Till i 405 408 Seycroft v. Dunker i 138 Shaftesbury's (Ld) Case i 344 Shaloner v. Foster i 386, 426 Shaw v. Thompson i 90 Sidnaui v. Mayo i 380, 381 Sidney's Case ii 20, 24, 169 (Colonel) Case ii 25 Skutt v. Hawkins Smale v. Hammon Smead v. Badley Smith v. Croker v. Flynt v. Hixon v. Hodgkins v. Macdonald v. Richardson Smith v. Spooner v. Taylor v. Walker v. Wisdome v. Wood Snagg v. Gee Snede v. Bailley Snell v. Webling Suowdon v. Smith Snowe (Sir R) v. — Soane v. Knight Somers v. House Southara v. Allen Spall v. Massey Speed v. Parry Spencer v. Jacob Spooner v. Gardiner Stanhope v. Blith Stanton v. Smith Stevens v. Aldridge Stewart v. Allen i 385 i 13, 166 i441 i 347, 848 i 32 i 352 i 304 ii 7::, 79 i 222,465,466, 470 i 317, 318 ii 104, 105 ii 3, 10 j ii 71 j i&4 i 456 ii 87 i 81, i 145 ii 63 i 109 ii 93, 94 i 396 i 305 i 51 i 138 i 174, l(t7 i 74 ii 74 ii 67 i 13 i 413 i 405 P. D. 82 Stiles v. Nokes i 261, 269, 472, 190 8tirley v. Hill i 70 ] .ry v. Clement ii 305, 306 Btoddart v. Palmer i t-'-l Btodder v. Harvey i 281 Stone v. Smalcombe i 32 7. 178 Stranger v. Searle ii 20 . . Foreman. ii 64 Stuart v. Lovell i 311 ii 51. Subly v. Mott i 35$ Stump v. White i 78 Swithen and Wife v. Vincent and wife i 355 Sydenham (Sir John) v. Man i 62 Sydenham's (Sir J.) Case i 857 Syke's v. Dunbar ii 70, 7'-', 75 Sylvester v. Hall ii 67 T. Tabart v. Tipper i 41, 308, 311 880, 381 ii 100 Talbot v. Case i 81 Tassan v. Rogers i 143 Tate v. Humphreys H55 Taylor v. Cooke H26 Tempest v. Chambers i 67 Terry v. Hooper i 120 Thomas v. Jackson i 127 Thompson v. Bernard i 80 ii 86 v. Shackell i304 Thorley v. Kerry (Lord) i 162 Tibbott v. Hayues i 33 Tilk v. Parsons ii 65 Tindall v. Moore i430 Townsend (Ld.) v. Hughes (Dr. ) i 178, 181 ii 106 Turner v. Sterling i 111 Turner v. Turner ii 73 Tutchin's Case i 4U0 Tut hill v. Miltou i 403 Tutty v. Alewin ii 136 u Underwood v. Parkes Upton v. Pinfold i j sheer v. Betts Vaughan v. Ellis v. Leigh Vessy v. Pike Vicars v. 'Hilcocks i 467 ii 87, 93 i68 i481 i 145 i 145 i 465 i 204 ii 65 10 TABLE OF CASES. Villars v. Mousley i 114, 158, 167, 168 W Waithman v. Weaver Wakeley v. Johnson Walden (Sir Lionel) Wallace v. Alpine Walter v. Beavor Walters v. Mace Ward v. Reynolds Warne v. Chadwell Wate v. Briggs Mitchell H91 iilOO i 39 ii 77 i 93 i 373 i 57 ii 56, 58, 102 i 451 Waterfield v. Chichester (Bishop of) i 259 Watson v. Reynolds ii 104 Watson's Case i 210 Weatherstone v. Hawkins i 223, 294, 299, 456 Weaver v. Loyd i 483 ii 86, 101, 102 Webb v. Poor i 81 Weller v. Baker i 347 West v. Phillips i 105 Weston v. Dobniet i 247 Wetherell v. Clerkson i 441 ii 62 Whittington v. Gladwin i 138, 142 Wicks v. Fentham ii 69 Wick's Case Williams v. Callender Wilner v. Hold Wilson v. Stephenson Winchester's (Ld) Case Wiseman v. Wiseman Wood v. Brown v. Guston v. Merrick Woodfall's Case Woodford v. Ashley Woodward v. Downing Woolnoth v. Meadows i 227, 331, 332, Wright v. Clements Wyatt v. Gore Wyld v. Cookman Young v. Pridd Yrissair v. Clement 1 35 ii 90 i 394, 426 i 326 ii 84 il85 i 100, 388 i 367 i283 i 66, 67 ii 34 i450 i 162 58, 69, 75, 430,473 ii 103 i368 ii 50, 98 i477 i 351 ii 11, 87, 320 Zenobio v. Axtell i 160, 363, 368, 411 TABLE OF CASES CITED IN THE NOTES ADDED TO THIS EDITION. A. Alderman v. French Alexander v. Alexander Allen v. Crofoot Andreas v. Koppenheafer Andrews v. Woodman Andrews v. Van Duzer Anson v. Stewart Austin v Hanchett Avarillo v. Rogers B. Backus v. Richardson Barbaud v. Ilookham Barnes v. Webb Bayard v. Passmere Baylis v Lawrence Beach v. Ranney Beach v. Beach Beardsley v. Maynard Bevis v. Story Bell v. Bugg Binns v. McCorkle Blake v. Pilford Blanchard v Thorn Bod well v. Swan and wife Bornman v. Boyer Boulton v, Clapham Bradley v. Heath Bradt v. Towsly ii 96, 99 C. Caldwell v. Abbey 187 i 32, 34 Chaddodk v. Briggs i 130 i204 Chalmers v. Shackell ii 97, 99 i 37, 43 Chapman v Gillet i90 i 61, 392 Charlton v Walton ii 97, 99 i 236, 466 Chase v. Whitlock i24, ST i 235 Cheat wood v. Mayo ii 97 i 340 ii 96 Chipman v. Cook i 37, 130 i 370 Clason v. Gould i 342 Cockayne v. Hodgkin son i 455 Coffin v. Coffin ii 106 Coleman v. Southwick ii 97, 99, 106 Commonwealth v. Clapp, ii 194 ii 252 il34 Cooper v. Bissell ii 108 i 156 Cooper v. Lawson i350 i 466 Cornelius v. Van Slyck, i 76 ii 262 Cowden v. Wright i 351 i 214 ii 358 Cramer v. Riggs i 123, 194 i 202, 349 Cummen v. Smith ii 6 i 349 Curry v. Walter i 456 iilOl i 38 * i 367 i 340 i 246, 455 i 246, 455 ii 96 i 61 i250 i 208, 321, 455 i202 Brooke v. Sir Henry Montague i 166 Brooker v. Coffin i 21, 28, 43 Brooks v. Bemiss ii 96 Brown v. Croom i 455 Brunson v. Lynde ii 96 Buford v. McLuny ii 96 Burlingham v. Burlingham i 304 Burtch v. Nickerson i 134 Burton v. Worley i 456 Buys and wife v. Gillespie i 28 Davis v. Lewis De Crespigny v. Wellesley Delany v. Jones Demarest v. Haring Dexter v. Taber Dickinson v. Barber Dole v. Lyon Duncombe v. Daniel Dunman v. Bigg E. i 340 i340 i455 i 59 i 60. 93 ii 241 i 340 i 194 i 325, 455 East v. Chapman ii 97 Ebersull v. King 1348 Edmonson v. Stevenson i 465 Eifert v. Sawyer U96 12 TABLE OF CASES. Elliott v. Ailsbury Else v. Ferris i 28, 43 1466 F. Fairman v. Ives i 246, 455 ii 358 Finch v. Gridley's exr's. i 119 ii 6 Findlay v. Bear i 93 Fisher v. Clement ii 358 Flint v. Pike i 466 Foot y. Brown i 136 Forward v. Adams i 123 Fowle v. Bobbins i 89 Gibson v. Williams Gidney v. Blake Gilman v. Lowell Godson v. Flower Gorham v. Ives Gould v. Weed Grant v. Astle i 60, 61, 392 i 110, 390 ii 96, 97, 99 i 455 i 60 ii 110 ii 108 K. H. Haire v. Wilson, Hall v. Smith Hamilton v. Dent Hare v. Mellen Harris *v. Huntington Harris v. Lawrence Harwood v. Astley Hastings v. Lusk Hersh v. Ringwalt Hinkley v. Emerson Hodgson v. Scarlett, Hogg v. Wilson Hollingsworth v. Duane Holt v. Scholefield Home v. Bentinck Hopkins v. Beedle Horner v. Marshall's adm'x, Hotchkiss v. Lathrop Hotchkiss v. Oliphant Howard v. Thompson, i Hunt v. Algar Hyde v. Bailey Inman v. Foster i 214 ii 358 i 139 i 89 i 456 i 355 i 383 i 194 i 250, 456 i 340 i 93 i 455, 456 ii 108 ii 262 i 43 i 241, 456 i 22 ii 112 ii 241 ii 97 ii 99 208, 246, 455 i 21 ii 96 i 340 ii 96 Kean v. McLaughlin Kemp v. Gee Kennedy v. Gregory Kennedy v. Lowry King v. Parsons Kirkman v. Oxley Knight v. Gibbs Knobell v. Fuller Kyzer v. Grubbs Lake v. Hatton Lake v. King Larned v . Buffinton Lathrop v. Hyde Leicester, Earl of v. Walter Leister v. Smith Levi v. Milne Lewis v. Hawley Lewis v. Few Lewis v. Walter Lewis v. Clement Lillie v. Prin Lindsey v. Smith Livingston v. Rogers Logan v. Steel Ludlum v. McCuen Lyle v. Clason i 250 ii 57 i 456 i 340, ii 97 i 366 i 235 ii 97 i 455 ii 96, 97 i 366 i 235 i 456 208 ii 97,99 i 304 ii 95, 96, 97 i 340 ii 358 i 139 i 194, 383 i 340 i 472 i 456 i 37, 130, 385 ii 112 i 61 i 43 ii 14, 112 M. J. Jacobs v. Fyler Jarvis v. Hathaway Jekyl v. Sir John Moore Johnson v. Evans i 22 i 325 i 456 ii 96 i 422 i 370 i 455 i 60 ii 96 i 119 ii 6 i 340 340 ii 96, 97, 99 i 383 McAlexander v. Harris McClaughry v. Wetmore McConnell v. McCoy McDougall v. Claridge McKinley v. Rob McLuny v. Bufford McPherson v. Chadell Maitland v. Goldney Mapes v. Weeks i Mappa v. Pease Martin v. Stillwell i 37, 43 Matson v. Buck ii 96 Mowbray v. Barker ii 97 Mayne v. Digle > i 43 Mayrant v. Richardson i 194 Middleton and wife v. Calloway ii 96 Miller v. Kerr i 340 Miller v. Miller i 64, 366, 370 Miller v. Maxwell i 392 Miller v. Parish i 43 Morris v. Duane i 340 ii 99 N. Neal v. Lewia 456 Nestle v. Van Slyck ii 106, 108 i 385 TABLE OF CASES. 13 Ney v. Otis i CI Niven v. Munn i 89 North v. Van Slyck i 87 I Northampton's (Karl of ) Case, i 340 0. O'Donaghuc v. McGovern. Ogden v. Turner Olmstead v. Miller Onslow v. Home i 246, 826, 466 i i:; i 202 i 43, 194 Paddock v. Salisbury ii 90 Pasley v. Freeman i 325 Patton r. Gurney i 355 Pattison v. Jones i 294 Pelton v. Ward i 88 People v. Freer ii 262 People v. Ruggles ii 137 People v. Croswell i 5 ii 252 Plunket v. Cobbett i 235 Powell v. Dubois i 194 Prosser v. Bromage i 325, 455 Purdy v. Stacey i 43 Purple v. Horton ii 97 R. Ram v. Lamley Rathbon v. Emigh Respublica v. Oswald Respublica v. Duane Rex v. Abingdon Rex v. Creevy Rex v. Hart Rex v. Burdett Rex v. Home Riggs v. Denniston Rogers v. Clifton Root v. King Runkle v. Meyer Ryckman v. Delavan Saunders v. Mills Saunderson v. Ruddes Savile v. Jardin Sayre v. Jewett Schock v. McChesney Seymour v. Merrills Shaffer v. Kintzer Bhephard v. Men-ill Shipley v. Todhunter Simpson v. Brookes Smith v. Minor Snowdon v. Smith Southwick v. Stevens Springsteiu v. Field Stafford v. Green i 22 ii 108 State v. Allen ii 252 Steele v. Southwick i 5 Stevenson v. llayden i 21. -7 Stevens and Cagger v. Adams i 119 Stokes v. Stuckey i 97 Sumner v. Buel i 347 i 456 i 134 ii 262 ii 268 i 456 i 456 i 325 ii 358 i 61 i 164 i 455 i 194 ii 96, 97 - i 340 i 347 ii 97 i 194 i 24 i 385 : i 251, 456 ii 67 ii 96 1 i 43 | i 466 i 455 i 194 i 28 ii 97 i 383 ii 28, 106 ii 96 Thomas v. Rumsey Thomas v. Croswell Thorn v. Blanohard Tillotson v. Chectham Titus v. Follett Tobias v. Harland Todd v. Hawkins Treat v. Browning Turrill v. Dolloway 866 i 422 ii 55 i 246, 166 i 383 i 385 i 137 i 166 i 340 ii 96, 97 i 194 U. Underwood v Parks i 232 ii 97 Union Turnpike Co. v. Jenkins ii 108 United States v. Hudson ii 101 Van Ankin v. Westfall, i 21, 466 Vanderzee v. McGregor i 246, 455 Van Ness v. Hamilton i 43, 164, 236, 481 Van Rensselaer v. Dole i 99 Van Spike v. Cleyson i 223, 325, 455 Van Vechten v. Hopkins i 60, 342, 392 422 Vick v. Whitfield ii 96 W. Wallis v. Mease VValmsley v. Russell Walton v. Singleton Ward v. Clark Warr v. Jolly Watson v. Hampton Watts v. Frazer Weatherstone v. Hawkins i Wid rig v. Oyer Williams and wife v. Mayer Williams v. Bill Wilmarth v. Mountford Wolcott v. Hull N I ward v. Lander Woolnoth v. Meadows Wormonth v. Cramer Wyatt v. Gore V. Young v. Miller ii 57 i 43 i 59 i 22 i 208 i 22 ii 1<»1 208, 325, 455 i i:: and wife ii 96 i 202 i 208 ii 96 i 246, 166 i 61 i 309 ii 97 i 826 i 34,43 CONTENTS OF VOL I. CHAPTER I. Division of the Subject — Actionablo Words — Criminal Charge 1 CHAPTER II Words Imputing an Infectious Disorder 113 CHAPTER HI. Where the Imputation Affects a Person in his Office, Profession, or Business 117 CHAPTER IV. Where the Words Tend to the Party's Disinherison or Affect His Title to Land 142 CHAPTER V. Where the Slander is Propagated by Printing, Writing or Signs 148 CHAPTER VI. Of Scandalum Magnatum 175 CHAPTER VH. Of Special Damage l9 ° CHAPTER VIII. Of Publication and Intention — Malice in Law - - - 209 CHAPTER IX. Justification— Truth 229 CHAPTER X. Of Publications Made in the Course of Parliamentary or Judicial _ ,. . OQQ Proceedings ... - 16 CONTENTS. CHAPTER XI. Parliamentary and Judicial Reports 257 CHAPTER XII. Probable Cause - • 276 CHAPTER XIII. Malice in Fact ,------ - 292 CHAPTER XIV. Repetition of Slander Invented by Another .... 329 CHAPTER XV. Of the Process and Pleadings 341 CHAPTER XVI. Of the Defendant's Plea 453 CHAPTER XVII. Of the Replication 492 PREFACE TO THB SECOND AMERICAN EDITION. Before publishing this edition all the cases decided in the English and American courts on the subject of defamation, since the publication of the first American edition of this work, were carefully read and considered, and a note taken of every case containing any thing new, illustrative of principles previously settled, or calling in question or casting a doubt upon such principles. Amongst those of the former class are the cases of Kelly v. Vartington, 2 Nev. & M. 460 j 4 Barn. & Aid. 700 ; Wright v. Wood- gate, 2 C. M. & BT, 573 ; 1 Tyr. & G., 12; Padmore v. Lawrence, 11 Adol. & Ellis, 380 ; Todd v. Hawkins, 8 Carr. & Payne, 888 : 2 M. & Bob. 20; and Blachham v. Pugh, 2 Mann. Gr. & Sc, 611 ; and of the latter class are Fountain v. Boodle, 3 Queen's B. B., 5 : 2 Gale & D., 455 ; and Cox- head v. Richards, 10 (English) Jurist, p. 984, anno 1846. All these cases are upon the subject of privileged communications, and will be found noted in Vol. II., p. 58, note (2). The two last named cases, and particularly that of Cozhead v. Richards, are very interesting, and have been supposed to unsettle the law on the subjects to which they relate ; but such supposition was erroneous, as is shown in the note. In this note an error has occurred by the substitution of the word post for ante, in the second paragraph, which the reader is recpiested to correct. This edition contains a modification of the note to the case of Van Ankin v. West/all, Vol. I, p. 21, note (1) ; and an addition to the note (a. a.), Vol. I., p. 88, denying the right of a defendant to show the immateriality of evi- dence charged by him to be false. To the same effect is note (1), Vol. I, p. 99. The decision in Smith v. Ashley, 11 Metcalf, 367, that the publisher of a newspaper is not liable tor the publication of an article, the libellous character of which is unknown to him, is shown to be erroneous, Vol. II., p. 34, note (1), and in pages 252 and 258 there are notes referring to the code rendering unnecessary the allegation of extrinsic facts to give point to de- famatory words ; and to decision holding it necessary to a perfects tlefence in an action for a libel to show not only the truth of the allegations, but that the publication was made with good ?notivcs and for justifiable ends. This edition relieves the profession from going over the cases for the last ten years, and in that respect is preferable to the former. New York, 9th August, 1852. INTRODUCTION. BY THE EDITOR. In consequence of reiterated complaints during the last winter, by the conductors of numerous public journals, of alleged erroneous doctrines held by our courts in respect to the Law of Libel, the editor of this edition of Mr. Starkie's Treatise, was induced to look into the matter. He soon became satisfied that to obtain redress in the cases in which the decisions complained of had been made, it was only necessary that an appeal should have been prosecuted to the higher judicial tribunals, and that the application to the Leg- islature, proposed by the conductors of the press, to correct the sup- posed defects in the law, was unnecessary and inexpedient. He therefore contributed his mite to dissuade from legislative action, convinced that the rights of individuals, as well as the liberty of the press, were sufficiently protected by the existing law, correctly un- derstood and wisely administered. In his investigations upon this occasion, the editor was forcibly struck with the diversitie (to use the orthography of ancient days,) in the law of libel as recognized in England and as held here, not- withstanding we, as well as England, profess to be governed by the common law ; and it occurred to him that the republication of an approved treatise on the subject, accompanied with notes, inviting attention to the differences alluded to, could not fail to be interest- ing and instructive — and the result is the work now submitted to the profession. In England, giving the name of the author of an oral slander at 20 INTRODUCTION. the time of its repetition, is a perfect defence to an action. Strange as it may seem, it is unquestionable, that at a period as late as 1830, when the last English edition of Mr. Starkie's Treatise was published, such was held to be the law in England. So it was held by Lord Kenyon 1796, by Lord Ellenborough in 1802, and- even down to the present day there is no case to be found in the English Reports overruling the former decisions, though in 1829, Lord Chief Justice Best did enter a protestando against the doctrine. With us, this doctrine has long since been exploded. (See note [I] infra, vol. I. p. 340). So, in England, suspicions and rumors of the guilt of a party to whome crime is imputed, may be given in evidence in mitigation of damages, although the action be brought for the express purpose of vindicating the character of the party from the aspersions cast up- on him, resting upon no more solid basis than suspicion and ru- mor. Here this doctrine also has long since been repudiated. If, indeed, suspicions and rumors have done their deadly work, and the good character of the party against whom they were directed is destroyed, our courts allow the general bad character of a plaintiff in an action of slander to be shown in mitigation of damages, but evidence of mere rumors and suspicions is not permitted. (See note [I] infra, vol. II. p. 96.) In England, the doctrine of privileged communications is a vital principle of the law of slander ; whilst here it is scarcely known. In England, no man is punishable criminally for the publication of his opinions upon any subjects whatever, affecting the constitution of the country, its laws, or their administration, or the conduct of public functionaries in the discharge of duties entrusted to them, provided the communications are sincere and honest and not malici- ous — the character of the publication to be judged of by a jury not by the court. Nor is he liable civilly, in an action for damages for any communication made by him affecting the character or the cred- it of another, though it be false or erroneous, provided it be made on an occasion in which his own interests or the interests or the business, or even the convenience of others require it to be made, INTRODUCTION. 21 and that he act in good faith, without malice — the bona /We.? being presumed, until the contrary is shown by proof. Here an action has been sustained against the chairman of a political .meeting for permitting his name to be affixed to an address to the elect the state, canvassing the conduct, qualifications and character of a candidate for office who solicited their suffrages, although the ad- dress contained do charge, which if orally made would have been actionable, and no proof of express or actual malice was given ; (see note [1] page L94, Vol. I. infra,) ; and so an action has been held to lie for words affecting the credit of a third person, although spoken in answer to an inquiry, on a subject in which the party making the inquiry had an interest, and no proof of express malice was given ; but on the contrary was rebutted by the circumstances of the case. (See Sewall v. Callin, 3 Wendell 201.) In this country but little other effect is given to the general issue in the action of slander, than to compel the plaintiff to prove the facts alleged in his declaration, essential in law to his right to re- cover ; whilst in England, the plea of the general issue is of such force, that under it the defendant, with the exception of the defence arising from a justification of the charges made and from the pro- tection afforded by the statute of /imitations, may avail himself of any defence existing to the action.* He may under it, prove that the words were not spoken or written in the calumnious sense alleg- ed in the declaration ; that the occasion and circumstances of the speaking or writing were such as cither absolute/// to exonerate him from liability to an action without regard to the motive or inten- tion with which the words were uttered or written ; or condition- ally, that is, provided it be not proved that he was actuated by ex- press or actual malice, as contra-distinguished from that malice which is implied from the falsity of the charge. In fine, as the plaintiff in an action of slander, like the plaintiff in every other ac- •Whether to the two defeudes which must be specially pleaded to render them availa- ble, should not be added a third quere ? The defence referred to, is that set up by a party that the publication charged to be libellous, 18 a true and fair account of a judi- cial or parliamentary proceeding. Whether such defence must be specially pleaded is an unsettled question. (See note [1] infra vol. I. p. 456.) D 22 INTRODUCTION. lion on the cane, must depend on the equity and justice of his case for his recovery, so whatever will in equity and conscience prevent a recovery, may, with the exceptions above stated, be given in evi- dence under the general issue and need not, be specially pleaded. (See infra, Vol. I. p. 455, note [1] ; p. 456, note [1]; p. 325, note [1] ; and p. 208, note. [1].) The plea of the general issue, however, as before observed, will not avail in all cases. If the defendant intends to give evidence of the truth of the publication, he must interpose a plea of justification. This plea is usually put in where the defendant undertakes to prove the truth of the charge of a crime imputed to the plaintiff, as is manifest as well from adjudged cases as from the rules of pleading, requiring the same degree of certainty and precision in a plea of justification that is demanded in an indictment. This plea is pro- per, also, in all cases where specific charges other than crime have been made, affecting the plaintiff in his character, office, profession or business. Instead, however, of limiting its use to cases in which it may properly be interposed, matter has been alleged in the form of a plea or notice of justification, which is not and in the nature of things cannot be, the subject of a plea of justification, because not presenting on its face a full and perfect answer to the declaration : or, in other words, shewing a bar to a recovery ; and the conse- quence of this vicious mode of pleading and of the adjudications of the courts growing out of it, has been to involve the law of libels as it prevails in the state of New-York, in such doubt and uncertainty that by many, and especially those who have suffered from the er- rors of the courts, it was supposed that the only mode of restoring the good old common law was by legislative interference. The evils alluded to happen in this wise : A defendant in an action of slander joins with the plea of not guilty a notice of justification setting forth certain facts and circumstances which he intends to offer in evidence on the trial of the cause in bar of a recovery. The facts and circumutances thus stated may be fit and proper to be given in evidence under the general issue, and if not rebutted by proof of express or actual malice, may authorize a verdict for the defendant ; but on their face enough is not presented to raise a bar to a recov- INTRODUCTION. 23 ery. Again : the defendant pleads that the publication alleged to be libellous is a letter written by him in answer to an inquiry as to the character of the plaintiff as a servant. This would be a good and perfect defence to the action if not rebutted by proof of malice ; but the matter thus set up is not the proper subject of a Bpecial plea, because, to render the plea a full answer to the declaration, it would be necessary to negative the existence of malice, which cannot be done ; for if done, such averment would render the plea demurable, as it would both deny that which the plaintiff would be bound to prove under the general issue, and would confess and avoid. Or the defendant sets forth in a notice of justification that the publication alleged to be libellous is a criticism upon a literary work, and that upon the trial of the cause he will produce in evi- dence the work criticised by him, and insist that the severity of re- mark complained of as libellous is fully warranted by the nature of the work reviewed, or the principles advocated by the author. The facts thus stated, if proved under the plea of the general i might constitute a good and perfect bar to a recovery, provided the defendant had not exceeded the bounds of fair criticism, and had not been actuated by malicious motives ; but they would not in themselves present a bar to a recovery. When a defendant who has interposed such plea or notice offers at the trial to verify the same by proof, he is met by the objection that the facts offered to be proved, do not constitute a justification ; and the judge sustains the objection, and rightly too. The defendant then offers to prove the truth of the facts in mitigation of damages, and the judge re- fuses to receive the evidence either on the ground that the defend- ant having pleaded a justification and failed to verify his plea, is not entitled to give evidence in mitigation ; or that the facts tend to establish the truth of the charge, and therefore cannot be given in evidence under the general issue. Thus the evidence being reject- ed both in justification and in mitigation the defendant is" cast a victim bound hand and foot on the altar of justice, and the jury hood-winked and in total ignorance of the occasion and circumstan- ces of the speaking of the words or publishing of the libel, are re- 24 INTRODUCTION. quired to pronounce a verdict, at the same time being instructed that the only questions for them to pass upon are : 1. "Whether the defendant is the author or publisher of the slander, and 2. The amount of damages to be awarded to the plaintiff. That these are not imaginary cases, will be seen by reference to the adjudications of the courts. Turritt v. Dolloway, 17 Wendell 42G, was an action for a libel. The publication stated that the plaintiff, then a candidate for the office of member of Congress, did about 1st March, 1830, put his official signature as first judge of the county of Oswego, to a paper purporting to be an affidavit, certifying under his hand that the person who signed it was duly sworn, when in truth he was not sworn. It further represented that such paper was intended and used for the purpose of prevent- ing the re-appointment of the then collector of the customs for the port of Oswego ; that the plaintiff had made himself, secretly as he supposed, busy in concerting measures to produce that result, and concluded with an appeal to the public in these words, " We leave the .public to judge under the circumstances, whether Judge Tur- rill has not committed a gross violation of his oath of office, for the purpose of ruining a man whom he has long endeavored to injure, although he belongs to the same political party with himself?" The defendant pleaded the general issue, and accompanied the plea with a notice, that on the trial of the cause, he would prove that the plaintiff did affix his official signature as first judge of the county courts of Oswego, to a statement in writing purporting to be an affidavit, made by one Matthew McNair, certifying that McNair had been duly sworn to the truth of the facts set forth in the state- ment, when in fact he had not been sworn ; that the statement was intended and used for the purpose of preventing the re-appoint- ment of John Grant, jun., then collector of the customs of the port of Oswego ; that the plaintiff at the time of so affixing his signa- ture, and before and since made himself secretly busy in concerting measures to prevent the re-appointment of Grant, and had for a long time endeavored to injure Grant, although he belonged to the same political party with himself. That the plaintiff at the INTRODUCTION. time, lous ; there is in it no accusation of crime : and in connection with the facts upon which it is based, there is nothing which can have the slightest tendency to expose the plaintiff to hatred, contempt and ignominy, the gravamen alleged in the declaration ; but admitting it to be libellous, the evidence should have been received to enable the jury to pass upon the question raised by the plaintiff's counsel, viz : whether the paragraph constituted a distinct and substantive charge, or was a mere inference from, or commentary upon the facts before stated. If they found it to be an inference or com- mentary, then to decide whether it was a fair inference or com- mentary ; and if they found it to be a distinct and substantive charge, or that the inference was unfair, then to give such consideration to the testimony in the assessment of damages, as it was entitled to. Instead, however, of receiving the evidence, and thus submitting the case to the jury, the judge himself decided that the paragraph con- tained a distinct and substantive charge of inhumanity ; that the facts offered to be proved fell short of establishing a justification ; that he would not permit the defendant's counsel to address the jury on the question, whether the paragraph amounted to a substantive charge, or a mere inference from preceding facts ; and finally told the jury that it had been decided by the court that the action was sustained, that the libel ivas not justified, and that the only question for them to pass upon was the amount of damages. It is worthy of remark that the principle insisted upon here as applicable to actions of slander of this character, brought for the publication of matter which may or may not be libellous, according to the finding of a jury upon a previous question of fact, presented itself in a shadowy form on the trial of this cause to the mental vision of the learned judge, but not with its consequences so fully developed as to induce him to adopt it as the rule to govern the case. The ruling of the judge in reference to the evidence offered to prove the second branch of the notice of justification, also requires some notice. " Home as Found," a book written and published by the plaintiff, was offered in evidence to prove that the plaintiff had written a great many foolish things ; had shown bad temper and '36 INTRODUCTION. worse taste ; had made himself ridiculous by setting up as the arbi- ter of the conventionalities of social life, and had defied and de- cried the whole newspaper press. The book was rejected by the judge on the ground that the notice was insufficient, in not specify- ing the particular portions of the work relied on to justify the sev- eral and distinct charges made in the publication, and that a gen- eral reference, to a book of five hundred pages was not enough. Here, again, it will be observed that the defence attempted to be established was viewed by the judge as matter of justification ; and because the notice of justification was not sufficiently definite, or in other words, had not that precision and certainty required in a plea or notice of justification, the evidence offered was rejected. Here, also, had the judge held that the defence set up was not the subject of a plea of justification, he would have decided correctly ; but in- stead of doing so, he held as he had done in relation to the first branch of the notice, that it was the proper subject of a plea of justification,' but that enough had not been averred to make out a case of justification. Had the specifications of the portions of the work relied upon as authorizing the charges made against the plain- tiff, been ever so precise and certain, the judge would still have been right in holding that the notice did not on its face raise a bar to a recovery, as it would not show a case of justification ; but he erred in refusing to admit the testimony, as the defendants had the right to insist that the publication alleged to be libellous was a fair criticism upon " Home as Found," and that the question whether it was so or not, should be submitted to a jury. It sometimes happens that a publication alleged to be a criticism upon a literary production, is in fact a personal and defamatory at- tack upon the author as a maw, and not upon the author as connect- ed with the work assumed to be criticised ; in such case, the critic loses the protection which he would otherwise enjoy ; but whether he has abused the privilege of a critic is a question of fact to be determined by a jury, and not a question of law to be decided by the court. Where a defendant, regardless of the rule which Sir Edward Coke, in his reports termed ' an excellent point of learn- INTRODUCTION. 37 ing in actions of slander,' " not to demur although your opinion is that the plaintiff has no cause of action, but first take advantage of matters of fact, and leave matters of law which always arise upon the matters of fact, ad uUimnm" interposes a demurrer in an ac- tion of slander, as was done in the case of Cooper v. Stone, 24 Wendell, 434 ; the court may legitimately Bay whether the matter alleged to be libellous is or is not the subject of an action ; but when the party puts himself upon the country, even that case ad- mits that the question whether a publication be or be not a fair crit- icism can be settled only by a jury.* In the case of Cooper v. Weed and others, the defendants had put themselves upon the coun- try. The evidence, therefore, should have been received, and the defendants permitted to read to the jury such portions of the book as in their judgment authorized the publication complained of as libellous. As the question to be submitted to the jury upon this part of the case, was as to the fairness of the criticism, how could they pass upon it, unless the subject of the alleged criticism was submitted to them ? and in case they should find that the criticism was unfair how could they understandingly assess the damages, without seeing the work which had been criticised ? for, though * The case of Cooper v. Stone, was correctly decided, but it is repectfully suggested, not for the true reason. The learned judge who delivered the judgment of the court, assumes that the demurrer admits that the defendant under the pretext of criticism, had calumniated the plaintiff. " The difficulty," says the judge, "of sustaining this demurrer, lies in its admitting that the plaintiff's moral character had been falsely and malicious- ly assailed." The defendant, and no doubt the learned pleader who interposed the de- murrer, must have been greatly surprised by this annunciation, for it is not to be pre- sumed that such an admission was the object of the demurrer ; and, yet, as before ub- served, the demurrer was properly over-ruled. It was manifest from the paper book9, that the plaintift meant to insist that under the pretext of criticism the defendants had maliciously slandered him, and he had an undoubted right to bring his action and submit the question to a jury, whether the publication was a. fair criticism, or a libel under the pretext of a criticism. The publication contained matter which might or might not be libellous, according as a jury should find upon the question whether the publication was or was not a/air criticism; and that was a question of fact to be determined by a jury, and upon which the court had no right to pass — indeed, could not understandingly pass, without an examination of the work alleged to have been criticised: in doing which they would depart from their appropriate duties as a court, and invade the province of the jury. As, therefore, enough appeared to entitle the plaintiff to claim that his case should be submitted to a jury, the only proper course was to over-rule the demurrer and send the parties down to trial at the circuit. E* 38 INTRODUCTION. they might find for the plaintiff, they might consider the extenua- ting circumstances such as to require but a nominal verdict. If the defendant fail in establishing a justification, or in shewing that he is protected from legal liability by the occasion and circum- stances under which the words were spoken or libel published, he may then adduce such evidence as may be in his power in mitiga- tion of damages. The rule on this subject, as laid down in Knobell v. Fuller, infra vol. II, p. 96, note p. and Peakc's Ev. (by Norris,) App. xxxii, is : that in an action of slander, a defendant may, in mitigation of damages, give any evidence short of such as would be a complete defence to the action if specially pleaded. It is true, that both in England and here, objections have been made to this rule. It has been said, that to allow evidence of particular facts to be adduced tending to show that the plaintiff was really guilty of the charge imputed to him, would be to overturn the rule laid down in Underwood v. Parkes, 2 Str. 1200, viz : that the truth of the imputation should not be given in evidence under the general issue even in mitigation of damages : and it has been asked if the rule of Knobell v. Fuller was adopted, how would it be possible to draw the line, and to restrain the evidence of facts tending to throw suspicion on the plaintiff within such limits that it should not pro- duce actual conviction on the minds of the jury; and it has also been said that the practice would be attended with all the hardship and inconvenience which would result from admitting a complete justification under the general issue, for the plaintiff would be equally liable to surprise, and as little able to meet the charge in the one case as the other. So much of the rule of Knobell v. Fuller, as permits the giving in evidence of facts tending to throw suspicion upon the plaintiff ; (and such probably is its sound construction, for it is the practice of the courts of England to receive such evidence,) it is conceded is indefensible ; (See note [1], vol. II. p. 96, infra) ; but in respect to the remainder of the rule, it is submitted there is no force in the objection. The objection assumes that no facts can be proved in mitigation of damages but those of which the plain- tiff has been apprised previous to the trial of the cause, whereas in INTRODUCTION. 39 the action of slander it is not necessary (as has been before shewn) to plead special!// the matter relied upon in defence, except when the defendant intends to insist upon a justification or the statute of limitations ; and consequently any evidence which goes to Bh that in equity and good conscience the plaintiff Is not entitled to re- cover is admissible under the general issue. Formerly the truth of the words was given in evidence under the general issae in mill Hon of damages, but the resolution of the judges in Underwood v. Partes, put an end to that practice, and now the truth of the words cannot lie given in evidence unless the facts relied upon arc specially pleaded in justification, and the matter set up in the plea of course must present a bar to the action, or the plea will be ad- judged ill. Besides : the point of the objection to the rule of Knobel! v. Ful- ler is, that if the evidence permitted by it be received, the rule of Underwood v. Parkes, will be overturned. The latter rule excludes only facts tending to show the truth of the charge imputed, and has no applicability to facts offered in mitigation, when all idea of justi- fication is abandoned. The defendant therefore may in mitigation of damages adduce any evidence short of what would be a complete defence to the action if specially pleaded, for the purpose of enlight- ening the jury, and enabling them understanding^ to pronounce upon the quo animo the publication was made, and to fix the amount of damages which the plaintiff ought to recover. Here again, a lion has been found in the way. It has been said that if a defendant in an action of slander interpose a plea of justification and fail in its proof, that he shall not be allowed to give any evidence in mitiga- tion, other than as to the bad character of the plaintiff; that the penalty of failing to prove a plea of justification, is to deprive the defendant of the right of adducing such evidence in mitigation of damages under the general issue, as would have been admissible under that plea, hadnota plea of justification accompanied it.- This is denied to be law. " Nihil quod est contra rationcm est lieitum" says Sir Edward Coke, " for reason,'* he adds, " is the life of the law ; nay the common law itself is nothing else but reason." The 40 INTRODUCTION. defendant is expressly authorized by statute, to join the plea of the general issue with a special plea of justification ; and it cannot be that the failure to prove one plea deprives him of the benefit of the other. It has also been said that the placing upon the record a plea of justification which the defendant fails to prove, shall, as evi- dence of malice, enhance the damages. Without stopping to con- trovert the soundness of this last proposition, which it is supposed might readily be done, and conceding it to be evidence of malice, it is sufficient to observe that nothing more can be claimed for it than the effect to which it is entitled as evidence in aggravation ; and if so, no principle is better settled than that evidence in aggra- vation may be met by evidence in mitigation* There is no rule of law which forbids a defendant in an action of slander, who has pleaded a justification and failed to prove it, from turning round and offering in mitigation of damages evidence which neither proves the truth of the charge imputed to the plaintiff, or has a tendency to do so ; there are dicta requiring such evidence, under such circumstances, to be rejected, but there is only one de- cision, and that in a nisi prius case, which has been over-ruled by two other nisi prius cases, and is at war with the first principles of the law of slander and the rules of pleading. (See infra vol. II. p. 97, note [2].) Every principle of justice requires the admission of such evidence. Suppose a defendant undertakes to justify a charge of robbery, and it turns out in evidence that the plaintiff attempted to commit a robbery but was interrupted in its execution, so that, technically, a robbery was not committed — can it be doubted but that evidence of the attempt to rob would be admissible in mitiga- * In 1818 it was held by the supreme court of Massachusetts in the case of Jackson v. Stetson and wife, 15 Mass. R. 48, that a plea of justification accompanying the gene- ral issue, was proof of the speaking of the words; and it was further held that such plea of justification if the defendant failed to establish it by proof, was evidence of malice. The first proposition was reiterated by the same court in 1822, in the case of Alderman v. French, 1 Pick. 1. The rules thus laid down being considered a departure from the common law, the legislature of that state in 182G, passed an act declaring that a plea of juitification should not be taken as evidence of the speaking of the words, npr should such plea, if the defendant failed to establish it, be of itself proof of malice ; but that the jury should decide upon the whole case whether the special plea was or was not put in with a malicious intent. See 6 Pick. 299. INTRODUCTION. 41 tion, notwithstanding the failure to justify. Again : Suppose (he plaintiff charged with having stolen the horse of A. on a certain day and at a designated place, and the defendant Bhonld plead or give notice that he would prove the truth of the charge ; and it should be proved that the plaintiff on the day and at the plac fied did steal a cow, (but not a horse.) the property of A. Bere, also, the defendant would fail in verifying his plea, and a verdict ■would be rendered against him ; for it is a settled rule of law appli- cable to this action, that he would justify a charge of felony, must justify as to the specific charge laid, and cannot set up a even of the same crime, if distinct as to the subject matter ; but can there be a doubt that the evidence of the felony perpetrated is admissible in mitigation of damages ? Unless it was received, the defendant might be saddled with a heavy verdict ; and if admitted, no jury could be found who would give a verdict for more than a nominal sum.* The only objection to the evidence that can be imagined in the cases supposed, is that it might lead to surprise ; which would be unanswerable were the matters offered in evidence such, that it could be pleaded in bar, for then it could not be given in evidence in mitigation of damages, under the general issue. The evidence of- fered in the cases supposed, could not be pleaded in bar, and yet the ends of justice would imperatively demand that the defendant should have the benefit of it on the trial of the cause, so that the jury might be properly guided in fixing the amount of the recovery. In reference to evidence in mitigation, the objection of surprise docs not lie, and accordingly in actions for criminal conversation, and for seduction, particular acts of vice and immorality on the part of either the plaintiff or his wife in the first action, or of the party seduced in the second, arc received without objection under the plea of not guilty. Evidence of the bad character of the plaintiff is admissible in mitigation of damages, bceausc a man of blemished reputation is not entitled to that measure of damages which would * The case of Andrews v. Vanduzer, 11 Johns, il. ;;s., is a Btrikiog instance of the effect of refusing evidence in mitigation, after the failure of the defendant to verify a plea of justification. 42 INTRODUCTION. be awarded to a party whose character is untarnished. This it is supposed settles the principle of evidence in mitigation. Whatever will have a legitimate tendency to reduce the damages is admissible in evidence in mitigation. It has, however, been said that evidence only of general character, and not of particular facts, affecting the character of the plaintiff, is admissible ; the reason assigned being, that though a plaintiff may be presumed ready at all times to sus- tain his character by proof, the same presumption cannot be made as to every act of his life. This reason would exclude all evidence of particular facts, the object of which is the reduction of damages, and is manifestly unsound as it comes in conflict with the general rule in relation to the admission of evidence in mitigation, viz : that a defendant may give any evidence for that purpose short of what would be a complete defence, if specially pleaded. It belongs to the rule of evidence impeaching the character of a witness for truth, but has no applicablity to evidence impeaching the character of a plaintiff. The author of the following treatise holds the doctrine, notwith- standing the provisions of the act of 32 Geo. III. c. 60, that on the trial of an issue upon an indictment for a libel, the question whether the matter published amounts to a libel, still belongs to the court, and not to the jury ; in other words, that it is a mere question of law. Differing with him in the construction of that statute, and inasmuch as the act of the legislature of the state of New York, of 1805, concerning- libels, was passed in conformity with the princi- ples of the act of 32 Geo. III. ch. 60, upon the occasion of the as- sertion here, of the principles which had been advanced in England, and led to the passage of the English act, it is ventured to make a few remarks expressing such dissent, as would be the source of the deepest mortification to the editor, to give cause of suspicion, by his silence, that he acquiesced in the views of the author on this subject. The act of 32 Geo. III. ch. 60, was passed in 1792, in conse- quence of doctrines held by the Court of King's Bench on the sub- ject of the law of libel, which were deemed by the Parliament of England an innovation upon the law of the land ; oppressive and INTRODUCTION. 43 unjust to individuals ; and destructive of the liberty of the press. The judges, in criminal trials fur libel, when there were no facts or circumstances proving justification or excuse in point of law, direct, ed the jury to find the defendant guilty, if they were satisfied as to the fact of publication, and the truth of the innuendos, without pass- ing upon the question of whether the publication was or was not a libel, but leaving it to be determined by the court as a question of law. The act of 32 Geo. III. was accordingly passed, whereby it was declared and enacted, that a jury might give a general verdict of guilty or not guilty upon the whole matter put in issue, upon the trial of an indictment or information, and should not be required or directed by the court or judges before whom the trial was had, to find the defendant guilty merely on the proof of the publication by the defendant of the paper charged to be a libel and of the sense ascribed to it in the indictment or information. The doctrine of the King's Bench intended to be corrected by this act, was asserted and applied in the State of New York on the trial of the indictment in the case of The People v. Croswell in July, 1803, for an alleged libel upon Thomas Jbpberson; and the Supreme Court being equally divided in opinion upon the question, (the court temporarily being composed of but four judges,) an act was passed in 1805, substan- tially like that of 32 Geo. III. ch. 60, but broader in its terms ; as it not only, like that act, declares the right of the jury to find a general verdict, and forbids a direction to convict the defendant merely on the proof of the publication of the matter charged to be libellous and of the sense ascribed to it in the indictment, but de- clares ami enacts that on the trial of ever}' indictment for a libel, the jury who shall try the same, shall hare a right to determine the law and the fact, under the direction of the court, in like manner as in other criminal cases. Mr. Starkie insists that the principal object of the act of 32 Geo. III., was to remove the anomalies and peculiarities by which trials for libels were distinguished from those for other offences, and that the legislature meant to leave the ques- tion whether the matter published amounted to a libel, as before, a question of law ; and it is undeniable that he is supported in this U INTRODUCTION. construction of the statute by the opinion of the Court of King's Bench, in the prosecution for a libel of Sir Francis Burdett : the judge presiding at the trial of that case having charged the jury that they must take, the law from him as to whether the publication ivas or ivas not a libel — in which he was sustained by the whole court, who held that such was the correct mode of leaving the ques- tion to the jury under the act of 32 Geo. III. This decision was made in 1830. In 1840, however, in the case of Bailis v. Lawrence, 11 Adolph. and Ellis 920, that act received a construction more in consonance with the intention of the law-makers, as expressed upon its face, and as evidenced by the history of its enactment. In Bailis v. Lawrence, it was held by Lord Denman, C. J., and his opinion was concurred in by the other judges, that the object of the act of 32 George III. was to declare the law of libel in criminal cases to be the same as it ivas in civil cases ; that the act was applicable only to criminal cases, but it was a declaratory act, and the impor- tance of declaring the law existed only in the case of criminal libels. In civil cases a jury never were required to find a verdict against the defendant in an action for a libel, upon the mere proof the publica- tion and of the truth of the innuendos ; and if the object of the act, as asserted in Bailis v. Lawrence, was to declare the law of libel in criminal cases to be the same as it was in civil cases, it neces- sarily follows that the view taken of the act in the case against Sir Francis Burdett, viz : that the legislature meant to leave the ques- tion whether the matter published amounted to a libel as before, a question of law, must be erroneous. If the King's Bench, in Bailis v. Lawrence, were right in the construction put upon the act of 32 George III., there can be no doubt that in the state of New York, no court or judge, under the act of 1805, has the power to require or direct a jury to fin«l a defendant on a prosecution for a libel, guilty, merely on the proof of the publication by the defendant of the paper charged to be a libel, and of the sense ascribed to it in the indictment ; or to instruct them that they must lake the law from the court or judge, as to whether the publication is or is not a libel ; INTRODUCTION. 45 for here, by an express enactment of the statute, it is declared, that the jury shall have the right to determine the law and the fact. It is, however, of less consequence to enquire what is the law in reference to criminal cases for libels, than to ascertain what it is in respect to civil cases. State Prosecutions for libels, hitherto have been rare in this country, and from the nature of our political institutions necessarily will be so for the future. The citizens of a country boasting to be free, will not and should not endure to have the liberty of speech and of the press restrained or controlled by public prosecutions. Error of opinion, said Jefferson, may be safely tolerated where reason is left free to combat it ; and when public opinion shall become so corrupt or besotted as not to be in- fluenced by reason, the reform to be obtained by the lash of the law [will be of small avail. Public prosecutions for individual wrongs may occasionally occur, but they also must be rare, or the public voice will be heard denouncing the prosecutor who attempts to enforce the penalty of fine and imprisonment for personal defa- mation, when complete satisfaction in damages may be obtained in a civil action. The statutes concerning libels in England and here, and the decisions under the former, have been adverted to, more for the purpose of deducing principles bearing upon civil cases or private actions, than to show what is the law in criminal cases. In Baylis v. Lawrence, besides what has already been cited as said by the judges, it was held that under the act of 32 Geo. III., the presiding judge is not bound to state his opinion to the jury whether the publication is or is not libellous ; and Lord Denman, C. J. ob- served that he had always followed the practice adopted in that case by the presiding judge, of leaving it to the jury to say, whether under all the circumstances the publication amounts to a libel. This was not new doctrine. Long previous to this case, Lord C. J. Abbott, in Fairman v. Ives, 5 Barn. Sc Aid. f>42, submitted to the jury the facts and circumstances attending a publication alleged to be libellous, and left it to them to say whether it was libellous or not, and the jury having found; for the defendant, the court re- fused to grant a new trial. Fairman v. Ives was tried in 1822, F 46 INTRODUCTION. and the same course has since been pursued in a great variety of cases, cited in Ch. XII. of the first volume of the body of this work. (See infra vol. ii. p. 356, note [1], and p. 358, note [1]. See also same vol. p. 252, note [1], and p. 258, note [1.]) Albany, My 12, 1843. Note. — It is only necessary to add, as a key to the notes, that the single letters (a) , (6), &c, designate the notes of the author ; the double letters [a a], &c., notes found in the Appendix to the second volume of the London edition, and transferred to the body of the work for the greater convenience of the reader ; and the figures [1] , [2], &c, designate the notes of the editor. PRELIMINARY DISCOURSE. Ought the faculty of communication by speech or writing (a) to be restrained by the municipal law ? If so, then within what limits ? The former question may readily be answered in the affirmative ; to answer the latter is to solve a problem of difficulty, but of most essential importance to the interests of society ; it is to discover and establish such legal limits to intellectual intercourse, as shall secure to the community the greatest quantity of good. Where it is possible, consistently with natural justice, that is, with the principles of general expediency, wholly to permit, or wholly to prohibit, the work of legislation is easy ; it is arduous and difficult in those cases only where either unlimited license on the one hand, or total restraint on the other would be inexpedient, and, conse- quently, where it becomes necessary *to establish interme- [ * ii ] diate legal boundaries, by means of apt and definite limits. Legislation, on the present subject, is peculiarly liable to difficul- ties of this nature ; it is usually impracticable, or at least impolitic, cither wholly to sanction or wholly to forbid any particular class of communications on any matters whatsoever, and, consequently, the question arises, how shall the restraining law be framed, so as, with- out wholly excluding either of two or more conflicting mischiefs, to reduce the aggregate of evil to its minimum. To place a bridle on men's tongues, so that they be restrained from calumny, without lay- ing irksome fetters on the ordinary communications of society, and to curb the licentiousness, without, at the same time, cramping the salutary freedom of the press, is one of the most arduous, but, at the same time, valuable achievements of legislative wisdom. Little need be observed as to the importance of laws by which («) In order to avo'ul repetition in the following pages, unless the context render :i narrower meaning necessary, the term writing is to be understood to include all kind.'* of communications, by printing and painting, or any other signs or symbols as well as writing. Vol. I. 1 ii PRELIMINARY DISCOURSE. every man's conduct is to be regulated, not only whenever he writes, but even whenever he speaks, or as to the necessity for legislative caution, where the mischief and inconvenience which would result from even a slight defect, are liable to indefinite multiplication by the constant application of the law. It were lost time to dwell on minute errors, when considerations of a far higher and more urgent character demand attention. The faculty of speech, one of the first and noblest gifts of the Creator, designed, no doubt, for the expression of gratitude to the Donor, of truth and good-will towards men, may be abused, for the purposes of blasphemy, fraud, and malice. [ *iii ] *Those admirable means which have been devised by hu- man ingenuity (b~) for giving permanency and ubiquity to thought, for providing durable receptacles to knowledge in which, like a valuable treasure, it may be preserved, accumulated, and transmitted to distant regions and to all ages ; by the aid of which, the wise and the learned, though locally distant, may unite in the service of science, and availing themselves of the labors of past gen- erations, accomplish magnificent triumphs in the cause of reason and of truth, to which individual talent and exertion might have ever proved unequal, those honored and splendid means to which man- kind must trust, for the safe preservation of all that is sacred and valuable in their religion, their history, their laws, for the security of their liberty and their possessions, to which they are indebted for ev- ery intellectual and refined enjoyment, in short, for all the blessings of civilized life ; those, no doubt, may be fatally abused in further- ance of insiduous practices against the peace and welfare, or even the very -existence of civil society. They may be pervert- [ *iv ] ed into the means of destroying men's religious faith, *of extinguishing their sense of moral obligation, of ministering to every evil passion, of fostering every base and vicious propensi- ty, and of actually accomplishing every crime. (6) Some learned men have labored to prove that letters are not of human inven- tion, but divine revelation. Surely, it is more consistent with the bounty of Provi- dence to suppose that faculties were originally given adequate to the discovery , than that a special interposition should be necessary for the purpose. Universal experi- ence manifests the intention that all discoveiies and improvements in science and in art should be worked out slowly and gradually, by means of the ordinary faculties originally bestowed upon our race. It is not difficult, in the absence of any satisfactory tradition on this subject, to form probable conjectures as to the process of improvement, which has led from the depict- ing of rude resemblances, to such remote and admirable results. PRELIMINARY DISCOURSE. iv Such being the unworthy purposes to which the arts of writing and of printing have been so frequently misapplied, it is manifestly of the most essential importance that Buch practices should lie re- strained by force of the municipal law. The reasons for restraint are rendered still more cogent, whenever two circumstances concur : the general diffusion of knowledge, by an extended system of education, and great facility of communication, by the agency of the public press. The former of these causes tends greatly to increase the number, as well of those who are capable ofoffendingin this respect, as of those who are placed within the sphere of their influence and danger of contamination : whilst the latter multiplies, to a tre dous extent, the facility of working evil by unprincipled and immor- al publications. So long as man's power of effecting mischief is limited to his own immediate and personal efforts, however violent and noxious they may be, against the persons or property of others, the evil which he works must be of a local and limited nature ; but when it is extend- ed by exerting a pernicious and wicked influence over the under- standings of mankind, through the medium of the press, its power is bounded neither by time nor place ; any one vicious and unprin- cipled mind may, as it were, be brought into contact with, and is enabled to exercise its influence over those of millions : thus even a single individual, *as if invested with a kind, of mis- 'v ] chievous ubiquity, is enabled to disseminate blasphemy, se- dition, and immorality to the remotest borders of the realm, and the very mass of society may thus be exposed to the danger of con- tamination and corruption. The main object of the following Treatise is to trace the munici- pal provisions of the law of England on this important subject : but it may not be without use, certainly not without interest, to devote some brief previous attention to the general principles on which such restraints may be constructed, and to enquire whether there be any. as it were, natural boundaries to be discerned by which such com- munications ought, with a view to the convenience and happiness of society, to be limited. One rule may prevail at Athens and another at Rome ; partial variations are attributable to the genius and tem- per of the people (c:), to the political constitution under which they (c) Soton being asked if the laws he had given to the Athenians, were the best, re- plied, " I have given them the best they were able to bear." Montesq. 1. 1'.'. e. 21. Divorce was permitted by the Mosaic law among the Jews by reason of the hardness of their hearts. v PRELIMINARY DISCOURSE. live, to their peculiar manners and habits, yet must the great dis- tinctions pointed out by reason and natural justice be common to all countries and all ages (d). Such then is the object of preliminary inquiry ; an occupation, it must be confessed, more grateful to a lawyer than the tedi- [ *vi ] ous detail of a mass of Complicated and oftentimes conflict- ing decisions, in much the same proportion as a casual visit to foreign countries, to contemplate at leisure their principles and forms of justice, would be more agreeable than the ordinary routine of an English circuit. The first question, that is, whether such communications ought to be regulated and restrained by any municipal laws, may then, it seems, without the least hesitation, be answered in the affirmative. The experience of all nations from times of the remotest anti- quity, shews the necessity for such laws ; their rudiments are to be found in all stages of civilization, however imperfect, remote and proximate to barbarism, (e) Though little is known of the laws of (d ) Est quidem vera lex recta ratio, naturae congruens, diffusa in omnes constans sempiterna, — Nee erit, alia lex Romse, alia Athenis, alia nunc, alia posthac, sed om- nes gentes & omni tempore, una lex & sempiterna & immutabilis continebit ; unus- qtie erit communis quasi magister & inspector omnium deus. — Cic De Rep. ib. 3. Apud. Lact. lib. 6, c. 8. (e) So far as it is allowable to speculate on the growth of legislation according to the increasing exigencies of mankind, it is probable that even among the most savage tribes, to impute the want of skill or bravery would be a reproach exciting resent- ment and violence; the increase of such attacks and reprisals, attended as it would be by the double inconvenience of dissension amongst those who were united for some common object, and weakening that force which was destined for other purposes, whether of aggression or defence, would first suggest the policy of restraining such insults, and substituting legal redress for personal retaliation of affronts. Such laws, however, would be but of slow growth and little regarded among any people whose principal business was that of arms, and whose policy it wa9 to cherish a high and daring spirit, whilst a warrior, whose courage or honor was re- flected on, would but reluctantly delegate the duty of retribution to any hands but his own, conscious that his best proof that the imputation was undeserved, would be afforded by his mode of avenging such an affront. In a more peaceful and settled state of society, when men had began to pay def- ference to civil authority, although the protection of their persons and property from violence might be the earliest objects of legislative provision, yet would it very soon become necessary to make provisions against judicial perjury ; and as such an offence, odious as it must always be, would, whilst the administration of justice was rude and imperfect, be highly dangerous, so is it probable that the penalties would be proportionally severe. By the ancient Roman law of the Twelve Tables on this subject, it appears that a corrupt and malicious witness expiated his offence by being thrown headlong from the Tarpeian rock, in other respects, it is presum- able, that the laws against defamation would, in all early stages of civilization, be few and simple. Their main object would be the preservation of the public peace PRELIMINARY DISCOURSE. vii ancient Egypt, — the venerable territory at •onoe of science [ "vii ] and of superstition, yet is it matter of moral certainty that they were not destitute of such restraints. by the infliction of penalties in respect of oral defamation ; libels would be out of the question when few could read, and fewer still could write. Hence it is that many of the earliest laws which history has transmitted to us, are of a penal rather than remedial nature ; that they prescribe specific penalties or fines, rather than damages proportioned to the real circ : . and, as is usual with early legislat- ors, thit their enactments are not general, but frequently limited and confined to particular imputations, which were considered as likely to produce violence and outrage. By tbfl Athenian laws, specified penalties, which varied from a fine of two drachmas to 500, were imposed, in respect of different degrees of defamation, some of which were specifically and expressly prohibited. Thus the fine or Sr/.tj xicy^yooKi;, for asserting that a soldier had thrown away his shield, amounted to 500 drachmas. See below, By the law of the Twelve Tables, a specific fine was imposed on many offences, probably including that of datamation, when it fell within the description of the injuria leviores, though the punishment of fustigation at least was;imposed on more atrocious calumniators. (See the observations on this subject, p. xxxv.) And it is observable, that though, in later times, the Romans substituted an assessment of damages, estimatio injuria, ap- portioned to the extent of the injury, for an arbitrary fine, yet that no distinction was ever made by the Roman law, in the description and essence of the offence, between crim- inal and civil liability; whenever the offender was liable in damages to the individual calumniated, he was also subject to penal censures. To the latest period of the empire, civil, as well as criminal liability, depended princpally, if not entirely, on the ancien- and primitive notion, that personal contumely and insult was of the essence of the of- fence, and upon this principle it is that the peculiarities of the Roman law, in respect of libel chiefly depend. This, it will be seen, is a circumstance which constitutes a very essential and char- acteristic distinction between the law of England and that of Rome, and of those coun- tries which have adopted the civil law: for the law of England regards criminal and civil liability, in respect of calumnious communications as standing upon an entirely distinct foundation; and in the next place, has from very distant times, considered the tem- poral injury to a man's estate, and not the contumely or insult of the agent, as the ground of compelling reparation in damages. According to an ancient law of the Burgundians, "Si quis alterum concagatum clamat verit 120 denariis mnlotetur. Si quis vulpeculam alterum clamaverit vel leporem eo- dem modo mulcteur." These, as is observed by a learned writer, (Barrington on the Penal Statutes,) appear plainly to be the laws of a warlike nation, in which the calling another by a name which implied cunning or flight, rather thau courage or resistance, was thought a heinous infamy. To a much later and more mature stage of civilization must those laws be referred which consider defamation not merely as an insult to the feelings or dignity, which must be repressed for the sake of the public peace, but which regard reputation ns- a civil right, from its being intimately and inseparably connected with the acquisition an 1 -■•- cure enjoyment of every social right, dignity, or emolument, and so essential:, guard to every other temporal possession and enjoyment that to leave it unprotected would be to leave every man's property, liberty, and even life insecure, and the work of legislation but half completed. V vii PRELIMINARY DISCOURSE. [ *viii ] _ *The well known fact that this singular people erected a tribunal (/) for trying the conduct even of their kings after death and of decreeing or denying the honors of se- [ *ix ] pulture, according to the verdict, *is in itself sufficient to demonstrate not only that they fully understood and ap- preciated the value of reputation and character, but also that they duly estimated and encouraged the love of reputation as a great moving principle of human conduct ; and that they possessed sagacity sufficient to turn that knowledge practically to the public account, by using this moral power in the most forcible and advantageous manner. There is perhaps no other memorial extant of this extraordinary nation which so strongly characterizes their political genius as does this remark- able institution (g-), which, however, has served no other purpose among those who have copied largely from Egypt in other respects, than to supply the foundation of a well known branch of pagan my- thology, as immortal as the epic poem in which it is so beautifully depicted. The effect of this custom among the Egyptians must have been greatly heightened by its connection with their super- stition, in respect of the rights of sepulture, and the religious neces- sity of preserving the bodies of their dead in order to their subse- quent reanimation. It is impossible to suppose that, whilst even after death, conduct and reputation were the subject of anxious inquiry, direct and im- mediate provision was not also made by the laws of Egypt for securing and preserving the characters of the living. It is not, however, essential to the present purpose to examine in detail (/i), the provisions connected with the subject in the laws of Judae (f), Greece, or Rome, nations which probably de- (/) Diod. Sic. B. 1. (g) I find that M. Rollin (Histoire des Egyptiens, 73,) has characterized this custom as one of the most remarkable facts in ancient history, and he points out a very singular analogy in sacred history. The Israelites would not suffer those of their kings, who had lived wickedly, to be buried in the tombs of their ancestors. (h) For a very able and detailed historical account of the law of libel, see Mr. Holt's excellent work on the subject. Second edition, Book 1, ch. 1. (i) The early denunciations of the Mosaic law against defamation are few and simple; no specific punishment, except in an instance which will presently be alluded to, was ap- pointed against calumniators. There is, however, scarcely any offence which is more frequently alluded to in the psalms of David, or more strongly described in the ener- getic and figurative language of the east, than that of slander; whether it be for the purpose of characterizing the conduct of depraved and malicious men, of denouncing divine vengeance against them, or depicting the wretched and forlorn state of their un- happy victims; it may be further remarked that mention is seldom made of this species PRELIMINARY DISCOURSE. xu rived their earliest knowledge of jurisprudence from [ \\ii ] Egypt; some of their laws will afterwards require more particular attention ; fur the present, suffice it to observe that they of injury, without some expression which shows that slander was meant, in its strict sense, as implying a false and deceitful representation. Psalm 5. Thou shalt destroy them that seek leasing; the Lord will abhor both the bloodthirsty and deceitful man. 10. His mouth is full of cursing, deceit, and fraud; under his tongue, ungodliness and vanity. 14. There is none that doeth good, their throat is an open sepulchre, the poison of asps is under their lips, their mouth is full of cursing and bitterness, their feet are swift to shed blood. 31. Let the lying lips be put to silence which cruelly, disdainfully, and despitefully speak aeainst the righteous. 34. What man is he that lusteth to live and would fain see good days; keep thy tongue from evil and thy lips that they speak no guile. 35. False witnesses did rise up against me; they laid to my charge things that I knew not; the very abjects came against me unawares, making mouths at me and ceased not. They imagine deceitful words against those that are quiet in the land; they gaped on me with their mouths, and said, fie on thee! fie on thee! we saw it with our eyes. 38. My lovers and my neighbours did stand looking upon my trouble and my kins- man stood afar off : they also that sought after my life, laid snares for me. and they that went about to do me evil, talked of wickedness and imagined mischief all the day long. 52. Thy tongue imagineth wickedness and with lies thou cuttest like a sharp razor. Thou hast loved to speak all words which may do hurt; thou false tongue, therefore shall God destroy thee for ever. 58. The ungodly are froward even from their mother's womb; es soon as they are born they go astray and speak lies, they are venomous as the poison of a serpent. 59. Deliver me from mine enemies, God! behold they speak with their mouths and swords are in their lips. 69. They that sit in the gate speak against me, and the drunkards make songs upon me. See also Psalms 101, 102, 120, 140, &c. &c. The publication of false reports, affecting the character of others, is prohibited by the Mosaic law, (Exsd. sxiii. 1,) although no punishment is annexed to a violation of the law; whether that was left to the discretion of the judge, or no punishment whatever was inflicted, seems to be doubtful, Is'ce Michaclis's Cumin, on the Law of Moses, art. 221, s. 2. The same learned writer observes, "this last supposition (i. e. of impunity,) prevailed with respect to the greater number of extra-judicial offences during the in- fancy of nations, which approaches nearly of barbarism and lawlest wherein mere verbal attacks on reputation are not so highly estimated, nor yet even violent outrages so strictly interdicted as afterwards. But, on the contrary, a person thus injured is permitted to avenge himself on his traducer, provided he did net beat him to death, or render him a cripple. It* a wicked action, which a man related concerning his neighbor was true, he received no punishment whatever; for the ezceptio veritatit then operated in full force." Michaclis's Cumin, on the Laws of Moses, art. 2.'l,_s. 2, Smith's translation. There was one instance, and but one, where the law of Moses imposed a specific pun- ishment upon the publication of caluminous falsehood, and that was where a man falsely xi PRELIMINARY DISCOURSE. all contain enactments imposing prohibitions and restraint, in order to guard against the abuse of language, by converting the privilege of communication into the means of effecting private injury or pub- lic (A:) mischief. The evils which necessarily arise from a licentious abuse of the faculties of speaking and writing, would be of too obvious a nature to bear inquiry or comment, were the mere necessity for restraint the sole object of investigation ; but a far more difficult consider- ation remains behind, and, in order to judge of the mode and extent of the limits which ought to be imposed on such communications, it is essential, in the first place, to enquire, as to the nature and ex- tent of the evils which render such restraints necessary, or at least expedient. This consideration immediately leads to a very important and characteristic distinction between such evils as are occa- [ *xiii ] sioned by an abuse of these faculties, *first, to individuals in particular (Z), and secondly, to society in general. In law, as well as medicine, it is natural to suppose, a priori, that dif- ferent evils would require different remedies. The most serious and dangerous form in which an injury of this nature can affect an individual ', is, that of a false accusation of a crime ; especially where it is aided by false testimony, in a court of accused his wife of not having proved a virgin on the wedding night. Deut. xxii. 13, 19 The penalty, in respect to such a charge, which, where well founded, was expiated by the death of the criminal, was threefold; — 1st. corporal by stripes; 2ndly,by the payment of a pecuniary fine, viz. 100 shekels to the woman's father, which was the highest fine im- posed by the Mosaic law, and was no doubt given to the father in respect of the reproach which had been cast, not merely, on the woman herself, but her parents, brothers, and sisters, and the whole family; 3dly, by his forfeiture of the right of divorce. (k) The necessity for such regulations naturally occurs to the illiterate as well as the educated. The members of Benefit or Friendly Societies, in this country, who usually legislate for themselves, seldom complete their simple, artless code without introducing penal prohibitions, and oftentimes singular ones, against unmannerly and abusive lan- guage. {I) When the injury is principally to the individual, it is obvious that, on grounds of natural justice, compensation ought to be made to him; and where the awarding dam- ages to the individual injured is a sufficient restraint, it would be inconsistent with the first principles of civil liberty to inflict a further penalty by fine to the state, or the im- prisonment of the offender, simply for the reason, that such further restraint is unne- cessary; and therefore penal, as contra-distinguished from civil liability, ought not to attach, unless either where restraint is necessary, and no individual in particular is in- jured, as in the case of a blasphemous or immoral publication, or where, though an in_ dividual be injured, yet the public are also injured or placed in jeopardy, either by the means of annoyance used, — or because the private remedy is in itself an insufficient re- straint, in consequence of the difficulty of enforcing it. PRELIMINARY DISCOURSE. xiii justice, by which the property, liberty, or even life of the accui I is placed in direct and immediate jeopardy. The making a false charge, even where it does not end in a legal assassination, by the death of an innocent party, is s<> enormous a crime in Its conse- quences, and so odious and atrocious an abuse of the forms of jus- tice, as to render it probable that this Bpecies of defamation would attract notice and pnnishment in very early times ; and it is remark- able that the first denunicatron against slander, in the Mosaic law, seems to be coupled with a specific denunication (m) against 'judicial calumny, afterwards more emphatically [ "xiv ] repeated Id the Decalogue. Such practices, which tend immediately to the privation of pro- perty, liberty, or even life itself, are formidable in proportion to the probability that they will be successful; and, therefore, although they must at all times, and under all circumstances, be highly dangerous, yet it is obvious that they are the more particularly to be dreaded, whenever the means of judicial investigation arc still imperfect and inadequate to the attainment of truth (n), or in a subsequent stage of society, when, for purposes foreign to justice, false accusers are listened to and encouraged (o). [ *xv ] *A man may also be placed in a state of legal jeopardy by means of slander which affects him indirectly in a judicial proceeding. This may occur in all cases where the law admits evidence of a man's general good character (;/), for the pur- Cm) Thou shalt not raise a false report; put not thine hand with the wicked to be an unrighteous witness. Exod. c. xxiii. v. 1. See also Deut. xxvii. 25. — And though, by the law of England, judicial perjury is accounted but a misdemeanor, unless, indeed, it be used as the successful means of taking away the life of an innocent person, yet, by the laws of many nations, it has been punished capitally. By the law of the Twelve Tables a false witness was thrown from the Tarpeian rock, si/ahum testimonium dicassit saxo dejicitor, Gell. xx. Afterwards the punishment was arbitrary; 1. 10. D. de tcstilms.— Sent. v. 25, s. 2. Except in war, where a false witness was beaten to death with sticks by his fellow soldiers. Polyb. vi. 35. The Libellus Famosus, or false and anonymous charge of a capital crime, was, by many later laws, punished capitally. (n) It is the ordinary policy of a barbarous and illiterate people, to substitute arti- ficial and arbitrary proofs of innocence or guilt in the plai ' careful and rational in- vestigation. Hence the superstitious modes of trial by the Saxon ordeal and Norman combat, and the doctrine of compurgation, or law wager, which, even at this day, is permitted by the law of England. (o) Witness the legal assassinations which wei imong the Romans, when " ut qvis districtior accuuitor vclut sacrosaneiua cral." Ami also by means of the Libellus Famosus, or secret charge of a capital crime. So fatal had such accusati il - that the authors of them were justly made amenable to capital punishments by numer- ous provisions. (/>) As the law of England does. Formerly common fame that a man had been guilty xv PRELIMINARY DISCOURSE. pose of rebutting the presumption of guilt on a criminal charge ; for, by the propagation of calumnious reports, he may be unjustly deprived of the advantage which the evidence of good character would otherwise have afforded. The destruction of character, in such a case, would not only affect a party directly, by depriving him of that evidence which he might have used positively to his advan- tage, but negatively and indirectly also, by raising the inference, that he is a man of absolutely bad character. To this extent may an individual be injured by false charges, through the medium of judicial proceedings. In the next [ *xvi ] place, although the value of character, and *its intimate connection with every benefit and advantage which social life can confer be obvious, yet, in order to appreciate fully the ex- tent of the evil which may result from privation of character and the nature of the remedy which ought to be awarded in respect of such an injury, a few observations may not be wholly superfluous. A state of civil society is in effect one great system of mutual aid, trust, and confidence (#), by which mankind are bound together. Each individual, whatever be his rank, his talents, or his wealth, considered as a single and isolated being, is weak and helpless, each of an offence, was sufficient ground, by the law of England, for putting him on his trial, without any other preliminary inquiry. Among the Romans, witnessess to character were called laudatores, and if the accused could not produce at least ten of these, it was deemed better to produce none. — Quam illium quasi legitimum numerum consuetudinis non explere. — Cic. Verr. v. 22, and see Cic. pro Balb. 18. Cleunt. 69. la the rude and barbarous times of our Saxon ancestors, where compurgation was a species of trial, and when an accused party was deemed to be innocent without further inquiry, because a specified number of witnesses swore that they believed him to be so, character and reputation, if respect was really paid to such oaths, must have been of infinite impor- tance. (5) The first principle of civil association, the inutuum beneficiorum commercium, is described by Seneca, with such beauty and simplicity that little excuse is requisite for transcribing the passage; — Quo alio tuti sumus quam quod mutuis juvamur officiis ? hoc uno instructior vita contraque incursiones subitus munitior est beneficiorum commercio. Fac nos singulos quid sumus ? prseda animalium et victimiaj ac bellissimus et facillimus sanguis. Quo- niam coeteris animalibus in tutelam sui satis virium est; quoecunque vaga nascuntur & actura vitam segregem armata sunt. Hominem imbecillitas cingit, non unguium vis non dentium terribilem ceteris fecit, nudum et infirmum societas munit. Duas res de- dit quie ilium obnoxium cseteris validissimum facerent rationem est societatem. Itaque qui par esse nulli poterat si seduceretur rerum potitur. Societas illi dominium omnium animalium dedit; sociatas terris genitum in alieme naturae transmisit imperium & do- minari etiam in mare jussit. Hgeo morborum impetus arcuit, senectuti adminicula pro- spexit, solatia contra dolores dedit. Hreo fortes nos facit quod licet contra fortunam advocare. — Hanc societatem tolle et unitatem generis humani qua vita sustinetur scin- des. Senec. de benef. 1, 4, c. 18. PRELIMINARY DISCOURSE. xvi must depend on others, not only for the comforts, but even for the necessaries of life, for security of person and of property. He must trust to his lawyer for the preservation of his pro- perty when it is claimed by an 'adversary ; to his physi- [ "xvii ] cian in time of sickness ; to his servants for the faithful discharge of the ordinary though meaner duties of life. But the reposing of confidence implies the selection of agents competent to the discharge, us well of the higher and more important duties of a public nature, as of the ordinary and private duties of society. With the exception of those high public offices, which, <>n grounds of civil policy, are, by the constitution of the particular .-tali-, de- creed to be hereditary, the appointment must be matter of selection and choice vested in the government, or in the people, or in individ- uals specially delegated to the trust, and every member ol' society must be left to exercise his own diseretion in selecting those whom he may choose to trust in the varied connections of life. Now it is obvious, that it seldom can happen that the power of sel sction can be properly and discreetly exercised on the mere persona] know ledge of any single individual, founded on his own actual experience. It is constantly necessary to place reliance on the knowledge and in- formation of others, not only in those instances where choice is to be made of public functionaries, but even in those ordinary and daily instances, where every man reposes trust and confidence in Others, with a view to his own interests and private concerns. Whe- ther a house is to be built, or a surgical operation performed, a -nit to be commenced, or a farm to be purchased, it rarely happens that the party interested in selecting his architect, his surgeon, his soli- citor, or surveyor, does not place some reliance on information, which he derives from others, as to the skill or intcrgrity of the agent whom he elects to employ. *Again, every one who trusts another, usually posses- [ \wiii ] ses both the inclination and the means of forming some estimate of his abilities and principles; and though the opportuni- ties of each observer may lie limited, yet if all who know tin- party so trusted concur in forming the same general conclusion on the subject; if they all agree in stating that he is skilful, diligent, faith- ful, and honorable in his dealings ; that general coincidence hi opin- ion of many possessed of the means of judging, affords a reasonable degree of probability in favor of the correctness of their conclu- sion. Hence it is, that where a trust is to be reposed, and a selec- tion made, the party who is to exercise it may fairly rely, not only xviii PRELIMINARY DISCOURSE. on the particular and actual experience of other indivduals but also on general character derived from the united experience of others. Such, then, being the close and intimate connection between char- acter and temporal preferment or acquirements, two circumstances are to be noticed, for the purpose of showing how peculiarly suscepti- ble character and reputation are of injury, and how easily confi- dence in an individual is destroyed or intercepted by slight causes ; and, consequently, of inferring the general necessity, not only of protecting reputation by municipal provisions, but also of devising such as are adequate to the exigency of the occasion. In the first place, it is to be remarked, that good character is but presumptive evidence of good principles ; whilst on the other hand, the commission of a single dishonorable or unworthy action is de- monstrative of bad ones. Hence it is that the report of a [ *xix ] single act of delinquency, if credit be given to it, at once is fatal to the most exalted reputation. The character acquired by an exterior of probity exhibited to the world for half a century, necessarily yields at once to the proof that the party is at last guilty of a single act of dishonesty. In the next place, as far as reputation and confidence in charac- ter are concerned, slight suspicion is usually attended with the same evil consequences, with belief, founded on actual proof, and suspi- cion is thus equivalent to proof. For where even a slight suspicion, as to a man's conduct or principles, is once excited, he who would otherwise have reposed confidence, must either proceed to do so, notwithstanding the suspicion which prevails, or remove all doubt by inquiry and investigation, or withhold his confidence altogether. To trust blindly, and without inquiry, as to character,' would usu- ally be deemed rash and imprudent ; but to do so, after an actual though obscure warning, would be an act of folly and imprudent weakness, where a man's own interests were concerned, and of real injustice, where the interests of others were involved. To in- quire and investigate would usually be a work of labor, trouble, and difficulty, in which few care to engage ; and thus it would sel- dom happen that the party whose duty or interest it was to make the selection, would not adopt the third alternative, and withhold his confidence from one to whom a suspicion, however slight, attach- ed, to repose it in another whose character was untainted. If one, about to deposit a large sum of money in the hands of a banker, werj casually to hear that he had committed an act of bank- PRELIMINARY DISCOURSE. xx ruptcy, what course 'would be the natural c<>. *xx ] quence ? To trust without inquiry, would be absolute fol- ly ; to investigate the truth of the report would, at all events, be irksome and troublesome, and, after all, might be unsatisfactory ; the natural result would be, that la.' would choose to employ some other depositary, who was placed beyond. the reach of all doubt and suspicion. Bui as one acted, so would all, and thus a false alarm, originating in private malice, might be adequate to the destruction of credit and consequent ruin. Again, although the municipal law of the land may afford securi- ty of person and of property to all, yet is there a large and estima- ble 'portion of good, which arises from a state of civil society, a par- ticipation in which cannot be positively conferred or secured by any laws, and the enjoyment of which cannot be protected, except neg- atively and collaterally, by the restraining such injuries to charac- ter as tend to destroy it. That constant reciprocation of good offi- ces, of mutual aid and friendship, which constitutes the great charm and blessing of social lift% and which depends on the exercise and influence of the ordinary feelings of kindness and benevolence, can be but remotely influenced by any municipal regulations. J Jut as no man of honor or reputation would willingly connect himself with base and unworthy associates, imputations on a man's conduct or principles necessarily tend immediately to debase and degrade him from the situation he holds in the favor and esteem of others. To exalt a man's reputation in society is to ensure to him the re- spect and affection of mankind, and to lay open the ave- nues to prosperity and honor ; to degrade 'and disgrace 'xxi ] him is to banish him to a state of wretched solitude and destitution (r), to render him Ihe very scorn of men, the outcast of the penplo, — a condition lower than that of the brute which enjoys its mere animal life, nnembittercd with the painful sen-,' of degra- dation, dishonor and contempt. Now, although municipal laws cannot properly interfere to direct, or control men in their ordinary intercourse and mutual transac- tions, but leaves each at liberty to exercise hi-- own discretion, and consequently, although su I I cannot, by any positive and direct interposition, secure to an individual the advantages, benefits, and comforts, to which his conduct in society may justly entitle him, yet the law not only may, but ought to interfere, to protect him from (r) Nullo interimeute seJ cuncti3 aversantibus et commercia etiam sermonis neganti- bus. Vol. I. 2 xxi PRELIMINARY DISCOURSE. unjust and malevolent aspersions which deprive him of the benefits and advantages in which, as a member of the community, he ought to participate. The law cannot compel individuals to consult the most skilful phy- sician ; it must be left to a patron to select, in his discretion, the most worthy object for bestowing preferment ; but, though the law cannot, in any such instances, ensure success to the most deserving, but must leave it to depend on the discretion and consciences of in- dividuals, yet it may, on the soundest and most obvious principles of justice, interfere to prohibit false and injurious charges of ignorance, dishonesty, or profligacy, which tend to exclude such *xxii ] parties *from enjoying that degree of success to which their merits justly entitle them. The right, then, of every man to the character and reputation which his conduct deserves, stands on the same footing with his right to the enjoyment of his life, liberty, health, property, and all the comforts and advantages which appertain to a state of civil society, inasmuch as security to character and reputation are indispensably essential to the enjoyment of every other right and privilege inci- dent to such a state. ' Assuming, then, that restraint is expedient, with a view to the protection of the private interests of individuals, what is the proper mode and measure and extent of such restraint ? . Prohibitory restraints must be either preventive, remedial , or penal. The very nature of the injury excludes, to a great extent, all merely preventive provisions. By the law of nature and reason, a man is justified in repelling attempts at personal violence, by oppos- ing force to force. Injuries to character do not admit of such re- straints, they are usually inflicted in the absence of the party whose character is defamed. It is true, that the press might be subjected to censorial restraints, which could not be applied to oral or written calumnies ; the policy, however, of this species of restraint, as well as the principles of penal coercion, will be more conveniently con- sidered hereafter. The most obvious and practicable mode, indeed the only one which merits consideration, consists in the awarding a pecuniary recompense in damages. It may, however, be proper to [*xxiii] remark, that although the *very nature of the injury ex- cludes a remedy by restitution, yet, that attempts have been made among some modern nations, to award a proximate kind of remedy, by compelling the calumniator to pronounce a palinode, PRELIMINARY DISCOURSE. xxiii or recantation, of his slander. It may Bufficeto remark, that this is at best a remedy of a very doubtful and unsatisfactory description. The sincerity of an extorted recantation must necessarily be stamped with suspicion. It is obvious, thai the degree of credit which it deserved would bear an inverse proportion to the fine to be paid or punishment to be Buffered, in the alternative of the part; refusing to pronounce the required palinode. If A. being adjudged either to acknowledge that II. was not a rogue, or to pay C100, were to elect the palinode, the only safe inference would be that A., for some reason or other, had rather admit that B. was not a rogue than pay the money. What then are the proper limits to the remedial action for dam- age ? in other words, what circumstances at the least ought to con- cur to entitle the party to the remedy, and under what other cir- cumstances ought the remedy to cease notwithstanding that con- currence ? The circumstances on which the title to a remedy must depend, are obviously, 1, the injurious quality or consequences of the cal- umny ; 2, the mode or extent of publication; 3, the motive and in- tention of the party in publishing; or 4thly, collateral circumstan- ces connected with the publication. In the first place, then, as far as regards the nature, consequences and quality of the defamatory matter published, the *very notion of compensation implies, that some loss or [ "xxiv ] damage has been occasioned. It were almost nugatory to remark, that to fix any precise and settled sum or value, as the amount of the fine or damages to be paid by an offender of this description, is the work of early and in- experienced legislators (s), and that the recompense ought always (s) The laws of Solon punished calumniators by an arbitrary fine. Petit in Leg. At- tic. By the law of the Twelve Tables, the injuria, in general subjected the i pay a pecuuiary fine or compctmtio i. " Si quis alteri injari im fiv.it, XXV. /Ei 'is puma sunto." The folly an 1 absurdity of m iking either a fine or com pens ition fixed and arbi- trary, was well illustrated in the instance of Veratius, or Keratins, a riota Roman, who took great delight in walking through the Btreetsof Rome, striking ill those whom he met. according to his fancy and caprice; he was followed by a servant loaded with money for the purpose of immediately paying the appointed fine to th se whom he had thus in- sulted. Gell. Noct. Att. XX. 1. It may fairly be presumed, that he \\ ■ nun as well as a rich one, or that the fine and blows \\ >uld spee lily be returned, the latter ■with interest, and that he would literally be repaid in his own coin. The absurdity of annexing an invariable compensation to a variable injury, naturally oc more equitable law. Prretores postea hanc ponam aboleeoere et relinqui censuerunt injuriifl qui BBstumandia recuperatores sc daturos edixerunt. Gell. Nbo. Att. XX. 1. eineoc Ant. Rom. Ad. Inst. Lib. 4, tit. 9. 5. xxiv PRELIMINARY DISCOURSE. to be apportioned to the actual extent of an injury which is so un- certain and various in its consequences. The remedy then is applicable, and ought, in point of natural justice, to be applied, unless there be some extrinsic reason to the contrary, in all cases where a party has suffered any actual loss or detriment in his person or property, from a wilful act of slander. And this principle extends not merely to all cases where [ *xxv ] the *party has been deprived of some actual legal right, but to all others where any social benefit has been inter- cepted which he would otherwise have enjoyed, although he could not have claimed it as an absolute and vested legal right. Thus it extends not only to the case where a mau, by malicious slander, suffers a temporary privation of his personal liberty, to which he has an absolute legal right, but also that of a clergyman whose presen- tation to a benefice has been hindered by such means. For although the law cannot interfere for the purpose of enforc- ing the moral obligation on the part of the patron, to prefer the most deserving candidate, but necessarily leaves the choice to his conscience and discretion, yet it may properly interfere for the pro- tection of character, and to compel a compensation in respect of a lqss or damage, immediately consequential on a wilful privation of character. The party defamed had no legal title or perfect moral right to be preferred, bat he had, in point of natural justice, a right to the cha- racter which his conduct deserved, and consequently a right to com- pensation for the mischief occasioned by one who had wrongfully defamed him. This general principle obviously embraces every in- stance where the slander occasions any loss whatsoever, capable of pecuniary admeasurement. But, in the next place, ought the remedy to be confined to those instances, where it can be shown that some actual specific loss or damage has been sustained in consequence of the calumny ; or, if not, within what limits ought the remedy to be extended ? [ *xxvi ] *It would in the first place, be highly inconvenient and inexpedient to make actual damage essential to the ac- tion, without regard to the obvious and immediate tendency of the defamation to occasion great, it may be irreparable injury. In ordinary instances it may be sufficient that the law should provide a remedy for a mischief already suffered, without presuming or anti- cipating any future evil consequence. Be this as it may, the pecu- liar nature and tendency of an injury to reputation renders it con PRELIMINARY DISCOURSE. xxvi venient, if not essential, that/in some instances at least, a remedy should be given in respect of calumnious imputations upon character though no actual consequential damage can be proved. That is, it is desirable, if not necessary, under certain limits, to constitute the defamation a substantive and positive injury, independently of the proof of consequential damage. Were it otherwise, if actual loss were invariably essential to the remedy, the damage occasioned would frequently be irreparable. One of the peculiar and striking characteristics of this specie- of injury is the difficulty, or rather the impossibility, of estimating its noxious consequences, and adducing proof of actual mischief dm its ruinous and destructive progress. If a physician, attorney, or merchant, could not obtain a ren- in respect of calumnious reflections upon his character or credit, until he could adduce specific instances of losses occasioned by such attacks, he might be effectually ruined before his proof was complete. Slander tending to the disinherison of the party calumniated, affords a strong illustration of this doctrine. If it were to be maliciously suggested to the proprietor of a large family estate, that his heir apparent was illegitimate, *such a report, if [ 'xxvii ] believed, might strongly tend to induce the owner to de- vise his property to another branch of the family of undoubted le- gitimacy. Now if the heir apparent were not permitted to com- plain of the wrong done him, until the injury had been consummated and completed by his disinherison, the remedy would frequently be afforded in vain ; it would be most difficult to prove that he had been disinherited in consequence of the slander, and even if he could prove the fact, the author of the mischief might be unable to yield compensation, and thus a serious and cruel injury would be left without a remedy. On the other hand, by regarding the slan- der as a substantive injury, the party aggrieved is entitled to arrest the progress of the mischief in limine; by means of an action against the author or publisher of the scandal, then challenges him to produce formal proof of his charges ; he establishes their falsity, if they be false, and obtains reasonable damages for the trouble, anxiety, expense, and danger to which he has wantonly been exposed ; and the mischievous effects which might otherwise have accrue 1 from the slander are averted. Is then the remedy to be extended indefinitely, though no speeial damage can be proved, to every species and degree of defamation 2* xxvii PRELIMINARY DISCOURSE. which tends to the occasioning of some loss or damage ; and if not, where is the limit to be assigned ? To extend the remedy indefinitely to all communications tending to produce damage, and a fortiori io award a pecuniary recompense in respect of such contumelious and insulting language as was not likely to produce temporal damage, although it tended [ 'xxviii ] to hurt the *pride or delicacy of the offended party would, it seems, be highly inexpedient. For, in the first place, as it is difficult to say that any undeserved imputation on a man's moral conduct, character, or temper, does not tend to dislodge him from his state and condition in society, and thus remotely at least to deprive him of temporal comforts and ad- vantages, it is plain that so wide an application of the principle would afford far too large a scope for vexatious litigation, and the ordinary intercourse of society would be impeded and fettered by the appre- hension of vexatious and harrassing suits for trifling causes. Abusive, insulting, and unmannerly language, which affect not a man's liberty or estate, are of too indefinite and uncertain a char- acter to be .the subject of an action for pecuniary damages (f). Such injuries, or rather affronts to the feelings, are as incapable of definition as of admeasurement. They depend on the rank, situa- tion, and condition of the parties, and on circumstances which may be felt but not defined ; they may depend on the tone of voice, the gestures, even looks by which they are accompanied, and in some instances, silence may be more contemptuous and insulting than direct expressions (m). [ *xxix ] *It seems then that it is expedient, on principles of general policy and convenience, that the law should de- fine, by sufficient limits, in what instances simple defamation, unac- companied by special damage, should constitute a substantive ground (t) Contumelia minor est injuria quam queri magis quam exsequi possumus; quam leges quoque nulla dignam vindicta putaverunt. (u) The Roman law which made the personal insult or contumely the basis of the ac- tion, civil as well as criminal, was exceedingly vague and indefinite; see the observa- tions below, p. xxxi. By the law of England no action lies in respect of the speaking of mere general abusive words which are not followed by special damage, neither are such words indictable, unless in some special cases, as where they amount to a challenge, or affect a court or magistrate in the execution of public justice, or are applied to the mag- nates of the realm. The only mode of proceeding by thelaw of England, in respect to abusive, and unmannerly and insulting language in general, is by causing ihe offender to be bound over to the good behaviour. The ancient restraints on scolds, the ducking stool and the bridle, whether it be that the one sex is grown more gallant or the other less virulent, have long fallen into disuse. PRELIMINARY DISCOURSE xxix of action. It is obvious that the application of these principles, in particular instances, must in a great measure depend on the state and circumstances, manners and habits, of the society for whose use sucli rules arc to be applied. There is, however, one consideration of external policy which al- ways operates in favor of the extension of the action. Experience has fully proved that to refuse, or even to restrict the civil remedy within too narrow limits, is sure to occasion personal conflicts and bloodshed ; the ordinary transition i- a verbis ad vt rbera, men being always apt to carve out their own remedy in such cases where it is denied by the law. And though this consideration operates pri pally as an argument for subjecting calumniators to penal censure, inasmuch as such insults tend immediately to produce public mis- chief and disorder, yet is this consequence by no means to be over- looked in relation to the civil remedy; for no provi- sion can more surely tend to 'restrain individuals from [ *xxx ] avenging injuries to their reputation than to have the means afforded, not merely of obtaining redress and compensation, in the shape of damages, which is frequently but a secondary con- sideration with an injured party, but also, which is usually of in- finitely greater importance, of vindicating their characters, by openly challenging their accusers to proof of their assertions. This mode of vindication, which for reasons which will afterward verted to, cannot be permitted when the proceeding is purely of a criminal nature, necessarily occurs where the very essence of the injury consists in the falsity of the accusation. It is further to be observed, that in this, as well as other instan- ces, where a general rule in the affirmative or negative cannot be adopted, but where it becomes necessary to define the legal boun- daries, it is always more important, as a matter of legal policy, to adopt plain and general distinctions, for the sake of clearness and notoriety, although some other consideration of policy should be partially sacrificed, than to draw a line more nearly adjusted and suited to conflicting principles, but of greater intricacy, obscurity, and difficulty. For it is obvious that the quantity of mischief and inconvenience which may result from adopting an indistinct rule, or ill defined boundary, may far exceed any evil which could result from the partial (f) sacrifice. (c) The law of England defines, with much greater distinctness than is usually found in other codes, the limits of the civil action for oral slander in the absence of special damage. 1st. The remedy is afforded in respect of a charge of an offence visitable with XXXI PRELIMINARY DISCOURSE. [ *xxxi ] *Next, as to the quality of the matter published. Assuming, then, that the defamatory matter complained [ *xxxii ] of "either produces or immediately tends to produce corporeal punishment. 2Jly. An imputation of laboring under some particular infec- tious disorders, odly. Imputations which affect a party in his office, profession, trade, or means of livelihood; or, 4thly. Aspersions which tend to his disinherison. The law is less definite in two instances. 1st. In respect of slander against the magnates of the realm, or scandalum magnatum, where the remedy is given by several ancient statutes, in respect of calumnies against the character of grandees; and, 2dly, in the instance of written slander or libel, for, contrary to the principles of common law, general insulting and contumelious expressions are the subject of an action, when the communication is in writinf, though the same words would not have been actionable, had they been merely spoken. This anomalous appendage to the common law principle, which regarded not the contumely and insult so much as the loss to the parties' estate and means, seems to be plainly attributable to the doctrines of the civil law, which were first imported into the Star Chamber practice, in cases of libel, and after the abolition of that court, were; in part at least, recognized by the courts of common law; and by this means the action for written slander is of very indefinite extent. See vol. 1, p 148. The ground of the action, under the ancient Roman and civil law, was the injuria, the personal insult or contumely offered to the party defamed; and hence it was that the limits of the action, according to the Roman law, were very indefinite and indistinct. Ait prcetor qui adversus bonos mores, convicium cui fecisse, cujusve opera factum esse dicitur quod adversus bonos mores convicium fiat in eum judicium dabo. D. 1, 47, 10. Again, ait prtetor ne quid infamandi causa fiat, si quis adversus ea fecerit prout quae- qne res erit animadvertam. Again, Generaliter, vetuit prsetor quid ad infamiam alicujus fieri. Proinde quodcum- que quis fecerit vel dixerit ut alium infamel erit actio injuriam. Some curious instances are given in the digest of the application of these principles of the Romau law. Item si quis pignus proscripserit venditurus tanquam a me accepe- rit infamandi mei causa. Si quis non debitorem, quasi debitorem appellaverit injuriae faciendse causae, injuriarum tenetur. Another illustration presents a very singular mode of defamation, which arose out of the practice which prevailed at Rome, for the relations of an accused party to dress in sordid habits, and allow their beards to grow, in order to excite compassion and favor towards the accused. Hence it was that a party intending to defame another, accomplishes his object by assuming a squalid and abject appearance, under pretence of supplication for one accused of a heinous crime. Haec autem fere sunt quae ad infamiam alicujusque fiunt. Ut puta ad invidiam alicujus veste lugubri utitur aut squalida aut si barbam demittat vel capillos submittat, aut si carmen conscribat, &c. Many incidents were founded on the doctrine of the Roman law, that contumely was the ground of action, in which it diners from the law of England. If an infant, or one in a state of intoxication, defamed another, the action failed, for the mens rea, the coutumelious intention, was wanting; in England, such a defence, if the act were voluntary, would be unavailable. By the Roman law, a party was not only entitled to sustain an action for contumeli- ous words spoken concerning himself, but also in respect of those spoken of others of his family, if they tended collaterally to subject him to degradation and contempt. Thus, a father was entitled to recover, in respect of a contumelious injury offered to his wife, children, or domestics, provided the offender knew the relationship of the party so offended. Heineccius, pt. 7, sec. 118. So far was the principle carried by the Ro- PRELIMINARY MSG0UB6E. xxxii actual damage, ought the falsity O) of that which is published *to be essential to the rem • ly ; in otter [ *xxxiii ] man law, that even the heir was entitle I to an notion for an insult to the remains or even the memory of the deceased. Et si forte oadaveri defunoti tit injuria eui haeredes bonorum possessore* exstitimus, injuriaruin Bostro nomine babemoj Bpeotat enim ad existimationem nostram si quae ei fiat injuria. tet w fama ejus mi karedes eittitimut lact isatur. The same degree of indefiniteness union characterises this branch of the Roman law, naturally pervades, also, the codi - of those nations who have a lopted the principles of that law. In Scotland, fori; limits oi civil us well as criminal liability are ex- ceedingly wide. Thus, intheoase of AUki . ft ■ I $ Fleming, i Mur. Rep. 1 1'', (cited in Mr. Borthwick'a learned and valuable Treatise on the Law of Libel in Scotland, p 181,) the judge observed, " There are disadvantages in allowing actions of this sort, where there is no accusation of a crime, or allegation of specific damage. By the law of Scotland, however, any thiny defamatory is the foundation of an action." In the case of Mackenzie v. Reid, 2 Murr. Rep. 159. Borthw. 181, the court, after observing that the law on the subject of slander, in England, was very particularly defined, added, here any tiling that produces uneasiness of mind, is actionable Several instances are cited by Mr. Borthwick, in his excellent work, p. 186, of suits, commenced and sustained on very slight grounds. tn Memis v. Jop and others, Dr. Me. ..is instituted an action against the defenders, in order to obtain redress for the alleg- ed injury of having caused his designation, " Medicines doctor in Aberdonia," contain- ed in the charter of the infirmary, to be translated " Doctor of Medicine in Aberdeen:' instead of physician in Aberdeen. The action was sustained; but after years of I iti- gation, the defendants were assoilized. In the conclusion of his report, Mr. Tut ob- serves, " That there was no strong animus injuriandi to hurt. Dr. Memis seemed admit- ted; at the same time, it appeared a conduct rather peevish and uncivil in his brethren, and an intentional affront to refuse to gratify the doctor in this request. But the lords thought that they did not meet to decide what was civil, but what was wrong. In this case there was no wrong. The translation was good; no d image had followed, or could fol- low upon it; therefore the action was foolish and wrong-headed The cole penal of France visits with penal censures all calumnies uttered in public places, or published in writing or in print, which impute facts which are the subject of criminal or correctional process, or whioh would expose another to the contempt or ha- tred, <7» me]>ris on a la haine, of the citizens: — If the fact imputed be punishable with death, perpetual bard labor, or deportation. the oalumniator is liable to imprisonment for from two to five yen-;, and a fine of from 20U to 5000 Francs. In other such cases, to an imprisonment of from one to six months, and a fine of from 60 to 2000 francs. Injurious expressions, which impute a vice but no precise fact, if so publish 1, sub. ject the offender to a fine of from 16 to : >" l » francs. " All other injurious and outrageous expressions, whioh want the double character, de gravite et publicite, are delicts of simple police. The Veritas convincii cannot be pleaded generally; on the oontraiy every imputation is presumed to be false which is not legally established in the due course of law, but if pending a proceeding for such a calumny, the defendant shall denounce the complainant, proceedings shall be staved till the charge be decided. And in case the fact imputed Bfa ill be proved to be true, the author of the imputa- tion shall be exempt from all punishment. (hi) By the laws of Solon, it wis forbi 1 leo to defame another in public places, under a penalty of three drachmas to the party injured and two to the treasury. Lege sanxit xxxiii PRELIMINARY DISCOURSE. •words, ought its truth to afford an answer to the claim, [ *xxxiv ] either absolutely *or with qualifications ? By the law Solon ne quis de alio detrahat in locis sacris in judiciis, in magistratum concessibus, & in spectaculis, qui secus faxit ei de quo detraxit multam pendat drachmas tres, & aerario publico duas. Pettit. in Leg. Att. 535. In such instances, the truth or falsity of the charge seems to have been immaterial; the compensation was paid in respect of the public insult. In other cases, a fine of two drachmas, as it seems, was. imposed, in respect of mere light and trivial charges, whilst in respect of graver ones, and where a crime of legal cognizance was charged, a much heavier fine was imposed. But, in either case, the fine was conditional, unless the defend- ant proved his charge to be true. The law was tod leyoviu xuxibg iu v in) unocpuvr} tig e;iv uh]dr\ t« etgrjuava tijiuovgdiu. Qui de alio detractaverit, ni probarit verum esse quod objecit probrum, multator. But it was enacted, jovg lelovr/jcg xt, ibiv AHOPPHTfLN neviaxoaiag dga/fiag 6q>edeiv. Non licebat igitur alteri exprobare ea quae si quis patrasset in eum insurgebant leges & animadvertebant nisi, &n oq-aivfiv wg egir aXrjdri posset apud judices. Pettit. ib. In respect of some other specific charges, a fixed penalty was also payable. Vetitum quoque lege erat alteri objicere quod clypeum abjecisset qui hoc convicium fecerit quin- gentis drachmis multabatur.— EAN AE TISVAZKH AFLOBEBAHKENAI TJIlVAZniJA THOAIKON EINAI. The same laws also contained an express provision against a calumnious charge of homicide. Nam homieidae omnibus civitatis juribus sacris pariter & publicis excide bant, ita ut ne illos quidem alii alloquio dignarentur. Pettit. ib. Whether, according to the Roman law, the truth of a defamatory charge made against an individual afforded a complete defence, without reference to the motive and intention of 'the publisher, has, it is well known, been doubted. And yet the authorities seem to ' weigh strongly in favor of the affirmative of the question, as well in reference even to the criminal as to the civil action. The general doctrine appears most clearly, from the celebrated response of Paulus, which was imported into the digest. " Eum qui nocen- tum infamavit non esse bonum cequum ob earn rem condemnaripeclataenim nocentium nota esse el oporlere et cxpedire; for though, according to Matthaeus, " Solet Paulus in disserendo, 8y.oTiy.oc seu obscurusesse;" yet his meaning is in this instance too plainly expressed to admit fairly of any doubt, notwithstanding the interpretation attempted to be imposed upon the words by his numerous commentators. Some of them have assert- ed, that the response must be limited to the charging offences, the detection of which is of importance to the state; but the plain and obvious meaning of the terms repels such a restriction; the word peccata naturally comprehends every species of delinquency, whether it be against law or morals, and is not confined to the admissum crimen, or de- lictum, by which legal delinquency is so frequently described. Thus Matthteus, in his treatise De Criminibus, cap. 1, makes peccalum the genus, crimina & delicta species, and he observes " sunt peccata quaelam ita levia ut ea quera mur magis quam exequamur ut legibus quoque nulla sit imposita poena, cujus generis si quis requirat inveniat sequentibus locis, 1. si quis 14. § Divus D. de Relig. et sunt fun. 1. 3. § non perpetuae, D. de sepul. viol. 1 verum est. 39 D. de furt.sunt alia quae legibus vindicantur non una ta'men emnia severitate." These and many other authori- ties, which might if necessary be cited, show clearly that the peccalum of Paulus was not to be restrained to the highest and most penal offences. See Cic. de Finibus, 4. Horat. Sat. 1. Even if the sense were doubtful, it would be absurd to adopt a con- struction the effect of which would be to permit a man to justify by proving the truth, where he had imputed the commission of a monstrous crime, but to exclude him from a similar defence when he charged one of inferior magnitude. If a man may justify a PRELIMINARY DISCOURSE. xxxiv of England, which, in this respect, conforms with, as it seems, the 'rule of civil law, the truth of the alleged [ 'xxxv ] charge of murder, by proving it to be true, why should lie not be permitted to do the same when he has imputed robbery or theft. If the public are interested in knowing the character of a murderer, have tiny Dot also some interest in knowing that of a thief? The reason for allowing truth to ope: tBtifioation, is still stronger where the alleged slander does nut impute any misconduct of legal cognizance; for there the public cannot be put on their guard )>y means of a judicial charge Others again have urged that the response must be construed with the ani this condition, that the imputation be not made animo eonviciandi. And the rescript of Dioclesian and Maximian has been cited in support of this limitation. " Si non convicii consilio te ali- quid injuriosurn dixisse probare potes, fides vert, a calumnia te defendit. Si autem in rixam inconsulto calore prolapsus homicidii convicium objecisti, et ex eo die annus ex- cessit, cum injuriarum actio annuo tempore prescripta sit oh injuria: admissum conveniri non pote^." The true construction of the words fides vcri. seems clearly to be, not as some would have it, that the truth shall be a defence, provided the alleged slander was not published with intent to defame, but that proof of the absence of such an in- tention shall be a defence. The words fides veri do not refer to the proof of the truth of the defamatory matter, but to proof of the circumstance stated by Victorinns, namely, that he had imputed the crime of homicide, — non convicii consilio. C. Victorinus had inquired whether he should be amenable if he could prove that he uttered the words without the animus infamandi ? The answer was, that if he could establish the truth (not of the charge but,) of the circumstance which he relied on, i. e. the absence of an intention to defame, that proof would serve for a defence. It is scarcely necessary to ob- serve that the plain and literal construction of the words of Paulus derives confirmation from the celebrated dialogue between Horace and Trebatius. Trebatius: " Sed lamen ut monitus caveas, ne forte negoli Incutiat tibi quid sanclarum inscitia legwn. Si mala condideril in quern quis carmina jus est Judicium que." — Horatius. " Eslo si quis mala, sed bona si quis Judicc condiderit laudalur Ccesare, si quis Opprobriit dignum laceraverit integer ipse." Trebatius: " Svlccntur ritu tabula: : tu missus abibis." The very nature of the penalty imposed on a liheller, by the Cornelian law, supplies an argument tending to a Bimilar conclusion : he was to become intestabilis, that is in- capable of giving testimony in a judicial proceeding. But why intestabilis, if he bad published merely the truth? To exclude one from giving testimony who had by a false and malicious charge, attempted to deprive another of his character, would at least be a consistent and plausible provision, but it would he a strange reason fur rejecting a witness, that he had published what was // ue, even though he bad done it maliciously. With respect to those judicial but anonymous charges of oapit il offences which came within the description of Libellus 1 tutions de Libellh Fantasia in the Theodosian ("ode, particularly the 1th and 6th,) the author, when disoovere 1. not only might, but was obliged, at the peril of his life, to prove the truth of the charge. Thus, according to the first constitution in the Theodosian code, " 8i quando &i libelli reperiantur nullas exinde calumnias patiantur ii quorum de factis vel nominibus aliquid continebunt, sed scriptionis auctor potius reperiatur et repertus cum omni vigore xxxv PRELIMINARY DISCOURSE. slander is an absolute answer, or bar to the claim to [ *xxxvi ] damages. But *in some other countries, even those which recognise the authority of the civil law, the co^atur his de rebus quas proponendas credidit comprobare, nee tamen supplicio etiatn si aliquid ostenderit subtrahatur." It is observable that the latter branch of this constitution directed that the author of the anonymous charge should not escape without punishment, even though he proved the charge to be true ; yet this was no doubt intended to be awarded in respect of his misconduct in the first instance, in making an anonymous charge, when he was able to convict the guilty party, it does not by any means appear, that, having proved the truth, he was subject to the same degree of punishment as though he had not given such proof ; indeed, the very contrary may fairly be inferred. Even this provision found no place in the Justinian code, which, so far from inflicting punishment on the author of the Famosus Libellus, when he had disclosed his name and proved his charge, deemed him to be worthy of praise and reward. " Sane si quis devotionis suae ac salutis publicae custodiam gerat, nomen suum profiteatur, & quse perfamosum libellum perse- quenda putaverit, ore prqprio edicat, ita ut absque ulla trepidatione accedat, sciens quidem quod si adsertionibus suis veri fides fuerit opitulata, laudem maximam et pre- mium a nostra dementia consequetur ; sin vero minime vera ostenderit capitali poena plectetur." Consistently, however, with the response of Paulus, the Roman law contemplated many instances of the convicium and libellus which were ^ visited civilly as well as criminally, notwithstanding their truth. Thus it was in all cases where the publication was in its own nature injurious and illegal, and where no advantage was to be derived from publicity. " Sin autem quod objicitur innotescere nihil interest, puta si alter poe- nam delicti sui sustinuer it aut in vitium naturale objiciatur claudus aliquis luscus aut wibbosus vocetur, veritatem convicii non excusare quo minus animo injuriandi id factum prfesumatur, contrarii tamen probationem hie admit tendam." Vinn. Comm-in Just. Inst. lib. 4. tit. 4. The law of England differs from the Roman law in regard to the effect of the Veri- tas convicii, in two respects, first, that the former repels the civil remedy in all cases where the imputation is true (except, perhaps, in the case of a conviction and subse- quent pardon ;) the Roman law, on the other hand, limited the defence to those cases where the public were benefited by the divulgation of the truth. By the Roman law, the personal affront, or contumeiia, to which the consilium conviciandi, the animus infa- mandi, or injuriandi, were essential, constituted the basis of the proceeding criminal as well as civil : the benefit which society would derive from the exposure of evil-doers was, on grounds of policy, in either case, a legal bar to the proceeding ; but it was one, which, in its nature, was not available where the imputation was of such a nature that notoriety was unimportant. The law of England, on the other hand, considers the damage consequent on the slander, whether actual or presumed, as the basis of the civil remedy, and denies the remedy where the imputation is true ; partly, perhaps adopting the same rule of policy with the civil law, but chiefly, as it seems, on the general consideration that, where nothing more than the truth is published, any damage, or loss consequent upon it cannot, in point of natural justice, or at least of civil policy, and on grounds of general utility and convenience, be attributed to the mere publisher of the fact. The same considerations tend to explain another broad distinction between the law of England and the Roman law, connected with the present subject ; according to the latter, when the truth of the alleged slander operated as a defence against the civil action, it operated also equally as a defence against the criminal proceeding ; whilst, on the contrary, though the law of England constitutes the truth universally a PRELIMINARY DISCOURSE. xxxvi truth of the calumny Is regarded but as a qualified dc- [ 'xxxvii ] fence subject to Beveral modifications (x). bar to the civil randy yet the general rule is, that this consideration affords no defense upon a criminal charge. The civil law made the personal insult or contumely in criminately the basis of criminal ami of civil liability, Qtly the justification, which on grounds of public policy exempted a party from liability in the civil prooa I- ing, operated with at least equal if not greater force to protect liira from penal conse- quences. The law of England, on the contrary, places civil and criminal responsibility on distinct grounds, regarding the mischief to the private individual as the basis of the former, the mischief to society the foundation of the latter ; and though in the criminal proceeding, the law docs not by any mi light of the i a that the pub- lio is benefited by the exposure of delinquents, and on this ground as it -not visit mere oral defamation penally, yel in case of written defamation the minohief which Would result to the public, for want of restraint, is the ground of imposing restraint, and this operates even where the defamatory matter is true. The law, in effect, proceeds on a presumption that a greater degree of mischief would result to society from permit- ting the truth of written Blander to operate as a justification in such a case, than that which arises from a partial suppression of truth. But although it is now a well eel lished rule of the law of England that truth is no defense to a oriminal prosecution for calumny, yet it seems to be at the least doubtful whether a different rule did not former- ly prevail even in this country. By a law of Alfred, the inventor of slander was liable to expiate his offence by the loss of his tongue, unless he redeemed it by the price of his head. Siquis publicum men- dacium confingat et ille in co firmetur nulla levi re hoc emendet sed lingua ei excidatur nee minore pretio redimi lioeat quam capitis gestimatione. Wilkins , Leg. Ang. Sax. 41 pi. 28. See also the law of Edgar, Lamb, Saxon Law. 64. And by a law of Canut. * « Et sequis alterum injuria diffamare velit ut alterutruin vel pecunia vel vita ei diminuatur si tunc alter earn refcllere possit perdat linguam Boam nisi Ulam capitiis sestimatione redimere velit. Wilk. Leg. Ang. Sax. 180. Bracton, in the reign of Henry Third, states the law under the head of injuria nearly in the language of the Institutes. " Fit autem injuria non solum cum quis pugno percussus fuerit verberatus vulneratus vel fustibus ccesus, verum cum ei convicium dictum fuerit vel de eo factum carmen fa- mosum et hujusmodi." It was, therefore, not improbable that the Veritas convicii was, in conformity with the civil law, allowed generally by way of plea or exception. Again, from the language of the statutes de scandalis inagnatum, the first of which was in the third year of Edward the first, the offence against which they were directed, was the spreading of false news, rumors, or tales, and this object plainly appears also from the st. 2. R. 2 st. 1. c. 5. " Of the devisers of false news, and of horrible and false lies of prelates, dukes, earls, and barons, and other noble and great men of the realm, or of the things by which the a dd persons never were ipoken or ,h>i>e, or thought, &c, it enacted that none under grevious pain, &o.;" whether these be considered aa introduc- tory of a new offence, or bul as de il iratory of the former law, it is oot easy to suppose that falsity was a necessary ingredient in order to bring an offender tojnstioe, for bo&o- dalizing the magnates of the realm ; ,. - falsity w.is not essential ; in other words, that the king and his nobles were worse protected against defamatory attacks than the rest of the community. The earliest judicial authority in this country, for saying that truth is no answer to an indictment for a libel, appeal's to be the resolu- tion in the case Be Libellis Famosis, 5 Coke. 125 : and from that time the rule, which seems to be one of policy and convenience, has been .-trictly adhered to. (x) Whatever of doubt existed among the Roman jurists as to the effect of pleading Vol. I. 3 xxxvii PRELIMINARY DISCOURSE. [ *xxxviii ] *The importance and interest which belong to the question, may warrant a few observations tending to [ *xxxix ] *show the reasonableness and expediency of the rule the Veritas convicii. and in addition to this, all the doubts created by the conflicting opinions delivered by .the numerous commentators upon the Roman law, have been im- ported into the laws of those countries which have adopted the rules of the Roman law on this subject. Even the law of England has not unfrequently been obscured by difficulties plainly derivable from tins plentiful source. It was long before the distinction was completely settled in this country, that truth was a complete justification in a civil action, though it was no defence to a prosecution for a libel ; the doubts on this subject were evidently attributable to the civil law doctrine, which, in a great measure, confounded civil with criminal liability, and made the same justification apply to either. The law of Scotland affords a strong illustration of the obscurity and difficulties which have resulted to those who have embraced the doctrines of the civil law and its commen- tators. Mr. Borthwick, in his very able and excellent work, on the Law of Slauder and Libel in Scotland, where he treats of the plea of Veritas convicii and the obscurity un- der which it labors, does not hesitate to ascribe that obscurity to the conflicting and un- satisfactory opinions which the commentators on the Roman law have delivered in refe- rence to this subject. He truly says after Mattheeus (De Crim.) " Ad glossographos frustra aspexeris garriunt enim magnas nugas totoque oelo aberranta mente jurisconsul- torum Pauli et Ulpiani." And he concludes, " Hence we may account for the opposite opinions as to the right to plead, and the effect of proving the Veritas convicii which have been supported by Scottish lawyers amidst the great learning and infinite ingenui- ty to be found in the printed pleadings, which have taken place in some of our laws on the subject of libel and slander ; they borrowed their authorities, to a considerable ex- tent, from these Glossographi. and the law of England, to which the pleadings in the Scotch cases contain also frequent examples of reference, has, on this point, not served to preserve us from contrariety of decisions ; for it also has had its fluctuations as to the competency and incompetency of justifying the charge in cases of defamation." Mr. Borthwick, in tracing the law of Scotland on this subject, refers to two ancient acts of the Scotch Parliament, which as he justly observes, seems to indicate the favor shown by the common law (of Scotland) to the admission of the plea of Veritas convicii as an exculpatory defence, even in some instances of criminal prosecutions. The first of these is the act of 1510, c. 104. " The pains of judges that dois wrong, and of them quha slanders them wrongously " and the act provides that, " gif any manner of person murmuris (defames, see Hume's Comm. 334, 400,) any judge, tem- poral or spiritual, alsweil lords of session as utheris and proovis not the samin siiffici- antly, he shall be punished in suitable manner and sorte, as the said judge or person whom he murmuris; and shall pay any paine arbitral at the will of the king's grace for the infaming of sic persones." And by the act of 1587, c. 49, which narrates in the preamble the odious crime of treason, and on the other hand, that " the malicious accusers of innocent persons are nocht to be credited, but severely punished, therefore the act proceeds ; it is statute and ordained by our soveraine lord and the three estates of the present parliament, thatquhaever accuses anuther person of treason the party calum- niate being called, accused, and acquite of the said crime of treason, the accuser shall incur the same crime of treason quhair of he accused the uther." It has already been observed that the statutes of scandalum magnatum which makes the falsity of the charge part of the description of the offence and which have been considered to be de- claratory of the common law of England, afford probable reason for inferring that, by PRELIMINARY DISCOUKSI-:. XXXIX adopted by the law of England in this respect — of withholding *the remedy in damages in all cases where *xl the imputation is true. That no right to damages can, on general principles, [ "xli be founded on a publication of the truth seems to follow, "simply from the consideration that the reason for award- [ 'xlii i tiir damages in every such case fails. The right *to com- [ 'xliii pensation, in point of natural justice, is founded on the deception and fraud which has been practised by the defendant to the detriment of the plaintiff. the ancient common law, falsity was essential to criminality, in case of personal defa- mation. But though the civil law is recognized by the law of Scotland, it is remarkable that, according to the modern practice in Scotland, the plea that the facts were true, is not a complete answer to a criminal prosecution for libel, (Borthwick's L. L. 250,) and that, even in the cases of contumelious words spoken in the heat of a dispute and to the person's face, the truth of the injurious words seldom absolves entirely from the punish- ment. Erskine's Principles, b. 4, tit. 4, sec. 45. To this extent, theref re, the Scotch jurists have deviated from the Roman law, which seems equally to have repelled both criminal and civil actions where the charge was true. With respect to the effect which the law of Scotland attributes to the Veritas convicii, in civil actions, Mr. Borthw ick after stating the various decisions and opinions upon this vexatissima qucestio; upon which lawyers of the greatest eminence have differed, adds, that some of them have thought that the law had not arrived at such a degree of ma- turity, as to possess any general rule upon the subject. It seems, however, to be a general rule of the law of Scotland, that the truth of the imputation shall never be admitted as a justification, unless some circumstances appear in the case which afford a presumption of the defender's want of malice, or at least to make it appear that whatever his secret feelings were, he acte 1 with a view to some beneficial purpose. And, secondly, that the truth is not admissible, even to the extent of mitigating the damages where the inference of malice is too strong to be capable of being redargued. The plain and simple rule of the law of England, which constitutes the truth an ab- solute bar to the action for damages, seems to possess considerable advantages over the corresponding law in Scotland. Its application is comparatively simple, a - on the mere matter of fact, whether the charge be true or false; whilst on the contrary, by the law of Scotland, a previous question frequently of a difficult and perplexing nature, is first to be decided by the court as a matter of law, that is, whether the proof of the fact be admissible or not. The admissibility of the proof, being a question of law for the opinion of the court, must necessarily induce a multitude of decisions, e »b being in itself a precedent for futureones. And even where the question of admissibility has been decided in the affirmative, proof of the truth, by the Scotch 1 iw, is not con- clusive, but is merely allowed to operate as auxiliary evidence in order to rebut the in- ference of malice. This doctrine of the Scotch jurists, that the truth is material only so fir as it re- dargues or rebuts the inference of malice, is obviously founded upon the notion of the civil law, that the essence of the injury consists in the contumely, insult, or personal affront. xliii PRELIMINARY DISCOURSE. *xliv ] *If A. falsely and maliciously allege that B. lias com- mitted a crime punishable by the law, and, in conse- quence of that false assertion 2. suffers imprisonment, he is, in point of natural justice, entitled to compensation, in respect of the injury thus wrongfully occasioned. But if A. were truly to assert that B. had committed that crime, and, in consequence, B. were to be impri- soned and punished, it would clearly be contrary to justice and rea- son that A. should be bound to make compensation. It would be manifestly absurd and unreasonable that the law should first impose a penalty on B. for his delinquency, and then entitle him to recover the amount, or an equivalent compensation from A. It is, therefore, the deception which has been practised by A., and the falsity of his communication that makes the difference, and which constitutes B.'s title to damages. So, in general, whoever wilfully and falsely ascribes misconduct or evil principles to another, is guilty of fraud and deception towards society, which possesses an interest, in truly knowing and estimating the conduct and character of its various members, and is guilty also of an act of injustice towards the indi- vidual, because the imputation tends to lower and degrade him from his proper place in society, and to exclude him from the r *xlv ] advantages to which, as a member of *society, he is just- ly entitled (?/). When, therefore, a loss or damage ac- (y) The sin and mischief against society may consist in deceitful commendation as well as in unmerited censure. One who falsely and wilfully recommended an ignorant profligate to a patron of a benefice, as a fit and proper person to be preferred, would as much otfend against morals and the interests of society, as if he had prevented the pre- ferment of a learned and conscientious man, by maliciously defaming him. The sin and mischief to society would be at least as great in the former case as the latter, although no one in particular could show, in the former, that he had sustained any absolute tem- poral loss, in consequence of the fraud. If, indeed, any temporal loss were to be occa- sioned by such a deceitful and fraudulent statement, then it would be both morally and politically expedient that the loss should be borne by the party who had occasioned it by his wrongful and immoral act. This plain and obvious principle is fully recognized by the law of England, as indeed it was by the civil law, in a variety of instances. Thus, if A. were fraudulently to in- duce B. to give credit to C, by representing C. to be a person of wealth and credit, though A knew him to be insolvent, he would be responsible to B. for any loss which he might incur from having trusted to A.'s representations.* And if one were to give a false and undeserved character of a servant for honesty, where he knew him to be a thief, the party imposed upon having sustained damage from the misrepresent- ation, would, no doubt, be entitled to compensation from the author of the deceit. The great principle is, that where temporal loss is occasioned by fraud, reparation ought * On grounds of extrinsic policy, such an action is now confined by the provision of the late act, to cases where the fraudulent representation is in writing. PRELIMINARY DISCOURSE. xlv crues from such a misrepresentation, it is 'consonant with [ *xlvi ] reason and natural ju-uice, that the author of the mischief should be bound to repair it. But tin' right of the calumniated individual to receive a coinp sn- sation must, in all oases, obviously depend on the consideration, that by tin.' fraud of another In- has been deprived of that which ho was Otherwise justly entitled to enjoy ; and the title to compensation must therefore cease, when the truth of the imputation is inconsis- tent with the right of enjoyment. If a man commit profligate and wicked acts, upon what principle can he bind the rest of mankind to silence, or demand damages, should his real character be divulged ? How can any right or inte- rest be claimed in a false character, founded in fraud or hypocrisy, and subsisting only through ignorance? In short, in such a case, that fraud of which an innocent man would justly be entitled to com- plain, were his conduct or character to be misrepresented, attaches to the guilty complainant who would suppress the truth ; to the hy- pocrite who would maintain the show of religion ; to the profligate who would be esteemed moral ; to the villain who assumes the char- acter of an honest man, and not to him who plucks off the mask and exhibits the delinquent as he is (V), *Were the truth to be no defence, it would follow that [ *xlvii ] a guilty man would be entitled to far greater damages, in respect of a true representation, than an innocent man could claim, in respect of a false one ; the probability of conviction and of punishment would be far greater in the former than in the latter case. Again, in point of natural justice, it is an understood condition, in all the various dealings and intercourse of society, that everyone to fallow; to this extent the moral and municipal law concur. Compensation to an indi - vidual, in respect of damage occasioned by a false representation of his character or conduct, is one class of cases which fill within this great principle, and in this, as well as all others, it is ihefrawi or dolus which gives birth to the right. If A. were to inquire of B. as to the credit an 1 Bolven v of ' !., B. would be guilty of an immoral and fraudulent act, as well in recommending C. for his honesty an 1 wealth, when he knew him to be dishonest and insolvent, as in wilfully misrepresenting him to be dishonest and insolvent, when he knew the contrary to be true. Justice requires that reparation, in the one case, should be mode to the deceived, in the other", to the slandered party. (r) Cum autem duobus modis id est aut vi aut fraude fiat injuria, fraus quasi vul- peculie vis Leonis videtur, utrumque homine alienissimuru sed fraus odio digna majore. Totius autem injustice nulla oapitalior est quam eorum qui cum maximc falluut ip agunt ut viri boni esse videantur. Cic. dc off. 1,1. 3* xlvii PRELIMINARY DISCOURSE. is what he appears to be, in all cases where exterior appearance can be supposed to have any influence in such dealings ; and, therefore, whenever an advantage is obtained by virtue of a false appearance, that advantage having been gained. by a species of moral fraud, can- not be the subject of right. In the next place, how does the question stand upon grounds of public policy and convenience ? If an individual has a right to protection against calumnious and injurious misrepresentations, is it not, on the other hand, conducive, if not essential, to the welfare of the community, that the character of individuals should be truly estimated ? If it be an offence against an individual to degrade him from his place and condition in society by wilful misrepresenta- tion, is it not also an offence against society to raise an unworthy member to advantages and honors which he did not deserve, either by false commendation or peremptory injunctions to silence ? It has already been observed, that a state of society is one of mutual confidence, in which each must trust others for the effectual discharge of every duty of civilized life. It is obvious, that where individuals have an interest in being truly represented, in order to enjoy a degree of confidence and esteem proportioned to [ xlviii ] their *merits, the public have a mutual and correlative in- terest in truly knowing where trust may be safely and beneficially reposed. It is plain, that members of the same community have an interest in mutually knowing the characters of those with whom they are to associate, for all the various purposes and relations of civilized life. The common imperfections of our nature, and the want of opportu- nity, to a great extent prevent the mass of mankind from acquiring a just knowledge of the characters of each other by every man's own observation and judgment ; and the difficulty is further increased, by the consideration that the most dishonest and worthless members of society, at the same time, use the greatest exertions to preserve a fair exterior. What greater encouragement, on the other hand, could be afford- ed to the exercise of every evil propensity, than that the actions of the wicked should be veiled in darkness, and that the good and the bad should mix in society, without the possibility of discrimination, that the apprehension of disgrace should cease to operate as an in- centive to good conduct, and that the honest and virtuous part of society should no longer be put on their guard against the practices of the fraudulent and the depraved ? PRELIMINARY DISCOURSE. xlviii Let it, for a moment, be considered what would be the moral con- sequences of a -general prohibition to publish the truth. There is, perhaps, no other feeling so strong, so universal, and so influential, as it were, on the actions of mankind, as the love of reputation. That laws, without morals, are vain and unprofitable, is an ancient position, which has been amply confirmed by the experi- ence "of every age and every country ; thai mere abstract [ 'xlix ] moral, or even religious principles, unassisted by the dread of censure, would be insufficient motives to good conduct in lect of the moral but undefined duties of Bocial life is equally certain. What are the great practical restraints which tend to the obf ance of legal and moral duties in a state of society ? Within the narrow sphere of the municipal law, men may lie deterred negative- ly from doing evil, it may be, in some few instances, compelled to do positive good, by the apprehension of penal consequences, suffi- ciently certain and severe to enforce obedience. Religious and moral principles, on the other hand, tho ugh uni- versal as rules of conduct, want the aid of temporal and immediate inducements to their observance. There is, in fact, a large portion of mankind, which, beyond the mere limits of absolute and peremp- tory laws, scarcely owns any other restraint than the fear of public censure and its consequences. But the love of fame, reputation, and character, is a motive of human conduct as powerful as it is universal, extending to every action which can be the occasion of praise or of blame, to all ranks and conditions, — who is free from its mighty influence (a) ? Its operation is co-extensive with the moral law, whilst its in- ducements are of a present and powerful nature ; on the one hand^ promising temporal prosperity ; on the other, threatening destitu. tion, disgrace, and ruin. *To reject the moral aid arising from a feeling so uni- [ "1 ] vcrsal and so strong, that it may well seem to have been conferred in order to adapt us to a -tale of society, would be no better than an extravagant and irreparable waste of moral power which might have been most usefully and beneficially applied to public advantage. It were, however, to regard the operation of this great principle in a very limited and confined view, were its influence to be consid- (a) Quid philosophi nostri > nonne in bis libris ipsis quos scribunt Je contcmnenda gloria sua nomina inscribunt ? 1 PRELIMINARY DISCOURSE. crcd merely in reference to the immoral and unprincipled ; the policy is well warranted by experience, which subjects even the best and most enlightened of mankind to its powerful control. The fear of censure may, in effect, be regarded as a moral force, which operates strongly, constantly, and uniformly to the public good, in opposition to base and unworthy motives ; the best are not above (&), and even the very worst are scarcely below, its saluta- ry influence. To prohibit all communications concerning those actions of man- kind which deserve censure, would be to make every bad man pass current for a good one, to provide a mask, under which every prof- ligate and designing hypocrite might practise with security on the innocent and the unwary, it would be to repeal one of the great moral penalties against vice, the reprobation of the just, and con_ sequent exclusion from their society ; it would be to offer the high, est possible premium for the encouragement of hypocrisy, to efface, as far as possible, all exterior distinctions between vice *li " and *virtue, and to mix and confound together the virtu- ous and the vicious to the common detriment of all (c). Another objection to the admitting the action for damages, where the communication is true, must be confined to those cases where the municipal law annexes any legal quality or efficacy to character, as the law of England does, where it admits evidence of good char- acter, as tending to diminish the probability of guilt on a trial for a crime. It would be in the highest degree inconsistent and absurd, that the law should, in the first place, secure to every man a good character whether he really deserved it or not, and should, in the next place, make that good character to operate as evidence of his (b) Negligere quid de se quisque sentiat nou solum arrogantis est sed etiam omnino dissoluti. Cic. de Off. 1. (c) It may further be observed, although it seems to be unnecessary to dwell on the subject, that if a remedy in damages were to be awarded where the imputation is true, part would be given in respect of the plaintiff 's own delinquency, for the truth of the fact, as well as the mere publication of it, have concurred in effecting ihe privation, and thus the complainant would be allowed to make gain of his own wrong. It is plain, also, that damages ought not to be given commensurate with the privation, for that was the proper consequence of the plaintiff 's misconduct, and might have followed, though the fact had not been disclosed by the defendant; it ought, in justice, to be proportioned to the probability that the wrongdoer would otherwise have enjoyed impunity. If A. were to commit a crime, and B. were to publish the fact, in consequence of which A. suffered loss and imprisonment, it would manifestly be unjust that B. should make full compen- sat ion to A. for that consequence, where a great probability existed that the same conse- quences would have followed from inquiry and deteetion in the ordinary course of justice. PRELIMINARY DISCOURSE. li innocence. In strictness, indeed, general reputation, as to character in society, would cease to exist, as soon as mankind were enjoined to observe "perpetual silence, as to all which 'lii any member of that society had done amiss. Cases of hardship may -till be urged where no public benefit can arise from exposure, and where the suffering party is deprived of advantages which he might legally have enjoyed. For instance, where a delinquent has, by many years of penitence and good con- duct, retrieved his cli in society, to give a wanton, unneces- sary, and renewed publicity to the circumstances of his offeni •. whilst it would overwhelm bim with disgrace and ruin, might bo productive of no real benefit to the public. And it may be urged, that the affording a possibility to those who have acted criminally, of retrieving their errors and reinstating themselves in society by a course of good conduct, is to hold out a temptation favorable to the interests of morality. To a certain extent, and in a moral point of view, such observations arc well founded ; they afford, however, too uncertain and indefinite a foundation even for a particular and limited exception to a general rule, still less do they warrant a total rejection of that rule. How could such an exception be limited and defined ? How many years of abstinence from crime, or even of positive good conduct, shall be sufficient to purify the tainted reputation of a criminal ? At what period shall the law ordain that his misconduct, though not forgotten, shall no longer be mentioned, and ever after enjoin perpetual silence, under the penalty of an action for damages, to which truth shall afford no answer ? Must not the period be proportioned to the nature and heinousness of the offence ? Were such a limitation practicable, would not many a villain derive a sanction and protection from *the [ *liii ] law, though his vices were latent, not eradicated, and would not numerous opportunities of doing harm be afforded by im- posing silence, which would have been excluded by exposure. It is in all cases dangerous, frequently fallacious, to draw general conclu- sions from cases of individual hardship; in the present, it may well be questioned, whether, even in the particular instances adduced as examples, the community would derive no benefit from publicity, and whether a delinquent, under any circumstances, or at any time, has, in point of moral justice, a claim to be placed in the same >itua- tion, as to character, wifcfc those who have never offended. It may, perhaps, be objected, that several of the arguments which have been thus used in support of the general position, that liii PRELIMINARY DISCOURSE. the publication of truth can in no case warrant an action for dama- ges, assume that the complainant is in law or morals a delinquent, but that it frequently happens that a man's interests may be seri- ously affected, and his comforts and happiness greatly diminished by the publication of that which is true, but which is not imputable to him as a fault. This may readily be admitted, and it may be added, that a man sins greviously against morality, who, for the purpose of creating misery, publishes, concerning another, even that which is true ; but it is to be recollected, that the question at pres- ent is not as to the moral, or even legal delinquency of one who publishes the truth, with a malicious design to create mischief, but whether the party, concerning whom nothing more than the truth is published, has such a right to privacy and concealment, as shall, even in point of reason and natural justice, entitle him to [ *liv ] a compensation in damages from one who publishes *the fact. Now, it may be observed, in addition to any argu- ments derived from considerations of external policy and regarding the question merely in reference to the right to civil remuneration, that if any injury or inconvenience accrue from publicity, in such a case, it must' consist either in a mere injury and annoyance to the feelings of the complainant, from a sense of wounded delicacy, or in the intercepting and preventing some collateral benefit, which, but for the publication of the fact, would have accrued to the party whom it concerns. In the first place, a mere injury to the imagina- tion or feelings, however malicious it may be in its origin, or pain- ful in its consequences, is not properly the subject of a remedy by an action for damages ; such offences being unconnected with any substantive right, are incapable of pecuniary admeasurement (d) and redress ; they admit of no exact definition, and therefore, to extend a remedy to such injuries generally, would be productive of great uncertainty and inconvenience, and open far too wide a field for litigation (e). In the next place, it seems to be clear, that a party who acquires an advantage by concealing the truth, which he could not have attained to had he divulged it, so far is guilty of fraud in (d) To such an extent is this principle carried, by the law of England, that most of- fensive, provoking, and insulting charges may be made orally, which are not the subject of an action, even though they are absolutely false. To charge a man with mere im- moral conduct, however gross, would not be actionable in the absence of special damage, though the imputation were falsely, as well as maliciously made, see above, xxxi. note («). (e) See above, p. xxviii. PRELIMINARY DISCOURSE. lit the concealment, that he cannot, upon any "principle, claim a right to acquire that benefit, and therefore, can- [ *lv ] not complain that he ia injured by a publication of the truth. By way of illustration, let it be supposed that a banker, being reduced to the brink of bankruptcy by unavoidable misfortunes, a friend, in ignorance of his circumstances, offers to deposit in his hands a large sum of money, but that the friend ie prevented from doing so, in consequence of a report from some third person that the banker is insolvent. Ought the latter to recover damages? What has he lost but an opportunity of committing a gross decep- tion, by receiving the money under a fraudulent concealment of his circumstances ; if he could not honestly have availed himself of the other's ignorance of the real state of his affairs, it is obvious, that he has not sustained any moral, still less any legal injury from the disclosure. A.gain, suppose that one who labored under a latent and personal defect, or who was subject to some hereditary malady or disease, was prevented from forming an advantageous marriage by the dis- closure of the secret by a third person, though a publication of the truth might be most offensive to the feelings, yet could it be said that any advantage had been lost to which the complainant was morally or conscientiously entitled ? Once more, if a patron were to offer preferment to a party, under the erroneous supposition that he was a relation, when, in fact, the party to whom the offer was made well knew that he was no relation, and that the offer resulted from mis- take, would it not be dishonorable and immoral to avail himself of an intended kindness, which was founded in mere error ? In these and all similar cases, where the 'advantage 'lvi ] could not have been obtained, but through the medium of fraud, morally speaking, it seems to be obvious that no interest exists which can be noticed even as a moral, still less as a legal right. To recognize such rights, would as little consist with the principles of morality as of political expediency, for the natural and obvious effect would be to lend a legal sanction and encourage- ment to the commission of fraud, by rendering the practice more easy, and by affording a premium to the party who attempted it, even in case of failure (/)• (/ ) In one instance, at least, the presumption of solvency, on the part of a purchaser as the tacit condition of the contract, is recognized by the law of England. Every man (according to Lord Kenyon,) who contracts to supply another with goods, acts on the lvi PRELIMINARY DISCOURSE. Finally, to make tho truth operate merely as a qualified defence, never singly, but occasionally, in conjunction with other circum- stances, were the practice even more consistent with the principles of natural justice than it seems to be, would be productive of great inconvenience (§•). Happily, the ancient and undeviating presumption, that that other is in a Condition to pay for them; and, therefore, when the condition of the consignee is altered at the time of delivery, and he is no longer capable of performing hie part of the contract, honesty and good faith require that the contract should be rescinded: and on this footing that learned judge placed the doctrine as to the right of seizing goods sold to a bankrupt or insolvent, when the vendor is able to do so whilst they are in transitu, before they have actually come iuto the possession of the purchaser. (%) Mr. Borthwick, in his late excellent work on the Law of Libel in Scotland, with a very natural bias in favor of the laws of his own country, combats the position, that the truth ought to be an absolute bar to the claim for damages, with great force and great ability. He urges, that the reason given by Sir VV. Blackstone, for refusing the action for damages where the imputation is true, viz. that the public are benefited by this disclosure, is inconsistent with the doctrine of the law of England, that a libel, though true, is punishable criminally. Now, certainly, if the reason for denying the civil remedy, in such a case, really were that of the civil law, that is the public benefit resulting from the publication, there would, no doubt, be ground for chai-ging the law of England with inconsistency in this respect; that, however, is not the reason, or, at all events, not the principal reason on which the law of England proceeds. The principle on which the law of England, in such cases, denies the right to damages, are the plain and obvious ones, that the fraud or deceit, which is of the essence of the wrong, is wanting; that no man can have a right to recover damages in respect of the publication of his own misconduct, and perhaps even more generally, that no one can have a legal right or interest in the suppression of truth. The negation, therefore, of the civil remedy is perfectly consistent with the infliction of punishment, the public may be injured where the individual has no claim to damages. If a man were to wound an outlaw, the latter could claim no damages; and yet the former would be worthy of punishment, for the wanton outrage he had committed against the public peace. Mr. Borthwick further ob- serves, that the truth of the charge is no just guage of the injury done by the libel or slander, that though the tradesman is proved to be bankrupt, or the physician a quack, great injury may have been done to the tradesman or physician, by the information being more widely circulated than it otherwise would have been. The answer is, that the de- nial of the remedy by the law of England is not founded upon the supposition, that no harm or loss has accrued from the publication of the truth, but on the injustice, or, at least, the impolicy of permitting the party who has sustained the loss, of recouping it in damages from one who has spoken merely the truth. The law, in such cases, admit- ting the damnum or loss to have been sustained, denies the existence of the injuria, the violation of any right which the plaintiff had. Again, Mr. Borthwick argues, that as it is by the indiscretion, or, at lea3t, by the malice of the defender, that h'is liability is to be judged of, although the truth of the charge were proved, and if no other circumstance but the truth were required to com- plete the justification of the defender, he might be absolved from the action, though the greatest degree of both culpability and malice had actuated his conduct. This objection, on the score of inconsistency, obviously assumes, that the law of England, as of Ron^ and, as it seems, of Scotland, regards the animus infamandi, or mens rea, as of the PRELIMINARY DISCOURSE, lvi *rule of the English law on this point has protected ae *lvii ] from an actual and intimate knowledge of difficulties, the essence of the offence, and it admits of two answers; 1st, the law of England, with a ■view to the civil remedy, principally regards the loss or damage to the j ue, and not the contumely of the act. See Wood's Ins. 17, and Bnpra, xxxi. note (a); intia, vol. 1, p. in, where the aet is wilful and noxious, malice is but a mere legal infer- ence from the act, in the absence of facts which constitute an absolute or qualified justifi- cation, and, in many instanoes, an absolute justifi - from the mere facts, and malice, however in ites no right of action. But, 2ndly, even where the malicious or oontumelious intention of the essence of the wrong, there would be no inconsistency in repelling the action, under circumstances which, for reasons of intrinsic policy, warranted the exclusion. There cannot be a stronger instance to prove thi-. or one which ought to weigh more with those who pro- fess to adopt the civil law, than that afforded by the civil law itself, which, though it regarded the con tunielious intention, as the very gist and essence of the action, civil, as well as criminal, .-eons to have considered the truth of the imputation to be in itself, independently of the question of intention, a decisive bar. . In illustration of his argument, Mr. Borthwick cites the following decision of the Parliament of Toulouse, mentioned in the Causes Celebres, vol. 6; Histoire du Proces des Sieurs Saurin & Rousseau. " Le parliament de Toulouoe a decide ainsi — unefillequi auroit mis clai cut au jour un fruit de l'amour a qui clle auroit conserve la vie, pourroit se plaindre en jus- tice du medisant qui reveleroit son deshonneur, parceque la defamation la depouille de l'honneur dont elle jouissoit par an faux titrc, m us qui ne fnisoit tirt a persoune, sa possession etoit legitime avec ce titrt colore. Le Fore interne s'accorde encore ici avec lefore externe." A mendisant, employed professionally and confidentially, reveals the dishonor of a young unmarried woman, whom he has secretly delivered of the fruitof an illicit amour, the court decrees, that she is entitled to recover damages for the mere defamation, as contra-distinguished from a wrong done by the breach of promise or professional confi- dence,* for, if the decision were founded on the latter ground, it would n ! into a mere question of contract or of professional duty, and would be too much limited in its circumstances, to be valuable as an illustration of a general principle. For, though the law were to award a remedy in such a case, in respect of the breach of an e.v or implied promise, or in respect of the violation of a legal and professional duty, it would still decide nothing on the great an 1 general question, as to the right to damages, in respect of the promulgation of true but defamatory matters. W hat, then, is t! alleged for the decision ? That t lie complain- ant being in posj character to which she has no title, the law ought to protect that title becau of it injures no one. But may not m har- acter be injurious to others, may it not enable a profligate woman to form OOnnec even that of marriage itself and thus to practice a cruel deceit under the mask of virtue; may she not. under the same folse color, be enabled to contaminate the prinoip others of her own sex; is no injur] d..ne in c ising a woman of abandoned principle B to be received and accepted into the bosom ol Son of unblen reputation. But e\en admitting that the character injured no one, does it follow that the * By the Code penal of Prance, art. 858. physi ns, midwives, \e, who reveal secrets confided to them in their respsctive capacities, (except iu cases where the law compels them to the contrary,) are liable to imprisonment. Vol. I. 4 lvii PRELIMINARY DISCOURSE. [ *lviii ] "reality of which may be collected from the experience of others. law ought to protect it; would it not be impolitic to give protection and encouragement to laxity of moral conduct; would not the affording it he, pro tnnto, to remove a great and efficacious restraint on immorality, the dread of censure and exposure? Again, how can a false title to character give a real title to damages for the loss of that char- acter ? Let us suppose that one of the most injurious consequents that can result from such defamation has actually been occasioned by the publication, viz. that the party has lost the benefit of an advantageous marriage; yet what legal ground of complaint can there be in losing that which could not have been gained but by a base and fraudulent concealment. No laws, either municipal or moral, could contemplate any right or in- terest in a contract made under such circumstances; the complainant would therefore have lost nothing which the law could recognize as the object of legal protection. She would, in effect, have lost nothing but the opportunity of doing an injury by means of a fraudulent concealment of the truth. It is further observed, that the decision is in con- sonance with the ftelings (lefore interne) of mankind. The feelings of individuals constitute, however, but a very indifferent forum for the decision of cases where the judgment is liable to be warped by the particular circumstances in opposition to the general rules, which in their constant and uniform application, conduce to public happi- ness. The conduct of a professional man, who betrays such a secret is, no doubt, most dishonorable, unprofessional, and immoral, such as is calculated to excite a sense of the highest indignation; but does it therefore follow, that it would be wise to award, on that account, a compensation in damages, and to establish a general precedent on the par- ticular hardship, without any consideration of the general principles on which the claim to 'damages ought to be founded ? Still less would it follow that a remedy ought to be given against one who had published the fact, without being guilty of any breach of professional confidence. Besides, it is easy to see that the moral sense of mankind would afford no general rule for the exclusion of the truth, as a defence, but rather the contrary. Let it be sup- posed, for instance, that the complainant had been guilty, not as in the case cited, of a single deviation from the paths of virtue, but that she had led a life of vice and de- pravity in a distant country, would not the moral sense of society condemn, rather than approve, the law which allowed her to recover damages against one who had merely put society on their guard, by publishing her true character? Would not men question the wisdom of a law which enabled one who had led an impure and profligate life, to re- cover damages for a reflection on her chastity ? Is any man's mind so constituted as to think it just or reasonable that a murderer should recover damages from one who had published his guilt, even maliciously r It follows, then, that if the mere moral sense does not always approve such a defence, it is at all events, far from sanctioning the general exclusion. Where then is the line to be drawn ? Mr. Borthwick concludes his argument with these observations. — " If a person is not placed in one of the situations which are called privileged, or unless he can show that what he said was uttered for the purpose of promoting conviviality or amuse- ment, or in consequence of passion, inebriety, or such temporary excitement ; and yet shall be exculpated in every case from an action of damages, for having defamed an in- dividual, merely by proving that his expressions were true, there seems for the reasons above assigned, not only to be an inconsistency in the application of the legal reason- ing that supports such a doctrine, but the practical consequence would seem to lead to no other alternative than to pass with impunity every act of cold-blooded cal- umny, provided only that it be grounded on a true statement, however prejudicial that PRELIMINARY DISCOURSE. Mii *It may justly be observed, that the principle of moral [ *lix justification is applicable only where the motive # of com- [ 'lx ] statement might be to the sufferer, and however unprovoked, officious, and malevolent it iiii^ht be on the part of its author." Upon these litter comments, it may suffioe to remark, that the supposed inconsistency of the doctrine of the English law on this subject having been already observed on, it would fie superfluous to reiterate any ol servationa on tl ISut it is to be most emphatically observed, that the pra sequence allei."- 1 I ine, of the law of England, that truth shall be a bar to the aotion for damages, by no means follows It is to be rt , that the criminal and civil wrongs are not mixed and complicated with each other by the law of England, as they arc both by the civft law and the law of Scotland, and that, though the law of England, with cool, c inl .- and steady adherence to a general principle, universally repels the action for dam where the imputation is true ; yet that the same law visits every malicious libeller with penal censures, without regard to the truth or falsity of the libel. It m iy, indee I, readi- ly be admitted, that a man may indulge a wicked and malicious spirit, in publishing the truth, without incurring any liability to damages, according to the law of Engl uid : but what is the sum and substance of this objection ? simply this, that the law does not award damages to be recovered in respect of an imputation truly made, merely because it has been maliciously and immorally made. This ground of complaint against the law, taken in the abstract, avails nothing ; it is impossible that the municipal should be co-extensive with the moral law, so as to subject the author of every malicious and immoral act, to a civil action for damages. The very extent to which such an objection might be pushed in effect refutes it ; if the suffering of a guilty party from publicity and cold-blooded malice on the part of the publisher, give a claim to compensation, it ought to be given even where a malicious party prosecutes and convicts the offender a - cording to law, or publishes, that such a conviction has actually taken place, for many cases might be put where such a proceeding would be harsh, vindictive, and pppressive. Neither is there any inconsistency in the application of the general principle of English law to the particular case, for the ground of compensvtiou is loss << , in rospect of a fraudulent or negligent misrepresentation. The question then is, whether that general principle be a correct one, and whether the truth of the fact ought to repel an action for defamation, without regard to the malice of the publisher, and this/as Ins been seen, is an important question, to be determined, not by a few instances of hard- ship which may fall on penitent offenders, but on general c insiderations of public poli- cy. Those oonsi lerations seem to weigh strongly in favor of making truth an aba bar to compensation, both because the falsity of the charge is the true principle of civil liability, and because it would be impolitic too nicely to scrutinize the motives of those who had exposed delinquents, and impracticable to lay down definite rules, which would admit such a remedy in cases of hardship and malice, without, at the a ime time, afford- ing protection and encouragement to those guilty of the most heinous and detestable crimes. If this be an error in our national jurisprudence, it ifl one which, to a great, though not perhaps the same extent, is attributable to the laws of Athens, Rome, and modern France. Assuming that the policy of the English law, in this respect, is doubtful ; what is the alternative proposition ? not to reject the truth as immaterial to the defence ; that is not contended for, but that the truth shall be available with certain other circum- stances, which ingredients shall, in their union, supply a full and complete justification. Now, the very instance of Scotland herself, whose laws on this subject Mr. Borthwiok has with great learning and great ability both expounded and defended, affords a very lx PRELIMINARY DISCOURSE. munication is a benevolent and sincere one, and that to *lxi ] publish even the truth, with a malicious intention *to cre- strong illustration of the difficulty of establishing precise and definite rules on such principles. Mr. Borthwick, with great candor, observes, that " lawyers of the greatest eminence have differed, and may continue to differ, from each other on this subject, some of whom have thought that our law (i. e. of Scotland) has not yet arrived at that degree of maturity which can put us in possession of a general rule. Future decisions will remove this difficulty.''' Certainly, the decisions of the Scotch courts, which Mr. Borthwick has collected, conflict too much to yield any certain and definite rule ; and it is observable, that in two of them, viz. Scott v. Buillie, Borth. 268, and Fife v. Fife, ib. 272, the plea of the truth was allowed to constitute a full defence. In the former case, the defender, Mrs. Baillie, had publicly, at an assembly, asserted, that the pursuer had for a long time been a woman of gallantry. Mr. Borthwick observes, that this case was afterwards disapproved of, in Ross v. Mackerrell, (Borth. 349.) ; in that case the president took occasion to say, that in the case of Chalmers, widow of Scott v. Baillie, no proof of the Veritas convicii should have been allowed, but that there was no general rule upon the subject. In the case of Fife v. Fife, (Borth. 272,) Fife pursued one of her neighbors for damages, for saying that she kept a house of bad fame ; the defender averred that it was true. A proof was allowed, and having proved the fact accordingly the defendant was assoilzied. Mr. Borthwick observes, that in this case the proof of Veritas was properly admitted, because it was a public duty, not a malicious act, to ex- pose the pursuer. It would, however, be very difficult to establish any definite limit on the distinction between those offences which it was a public duty to expose, and, con- sequently, where the Veritas convicii ought to be allowed, and those, in the exposure of which the public had no interest. Mr. Borthwick also suggests that, even admitting Chalmers' case to be an authority, as far as oral slander is concerned, yet it is not an authority in case of libel which differs essentially from oral slander ; and he refers to the law of England in support of this distinction, observing, that it was not until the middle of the last century permitted to a defendant to justify, in the case of written slander, (citing Lord Hard wick's dictum, in the Kins v. Roberts, Selvvyn's N. P. 986.) The notion, however, that by the law of England a justification of the truth cannot be pleaded to a civil action for a libel has long been exploded, and not only so, but the soundness of the distinction of the law of England, in considering that to be actionable, when written, which would not have been so if merely spoken, has been questioned by some of the best English lawyers. And though that doctrine of English law is now too firmly established to be shaken, there can be no doubt that it is an anomaly which has arisen from adopting the civil law doctrine as to libels, according to which, personal indignity, insult, and contumely, are the proper foundation of the action, whilst, ac- cording to the ancient principles of English law, the loss or damage to the party grieved either actual or presumed, is the real foundation of the civil remedy. Mr. Borthwick, indeed, as has already been observed, very justly attributes much of the uncertainty which has prevailed on the subject of the Veritas convicii, as well in England as in Scotland, to the conflicting and unsatisfactory opinions of the commentators of the Ro- man law. Borth. p. 244. Be-this as it may it is very difficult, on any certain princi- ples, to admit the Veritas convicii as an absolute bar to oral slander, and yet to reject it as an answer to a libel. It may be proper to observe, in this place, that Mr. Borthwick, in the course of his concluding remarks, seems to have assumed (agreeably to the civil law, probably also to the law of Scotland,) that proof that a defendant uttered the defamatory matter, complained of for the purpose of promoting conviviality or amusement, or in conse- PRELIMINARY DISCOURSE. lxi ate misery, is, in /b/v> conscienHa, an immoral act; this is true, but this is one of the munerous cases 'where it [ lxii ] quence of passion, inebriety, or such temporary excitement, would, by the law of Eng- land, furnish a defence to the action for dan law of England, however, does not sanction Baoh a dootrine, and i well as on many othei ■•ell boast a superiority over that code which our anoeel I ' adopt Upon what principles of reason or natural justice, or even of artificial policy, is a man to be excused from answering in damages, where he has knowingly and wilfully oc- casioned mischief to another, because he did it for his own amusement, lehe was drunk, or excited by passion. Is it for the law to define the rights of individuals, but when defined, nothing can be more clear, in point of reason and natural justice, than that a remedy OUgk4 to be given in respect of every wilful invasion or aggrt- of those rights. It i- doI plain, tint when the right to reputation an 1 character is once recognized by the law, every wilful redemption of a character ought to confer a title to damages, as well as in every other instance of the violation of a recognized legal right. What legal excuse or justification then can arise from the consideration, that a man in depriving another of character, by casting the most odious imputations, on him, did it because he was in jest, or was drunk ? Though to himself it may be matter of j -t, to the unfortunate object of merriment, the calumny may be utter ruin ; though uttered in joke, the charge may be reported and believed in earnest ; and intoxication, so far from taking away the sting of the calumny, may, in some cases, according to a vulgar adage even supply an inducement to belief. Finally, in support of the consistency of the superior merit of the law of Scotland, and of its consistency with the abstract principles of justice and equity, Mr. Borthwick refers to Mr. Fox's speech on the dis- cussion, in the House of Commons, on the Libel Bill, May 'JO, 1701. Parliamentary His- tory, vol. xxix. p. 575. That celebrated orator and statesman, in his speech on that occasion, admitted, that " there certainly were cases in which truth would not be a jus- tification, but an aggravation. Suppose, for instance, a man had any personal defect or misfortune : any thing disagreeable about his body ; or was unfortunate in any of his relations ; ami that any person went about exposing him on those accounts, for the purpose of malice ; and that all those evils were, day after day, brought forward to make a man's life unhappy to himself, and tending to hold him out as the object of un- deserved contempt and ridicule to the world, which was too apt to consider individuals as contemptible for their misfortunes, rather than odious for their crimes and %i - j would any man tell him, that in cases of that sort, the truth v. is not rather an a ration ?" The justice of these observations is Undeniable; the truth of facts, which impute no blame to a party, who may, nevertheless, be annoyed and irritated by the wanton publication of those tacts, can afford no justificatA to the igg »a in ■ moral point of view. Truth, as well as falsehood, may be used BS the instrument of malice ; and, consequently, where the object is to restrain such contumelious reflection! abuse' by penal censures, it would be absurd to make their truth a defence upon a criminal charge. It was in reference to penal restraints, that the observations cited by Mr. Borthwick were made by Mr. Fox, and upon this poinf the 1 kW of Englan I with that of Scotland. The controversy is upon the question, what el - to be attributed to the truth of the imputation, where the OOmpl linant demands a COfRJ Hon in 'lamages; here it cannot be said that the truth is an aggravation ; it would be as contrary to the plainest principles of natural justice and policy, as it would pugnant to the common sense and feelings of mankind, to say that a guilty man ought to recover larger damages for the mere assertion of his guilt, than an innocent man ought to do, in respect of unmerited obloquy, where the moral, as well as legal wrong, was lxii PRELIMINARY DISCOURSE. is questionable whether legal can be made to coincide [ lxiii ] with moral boundaries. It is frequently difficult to *as- certain the true motive of an act which, in its nature, lxiv ] may be attributable either to a good or bad motive ; *in such . case, it may be far better policy at once to pre- [ *lxv ] sume charitably in favor of innocency of intention, *than to open a, field for litigation. The convenience is great, [ *lxvi ] on the one hand, of laying down a precise and *general rule ; the practical inconvenience on the other, of afford- [ *lxvii ] ing protection to a malicious act is small, when *the act, in its own general nature and effect, is beneficial. At all events, the effect of the objection is merely to deprive the au- thor of the communication of his moral defence, and leaves the question upon considerations of general policy and convenience, just as it stood before. In the next place, that some communication of the noxious and calumnious matter to a third person, is essential to the injury, nec- essarially results from the very notion of damage whether it be actu- al or presumed, though the extent and magnitude of the injury may depend greatly on the nature of the publication. A publication, by writing or printing, may, from its widely extended circulation and its permanency, be far more injurious than one which consists mere- ly in oral discourse. A communication to one, or a few individuals, may be far less injurious than if the calumny were to be uttered publicly in the presence and hearing of many. enhanced and aggravated by base and deliberate falsehood. To the question, therefore, now under discussion, the observations alluded to in the debate on the Libel Bill have no application. A comparison of the law of England with that of Scotland, does not permit the advo- cate for the former to object to the latter, the repelling £ defence founded on the truth of the libel, in the case of a criminal prosecution; but he may object that the Veritas con- vicii ought to be received ad% valid plea, in all cases where the complainant sues for damages, and that the law of Scotland, as well as the civil law, whence the rule is de- rived, acts on a faulty principle, in constituting not the damage to the party injured, but the contumelious intention of the calumniator, the main test for deciding on the rele- vancy of the remedial action; and certainly the law of Scotland deviates from the civil *aw, in not allowing the plea of the truth to avail as a defence, in cases where the civil law, on grounds of policy, admitted that defence. For the language of the Digest, on this point, seems to be too clear to admit of serious doubt as to its meaning. The rule and practice of the civil law, in admitting the truth to amount to a substantive justi- fication in the remedial action, agrees, in the main, with the rule and practice of the law of England. And, perhaps the very circumstance, that the same practical conclu- sion has been derived by the aid of different principles, might well be urged as a further argument in its favor. PRELIMINARY DISCOUBSE. Lxvii Again, an oral insult may be greatly aggravated, by the consid- eration that it was offered in a man's own house, in the presence of his family, or before a public assembly of friends or others whose respect he wonld be anxious to retain. As far, however, as the claim to damages is concerned, if there be an actual publication of the calumny to a third person, (for thai is plainly essen- tial to the notion of damage, actual or presumed,) 'such [ Ixviii ] circumstances, whatever their effect may be, in enhancing the damage sustained, do not seem, in principle, to afford anj ma- terial or essential test for ascertaining the title to some compensation. If any damage has actually resulted from a publication to a third person, other circumstances, constituting an aggravation of the wrong, cannot be material, otherwise than as they affect the ques- tion of damages; and if damage be presumed in law, and proof of actual damage be immaterial, still circumstances of- extended pub- licity merely affect the question of degree, and not the presumption itself. If damage is to be presumed from a publication to many, some damage may also be presumed from a publication to a single individual, especially as that individual may afterwards publish the slander indefinitely. And, therefore, if the law on a presumption of a probable damage constitutes a particular class of communica- tions substantively actionable, though no particular loss or damage can be proved, it is obvious that a communication to a third person is all that is essential, and that the mode and circumstances of com- munication do not in themselves supply any obvious and natural limits for defining the' extent of civil liability (//). 4 (h) The civil law made a material distinction, not only between oral and written defamation, but even between an inj iry by writing and one by pictures. Thus Heineo- ciu*. Lib. -17. tit. 10, in explaining the t'ule in the Itigest de injuriis & Famosis Libellis, observes, " injuriam uliam esse verbalem si quia alteri convioium adversu* bonos i facit vel fieri curat, aliam realem quae re et facto infertur. Ad priorem etiam, injuriam aoriptura, ad posteriorem ei per pictaram illata refertur." There seems, however, to be little either of principle i r practical utility in this distinction et' the oivil law, which constitutes defamation by means i fa picture, a real injury, whilst it regards a calumny in writing, though it convey precisely the - ■ ind is equally permanent in its nature, as a verbal one. of the numerous commentators on the civil law have reasonably doubted the propriety of this distinction, whilst others trictly maintained it: the force of their arguments may be appreciated from the following example — Matthseus de ('rim. tit. tie [njuriis & Famosis Libellis, c. 1. s. 1. Referenda hue et ilia (Injuria) qusB tit monstroan et infemi picturn, nee reote <|U : .dem picturam ad famosos Libellos transferunt tanquam muta imago non minus nc liter* loquatur; aut, ut anctox Rhetoricorum ad Herrinnium lib. iv. acripsit quod pictnra taciturn puetuasit: nam ea ratione injuriam qua; manu telove fit, ad BOriptum ^uoque lxxx PRELIMINARY DISCOURSE. *lxix ] *In the next place, do any and what limitations natu- rally arise from a consideration of the motive and inten- referre posses, tanquam et vulnus loquatur et tubera capitis et vulnere obclucto cicatrix. It must, however, in fairness be observed, that this passage, in which the learned writer so entirely confounds the means with the consequence of injury, is a very unfavor- able specimen of his justty celebrated and most useful treatise. Tlie Roman law not only recognized the distinction already meutioned between oral and written defamation, but also distinguished between various circumstances of oral slander. It was termed in some instances convicium in others maledictum. — See Dig. lib. 47, tit. 10. Convicium proprie est (says Matthseus cum in coetu aliquid dicitur aut cum vociferatione pluribus vocibus in unum collatis quasi convocium: quod autem non in ccetu nee cum vocifera- tione fit maledictum tamen est si fit adversus bonos mores civitatis, d. 1. 15. § Convic- cium et § sive unus. Quinimo etsi natura non sit contra bonos mores civitatis locus tamen et modus efficere possunt ut convicium. Ex. gr. Idoneum debitorem appellare non est convicium: sed faccre id in publico et cum clamore. Cedo Fme collateral motive, with a view to applause or gain, or may act carelessly and negligently, without any fixed or determinate motive whatsoever. As where one, for the sake of shewing his wit or tal- ent for sarcasm, indulges it at the expense of another's reputation, not because he really feels any inclination to do that other an injury, nor because he is actuated by any personal feeling of hatred or ani- tolerated without some restraints; aline must somewhere be drawn, which, whilst it partially restrains, at the same time partially admits the evil. In this, as in many other instances, good and evil are so closely and intimately blended, or rather perhaps, more properly speaking, opposite mischiefs so conflict and contend together, that it is impossible wholly to exclude either without increasing the whole quantity. In such cases the important problem is to discover the precise rule, which, though it does not entirely exclude either of the opposite and conflicting inconveniences, yet admits only the minimun of evil. It is upon these plain and simple grounds that the law of Eng- land is founded, which, whilst it prohibits the publication and punishes the publisher of written slander, takes no cognizance of mere oral calumny, and whilst it restrains by penal means all deliberate attempts to destroy character and reputation by written de- famation, leaves mankind at- full liberty to communicate on the subject of character and reputation, without the fear or apprehension of penal visitation. (i) Si verba quae lam prolata sint ambigua duplicem admittentia significationem, in bonam partem in dubio facienda eorum interpretatio, quoties enira alia potest capi con- jectura pro delicto praesumendum non est. Sin tales fuerint prolati sermones qui per se et propria significatioue contumelhm iferunt injuriandi animus adfuisse creditur. — Voet. Com. tit. de. Injur, p. 1023. PRELIMINARY DISCOURSE. lxxiv mosity, but merely to entertain others and shew himself off to ad- vantage. Bat it is plain that no one of these predicaments can, without ref- erence to the legal occasion and circumstances of the act, afford any certain boundaries of responsibility. Be the motive ever so mali- cious, there may be and are cases where it is essential, on groundsof legal policy, to exclude responsibility. Again, though the intention of the party be ever so pure and unexceptionable, and consequent- ly, though he be entitled to the utmost indulgence which is consist- ent with a due regard to the interests and characters of others, it may nevertheless be necessary to restrain the nature and mode of communication by such limits as may consist with general conve- nience ; for it is pretty obvious that a well intentioned man may use very exceptionable and very injurious means for carrying his in- tentions into effect ; and consequently, to make a mere abstract in- tention to do good, the criterion of civil, or even of criminal respon- sibility, would be a test far too uncertain and precarious for practi- cal purposes ; it is essential, therefore, that the law itself should de- fine, in reference to the occasion, to what extent the acting on such intentions should be privileged. Where such boundaries have been defined and "appointed by the law, the wilful [ *lxxv ] transgression of them cannot be justified in foro consci- entiae, still less in' foro humano ; for no man has a right, even mor- ally speaking, to act on his own opinion in derogation of the legal right of another, and in opposition to the municipal law of the coun- try. To allow him to do so, because in his own opinion, his act was meritorious and expedient, would, in effect, be to permit every man to act on his own judgment, in opposition to the law, and that not only in the particular instance but in all cases, which, in effect, would be to substitute every man's own vague notion of what is right and expedient, for the certain rules established by the supreme power of the state. It follows, therefore, that in the case of intellectual injuries to character and reputation, as well as in those of forcible ones to the person, it is for the law to define the particular occasion and circum- stances which will operate by way of justification and excuse in ca- ses where a wilful communication to the detriment of another would otherwise have subjected the author to make compensation in dam- ages. And consequently it follows, that the real motive and inten- tion of the author or publisher of a communication which is illegal, either intrinsically or in respect of its consequences, in the absence lxxv PRELIMINARY DISCOURSE. of such an occasion and such circumstances as amount, in point of law to an absolute, or at least a qualified excuse, are wholly imma- terial as a test of civil liability. And, consequently, that although the offence of calumny be defined in terms which include a corrupt or malicious intention, the consilium or animus infamandi, yet that in the absence of such an excuse for the publication of [ *lxxvi ] noxious matter, which the law recognizes, *such an in- tention is necessarily to be inferred or presumed from the act itself (j ). 4thly. The occasion and circumstances of the communication. It is then to be considered, whether assuming noxious and injuri- ous matter to have been published, the civil remedy ought to be re- strained in respect of the occasion and circumstances of the act, either with or without reference to the motive and intention of the publisher. (;) And, therefore, although according to the Roman law, the mens rea or animus infamandi was regarded to a much greater extent than the law of England permits ; yet was the illegal intent regarded as a matter of inference from the use of contumelious expressions, supra, lxxiii. note (£)• It is not improbable that in the earlier stages of the law and before the limits of privileged communication had been defined by reference to the occasion and circum- stances of the act, the mere malicious intention of the agent would be regarded as the principal test of civil responsibility. Experience would show the insufficiency of such a criterion, and limits would gradually be introduced, defined by reference to the occa- sion and circumstances of the act, independently of the actual intention with which the act was done. It is probable, however, that the former doctrine and language of the law, according to which malice is an essential to responsibility, would still be retained, but that effect would be given to the newly introduced limits, by recognizing the distinc- tion between malice in law, which is nothing more than a mere legal inference resulting from the wilful doing of an unlawful act without legal excuse ; and malice in fact, which depends on the actual intention. And thus, in legal and technical language, malice would be regarded as essential to the action, and as the test of liability, although it was actually so in one class of cases only, that is, where the occasion supplied a qualified excuse or justification, dependent on the absence of actual malice ; legal responsibility, in all other cases being dependent on the existence or non-existence of an occasion which supplied an absolute bar, and being wholly independent of the question of intention. There is a distinction in the law of Scotland, as to intention, between cases where the damage is awarded merely in solatium and where they are given to repair a patrimonial loss ; that is, according to the law of England, between cases where the communication is intrinsically actionable and those where actual damage must be found ; in the former case where the proceeding is solatium, it must be founded upon dolus malus : but in the case of patrimonial loss, culpa levissima is sufficient. — Craig v. Hunter, June 29, 1809. Actual damages are due, though occasioned by an error.— per Ld. Gillies. Borth. 194. The term '« malice," as used by the law of England, as essential to liability, includes the culpa as well as the dolus of the civil law. PRELIMINARY DISCOl'ltSK. lxxvi Iq the first place, that it is on grounds of expediency, necessary, in numerous Instances, to define and*restrain [ Ixxvii ] the right to damages by Limitations, founded on the oc- casion and circumstances of the publication, admits of no doubt. The necessity for Buch Limitations is apparent, when it is consid- ered, in the first place, that in numerous instances, a party, in mak- ing communications mosl injurious to character, is not a free agent, but necessarily acts under Legal authority and compulsion. Thus, in every civilized state, Buch communications are n< ssary : with a view to the administration of justice, and it requires no force of argument to show how seriously the course of justice would be im- peded, if judges, jurors, and witnesses, who acted merely in obedi- ence to the law, were to be subjected to the ordinary action for slander, in respect to the communications which they were obliged to make. It is a matter of obvious policy and conven- ience, that great latitude should be afforded 'in respect [ 'lxxviii ] of such communications as are necessary for the ordi- nary exigencies of society, and the mischief and inconvenience would be great, if those were to be fettered and restrained by the perpet- ual apprehension of litigation. If, then, the claim to damages ought, on grounds of extrinsic policy, to be limited by the occasion and circumstances, are these, and in what instances, to operate as an absolute and conclusive ex- ception, independently of the question of intention ; and, again, in what instances are the occasion and circumstances to operate as a qualified bar, taking into consideration the real motive and intention of the author or publisher. So essential, on grounds of policy and expediency, is it, that in some instances the occasion of publishing should constitute an abso- lute and peremptory bar to the total exclusion of civil liability, in respect of the publication of injurious matter, and that, in others, the occasion should constitute not an absolute, but qualified bar, subject to the consideration of the actual intention of the publisher, that these general distinctions are probably common to every system of municipal law, Bubject, nevertheless to particular modifications. First, then, within what limits on-lit the particular occasion to operate as an absolute bar, independently of the motive and inten- tion with which the communication was made. It is observable, in the i'wA place, thai such an absolute and per- emptory bar, with one exception, (that is, where the imputation is rue,) seems to rest wholly on principles of external policy, for it 5* lxxix PRELIMINARY DISCOURSE. is obvious, that in all cases, where one man, with a mali- [ *lxxix ] eious and deliberate intention, Occasions damage to an- other by false and calumnious representations, he is bound to make compensation, both. according to the plain principles of natural justice, and according to the ordinary maxims of muni- cipal law, and, therefore, that any exemption from such responsi- bility must necessarily depend upon some external consideration of policy and convenience. In other words, that for some reason or other, less of mischief and inconvenience would result to society from denying a remedy in that class of cases, than on the other hand would accrue, if the ordinary remedy were accorded. This class of cases, therefore, does not admit of general, and, as it were, nat- ural limits and boundaries, without reference to the state, condition and circumstances of the particular society, for whose governance the law is intended, and the general system and spirit of its institu- tions. It is easy, however, to see that, as a matter of extrinsic policy, such a protection ought to be extended principally in those instances, where the parties act under peremptory legal obligations, in the discharge of duties of so important and essential a nature, that it might be attended with great public inconvenience, to allow their motives to be called in question, and to subject them to ordi- nary actions of defamation. Such principles, applied to our own constitution and circumstances, would obviously include communica- tions made in parliament, and, in all countries to those made by judges, jurors, and witnesses, in the ordinary course and administra- tion of justice (A;). (k) The title of one section in Mr. Borth wick's Law of Libel in Scotland is " of privi- leged cases, where the capacity alone in which the defender has acted, may amount to a complete justification." And this absolute or peremptory privilege, which protects the party from an action for slander, without any regard to his motive or intention, applies to all communications by judges, jurors and witnesses, acting as such. The Lord Ad- vocate is not liable to an action in respect of any action which he institutes, however unfounded it may turn out to have been, yet he is compellable to disclose the name of his informer, who is liable to statutable penalties, as a false and calumnious accuser. Such a proceeding is closely analogous to the English action on the case for a malicious prosecution. Mr. Borthwick states his opinion, that the law of England which considers the publi- cation of the proceedings in parliament, or in the ordinary courts of justice, as abso- lutely privileged, is applicable to the Scotch practice, but with considerable abatement. And it appears that the practice which has prevailed in England, of publishing ex parte proceedings, even in criminal cases, has been frequently reprobated by the judges in Scotland. In the case of Stewart v. Allan, Dec. 31, 1818. Lord President Hope, in de- livering his opinion, observed, " a newspaper, while it confines itself to the discussion of political affairs and public occurrences, is useful and worthy of encouragement, and PRELIMINARY DISCOURSE. lxxix •There is also one class of cases, where although the [ Mxxx ] communication be in fact false, yet where it is founded [ *lxxxi ] on reasonable and probable cause, the occasion may ex- empt from legal responsibility, notwithstanding the malicious and hostile motive of the accuser. The principle of immunity, in this case, is one of extrinsic policy, which affords protection to the party, though he commits a wrong, morally speaking, out of regard to the iucovenience which would result from discouraging men from making . such communications. The principal instance of thi> class of cases is, that of a false and malicious prosecution. One who makes a criminal charge for the mere gratification of private malice, acts immorally, though there be a probable ground for making ii : and if no extrinsic consideration of policy intervened, there would be great reason for holding that such a charge should not be made but at the peril of the voluntary accuser, and that he ought, if he failed to substantiate his accusation, to make reparation to the party whom "he had accused maliciously, and as it [ "lxxxii ] turned out, contrary to the truth. But a consideration of public policy intervenes : it is for the interest of society that investigation should take place in all cases where there is reasonable and probable causp for inquiry, and therefore, the question arises, the liberty of the press has been more important for the maintenance of our liberty than any one public right enjoyed by the people of this country. But what lias the liberty of the press to do with the miserable lawsuits of individuals ? And, in particular, I desire, from this chair to say, whatever maybe the practice in England, what have newspapers to do with lawsuits during their dependence, or with prosecutions in crimi- nal cases before they are concluded ? It is the most mischievous and monstrous abuse of the liberty of the press, that I can imagine, to publish garbled statements of judicial proceedings, which such accounts will generally be, and thus to excite unfavorable im- pressions against one of the parties; I am astonished at what I sec in the other end of the island — not only reports of civil cases published under such circumstances as may tend to prejudice the jury and the judge, but, to my amazement, you see precognitions taken, with a view to prepare for the trial of criminals, and which must have the eflect of instilling prejudices into the minds of those who are afterwards to try their case- Such practices are unknown here, and I hope they will always he so." It stems, however, to be perfectly well settled, that, by the law of England, the pub- lication of ex parte criminal proceedings will subject the publisher to criminal, as well as civil consequences, and the better opinion seems to be, that the same will extend also, to the publication of mere ex parte civil proceedings of a defamatory nature. See the authorities, vol. 1, p. '257, and also Lord Hale's opinion, St. Tr. vol. 3, p. 543. The constituting the occasion a peremptory bar to an action, without regard to malice, though the law of Scotland regards malice as of tlie essence of the offence, is reconciled by considering the criminal intention as rebutted or redargued by evidence of the occa- sion, which is thus made to operate as a praesumptio juris <§• de jure. This, it is obvi- ous is but a circuitous mode of saying, that in one class of cases, the question of malice is immaterial, and intention ceases to be a test of responsibility. lxxxii PRELIMINARY DISCOURSE. whether it would be productive of greater inconvenience to deny the individual remedy in such cases, that is, where a probable cause for preferring the charge existed, or to discourage prosecutions by allowing the remedy. In the next place, still assuming that the complainant has sus- tained some injury from the publication of that which is in its own nature noxious and detrimental, the occasion of publishing may sup- ply a qualified bar or defence to the action, dependent on the real motive and intention of the publisher. This is a distinction, which, on considerations of natural justice, coupled with those of external policy, necessarily comprehends a numerous and important class of publications, affecting character and reputation. To prohibit communications, however necessary they might be in the ordinary intercourse of society, and however confidential in their nature, in all cases where they might occasion mischief to an individual, would be to impose restraints and fetters on mutual intercourse, which would, at the least, be inconvenient, if not intolerable. No one would be able to give a character of a servant, or even venture to give his opinion of an inn or tavern, for fear of an action. And, on the other hand, to allow every indi- vidual maliciously to deal out malignant calumnies, under the cloak and color of privileged communications, would as little " *lxxxiii ] consist with the convenience and comfort *of society, as with the principles of morality and natural justice. The common and daily intercourse of mankind for the purposes of business, the ordinary exigencies of society, require that communi- cations be made, though they may be prejudicial to particular indi- viduals ; it would be vain and impolitic to endeavor to prohibit them. But it is not for the convenience, but greatly to the prejudice of society, that false and injurious communications should be made, not in order to the furtherance of any good or beneficial object, but for the gratification of an evil and malicious disposition: here, then, is a plain and obvious limit to such communications. Where they are made honestly, and bonajide, with a view to the exigencies of soci- ety, they are privileged on principles of policy and convenience, though the party who made them was mistaken, but when they are false!// and maliciously made, they are not protected by any princi- ple of convenience or utility, and therefore cease to be privileged. The principle of qualified exemption, where the condition of im- munity is integrity of intention, or, at least, the absence of actual malice, comprehends all cases where a communication is made hnn- PRELIMINARY DISOOUBSB. lxxxiii estly, with a view to the discharge of any legal, or even moral duty incident to a state of civilized society. Such communications, it is obvious, ought to be protected, whenever they are made sincerely, and not with an actual and malicious intention to defame. This principle, therefore, includes all cades where the communication is made in confidence to another *on a [ "lxxxiv ] subject in which he possesses an interest. As where a party gives a character of a servant, or makes the communication in the way of admonition or advice, or in the fair and bona fide fur- therance of the interests of others, or even of his own. In respect, therefore, of this class of cases, that is where an occasion exists, which, if fairly acted upon, furnishes a legal protection to the party who makes the communication, the actual intention of tin: party af- fords a boundary of legal liability ; if he had that legitimate object in view, which the occasion supplies, he is neither civilly nor criminal- ly amenable ; if on the contrary, he used the occasion as a cloak of maliciousness, it can afford him no protection(/). *And here it is to be observed, that as the honesty and [ *lxxxv ] integrity with which a communication of hurtful tenden- cy is made, cannot exempt from civil liability, unless it be coupled (I) With respect to this extensive class of cases, the laws of England ami Sec Hand proceed on the general principles stated in the text, and malice in fact, is the test of civil and criminal liability. According to the doctrine of the Scotch courts, the occa- sion operates as a prcesumptio juris or as prima facie evidence of the absence of a ma- licious intention to injure, and proof of the contrary is thrown on the pursuer. See Borthw. L. L. 'J13. And according to the law of England, infra, vol. 1, p. 292, there are numerous cases of privilege, where proof of actual malice is essential to support the action. The extent to which the privilege is allowed to operate, seems to be the game in Scotland, and is illustrated by Mr. Borthwick, in its application to cases of characters given to servants, of speeches by advocates, of literary criticism, and in general of any communication made either by or to one who has an interest in the mak- ing it. The following instance may be cited by way of illustration : — A person who was in the habit of Bending his grain to a mill to be made into meal, had discovered a contrivance, by which the miller abstracted a part of all the grain brought to his mill. He immediately communicated his discovery to all those who tholed at the mill, and also to all those who voluntarily employed it. Upon an action being brought by the miller, before the sheriff of the county, the judge deemed the case to be a privileged one. the communication having been made by a person who had sustained an injury, to others who had been also injured by the pursuer's dishonest conduct, and who had therefore an interest to be made acquainted with it. The defender offered to prove the truth of the information, which the sheriff allowed. The miller denied the fact, but he argued that, at any rate, the defender had no privilege or title to take the method he had done to check the evil, and, on that ground, ought not to be allowed to show the veritai con- vicii and to this effect he brought the proof before the court of session, by a bill of ad- vocation, which their lordships refused. Borth. L. L. 236. lxxxv PRELIMINARY DISCOURSE. with an occasion recognised by the law, so, on the other hand, re- sponsibility ought immediately to attach, where the mode or nature of the communication in any respect exceeds that which the legal occasion warrants. For as to the excess, no legal justification or excuse arises from the occasion, and the case stands on the same footing, as far as regards such excess, with any other communication made without lawful excuse ; that is, the mere absence of express malice, cannot -justly repel the action. And, therefore, though A., knowing that B. was about to employ an agent, whom he, A., sus- pected to be a man of unprincipled character, would be justified in communicating his knowledge to B., although he was in fact mistaken, yet he would not be justified in doing so in the hearing of other persons who were not interested in the fact ; for the occasion war- rants a communication to B. only, and as to the rest, it is mere ex- cess, not warranted by the occasion ; and though A. [ *lxxxvi ] might really be influenced by the honest *motive of warn- ing B. of the danger he would incur in employing such an agent, yet he acted illegally in depriving the latter of his char- acter unnecessarily, and upon suspicion only. If, indeed, he knew, and could prove the truth of his communication, he might well jus- tify, a publication to all the world; but that is a defence which stands upon an entirely different foundation. If A. really suspected that the agent was a dishonest man, the law, founded on the principles just announced, would protect him in making the communication bona fide to B., though in truth he was mistaken ; the honesty of his design, superadded to a legal occa- sion, would constitute a full defence ; but when he makes the com- munication to others, the occasion, as far as concerns the communi- cation to them fails, and he ought, on the plainest principles of nat- ural justice, to be responsible for a wilful and wanton derogation from the right of another, by unnecessarily making a charge which turns out to he false. Having thus briefly noticed the principal circumstances which seem to be essential to the limitation of freedom of communication, for the sake of security of character to individuals, and the natural boundaries which appertain to such limitations, the subject is now to be considered in reference to the welfare and security of the public (rn). (m) It is remarkable that, by the law of Scotland, four different objects may be com- bined in a proceeding for libel. — 1 . For a reparation for damages sustained in property. 2. A solatium commensurate to the plaintiff's mental and personal sufferings. — 3. For PRELIMINARY DISCOURSE. lxxxvi *Hcre, pursuing the same course as before, the ques- [ 'lxxxvii ] tions are, 1st, whether restraint be necessary for the securing the interests of the public? 2ndly, "What are the proper modes and limits of restraint? In the first place, the necessity for some degree of restraint is of too obvious a nature to require more than a few cursory remarks. It is plainly essential that the laws of every civil society should provide not only against attempts to produce a violent and prema- ture dissolution of its existence, but also against indirect as well as direct endeavors to violate its particular regulations and ordinances, and bring them into contempt. To a perfect system of jurisprudence, no laws can be more es- sential and important than those which protect the very existence and safety of the civil constitution itself. It would be in vain to erect the political edifice, without at the same time securing its founda- tions. •Where the immediate end and object of communica- [ *lxxxviii ] tions whether oral or written, is the total subversion of the civil constitution, they necessarily rauk, in degree, with other treasonable practices against the state. AVhere they amount to direct incitements, to commit some specific violation of a particular law, the offence must necessarily lie nearly of kin to an actual violation of that law; if an actual breach of the law be the consequence of such a solicitation or incitement, the act amounts to an absolute and complete transgression of the law, and even though that consequence should not follow, yet a deliber- ate attempt to break the law must necessarily constitute an offence which, in principle at least, calls for penal visitation. And the necessity for restraint applies to indirect, as well as di- rect solicitations, to violate the law ; for, as the latter may be penal censures, ad vindictam publicum. — 4 For a palinode. See Borth. 3-1. By the oh il law, though the ground of the remedial ami criminal proceeding, in case of libel, was identical, yet the actions were kept distinct. According to the law of England, an entire distinction is preserved between civil and criminal proceedings in cases of libel, except, peihaps, in the single instance of au ac- tion of scandalum magnntum, under the statutes, vide vol. 1. p. 17"> The law of England, formerly, combined criminal and civil proceedings toil far great- er extent. In an action for the abduction of a wife, the offender even now is not only liable to damages to the injured husband, but also under the same statute. ( 1st of West.) to two years' imprisonment. And the form of proceeding in a civil action of trespass, viet armis, to this day, shows that the guilty defendant was also liable to pay a line to the king, for his breach of the public peace. Such considerations are not merely of a formal and technical nature ; the tendency of such combinations is to anuex incidents in common, which ought, for convenience sake, to be annexed separately. lxxxviii PRELIMINARY DISCOURSE. equally efficacious, they are equally dangerous with the former, and ought, therefore, to be equally prohibited. But further, it is obvious that the security of a state may be endangered, not only by direct and immediate attempts to subvert it, but even still more successfully, by bringing its establishments, civil and religious, or its ministers and officers, into disgrace and contempt; that the state and reputation of individuals are as much or more exposed than even their'persons or property to malicious and insidious spoli- ation, and that men may be excited and provoked to commit acts of violence by collateral insults, as well as by the most open and di- rect solicitations. It is, therefore, essential to the security of every civil government, as well as to the preservation of its [ *lxxxix ] establishments, the due observance of its laws *and or- dinances, and protection of its members, that restraint should be imposed, as well upon indirect as direct attempts of this nature. There are other evils equally serious, against which security is necessary. Mere positive laws are of little avail, without the power- ful aid of religion and morality ; it is therefore of great importance, to the well-being of society, that its interests should be protected against the pernicious influence of communications tending general- ly to extinguish men's religious faith, and to eradicate from their minds the principles of morality. For though human laws which ought to be definite and precise, which must be of limited extent, and which command not but where they can compel, cannot be co-extensive with the obligations of mo- rality ; and although by far the greater part of the ordinary duties of a member of society, fall not within the scope of any positive muni- cipal laws, but must be left to every man's sense of propriety and conscience, and to a salutary dread of public censure, the same diffi- culties do not apply in restraining generally, by positive laws, such communications as tend to instil bad principles or extirpate good ones, and which, consequently, tend not only to the disregard and neglect of all the moral, as well as legal duties of life, but to the active prac- tice of every species of immorality. To restrain such attempts is the more necessary, when it is considered, that for the perform- ance of most of the common duties of life, undefined by positive law, and for the preservation of decency and good order, religious and moral principles and the dread of public censure, are the only securties. *Such considerations become infinitely more strong and [ *xc ] important, when they are considered in reference to the PRELIMINARY DISCOURSE. xc facility of communication, supplied by the art of printing, especially when; its operation is still further extended by a general system of national education, which, in eftect, subjects to its power the great mass of the public. The press is, indeed, a mighty instrument for the diffusion of know- ledge, capable of being applied to the best, or perverted to the worst of purposes ; eminently useful in promoting the interests of religion, morality, science, and social happiness, it may be abused as the in- strument of impiety, vice, error, and malice. When, therefore, it is considered how much, not merely the opinions, but the feelings and passions of the public, are capable of being influenced and excited by means of this powerful agent, how few there are who think for themselves, and who are not, it may be insensibly, guided and mov- ed by the opinions of others, how great a dominion may be exercised by one strong mind over those of millions, how favorable the gener- ality of mankind are to the reception of the most calumnious charg- es ; how credulous in listening to the most improbable misrepresen- tations ; and how greatly every calumny, directed against an indi- vidual, is aggravated by increased publicity ; when these things are considered, it will readily appear, of what supreme importance it must be in every system of municipal law, on the one hand to pro- tect the liberty of communication, and on the other to exclude the complicated and frightful mischiefs which must necessarily emanate from a corrupted, venal, and licentious press. •What, then, are the proper mode and measure of re- [ *xci ] straint ? Public security must be provided for, either by imposing previous restraints, or admitting the general right to pub- lish, by subjecting those who abuse the privilege to subsequent pun- ishment. And such previous restraints are either absolute or qualified. The notion of absolute exclusion is too extravagant to require at- tention ; it is a scheme calculated only for extreme cases; that is, either for a state of complete despotism, where the condition of the people cannot be worse, and where it is the policy of the oppressors to prevent its becoming better, or for a state of absolute, but alas, ideal perfection, where, ex hypothesis, every alteration must be for the worse, and where to change and to repent arc convertible expres- sions (?i). (n) It is scarcely necessary to remind the reader, that Sir Thomas More, in his Euto- pia, makes the discussion of political affaire punishable with death. Vol. I. 6 xci PRELIMINARY DISCOURSE. What shall we say, then, of that kind of modified intellectual dominion, which not only may be, but has been exercised, even un- der a constitution in other respects free (o), that is by subjecting the press to the control of a public licenser. [ *xcii ] *At this day, and in this country, where the liberty of the press has so long been beneficially enjoyed, though not without both great and frequent abuse, little need be observed on the subject- of censorial restraint. Upon the question, whether such a mode of restraint would be expedient, that is, whether it would exclude more of evil than it introduced, it is very material to recollect, in the first [ *xciii ] place, that the comparison *is not between the evils occa- sioned by such restraint on the one side, with those which would result from a total absence of restraint on the other, but merely with the excess of such evils, beyond the amount to which they may be corrected in the ordinary course of justice ; that is, by inflicting penal visitation on those who, being allowed to publish without pre- vious impediment, abuse that license, by publishing what is noxious (o) M. Delolme, in his Essay on the Constitution of England, observes, " This privilege (of our press) is that which has been obtained by the English nation with the greatest difficulty, and latest in point of time, at the expense of the executive power. Freedom was, in every other respect, already established, when the English were still, with regard to the public expression of their sentiments, under restraints that may be called despotic. History abounds with instances of the severity of the court of Star- Chamber, against those who presumed to write on political subjects. It had fixed the number of printers and printing presses, and appointed a licenser, without whose ap- probation no book could be published. Besides, as this tribunal decided matters by its own single authority, without the intervention of a jury, it was always ready to find those persons guilty whom the court was pleased to look upon as such ; nor was it, in- deed, without ground, that the Chief Justice Coke, whose notions of liberty were some- what tainted with the prejudices of the times in which he lived, concluded his eulogiums on this court, with saying, ' The right institution and orders thereof being observed, it doth keep all England in quiet.' " After the Court of Star-Chamber had been abolished, the Long Parliament, whose conduct and assumed power were little better qualified to bear a scrutiny, revived the regulations against the freedom of the press. Charles the Second, and after him, James the Second, procured further renewals of them. These latter acts having expired in the year 1G92, were at this era, although posterior to the revolution, continued for two years longer, so that it was not till the year 1694, that in consequence of the parliament refusing to prolong the prohibitions, the freedom of the press was finally established. The principle of restriction, by the discretion of a public licenser, still exists, in a very limited degree, in the instance of dramatic representations. By the st. 10 G. 2. c. 28, no dramatic composition can be represented on any public stage, without the pre- vious license of the Lord Chamberlain. And by some particular statutes, regulations are made to facilitate proceedings, civil as well as criminal, against the publishers of newspapers and certain pamphlets. See Treatise, vol. ii. p. 43 — 313. PRELIMINARY DISCOURSE. xciii and illegal. For it cannot be doubted, that it would be attended with a less degree of inconvenience, and would interfere far less with the natural liberty of the subject, to inflict penal censures on those who abused the right of free communication, than to extinguish the right, by subjecting every publication to the summary control of a licenser. To impose a general interdict on society, rather than restrain an evil by the punishment of a few, and those, such as had actually offended ; to deprive all of the exercise of a valuable privilege, be- cause some would abase it, would truly be to sacrifice the wheat for the sake of rooting up the tares ; it would be to exclude all that was good, because it was mixed with partial evil, a principle which, were it applied on all occasions where mischief were to be prevented, would speedily exclude every thing that was good and valuable. What privilege do we boast, what blessing do We enjoy, which is not greatly, and even frequently abused ? If then the evil to society from an abuse of the liberty of free communication, or as it is usually termed, the liberty of the press, could be sufficiently corrected and restrained, by punishing such as really offended without any surrender or sacrifice of the general right *to publish, there would be an end of the [ *xciv J question, and the subjecting the press to the control and dominion of a licenser, would be an unnecessary sacrifice of a most valuable portion of the liberty of the subject. But, again, were it even to be admitted, that penal inflictions constituted a restraint in- adequate to the correction of the press — which, so long as those inflictions may be indefinitely extended, according to the magnitude and frequency of offences and the exigencies of the times, it is dif- ficult to suppose — yet still as.it must, on the other hand, lie allowed, that such penal restraints must check and correct the mischief which would otherwise result to society, to a very great extent, it is obvi- ous, that it is only the excess of mischief, which cannot be so cor- rected, that ought fairly to be weigh eil against tie 1 evils which would arise from the establishment of a public licenser. In general, civil liberty has been well defined to consist in the not being restrained by any law which docs not conduce, in a greater degree, to the public good (p). (p) In what, then, does the liberty of the press precisely consist ? Is it liberty lift to every one to publish any thing that oomes into liis head; to calumniate, to blacken ■whomsoever he pleases ? No; the same laws that protect the person and property nf in- dividuals, do also protect his reputation; and they decree against libels, when really so» xciv PRELIMINARY DISCOURSE. [ *xcv ] *Until, therefore, it were shown that the liberty of free and unreserved intellectual communication, on all sub- jects of common interest, ought, for the public good, to be surrend- ered to the exercise of an authority and dominion arbitrary and irresponsible, the contrary ought to be inferred, it would argue a strange degree of apathy, even folly, to sacrifice so valuable a por- tion of natural liberty, without the fullest conviction that at the least an equivalent was received in return, and the burthen of proof would clearly be incumbent on those who advocated such a surrender. How difficult must such proof be, when experience, the best and safest guide, bears testimony to the inexpediency of such a sacri- fice (#). punishments of much the same kind as are established in other countries. But, on the other hand, they do not allow, as in other states, that a man shall be deemed guilty of a crime for merely publishing something in print, and they appoint a punishment only against him who has printed things that are in their nature criminal, and who is de- clared to be guilty of being so by twelve of his equals appointed to determine on his case. — Delolme. Those laws are the most favorable to liberty which define that which is criminal, and, consequently, make liberty the general rule, and a penal restraint the exception. M. De- lolme who had conceived high notions concerning the liberties of Englishmen, had sup- psed that every action was secured by positive laws carefully worded, and was at last surprised to find that the liberty of the press was founded simply upon the absence of prohibition. (q) A very popular ethical writer has thus expressed himself upon this 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 innovation may prop- agate his projects, there can be no settlement; if every murmurer at government may diifuse discontent, there can be no peace; and if every sceptic 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, promotes the book; and it seems not more reasonable to leave the right of printing unrestrained, because writers may be afterwards censured, than it would be to sleep with doors unbolted, because by our laws we can hang a thief." The most satisfactory refutation which can possibly be given to a theoretical suggestion of danger, is that which experience supplies: the press in this country has, for consider- ably more than a century, been rescued from the control of a licenser; yet peace, tran- quility, and religion still survive amongst us. But, surely, with all respect to the memory of one who was justly accounted a giant in his day it is but weak and timid policy to surrender a privilege estimable and valuable in its own nature, because it may be perverted and abused. If men are to be prohibited from public communication by writing or printing, if the pen and press are for this rea- son to be placed under arbitrary restraints, why should even the tongue be privileged ? Why should any man be allowed to speak in public, when it is possible .that he may utter sedition or blasphemy ? Why allow books to be printed at all; for the very arbi- ters of religion, politics, morals and taste may as well as others, be subject to error or PRELIMINARY DISCOURSE. xcv *Onc of the most obvious evils which would result [ 'xevi ] from previous restraint on the liberty of the press, *un- [ 'xcvii ] der a constitution whore the people were possessed of influence, would be the destroying, or at least weakening, the mu- tual confidence which ought to subsist between the people and the government, and which is essential to a vigorous administration of public affairs. Under such a constitution, public confidence must rest on public opinion, and public opinion cannot be manifested, or even exist, un- less the measures of government be known, and be subject to free discussion and comment (r). even corruption; and what would the state of society be, when not only were vicious and corrupt publications sent forth under the sanction and impress of public authority, but all that was really edifying and instructive was wickedly suppressed. The lib- erty of the press and rational freeJom of public discussion are the real bolts and bars by which alone depredators on the religious and political rights of society are to be shut out, and the interest of the community preserved. To destroy these would, in a political sense, most surely be to sleep with doors unbolted, without even the poor consolation of being able to hang the thief. When the art of printing was discovered, it was justly apprehended that it would prove an instrument of mighty force in its operation on public opinion in all matters of great and common interest. But though many generations have now elapsed since the date of this noble invention, its operation was necessarily restrained and limited, whilst the great mass of the people, consisting of those who were most likely to be influenced by its means, were unable to read: it was reserved for later times to give an impetus to its powers, by extending the means of knowledge to the lowest classes, and opening to a portion of society, far exceeding the rest in numbers anil physical strength, the sources of knowledge, and thus affording them the means of judging, and, what is of greater importance in a political point of view, of acting for themselves. It is to this important change in circumstances and education, as well as to the great increase of wealth and population in this country, that the multiplication of newspapers, the principal vehicles for the communication of public measures and events, and of the various opinions and comments to which they gave rise is to-be attributed. Whether it were wise or politic to encourage so great a change belongs not to the present occasion to consider. That no evil consequences have as yet resulted, which can be at all placed in competition with the splendid advantages of an open and free press, or to induce the most timid to regret its emancipation, seems to be moat certain. It is only from the licentious abuse of our liberty that danger is to be apprehended; and those are justly to be regirded as the greatest enemies to freedom, who by their perver- sion of the blessing, endeavor to render it a curse, and who endanger the liberties of all by abusing the most valuable of their own, for unworthy, base, and venal purposes. The transition is by no means difficult or improbable from a licentious abuse of liberty to severe and excessive restraint; in such respects, the dinger always is of running into extremes; to escape one pressing evil, mankind arc too apt to seek an insecure re- fuge in its opposite. (r) M. Delolme, in his Treatise on the Constitution of England, (p. 292, ed. 1816, 6* xcvii PRELIMINARY DISCOURSE. " *xcviii ] *Such a government, from which public confidence and public support are withdrawn, must necessarily be timid and indecisive in all measures of importance ; the responsibility of those who conduct public affairs, is greatly increased in pursuing a course of which the body of the people disapproves, whilst their means of accomplishing objects of magnitude and difficulty are necessarily diminished, and that energy and spirit to which public approbation and applause are essential, are weakened and impaired. Nor is public confidence in the administration of affairs, more essential to internal safety, than it is to security from abroad. It were absurd to suppose that a government could command respect abroad, which was hated or despised at home. Such a condition of things must necessarily engender among foreigners an opinion of in- ternal weakness, and for a nation to be weak, or even to be account- ed so, is to be contemptible and insecure. The advantage of free and unrestricted communication, on all political subjects, is great and reciprocal ; if the people have thus an opportunity of forming and expressing their opinion on public meas- ures, those who administer affairs have also the means afforded them of becoming acquainted with the disposition, sentiments, and wishes of the people, of availing themselves of beneficial and use- ^xcix ] ful suggestions, of affording explanation and *redress where complaints are well founded ; in short of securing that esteem, respect, and confidence on the part of the people which are essential to an useful and vigorous administration (s). The liberty of political discussion is valuable, inasmuch as it tends to preserve stability in the political constitution, enables the people to exert a salutary influence, and prevents violent and observes, on this suject, " we may therefore look upon it as a further proof of the soundness of the principles on which the English constitution is founded, that it has al- lotted to the people themselves the province of openly canvassing and arraigning the conduct of those who are invested with any branch of public authority, and that it has thus delivered into the hands of the people at large, the exercise of the censorial power. Every subject in England has not only a right to present petitions to the king or the houses of parliament, but he has a right to lay his complaints and observations before the public by means of an open press. (s) Nee vero negligenda est fama nee mediocre telum ad res gerendas existimare op- ortet benevolentiam civium. Cic. de Amic. 502. Though some make slight of libels, yet you may see by them (observes Selden,) how the wind sits. As, take a straw, and throw it up into the air, you shall see by that which way the wind sets, which you shall not do by casting up a stone ; more solid things do not show the complexion of the times so well as ballads and libels. — Selden's Table Talk. PRELIMINARY DISCOURSE. xcix sudden changes (0- 'These, however, are positions [ *c ] which must be carefully limited to those cases where the constitution is constructed on a fair and equitable basis, thai is, where no larger a portion of natural liberty has been surrendered for the common good than is necessary for that end, or at all events, where there is no great arid striking disproportion between the bene- fit received and price paid for it ; in all other cases this species of liberty would tend to produce political changes and alterations rather than stability. Under a rigid democracy, or any other kind of government where the people, highly tenacious of nat- ural liberty, contributed too small a portion of it *to ren- [ *ci ] der sufficiently strong and effective, it is natural that dema- (/) The liberty of the press, which consists in the liberty which every subject pos- sesses of publishing what lie will, without previous restraint, suhject, however, to penal censures if he publish what is malicious and illegal, constitutes the great excellence of the British constitution. On this subject we may trust to the evidence of learned for- eigners, without fear lest the judgment should be warped and biassed by native preju- dices. M. Cottu, a learned advocate of Paris, after having devoted much personal attention to the laws and constitution of this country thus expresses himself : " The liberty possessed by all classes of the nation, of acquainting government legally, and without recurring to mobs and insurrections, with their private opinion on all the measures of administration, forms the main perfection of the English constitution." — Cottu, 194, (English Translation.) And again, " Whenever any important subject is submitted to the discussion of parliament, the king and the two houses have the advantage of seeing clearly the nation's opinion on the proposed measure, and ascertaining how far it should be pressed or abandoned ; and it is thus that the strength of the people, which, united in one single mass, would form a torrent, whose accumulated waves might, at the first obstacle, overwhelm the govern- ment, is divided, on the contrary, into an infinite number of individual bodies, resem- bling a number of peaceful brooks, which adorn and fertilize the plains they water, without the power of ever doing mischief." — lb. 196. On such subjects, the treasures of history contribute less of information than on any other subject of public interest and policy. Were the laws of ancient nations more comprehensive and complete than we find them to be, a total change in those essential circumstances to which the restrictive laws are adapted, would require a corresponding alteration in the laws themselves. The ordinances by which a great nation composed of subjects jealous of their freedom, amongst whom political knowledge is daily diffused by means of the press, who take a lively interest in all public measures, and who possess the means of expressing their opinion on sucli subjects, can afford but few points of comparison witli any former age or country. When the art of printing was yet unknown, the great mass of the people, destitute of information, could seldom be moved, but on great and sudden occasions, to make any important political exertion, and then only by fits and starts, according to the operation of violent and transitory causes. How much happier are the times when force and violence give way to reason, when the strong and speedy expression of public opinion often produces greater results than could formerly have been obtained by a sanguinary appeal to arms. CI PRELIMINARY DISCOURSE. gogucs, ambitious of popular influence, should abuse their unsurren- dered excess of power to exalt each his own individual authority ; in such a case, it is obvious, that unrestrained freedom of political discussion would be very ineffectual- towards securing peace or per- manency in public affairs. In such instances, even fair comment would but betray to the thinking and rational, the weakness, in effi- cacy, and instability of their political system, and induce them to wish for change, whilst party zeal, instead of attributing the mischief to its true cause, the want of a supreme power, possessing reputation* confidence, and strength, sufficient to secure the public peace from repeated aggressions by turbulent factions, would but foment succes- sive struggles for popular ascendency by mutual and intemperate recriminations, at the expense of a constant diminution of public strength and security. On the other hand, under an arbitrary and despotic form of gov- ernment, where the people had surrendered too large a portion of their liberties, discussions tending to show the inexpediency of their political condition, would necessarily tend also to render the people discontented, dissatisfied, and anxious for change, whilst it would be the interest of those who thus possessed an excess of power beyond what was just, to prevent and hinder such communications, in order to oppose that tendency. And it is obvious, that in proportion to the degree of oppression under which the people labored, the strong- er would be the motive with those in power to suppress the discus- sion of public measures and silent remonstrances, for [ *cii ] the greater would be the *probability of change, either reluctantly yielded to the influence of public opinion, or compelled by an appeal to force. And thus it is that, under a state of absolute despotism, where a successful tyranny has reduced the people to the ultimum in servitute, it becomes a necessary incident to the same wicked policy to compel men, not to forget their wrongs, for memory must remain to the most abject, but to suffer them in silence (w). (w) Dedimus profecto grande patientiae documentum et sicut vetus setus vidit quid ultimum in libertate esset, ita nos quid in servitute, adempto per inquisitiones et lo- quendi audientique commercio. .Memoriam quoque ipsam cum voce perdidissemus si tam in nostra potestate esset oblivisci quam tacere. Nunc demum redit animu9, &c. Such were the affecting observations of Tacitus, in describing the happy transition to the government of Tmj in from a state of abject suffering under the rod of Domitian. The Emperors Julius and Augustus had the magnanimity to despise, or at least the prudence to overlook, many instances of personal calumny against themselves. PRELIMINARY DISCOURSE. cii *It is only under a just and equitable constitution that 'ciii ] freedom of discussion tends to the desirable ends of peace, permanency, and security. Where a reasonable and fair proportion exists between the quantum of liberty which is surren- ered, and the advantages derived from a free constitution and equal laws, the people are little, at all events they are much less likely to be influenced by the desire of change ; and the more they know and discuss the nature of their political Bystem; the greater must be their attachment to the existing state of things, whilst the notoriety of all public measures, the privilege of free discussion, of openly expressing public opinion, and the degree of influence which that opinion *must necessarily Viv ] possess (y), tend to inspire the people with confidence in Antonii cpistolaj, Bruti conciones, falsa quidem in Augustem probra sed multa cum acerbitate habent. Carolina Bibaculi et Catulli referta contutneliis Ccesarum legnntur. Sed ipse Divus Julius ipse Divus Augustus et tulere ista et reliuquere ; hand facile dixerim niodcratione magis an sapientia ; nainque spreta exolescuut, si irascare adgnita videntur ; non attingo Graecos quorum non modo libertas etiam libido impunita, aut si quis advertit dicta dictis ultus est. These were the observations attributed to Cremutius Cordus, who was accused under the gloomy reign of Tiberius, with having extolled Brutus and Cassias, and asserted that Cassius was the last of the Romans. Postulatur, says the historian, novo ac tunc primum audito crimine quod editis annalibus laudatoque, M. BrutoC. Cassium Romano- rum ultimum dixisset. Accusabant Satrius Secundus et Pinarius Natta, Sejani Clientes- id perniciabile reo et Coesar truci vultu defensionem accipiens. So little hope had the unfortunate orator of experiencing clemency or even justice, that, after making his de- fence before the senate, he sought death in abstinence. One of the most bitter reflec- tions on the memory of Tiberius, as a ruler, is the record of the historian, that a soli- tary act of clemency to a libeller diffused a transitory feeling of satisfaction (mudica retitia) over a desponding people. His tamen adsiduis tamque mcestis modica lcetitia interjocitur quod C. Cominium Equitem Romanum probrosi in se carminis convictum Ccesar precibus fratris que sen i- tor erat concussst. Tac. Annal. 1.4. According to M. Montesquieu, " no government is so averse to satirical writings as the aristocratical. There the magistrates are petty sovereigns, but not great enough to despise affronts. If in a monarchy a satirical stroke is designed against the prince, he is placed on such an eminence, that it does not reach him, but an aristocratical lord is pierced to the very heart. Hence the decemvirs, who formed an aristocracy, punished satirical writings with death." B. 12, c. 13. It may, for reasons hereafter given, be doubted, whether the dccemviral law was so severe as M. Motesquieu supposes ; there is at least no proof that so cruel a law was ever enforced to its extent. On the other hand, Augustus and Tiberius first violated the law by a tyrannical construction, which brought satirists within the penalties of treason, and subjected them to capital punishment. (v) M. Delolme, in his Essay on the British Constitution, after commenting on the effect of laws which allow to the people full scope for the expression of their sentiments, concludes his observations with the following remarks: — " In short, whoever considers what it is that constitutes the moving principle of what civ PRELIMINARY DISCOURSE. their rulers, and diminish the probability of popular disaffection and civil commotion. On the other hand, the same considerations render any encroach- ment upon the liberties of the people, if not impracticable at least difficult. It would be impossible that any formidable practices against their interests could long be carried on in se- *ev ] cret (w), and to make them known, to expose their au- thors, and subject them to the strong expression of public indignation, would be to defeat their purpose ; at all events, would give great facility to resistance, and in proportion, render any such attempt more difficult and dangerous, and ultimate success the more improbable (x). we call great affairs, and the invincible sensibility of man to the opinion of his fellow- creatures, will not hesitate to affirm, that if it were possible for the liberty of the press to exist in a despotic government, and (what is not less difficult) for it to exist without changing the constitution, this liberty would alone form a counterpoise to the power of the prince. If, for example, in an empire of the east, a place could be found, which, rendered respectable by the ancient religion of the people, might ensure safety to those who should bring thither their observations of any kind, and from this sanctuary printed papers should issue, which, under a certain seal, might be equally respected, and in which, their daily appearance, should examine and freely discuss the conduct of the cadis, the pashas, the viziers, the divan, and the sultan himself, that would immediately produce some degree of liberty." — Delolme on the Constitution of England, 303, ed. 1816. Again, the same learned foreigner observes, p. 304, " another effect, and a very considerable one, of the liberty of the press, is, that it enables the people effectually to exert those means which the constitution has bestowed upon them, of influencing the motions of the government." (w) " Private individuals, unknown to each other, are forced to bear in silence injuries in which they do not see other people take a concern. Left to their own individual strength, they tremble before the formidable and ever-ready power of those who govern; and as the latter well know, and are even apt to over-rate the advantages of their own situation, they think that they may ventuie upon any thing. But when they see that all their actions are exposed to public view, that in consequence of the celerity with which all things become communicated, the whole nation forms, as it were, one continued irritable body, no part of which can be touched without exciting an universal tremor they become sensible that the cause of one individual is the cause of all, and that to attack the least among the people, is to attack the whole people." — Delolme on the Con- stitution of England, p. 318. ed. 181G. (x) With regard those who, whether from personal privileges, or by virtue of com- mission from the people, are intrusted with the higher part of government, as they, in the mean time, see themselves exposed to public view, and observed, as from a dis- tance, by men free from the spirit of party, and who place in them but a conditional trust, they are afraid of exciting a commotion, which, though it might not prove the de- struction of all power, yet would surely prove and immediately be the destruction of their own. And if we might suppose, that through an extraordinary conjunction of circumstances, they should resolve among themselves, upon the sacrifices of those laws on which public liberty is founded, they would no sooner lift up their eyes towards that PRELIMINARY DISCOURSE. cv 'The influence which the subjection of the press to the ~ *cvi ] control of a licenser must necessarily have on the spirit and manners of a free nation, is not to be disregarded, on account of its more immediate and important political consequences. What could more directly tend to lower and subdue the spirit of a free people, and to render them unfit for the enjoyment and maintenance of their rights, than to subject their minds to a state of intellectual thraldom ? What more effectually restrain and fetter the exertions of genius and of talent, than the melancholy consciousness that their happiest efforts might be rendered fruitless and abortive; that the avenues to fame, honor and preferment, might be closed against them by the caprice, the ignorance, or it may be the malice of a despotic arbiter, irresponsible, and from whose tribunal there was no appeal. Were ages to be spent in the attempt,, no other scheme or device could possibly be discovered so admirably calculated as this, to retard the progress of science arid of letters, to hinder all improvement in religion, in politics, or morals, to enervate the pub- lic mind and prepare it for every species of degradation. Finally, the very exercising of such a control would necessarily add greatly to the responsibility of those who administered the affairs of state ; for professing to reject all that was injurious, they must be taken to approve and sanction all that they allowed to be published. It remains to make one or two observations on the abuse of this invaluable privilege. If at any time the public press should have become generally venal, corrupt and licentious, should teem with profligate and 'immoral publications with art- 'cvii ] ful and studied misrepresentations, with wanton calum- nies on the characters of the well-deserving, or what is equally of- fensive with renal and fulsome panegyric upon knaves, the necessary conclusion would be, that the very condition of society was tainted and unsound. To say that the press is corrupt is but a figurative ex- pression ; it means, in reality, that one set of men publishes, whilst the rest of society reads, approves of, and encourages vicious pro- ductions. extensive assembly which views them with a watchful attention, than they would find their public virtue return, and would make haste to resume that plan of conduct, out of the limits of which they can expect nothing but ruin and perdition. The power of the people is not when they strike, but when they keep in awe; it is when they can overthrow every thing that they never need move; and Manlius included all in four words, when he said to the people of Home — Ostendite Bellum pacem habe- bitis. Delolme on the Constitution of England, p. o21, ed. of 181G. cvii PRELIMINARY DISCOURSE. But if such should be the disposition, or, at all events, the apathy of the public, in regard of the morals of the press, as to encourage or tolerate its ministers in committing licentious violations of truth and decency, it is manifest, not only that the temptation would al- wavs be sufficient to ensure a constant supply, at all risks, of scan- dalous and illegal matter, but that all attempts to earn public favor by honest means would be vain and fruitless. The public in fact are, or ought to be, the arbiters, di- [ *cviii ] rectors, and movers of the press (if) those who daily Min- ister to their information and curiosity, are their purvey- ors and agents. In the discharge of the important and lucrative of- fice of catering for and ministering to the literary appetite of the public, it is manifest that candidates for popular favor must consult the public taste, and that, as there will never be wanting talent, ability, and diligence, adequate to the enlightening and improving the public, so long as veracity, integrity, and ability, are recommen- dations to their patronage ; on the other hand, agents will always be ready to prostitute their talents for the gratification of a corrupt and vitiated taste: The real corrupters of the press are the public themselves, and the licentiousness of the press, though it tend greatly to increase the evil, is yet to be regarded rather as symptomatic of a defect in public morals, than as the cause of the declension. If a man patronises a series of licentious publications by purchas- ing them, or even contributing towards the purchase, what right can (i/) Such observations are still more pertinent, where the public, by means of the trial by jury, possess the salutary and constitutional means of control. Upon this subject, Lord Camden, on an occasion of great importance, thus expressed himself- Case of seizure of papers, 11 St. Tr. 328. " Before I conclude, I desire not to be understood as an advocate for libels. All civil- ized governments have punished calumny with severity and with reason; for these com- positions debauch the manners of the people; they excite a spirit of disobedience, and enervate the authority of government; they provoke and excite the passions of the people against their rulei-s, and rulers oftentimes against the people. " After this description, I shall hardly be considered as a favorer of these pernicious productions. I will always set'my face against them when they come before me; and shall recommend it most warmly to the jury always to convict, when the proof is clear. They will do well to consider that unjust acquittals bring an odium upon the press itself, the consequence whereof may be fatal to liberty; for if kings and great men cannot ob- tain justice at their hands by the ordinary course of law, they may at last be provoked to restrain that press, which the juries of their country refuse to regulate. Where licentiousness is tolerated, liberty is in the utmost danger, because tyranny, bad as it is, is better than anarchy, and the worst of governments is more tolerable than no govern- ment at all." PRELIMINARY DISCOURSE. cviii he have to complain of the impurity of the public press, the immor- ality of the age, or the inadequacy of municipal restraint ; it is he who ofl'ends against truth, against decency and morals, who, *with some thousand others, encourages and sup- *cix ports, in a state of affluence, the less guilty minister of the press ; the latter publishes that which is scandalous and impure, merely because, so long as he finds it Lucrative to do so, he must nec- essarily suppose that he gratifies those who pay him for such servi- ces. In point of morals, to contribute to the existence and diffusion of noxious and offensive publications, is to share largely in the guilt. In short, as there can be no greater security for the truth and honor of public, or the integrity of private men, than the wholesome apprehension of public censure, it is of vital importance to society to consider that the preservation of this mighty and salutary moral power, efficacious and entire, rests wholly with the people themselves ; that they must not look for effectual protection from the municipal law, or expect a remedy for the natural consequence of their own su- piueness ; and that, if by culpable and careless indifference, they suf- fer the public press to be corrupted and perverted to evil purposes, they not only reject a mighty engine adequate to the protection of their best interests, but surrender it to enemies who will fatally ap- ply it to undermine the very foundations of social happiness. The abuse of the liberty of the press tends most directly to de- prive it of all salutary and beneficial power. The influence of public opinion on political conduct, operates on a mixed principle of shame and of interest, remotely perhaps, on a feeling of fear, but nothing can more strongly tend to obliterate the sense of shame, and to ren- der men's minds obtuse and callous to the impression of public opinion, than daily attacks 'upon character, dictat- 'ex ed by party feeling, and promulgated to the world by a corrupt and venal press. The tendency of a system of misrepr tation, consisting of illiberal abuse on the one hand, and of impure panegyric on the oilier, must be to confound guilt with innocence in the opinion of the world, to render men equally deaf to the voice of censure or of praise ; and when they were qo Longer deterred from acts of political apostacy and violations of public faith by a principle of shame, it is obvious, that those very motives of self- interest, which, connected with the love of character, constitute valu- able incentives to useful, laudable, and honorable exertion, would, without such a corrective, tend to the most selfish and unworthy actions ; all restraint founded in fear would cease, when the honest Vol. I. 7 ex PRELIMINARY DISCOURSE. fervor of popular indignation had degenerated into the mutual hatred of contending factions. Next as to limits of penal restraint. The limits of such restraint must depend on the nature, quality, and consequences of the com- munication ; 2ndly, on the act of the party who makes it, and the means of communication used ; 3rdly, on his intention ; or, 4thly, on circumstances collateral to the act. First, then,' as to the nature, quality, and consequences of the communication. As the very object of coercion is the prevention of public mischief ; it is by no means essential to an offence of this na- ture, that the criminal object of a noxious publication should have been actually accomplished ; it is sufficient that the communication should directly and immediately tend to produce mischief to the public. [ *cxi ] *And this, for several reasons, both because actual proof of evil consequences to the public would, from the very nature of the case, be frequently impossible, though highly presum- able ; and, 2ndly, because where great mischief is to be apprehend- ed, it is far more politic to interfere at an early stage, and to arrest the progress of the evil, that to wait for its consummation ; and 3r'dlv, because, as far as regards the moral guilt of the offender, his offence is completed by the very act of publication. Hence, as far as the evil consequences of a publication are con- cerned, it is necessary that the offence against the public should be defined and limited, not by the effect actually produced, but by the tendency of the matter published to produce it. If, for instance, an individual, with a view to his own private gain, were to publish an address, inciting a discontented populace to burn all stacks of corn within a particular district, the law of the country would be absurd and contemptible, which provided no punishment for so daring an outrage, until proof could be given that some incendiary had de- stroyed his neighbor's property, in compliance with so unprincipled a recommendation. The very attempt to" excite to the commission of such outrages is in itself a dangerous violation of the principles of morality and natural justice : on the question whether such an at- tempt ought to meet with immediate reprobation and punishment, no conflict of opposite advantages and disadvantages could possibly occur, it would clearly be for the benefit of the commu- [ *cxii ] nity, that so atrocious an attempt should *be checked by penal visitation at the very earliest opportunity. It is obvious, that it must not only be necessary to restrain com- PRELIMINARY DISCOURSE. cxii munications which tend directly to a breach of tlie law, by inciting others to the actual commission of crimes prohibited by the law, but also those which tend to the subversion of religion, or, in general, to the destruction of the principles of virtue and morality, which are essential to good conduct, order, and decency. Again, it is plain, that the degree of tendency cannot be material aa a limit to the offence, whatever its operation may be in adjusting the quantum of punishment. First, because any tendency to produce public mis- chief, must, pro taulo, be injurious to society ; and secondly, lie- cause the extent to which the mischief may be tolerated, is Dot ca- pable of any precise definition. Complaints have not unfrequently been made, even in this country that the law of libel is too vague and uncertain, and that neither the common nor the statute law sufficiently define what constitutes a libel. It may be of use to consider whether absolute and certain prohi- bitions are not excluded by the very nature of the subject matter, and whether, if such were imposed, they must not cither consist m general and peremptory rules, which would encroach greatly on the freedom of communication, or in minute and specific ones, the partic- ularity of which would subject them to the easiest evasions. The law may either totally prohibit all discussion on a particular and specific subject or may go the length of tolerating all that can be said or written upon it ; but there is scarcely any ques- tion, either of "general or individual interest, in respect *cxiii ] of which total prohibition or entire toleration would not be prejudicial to the community. A total prohibition would, in most cases, if not in all, be inconsistent with the great principle of civil liberty, for a penal restraint, would be imposed to a greater extent than was necessary for the welfare of society; on the other hand, unrestrained license of communication would be liable to the great" est abuse, and open the door to great if not intolerable mischief. Where it is on the one hand beneficial to society that freedom of communication should be tolerated to a great extent, but where, on the other, it would be highly inconvenient and mischievous to permit unbounded license to the abuse of that liberty, and consequently, where a boundary is necessary, the establishment and preservation of a proper limit, must always be a work of nicety and difficulty. It is, however, exceedingly clear, that the line of interdiction cannot be regulated by any prohibition of particular sentiments or language. Injurious modes of expression arc far too variable to admit of any cxiii PRELIMINARY DISCOURSE. precise rules or regulations, the laws which descend to particulars on such subjects, and which forbid specific expressions) otherwise than by way of example, are usually the work of early and inexpe- rienced legislators, and cannot possibly be of any practical utility, subject, as they necessarily are, to the easiest evasions. Such offen- ces, in truth, admit of effectual description, except in respect of the effects which they produce, or which they immediately tend to 'pro- duce. Any attempt to enumerate, with a view to express, and par- ticularly prohibit all the offensive means by which an ill [ *cxiv ] disposed *person might attempt to destroy the public sense of modesty and decency, would be impracticable and absurd ; if it be necessary that such practices should be re- strained by the municipal law, it is, if not impossible, at least diffi- cult, that the offence should otherwise be described than generally by a prohibition to publish that which, being immodest and indecent, directly tends to correct and vitiate the morals of the public. It may be objected that any such general description is uncertain and indefinite. Be it so, what then ? No other inference seems to result, than that human laws do not admit of perfection, and that no general definition can be framed, which shall be applicable to acts capable of infinite variety, with absolute certainty. The publisher of a libel has no more reason to complain that the law does not precisely define what shall constitute a libel in every possible form which the offence may assume, than a party guilty of any mechanical and corporeal nuisance, has a right to object that the law does not define what precise extent of inconvenience he may inflict on others, without a violation of the law. A man has a right to exercise his trade, but he has no right so to exercise it as to occasion mischief to the public in the neighborhood of the place where it is carried on. To what extent may he carry it on without offence against the law, and without subjecting himself to criminal responsibility ? Can the law define this otherwise than by the general prohibition not to injure others ; and must not every man, at his own peril, take care so to conduct himself and his affairs, that the public may not be injured ? It would be as reasonable for one who carried on an offensive trade, to complain that [ *cxv ] *the law had not defined how many cubical feet of foul and pestilential air emitted in a given time, would consti- tute a nuisance, as for a libeller to object that the law had not defined the precise quantum of noxious matter, which he should be allowed to send forth by the aid of the press, before he incurred any legal censure. PRELIMINARY DISCOURSE. cxv When the law says you arc free, use your tongue, your pen, or even the press, at your discretion; this Btate of freedom must still be subject to the condition, that he who abuses his intellectual liberty and powers of offence to the injury of others, must be responsible for that abuse in the same manner as wheu he exerts his physical strength for such purposes. Liberty, divested of this condition, would be savage, not civilized liberty. But under such a condition, where liberty is the general rule, abuse of that liberty the exception, where so wide a range of free agency is permitted, it is for the agent to take care, at his peril, that he use not his liberty to the injury of others, either in their individual or aggregate capacities. Where the modes of effecting mischief arc of infinite variety, the illegality of acts must usually be denned by their actual conse- quences or immediate tendency, rather than by any detail of the means used. If a man were to drive another from his residence by setting up a pestilential manufactory in the neighborhood, it would be a strange defence to say, there is no law which prohibits me from consuming the particular drugs which I used. The law for- bids the use of any in such a manner as to occasion such conse- quences ; and when the law says that no man shall be allowed to degrade another from his place in society by deliberate and malicious *publications, which expose him as the ob- [ *cxvi ] ject of hatred, contempt, or ridicule, with what reason can the offender object that what may render a man odious or con- temptible, is not sufficiently defined ? It is by the effect or imme- diate tendency only that such an injury can be described (c). In the next place, is it essential that the communication be false as well as noxious ? The truth of the imputation affords a decisive answer to an ac- tion for damages, for the plain reason, that a guilty party has no right to a character free from that imputation ; and if he has no right to it, he cannot in justice recover damages for the loss of it; it is damnum absque injuria (a) ; but one great object of criminal animadversion is the preservation of public peace and good order, and those interests cannot be secured without restraining the publica- tion, at least the deliberate publication, in print or by writing, of (z) See the prohibitory definitions of the Code penal of France, supra, xxxiii.; of the Laws of Athens, xxxiv. ; of Rome xxxi.: of Scotland, xxxii. ; of Spain, infra, cxliv. of England, supra, xxx., infra, vol. -, '-10. (a) Supra, xli. V cxvi PRELIMINARY DISCOURSE. that which is. true, as well as of that which is false ; and therefore, thouo-h in principle the truth of an imputation be a decisive answer to an action for damages, it is not an answer to the complaint on the part of the public, that the publication tends to disturb the peace of society (b). [ *cxvii ] *The doubts which have been entertained on the ques- tion, whether, with a view to penal consequences, truth may constitute" a libel, relate principally, if not exclusively to libels which impute moral blame to individuals, and not to those which do not reflect upon any person in particular, but which are deemed crim- inal, from their tendency to endanger the security of society by extir- pating, or at least weakening, that sense of religious and moral ob- ligation, upon which the happiness and well being of society so essen- tially depend. To assert that blasphemous, obscene, and criminal acts may be freely described and represented, because they are true that is, because such things have been acted, would be too absurd a position to be advanced or if advanced, to need refutation. [ *cxviii ] *Again, where an individual was subject to any person- al defect or misfortune, or was unfortunate in any of his relations, if any one on that account were to expose him from day to -day, and hold him out as the object of public contempt and ridi- cule, it could not be doubted that the truth, as was justly observed by a celebrated statesman (c), would rather be an aggravation than (b) The law of England supplies many analogous distinctions. If A. has a right to a house, of which B., however, is in full possession, if A. were to enter violently with an armed force, and B. were to bring an action, he could recover no damages ; for, however improper the mode of entry might be, yet it was no injury to B.'s possession, for he had no title to it ; but, with respect to the public, it would be no defence to A. on an indictment for a breach of the peace, to allege that he was the owner, and that B.'s possession was wrongful, for it would be no answer to his having committed a breach of the peace ; and though the real owner was entitled to the possession, he was bound to vindicate his right by legal and peaceable means. So if one were to beat or wound an outlaw, the latter could not recover damages, yet the act would be highly penal. Although the rule that the truth of a libel cannot afford a defence to a criminal prosecution, as it may to an action to recover damages, seems to rest on clear and satis- factory grounds, yet much obscurity and confusion has prevailed on the subject which may fairly be attributed to the doctrines of the civil law. The civil law made no dis- tinction between the criminal and civil liability of a libeller. The consequence has been that even in this country, where the doctrines of the civil law have been received with a great degree of jealousy, it was long before the point was completely settled, that the truth afforded a complete justification in the case of an action for written slander, any more than it did in the case of an indictment. See the observations of Lord Hard- wicke, in R. v. Roberts, Sel. N. P. 986. (c) Mr. Fox, in the debate on the Libel Bill, vide supra, lsv. PRELIMINARY DISCOURSE. cxviii an excuse, the world being too apt to consider men as contemptible for their misfortunes than as odious for their vices. Suppose then, that the alleged libel imputes some legal or moral delinquency to another, is then the truth, the Veritas convicii, as it has been termed by the civil law, to be admitted as a justification ? Now, previous to making a few observations npon this point, as a mere question of legal policy, that is, of general expediency, into which it must ultimately be resolved, it may not be improper briefly to remark upon the ordinary popular objection made to the doctrine that truth may be a libel. It is seldom that the public voice exclaims against a law in the absence of all reason for complaint ; whenev r, therefore, that voice is heard, all thinking men will listen to it with attention, a benefit will be attained, either by amendment of the law, where the complaint is well founded, or by reconciling men's minds, where it can be shown that the complaint is erroneous, and that the law is just. The popular objection to the doctrine that truth may be a libel, arises partly from the want of a full understanding of the grounds and extent of the rule, but *chiefly and [ cxix ] principally from a misapplication of an honorable and generous feeling in favor of truth. The notion that the publication of that which is true ought not to be deemed criminal, is fallacious iu a moral as well as in a legal point of view ; it is, in effect, to assume that the means must sanctify the end, and that a good instrument cannot be perverted to unworthy and pernicious purposes. To assert that the truth may in all cases, and under all circumstances, be published, is a position as erroneous in morals as in law; truth, as well as falsehood, may be used as the instrument of creating misery, and where the object is immoral the means by which it is attained, cannot be innocent. If a man were suddenly to communicate to one, in a weak state of health, some very afflicting and distressing intelligence, with intent that the suddenness of the shock should produce instant death; would not the executed purpose amount, in foro conscientice, to murder, and would not the plea be frivolous and absurd, that the fact was true ? If the means, in a moral point of view, be regarded as material, the effect must be to aggravate the offence; in consideration that truth has been perverted and made the instrument of perpetrating a crime. The communication of the truth may not unfrequently constitute cxix PRELIMINARY DISCOURSE. a most treacherous fraud, criminal in point of law, as well as morals : for, in some instances, it is essential that the law, should impose si- lence, and that even under the obligation of an oath. In all such instances, the consideration that the truth is revealed, so far from affording any excuse, constitutes the crime. [ *cxx ] *With reference to one of the principal grounds on which the publication of a defamatory libel is to be re- garded as an offence against the public, and without reference to any considerations of extrinsic policy, it seems to be sufficiently plain that the truth of the imputation ought not to be admitted as a defence inasmuch as it is quite consistent with the mischief intended to be prevented. As any direct solicitation to violate a law devised for public secu- rity, must needs be an offence against the law, every solicitation to break the public peace must in principle be penal. For as no laws can properly allow that to be effected by indirect means, the direct doing of which is prohibited, it follows, that it would be inconsistent that a law, which provided for public security, should permit its pro- visions to be in effect violated, by allowing the publication of defam- atory imputations, which tended immediately to disturb that secu- rity. The law therefore, which prohibits such offences, does so for one reason at least, which is wholly independent of the consideration whether the imputation be in itself true or false. If, then, without reference to any consideration of extrinsic poli- cy, but looking only to the end and object of penal restraint, the truth of a defamatory communication ought not to constitute an ex- ception in favor of the publisher, how stands the question on grounds of extrinsic policy ? On the one hand, to give a general and absolute license to pub- lish that which was true concerning others, however defamatory in its nature and injurious in its consequences, and without [ *cxxi ] any exception as to motive, *even though the act were done with the illegal intention to provoke another to acts of aggression and violence, would necessarily and unavoidably occa- sion frequent interruptions of the public peace, personal conflicts, broils, and bloodshed, the natural issues of personal affronts. It is also obvious, that if the law were to tolerate the publication of crimi- nal charges by one subject against another, under the condition that the accuser, when called on, should establish its truth in a court of justice, a new and anomalous tribunal would in effect be enacted of a dangerous and mischievous description. Suppose, that the accused PRELIMINARY DISCOURSE. cxxi defers to the jurisdiction, and puts forth his answer, which, in moat . would be of a recriminatory nature, who are to be the arbiters '.' The public. And what means has this extraordinary jury of decid- ing on conflicting statements ? what can be the result but mutual ex- asperation, if not violence ? Let it eveD be supposed, that the de- linquent is convicted in the judgment of the public, the penalty, no doubt, is severe — forfeiture of character, but even where such were the result, an evasion and default of justice would be occasion withdrawing the cognizance of the crime from the ordinary legal tri- bunal where the offence would have been punished according to the wisdom of the law, and loss of reputation would have been a collat- eral but just and certain consequence. It requires, however, little of observation or argument to show the inconvenience of permitting deliberate charges, of specific crimes to be made otherwise than according to the ordinary course and forms of justice, provided by the law itself. It would, obviously, *be inconsistent with the first principles of legal [ *cxxii ] policy, that criminal accusations should be thus made before an incompetent and self-constructed court, to the neglect of the legal and appropriate tribunals. Even where such extrajudicial charges were true, the consequence would at least be delayed, and usually an utter evasion of justice. Although these observations are not wholly applicable, where the defamation does not consist in the imputation of a crime cognizable by the law — for justice, in such cases, is neither evaded nor delayed ; yet, as far as regards the hardship to the individual, or the mischief to the public, the evil may be equally great. It may be strongly urged that, to allow this would be in effect to extend the criminal code indefinitely, to make every breach of moral obligation, every sin against conscience, a crime of temporal cogni- zance. If general license were given for every one, as he pleased, to publish such delinquencies with impunity, so as he could after- wards prove them to be true, it is obvious, that every such justifica- tion would be equivalent to a judicial charge, the penalty forfeiture of character, and thus every defamation, through the medium of a public newspaper or journal, might be but preparatory to a-formal and judicial inquiry. To tolerate such a proceeding, would, ii is plain, be highly mischievous and inconvenient. To such an extent as is consistent with public good, it is for the law to define offences, and to punish offenders ; but beyond this pale, must always exist an indefinite multitude of offences against morality, which the law does exxii PRELIMINARY DISCOURSE. not visit, for th'e plain reason, that a greater degree of [ *cxxiii ] mischief and inconvenience would result to society from interfering with such delinquencies, than benefit from attempting to prevent them by the aid of penal censures. To allow such a justification in a criminal proceeding, would be to defeat the policy of the law in this respect. This argument may perhaps be met with the obsevration, that, notwithstanding the inconvenience which may result from the investigation of mere moral delinquencies, it has already been admitted, that such a justification ought to be allowed as a defence to the claim for damages in a civil proceeding. The answer is, that the cases are not parallel ; the admitting such a justification, in the civil proceeding, is a matter of necessity, arising from the very nature of the claim to damages, and which it would be impossible to avoid, without violating the essential principle on which the civil remedy is founded, and allowing a delinquent to make a pro- fit of his crimes. In the present instance, no such necessity or diffi- culty warrants an extension of the inconvenience ; here the aggrieved party who seeks redress is the public, not the individual defamed ; and the public-is entitled to security, though the charge be true, and 'though the individual may have no just title to damages. In the next place, it may well be contended, that to permit such a justification as a defence for publishing an extrajudicial charge of a specific crime, would frequently be attended with positive injustice to the party defamed, and would open a door to great mischief and oppression. How frequently must it happen that the self-constituted [ *cxxiv ] public accuser knows the facts but imperfectly, *and, consequently, how great a temptation would the allowing such a justification afford to malicious and ill disposed persons to venture upon bold and confident charges, which, after all, could not be substantiated. Again, absolute and positive injustice would frequently be done in creating a general and public prejudice on the very subject to be afterwards tried, by allowing the whole proceed- ing to be, as it were, prefaced by an ex parte and highly colored representation of the facts ; circumstances might be stated in sup- port of it, which would .not bo legal evidence on the trial, but which those appointed to decide, whose minds had been previously occupied and excited by an unfair representation, might not be able to dismiss from their consideration (cZ). {d) And therefore, the admitting such a justification would be wholly inconsistent with that wholesome principle recognized by the law of England, and also of Scotland, PRELIMINARY DISCOURSE. cxxiv But, suppose the prosecution to be instituted not by the party de- famed, but )>y another, it is plain, that the greatest injustice might be done in proceeding' to an investigation of the charge alleged, which so deeply involved his character and reputation, without af- fording him the opportunity of defence. *If this could be done, it would be in the power of any [ . \v ] two ill disposed persons most effectually to ruin the char- acter of a third, by the intervention of legal process. And even, if legal machinery could be devised for the purpose of making that third person a party to the proceeding, which absence or other cir- cumstances would frequently render impracticable, it would be a must intolerable hardship that every man should thus in effect be liable to be subjected to the expense, trouble, and anxiety of a public defence and exculpation, and that, not with a view to any legal and bene- ficial consequence either to the public or to himself; for, if he were to be convicted, he could not upon that conviction be punished, nei- ther would an acquittal afterwards be available to him, against a charge duly made before a competent tribunal. But if unlimited license to publish whatever was contumelious and defamatory, so as it were true, would be attended with mischief to individuals and public disorder, what, on the other hand, would be the effect of a total prohibition to communicate, what was defamatory, whether true or false ? It can scarcely be doubted, that if it were necessary to adopt either the one or the other of these extremes, the former would be preferable. The resulting evil would be of a more limited extent ; it would leave individuals exposed to insult, and so- ciety to frequent breaches of the peace; these, however, are conse- quences which cannot fairly be weighed against the mischiefs which would arise from weakening, if not destroying, one of the greatest moral securities by which society are protected, — the influence of public opinion. *But if the adoption of either of these extremes would [ "exxvi ] be prejudicial, limits must be sought for, which, though (supra, p. lxxx.) which renders it illegal to publish ex parte statements of criminal proceedings, even though they have taken place before the proper tribunal, and upon the ground of which iin>st important criminal trials in this country have been postponed, lest the parties accused should sutler from undue prejudice. To hold that the publica- tion of an ex parte criminal proceeding before B magistrate is illegal, on account of the tendency of such a practice to divert the fair course "('impartial juBtice, and yet to per- mit a mere unprivileged, unauthorized ex parte statement, not sanctioned by a judicial oath, or by any form or color of legal proceeding, would be, to say the least, highly in- consistent. cxxvi PRELIMINARY DISCOURSE. they do not-entirely exclude either of the opposite and conflicting mischiefs, reduce the aggregate amount. One of the most prominent of the distinctions devised for this pur- pose, is that which is made between mere oral communications and such as are written. Though the distinction between oral and written calumny partake of an artificial and arbitrary character ; yet is it valuable, because it is plain and intelligible, and for this reason has frequently been adopted, for the purpose of defining the limits of criminal liability. The restraining the criminal offence to written defamation is a provision which, whilst it leaves the ordinary communications inci- dent to the daily business of life unfettered, at the same timeguards against the mischiefs which would result from unlimited license, by subjecting to punishment all such as are guilty of the more deliber- ate, studied, and therefore, more malicious attacks upon character the more dangerous and injurious, as being more permanent in their nature, and more capable of a wide and extensive circulation. This, therefore, is a mode of restraint, which, whilst it leaves open con- siderable channels for communications affecting character, yet visits all those attacks upon reputation to which the foregoing remarks on the necessity for penal restraint more particularly apply. To make mere oral communications penal, whenever they reflected on the characters of individuals, would be a heavy restraint on the ordi- nary intercourse of mankind, and would necessarily and unavoidably occasion much and vexatious litigation ; on the other [ *cxxvii ] hand, the making written and defamatory *charges penal, without regard to their truth or falsity, dimin- • ishes far less than might at first sight be expected, from the great securities for the discharge of legal as well as moral obligations, the love of reputation, and the fear of public censure and disgrace. But, in the next place, any evil consequence which might other- wise result from subjecting written defamation, without regard to its truth or falsity, to penal censures, is best corrected by exempting largely from penal liability in all cases where the party acted with a fair and bona fide intention, with a view to a recognized legal ob- ject ; and this, without regard to the truth or falsity of the com- munication in fact ; for, in numerous instances, where the party acts honestly in pursuit of a legitimate object, it is far more consonant with the principles of natural justice and sound policy to make his criminality depend on his motive, rather than on the result of an investigation as to the truth of the matter published. One man may PRELIMINARY DISCOURSE. cxxvii violate the principles of honor and justice, and the dictates of his own conscience, though he publish that only which is strictly true; whilst another may act under the influence of strong moral feeling, in publishing what he believes to be true, but which turns out event- ually to be false. If the confidential depo itary of a secret were to betray his friend, from a motive of malice and revenge, he would undoubtedly stand in the first predicament ; were a man, under a bona fide belief that another had committed a fraud to warn a friend, in confidence, against trusting that other, stating his reason, it would, provided he acted with reasonable caution, be contrary to natural justice and the ordinary principles of criminal jurisprudence, that he should be 'dealt with as a crimi- [ "exxviii ] nal, merely because he happened to be mistaken. The consideration, however, of the circumstances, which ought, when united with an honest intention to protect the party against crimi- nal censures, belongs to another place ; it is noticed here, merely for the purpose of showing that the punishment of written defama- tion, notwithstanding its truth, is capable of such modifications as may, to a great extent, secure the public from any injury which could arise from impeding those ordinary communications affecting reputa- tion, which are of such great importance to society. Another material consideration connected with the present sub- ject, is, whether the truth of the defamatory imputation should not be allowed to be shown in mitigation of punishment, although una- vailable as a complete defence, inasmuch as it is offensive to men's sense of natural justice, that one who published that only which was true, should undergo the same measure of punishment as if he had in addition basely invented the slander. If, however, the party re- flected on were not the prosecutor, it would he hard upon him to make his conduct the subject of public inquiry, where he had no means of defending himself by becoming a party to the inquiry : and even supposing tli.it he were the prosecutor, ami hail an opportunity of meeting the charge, it would be highly inconvenient (tem of laws ; these, however, are very distinct and different offences, and are not connected with the present subject. In the next place, the occasion and circumstances of the com- munication may supply a qualified defence, dependent on the ac- tual intention to injure. The constituting a large and extensive barrier, for the legal protection and immunity of those who act bona fide and sincerely, according to the occasion and circumstan- ces in which they are placed, is not only just, in a moral point of view, and advisable as a measure of policy, but is absolutely neces- sary for the purposes of civil society. Were the mere probable effect and tendency of a publication to be the criterion of guilt, without reference to the real motive of the author and the occasion and circumstances under which he acted, the rule would be far too extensive for the convenience of mankind, and the evil resulting from the prohibition would greatly out-weigh the opposite advan- tages to be derived from it. *It is indeed very possible that a party, actuated by [ 'exxxviii ] the very best intentions, may propagate erroneous no- tions, but so long as he urges those opinions hmm fide, believing them them to be just, and intending to do good, his errors are not likely to prevail against the better sense and judgment of mankind to a very serious and prejudicial extent; and the contingent and casual publication of erroneous opinions cannot be placed in competition with the splendid advantages which flow from permitting full and cxxxviii PRELIMINARY DISCOURSE. fair discussion on every subject of interest to mankind, as connected with religion, politics, philosophy, and morals. The security of the public, in this respect, is amply provided for by distinguishing between that which is published, with a sincere and honest, though unsuccessful intention to do right, and malicious attempts to injure society in general, or individuals in particular, by profane, blasphemous, seditious, immodest, or defamatory com- munications. This general principle embraces not only all communications made on subjects of public interest, but also those which affect the characters of private persons, provided they be made in the discharge of any legal, or even moral duty, and in a manner suited to the occasion. Here the boundaries of criminal as well as civil liability seem to be identical. In all such cases, though the tendency may be of an injurious nature, it is a question whether the party was really actuated by a good and honest intention, as suggested by the occasion and cir- cumstances under which he published, or whether he made use of -that occasion as a cloak for carrying an injurious and [ *cxxxix ] malicious *desigti into effect. The real intention of the party is the proper test of criminality, and legal is commensurate with moral delinquency. Here a question of considerable importance occurs : though the truth of a slanderous charge may be no justification, yet in those in- stances where malice in fact is the test of criminality where the question is, whether the publisher acted sincerely, or merely mali- ciously, and not with reference to the occasion, ought it not to be ad- mitted, at all events, as collateral evidence to shew the true state of his mind ? Thus, suppose that A. writes a letter to B., stating the latter to have been guilty of disgraceful conduct, and that the de- fence is, that the letter was written for the purpose of admonition and advice, not with a view to injure or offend B., but in order to amend and reclaim him. In such a case, the question would be, as to the sincerity of A. ; if he were sincere, it would be contrary to sound policy and natural justice to punish him as a criminal ; if he assumed the mask of friendship, in order that he might wound with impunity, he would deserve, for his hypocrisy, a higher degree of punishment. Now, as the issue would, in such a case, be on the mere fact of sincerity, it is manifest, that if the prosecutor could show that the imputation was false in fact, and that A. knew it to be false, this would at once be decisive to show that he did not act bona PRELIMINARY DISCOURSE. cxxxix fide ; and although , on the other hand, proof that the facts were true, or that A. believed them to be true would not be absolutely decisive as to his sincerity of intention, yet still there can be no doubt as to the materiality of such evidence. *In such cases, one of three courses must necessarily [ *cxl J be adopted, cither, first, to assume the falsity of the im- putation ; or, secondly, to assume its truths (or at least not to assume its falsity ;) or, thirdly, to admit evidence of the fact. The first of these must at once be rejected, so inconsistent would it be with rea- son and natural justice, to subject any one to punishment on the as- sumption of a fact, without permitting him to disprove it. Each of the other alternatives would be attended with its peculiar difficulties : it would be highly inconvenient to try a collateral charge against the prosecutor, or it may be a stranger, far more heinous, than the prin- cipal one against the defendant. On the other hand, were the truth to be presumed, or at least the falsity not assumed, a malicious libel- ler might be acquitted, of whose malice the most decisive proof might have been adduced. The latter, however, would probably be the less inconvenient consequence of the two, for many of the most weigh- ty objections against admitting the truth of a personal and defama- tory charge to afford ground of justification or excuse, would also apply to the exclusion of proof of the fact as collateral evidence. It is also to be recollected, that, after all, the truth or falsity of the charge would not be the real question, and would be material, so far only as it tended to show the real intention of the party who made it ; and, therefore, even admitting the fact to be true, still the prosecutor would 1)0 at liberty to show that the defendant did not act on any belief of the truth, or even if he did, that he was actuated by a ma- licious intention to injure or offend, and not with a fair and honest intention to effect a beneficial object ; and on the other hand, the defendant *would be at liberty, even though he e\li ] admitted the imputation to be false, to show that he be- lieved it to be true, and that he acted on that supposition with a bona fide intention (i). (i) The law of England, it will be seen, on the trial of an information or indictment for publishing a defamatory libel reflecting on an individual, excludes evidence" of the truth of the contents, though it be offered merely with a view to prove or disprove the malice of the publisher. It has been strongly urged, (see the Edinburgh Review, for the year 1816,) that is thus rejecting evidence of the truth, injustice is done: and it must be admitted at once that to exclude such proof, aud, at the Bame time, to raise any presumption that the charge was false, because it had not beeu proved to be true, would be productive of gross cxli PRELIMINARY DISCOURSE. *cxlii ] - *The degree of punishment to be inflicted, in respect " *cxliii ] of a noxious and illegal communication must "necessarily injustice to a defendant in such a prosecution. On the other hand, although to exclude proof that the charge was false, and, which is still more material, that the defendant knew it to be false, would be to exclude the most cogent evidence of malice, the conse- quence would be less repugnant to men's sense of natural justice, inasmuch as it is preferable to err on the side of mercy, especially as the defect might frequently be sup- plied by other evidence, so seldom does it happen that the same malicious feeling, which is strong enough to cause a party to invent a deliberate fiction, does not also betray itself by collateral indications. The effect of such an exclusion is also diminished by the con- sideration that the objection is applicable only to that intermediate, though large class of cases, where actual malice is the proper test of guilt; and that against the inconve- nience which no doubt must result. from excluding such evidence in this class of cases, are to be set off those opposite inconveniences, already adverted to, which would arise from the admitting such evidence; the necessity for inquiring into the most serious and complicated criminal charges in a collateral proceeding of far less importance; the con- stituting a tribunal for indirectly trying moral offences, of which the law itself takes no cognizance; the danger to be apprehended to the public peace from permitting insults to be offered where the truth can be proved, without restraint, and thus driving men to avenge such insults by violence; and last, but not least, the hardship which would be occasioned to individuals in permitting tbeir conduct and reputation to be put in haz- ard, it may be collusively, by proceedings to which they are not parties. It has been urged that the same kind of hardship may arise on a justification in a civil action: but there, from the nature of the case, the danger is much limited by the consideration that the plaintiff cannot collusively implicate the character of a third person Without injuring his own. If A. were to publish that B. had been guilty of adultery with the wife of C, and on an action for damages brought by C. and his wife, A. were to justify, alleging that the fact was true, the character of B. would no doubt be implicated in the result, though he had no means of becoming a party to the proceeding; but in such a case there would be little probability of collusion between A. and the husband for the purpose of defaming B , when it is considered that the object could not be accomplished except by means of a verdict which recorded the dishonor of C. and the infamy of his wife. In the civil proceeding, therefore, little of abuse or inconvenience can arise from an impli- cation of a third person in a justification of this nature, whilst in a prosecution to be instituted by a stranger, no such restraint on the abuse would operate. It is true that, as the law now stands, the defamed or injured party is usually the prosecutor, but it by no means follows that prosecutions would be so limited if such a justification were to be permitted, and a recent instance (R. v. Burdett, 4 B. and A. 314,) is sufficient to show that characters of third persons may be deeply implicated in prosecutions to which they are strangers. It has further been urged that, in the criminal proceeding, the real object of legal interference is the protection of the defamed party, and that the injury to the public is but a legal fiction. Now that one main ground of penal infliction in such cases recog- nized by the law of England, is the protection of individuals, may readily be admitted, but this is not the only one; another and equally important object, as may be collected from the language and decisions of the courts, is the preservation of the public peace, and this may clearly be inferred from the consideration that a publication of a libel is penal, though it be strictly confined to the party defamed; this would be unnecessary if the law regarded merely the injured credit of the individual, but is absolutely necessary jf security to the public be also the object of the law. The same couclusion is to be PRELIMINARY DISCOURSE. cxliii depend much on the species and degree of injury likely to result from the act. It is obvious that, in many 'in- [ *cxliv ] stances, itought to be regulated in analogy to correspond- drawn from the consideration that the law punishes libels on the dead as well vs on the living, out of the just apprehension that otherwise the family of the deceased would visit the insult as a personal affront to themselves; and one reason, and tint a forcible one, for publishing libels, even on the subject of religion, is the consideration that to revile a man's religion cannot but be regarded as an indirect affront to himself. Were the object of civil and criminal visitation in respect of personal defamation by means of libels identical, it is evident that one and the same process ought to serve for both, and that in England as in Scotland, the prosecutor should be allowed to proceed at once for amends to the individual, and also for the infliction of a fine or imprison- ment, if indeed any penal censure ought to follow where the object is simply the pro- tection of the individual, and where the awarding damages would probably be sufficient for the purpose- But it is urged that the practice of the Court of King's Bench. in refusing a criminal information where the alleged libel is true, shows that the protection is of a personal nature. It must, however, be recollected that in granting or refusing criminal informa- tions in case of libels, the Court of King's Bench exercises a discretionary power, act- ing on principles which are peculiar to that proceeding, and that he practice in the in- stance of a criminal information for a libel, is not only peculiar to that pr< (seeding but irreconcilable with the ordinary principles of jurisprudence on which the law of England is founded. The general rule is, that the truth or falsity of a libel is immaterial, whilst in this instance it is made the first and essential object of preliminary inquiry,— of an inquiry conducted in a mode foreign to the ordinary forms of criminal justice, not by evidence before a jury, but by affidavits. Such a mode of investigation, at all times unsatisfactory, is the more so where the defendant though the alleged libel be perfectly true, has no means of compelling those who know the truth to establish it by their affi- davits; and yet, when the information has been granted, he is excluded from giving evi- dence of the truth, although the information was granted only on the assumption that the statement was false, a circumstance which necessarily tends to raise an unfavorable prejudice against him on the trial. Notwithstanding such considerations, the result is far more beneficial than might have been expected, or thin possibly cull have happened had the practice been general. The truth is, that although the Court of King's Bench ;s open to all applicants for ciiminal informations, yet in cases of libel it is seldom re- sorted to but by persons of rank or wealth. The proceeding by information for a libel is a kind of intermediate course between treating the insult as an affair of honor, and the more vulgar ami plebeian course of presenting a bill of indictment :>t the sessions or assizes. The libelled pirty has an opportunity of exculpating himself by means of a denial of the imputation on his conduct and character in the most publia manner, and under a solemn sanction; his adversary is the more ready to make concession where, from the form of the proceeding his character for courage is no1 implicated, and where the truth of the fact having been solemnly denied, an opportunity is afforded for expla- nation, concession, or apology. And thus it happens that a course of proceeding which is to a certain extent inconsistent with general principles, is in its limited application rendered beneficial by particular considerations. Men cannot be moulded and adapted to the laws: the laws must be accommodated to men, and not such as they ought to be, but such as they are; and if even a portion of a considerable and powerful class of the community can be induced to submit themselves to the law instead of resorting to vio- lence, this is au advantage to society which it would be unwise to sacrifice for the mere cxliv PRELIMINARY DISCOURSE. ing penal provisions contained in the same code. When such an offence amounts to the crimen Icesce majestatis, the offender is of course subject to the penalties of treason. Where the offence con- sists in a solicitation to commit some other substantive offence, which is in consequence perpetrated, then it partakes of the [ *cxlv ] "nature of that offence, and is, in effect, but a means of its accomplishment. But where the criminal object is not accomplished, in consequence of such an illegal solicitation, there is room for a distinction in favor of the offender, to allow him the benefit of a locus jtosnilentioe (k). sake of legal symmetry; and the practice may well be permitted without establishing any general rule, even although it be irreconcilable with the ordinary and general prin- ciples on winch the law proceeds. (&) Some, it is well known, have supposed that the publication of a defamatory satire was, by the law of the Twelve Tables, punishable with death. Montesquieu, Sp. of Laws. The authority for this is a quotation by St. Augustine (De Civitate Dei, lib. 2, c. 9,) from Cicero de Republica, lib. 4, c. 10. In that passage, Scipio Africauus, dis- coursing of the licentiousness of the Greek comedies, speaks thus; — Apud Graecos fuit etiam lege concessum, ut quod vellet comceilia, de quo vellet nominatim diceret. Nostrae contra xii. tabulae cum perpaucas res capite sanxissent in his banc quoque sanciendam putaverunt; Si quis occentavhset (actitavisset) sive carmen condidissct quod infamiam facer et flagitiumve alter i. Prseclare, judiciis enim magistratum disceptationibus legiti- mis'propositiam vitam, non poetarum ingeniis habere debemus, nee probrum audire nisi ea lege ut respondere liceat et judicio defendere. It would be difficult, however, in the absence of stronger and more direct authority, to accede to this position that the Decemviral Code punished this offence capitally, al- though certainly the pcena capatis did not always mean the punishment of death. For, in the first place, the authority is weakened by the consideration that St. Augus- tine himself does not profess to communicate the exact words even of Cicero. Secondly the immediate and shocking severity of a law which visited the authors of calumnious verses, such as would, in many instances, merit contempt rather than legal penalties and prove far more fatal to the reputation of the author than to the honor of the object of his attack, affords intrinsic evidence sufficient to excite strong suspicion and doubt upon the subject in the absence of the most direct and certain evidence, of the existence of such a law. Such doubts acquire additional force from a consideration of the sources from which the Decemviral Code was compiled. The Athenian laws were those which were principally consulted by the framers of the Twelve Tables. Liv. iii. 13. Gell. Noct. Att. xx. i. but they afforded no prototype for such a law. The laws of Solon, it is well known, punished calumniators by subjecting them merely to pecuniary fines. (1 Pet. Leg. Attic. Lycias in Theomnestem.) It is not prob- able, therefore, a priori, that the framers of the new laws would have visited the offence with so incommensurate and vkidictive a punishment. It has, indeed, been suggested that this was a part of the Leges Regiae, which was retained in the Twelve Tables. There seems, however, to be no trace of any such prior law : and, from the very passage, as quoted from St. Augustine, it may be inferred, that the law of the Twelve Tables con- tained the first restraint of that license to defame, which had been abused by the Greek comedians. Apud Graecos fuit etiam lege concessum ut quod vellet Comoedia de quo vellet no minatim diseret. A'vstrte contra duodecim tabula, &c. In the absence of any PRELIMINARY DISCOURSE. cxlv *At all events, the punishment ought never to exceed [ 'exlvi that which would by law have been inflicted, had the historical evidence of the previous existence of such a law as part of the Leges Regise, it is improbable that any such existed in that rude aud illiterate era of the Roman history, previous to the formation of the Twelve Tables, when few were likely to offend by reading, still fewer by writing, satires. That the Romans, however, were in the habit of making and reciting verses when the law of the Twelve Tables was enacted and that those laws containe 1 sanctions to restrain the abuse of that practice, clearly appears. Thus Cicero, (Tuscul. Disp. lib. 4. c. 2.) " Gravissimus auctor in originibus dixit UatO morem apud majores hunc epularum fuisse, ut deinceps qui accubarent canerent ad tibiam clarorum virorum laudes et que virtutes. Ex quo perspicuum est, et cantus turn fuisse rescriptos vocum sonis, et carmiui, quamquam id quidem etiam XII. Tabuke dec- larant, condi jam turn solitum esse carmen; quod ne liceret fieri ad alterius iojarlam, lege sanxerunt." It follows, that so far was Cicero from knowing or supposing that any law existed anterior to those of the Twelve Tables, which punished the author of defamatory verse, that he even cites the law of the Twelve Tables to show that songs were composed at all in that remote age. Did the Decemviri create such a law for political purposes, and in order to support an usurped authority ? M. Montesquieu, the author, at least the supporter of this su^es- tion, seems to have eagerly admitted the existence of the law for the purpose of building a theory upon it. He attempts to show, that, of the three great forms of government the aristocratical is that which visits libellers with most severity, and cites this law of the Decemvirs by way of illustration. To confute such a theory would be a departure from our present subject. It is strikingly in opposition to the description which Tacitus gives with so much force and feeling, of the ulliinum in servitule suffered by the Romans under the tyranny of Domitian. But if there be a difficulty in accounting for the origin of such a law, there would be a still greater one in accounting for the approbation which the laws received as well from the Roman people as from their historians. The punish- ing of those who had libelled illustrious persons, with capital penalties, under pretence of a violation of the Lex Uesae Majestatis, was accounted a tyrannical and sanguinary measure in the times of Sylla, Augustus, and Tiberius; what then would have been thought of such a penalty for defamation in an early age of the Republic ? How is it possible to suppose that so severe and tyraunical a law would have been favorably re- ceived by the people, or afterwards commended by their great historians ? — (See Tacitus Annal. iii 27; Livy, lib. 1.) On the other hand, in addition to the weakness of the proof which can be adduced as to the existence of such a law as part of the Twelve Tables, an 1 the internal evidence which the supposed law affords to disprove itself, it may be observed that the laws of the Twelve Tables did, in fact, prohibit all personal injuries under a pecuniary penalty. Si injuriain faxit alter] viginti quinquc :eris pcena3 sunto. In the language of the Romau jurists, earlier as well as later, the general term inju- ria included a wrong by writing or Bpeaking, as well as by personal violence. Was then a libeller by the same law, punishable by a mo '.irate pecuniary fine, as a corupe+i-atimi to the party injured, whilst his life was forfeited to the state ? Or, if the private wrong did not fall within the scope of the term injuria, was actual or personal violence pan" ished by a fine only, whilst the slightest injury to reputation, by a song, or by writing' was to be visited by capital punishment ? Again, there is great reason for supposing that by the laws of the Twelve Tables, the author of the Carmen malum was subjected, not to capital punishment, but to corporal castigation by beating. Vol. I. 9 cxlvi PRELIMINARY DISCOURSE. [ *cxlvii ] offence, *to the accomplishment of which the solicitation or libel tends, been actually committed. This observa- The principle of retaliation -which was recognized by that Code, was obviously inap- plicable in the case of a malignant and satirical poem. To allow retaliation would be but an illusory vindication to an honorable but illiterate man, who had suffered from an offensive and provoking satire ; and it is not impossible, that the subjecting the body of the offender to the actual cudgel of the sufferer, might be deemed the approximate substitute for the use of -the invisible and intellectual, but rude, powerful, and more galling lash of satire, the application of which, in return, was impossible. Be this as it may, certain it is, that the svpplicium fusiuarium was a punishment inflicted upon libellers by the ancient Roman law, and as many able commentators have, with great reason supposed, by the law of the Twelve Tables. Horace, in his well-known lines, in reference to the Carmen famosum , not only specifies the mode of punishment, but seems to cite the law which inflicted it as the first which which was made in restraint of libels. Quinetiam lex Poenaque lata, malo qua3 nollet carmine quemquam, Describi: vertere, modum formidine fuslis Ad bene dicendum delectandumque redacti Epist. lib. 11. ep. 1, v. 152. That the paznafustuaria was inflicted on one class, at least, of libellers, is generally admitted by the unanimous voices of legal as well as poetical commentators. And it is not easy to ascribe this mode of punishment to any other period than that of the Twelve Tables. Cicero, as well in the passage quoted by St. Augustine, from the DeRepublica, as in that cited from the Tusculan Disputations, expressly refers to the law of the Twelve Tables as the first which applied restraint to the carmen infame. The punishment, therefore, to which the formidofnstis of Horace refers, could not well be eaidier than the law of the Twelve Tables ; neither could it well be later, for the context shows that the poet was describing, as matter of history, the earliest check imposed by the law on the publication of defamatory verses. Any later law inflicting such a punishment, must, in all probability, have been en- acted previously to the Porcian law, which took away from the magistrate the power of inflicting corporal punishment on the person of a Roman citizen ; there is, however, no trace to be found of the abrogation of the capital punishment, and the substitution of the supplicium fusiuarium, either in that interval or at any other time ; nor does it ap- pear that capital punishment was ever inflicted under this supposed law of the Twelve Tables. Some, indeed, have doubted whether the punishment by beating was known to the Decemviral laws, (Hotomann. c. 77.; Dirksen on the Twelve Tables, 511.) and therefore infer that the law cited by Horace is of later date. This however, seems to be erroneous assumption. See Cicero de Legibus ; Augustine de Civ. Dei, Lib. 21. c. 11. Octo poenarum genera in legibus continentur, damnum, vincula verbera talio, ignominia, exilium, mors, servitus : and see Dirksen's Fragments of the Laws of the Twelve Ta bles, ad. tab. 8. fr. 14. Again, allusion seems to be made to the same law in the De Arte Poetica. Lex est excepta, Chorusque Turpiter obticuit, sublato yure nocendi It is very difficult, indeed, to suppose that Horace and Cicero did not allude to the ame law, when each was speaking of the abases which had arisen from unrestricted PRELIMINARY DISCOURSE, cxlru tion "ought, however, to bq confined to these instances [ "oxlviii ] where the offence consists in the attempt to provoke or license, and of the legal restraints which I ■ that Horace, in the pa I, referred t i different lawB. If, however, the law of the Twelve T ibles visited this offence with fasti gat ion, it is im| that the punishment was capital It has indeed I m St. Angnstine, asserted that the ras capital by the law of the Twdvo Tables, beoause it was a punishment which mi/Id produce death, althoo oot only not inten le 1, but prohibite 1, by the law.— See H Ant. Rum. Ad. [nst. Lib. iv. tit. iv. s. '1. It is, however, difficult to lat Cicero, who himself, in a pass cited, enumerated distinctly the different modes of punishment authorised and pr I by the law, and in which he mentions Verbera as distinct from all which could sidered capital, such as Mors, Exillium, &o. should confound the quality ai a higher species of punishment with the effect and possible consequences of a distinct and inferior one. — Be this as it may, it is oerl wa t i it many criti ■- an I abl i com ta- tors have maintaine 1 the opinion that th i law of the Twelve Tables punished the not capit ailv. but by fustigation. — Fustua ;ium constitutum erat in auctorem oarminum infamium. Porphyrion, ad. Horat. — Heinneccius. Ant. Bom. Lib. iv. tit. iv. s. ■_'. Lege xii. tabularum cautum est ut fustibus, feriretur qui publico inveheretur. — Cornutns ad, Pers. Sat. 1. Si quis, carmen occentassit quod alteri fiagitium faxit, fuste csBditor. — Charondas, S 55. Dirksen ad. xii, Tab. 515. Si quis pipulo oc Bit carmenve condidisset quod infamiam fa i nve alteri, fuste ferito. — F After all, it is matter rather of speculative curiosity than of practical Utility, to in- quire whether the decemvirs did or did not annex capital punishment to this offence ; if they did, the instance must stand as a solitary and anomalous memorial of barbarous ignorance and cruelty in the annals of jurisprudence ; one without a prototype in former, or a parallel in succeeding generations. History, however, records no instance in which this law, if it existed, was ever put in force, and in no of the Roman republic or empire, not even under the worst seasons of imperial tyranny and op is the offence of libel without distinction made capital, thongb certainly the pun- ishment of death was annexed in after times to several modifications of the crime. Not- withstanding the charge which M. Montesquieu has urged against Sylla, of havii I the punishment against libellers and Batirists, yet it seems that by his laws they were in general subject merely to pecuniary lines, at least no punishment tion 1 except one. See Matthssus, ad. lib. 47. Dig. tit. 4, s. 4. The Cornelian law uce a penalty of a remarkable nature, which has given rise to some doubt : •■ Si quia librum ad infamian alicujus pertinentem Bcripserit, comp ediderit, dolose malo fecerit quo quid eorum fieret, etiam si alteriw nomi • ediderit, vel re injuriarum agere lie i lemn itua -it qui id fecit int lent ex I there." This law, according to some, was meant to deprive a libeller of the right of making a testament. The real meaning Beems to have been, that he shoul 1 be incapable of giving hia testimony in a oourt of justice ; an appropriate dis- qualification, founded probably on the presumption that a nun who by a false and mous charge, whether of a judicial or extra judicial nature, had deliberately attempted to destroy the reputation of another could not be deemed worthy of credit as a \ The fact that Sylla, (Cio. Fam. Epist. 8. 11.) Augustus, and Tiberius, punished those who were guilty of writing libels on illustrious persons with death, under the Btrained pretence of a violation of the Lex lccs), the defendant said to the plaintiff, a thou art one of those that stole my Lord Shaftesbury's deer." The court held, "that words to be of them- selves actionable, without regard to the person or foreign help, must either endanger the party's life, or subject him to infamous punish- ment, 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 ties- *16 ] pass will bear an action, or that at least the tiling charg- ed upon the plantiff must be scandalous." 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 was only for want of mon- ey, and not the direct penalty given by the statute. In Button v. Hey war A (7), Fortescue Justice observed, "It was the rule of Holt, C. J. to make words actionable whenever they sound to the disreputation 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 de- cisions were founded. The ground of an action for word- in the absence of specific dam- age, is, as has been seen, the immediate tend* ncy in the words tin ni- sei ves to produce damage to the person of whom they are spoken, in which case, presumption supplies the place of actual proof '.- The im- mediate and obvious inconveniences resulting from a * charge of crime are, the party's degradation in society, [ '17 ] and his exposure to criminal liability. In the former {>) Walmesley v. Russel, 6 Mod, 200. (/) 8 Mod. 21. (s) 6 Mod. 101; 2 Salk. 606; Holt, 10. 17 CIVIL REMEDY— ACTIONABLE WORDS. case, the presumption is, that he has lost the benefit of intercourse With society ; in the latter, that he is placed in jeopardy, and that the suspicion excited by the report, may produce a temporary depri- vation of his liberty until his innocence can be made manifest (w). Further than the ' evil of a temporary privation, the presumption cannot in general be carried, since a mere false report cannot of it- self affect the party's life ; and if the report be true, he is not, as will afterwards be seen, entitled to an action. Cases may however occur, where the detriment may be much more serious than a tem- porary 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 instilled 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 neighborhood, a place likely to be the most strongly infected with the prejudice. He [ *18 ] *might also be deprived, by means of such slander, of the" benefit of general evidence as to his character (v). The liberty of every individual is considered by the law to be 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 ap- prehended, and to recover damages for the injury at the very ear- liest opportunity. Since then the grounds of action are to be found in one or both these consequences, namely, the degradation 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 foundation of such an action. First, it is to be observed, that though these two consequences can- not be completely separated, inasmuch as a greater or less degree of discredit must necessarily attach to every violation of the exist- ing law, yet that the party's jeopardy, in a legal point of view, is regarded by the law as the principal ground of action [1]. This appears from the general scope and tendency of the body («) The being of bad fame, or keeping ally taken into consideration in diminution company with persons of scandalous repu- of punishment, when it is discretionary, tation, was formerly a reason for commit- even a guilty person may be seriously fo- ment Haw. b. 2, c. 12, p. 8, 9, 10, 11. jured by false reports to his prejudice. (r) And as previous character is usu- [1] See note [1,] page 43, infra. CRIMINAL CHARGE. 18 of cases, to be found in the books 'relating to this copi- *19 ] ous 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 im- putations, which if believed and even proved, could no( have sub- jected the plaintiff to any future penalty : — fur instan . The defendant said, " Robert Carpenter (V) was in Winch Gaol, 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 stealing his bacon." In Gainford v. Take, (x) the words were — " Thou wast in Laun- ceston Gaol for coining!" The plaintiff replied, " lt'1 was there, I answered it well." " Yea," said the defendant, " you were burnt in the hand for it !" 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 [ *20 ] the words not being certain 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 pun- ishment, yet the scandal of the offence remains. In the above cases of Carpenter v. Tarrant and Gainford v. Take, (the former of which was cited by Lord Ellenborough, 0. J. in giving judgment in a late case) (c), the words import, that the plaintiff had been acquitted in the one case, and punished in the other; neither imputation, therefore, though beli aid have exposed either of the plaintiffs to future liability. In tl and similar instances, it is Likewise to be observed, that though mo- tions 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 word- must (w) Carpenter v. Tarrant, Rep. Tern. (y) Cro. J. G'22. Vid. Sty. 4'J. All. 35. Hard. 33 ( J; see also Cuddington v. FPU- 1 Yin. Ab. 416. pi. 8. kins, Hob. 81. (2) Roberts v. Camden, 9 East. Rep. (1) Cro. Jac. 536. 63. 20 CIVIL REMEDY— ACTIONABLE WORDS. impute an offence which may expose the party to a future prosecu- tion, though there was room in each of these cases for making the objection, had it been thought available. And in the case of Bos- Ion v. Talham, the court expressed an opinion that even [ *21 ] allowing *that the words fixed the offence to a period, since which the liability to punishment must have been discharged by a general pardon, yet that the words were actionable since the scandal of the offence remained. And although in these cases the principal ground upon which words of this description are held to be actionable seems to have been abandoned, yet the good sense of the decisions is obvious ; for were it otherwise, the slanderer might always secure impunity by cautiously asserting that the party slandered had already suffered the punishment ap- pertaining to the imputed offence [1]. [1] The principle of the three last cited cases is recognized in Van Jlnkin v. West" fall, 14 Johns. R. 283, where it was said by the court in denying a new trial in an ac- tion of Slander, " the right of the plaintiff to sustain the action, does not depend upon the question whether he is liable to be jiroseculed and punished for the crime charged against him : as when the stutule of limitations has run against the criminal prosecu- tion, it is still slander to charge the party with the offence." The same principle was acted.upon in Fowler v. Dowdncy, 2 Aloody & Rob. 119, which was an action of slan- der for saying of the plaintiff " he is a returned convict." It was held that the words were actionable, imputing an offence punishable by transportation ; and though the punishment had been suffered, the obloquy remained. It seems however that in such a case the defendant may justify, Damn v. Clause, 5 Hill, 196. See also 5 Penn. R. 372. Whether words are actionable in themselves, depends not always upon the mede of expression adopted by the speaker ; it frequently depends upon the sense in which they are understood by the hearers. If understood to impute a crime, it is immaterial how vague and doubtful they are. Even words, innocent on their face, may be intended and understood in a calumnious sense. Words accompanying a slanderous charge, showing the impossibility of the party calumniated being subjected to an indictment or to an in- famous punishment for the crime imputed, may be a mere ruse to evade the vigilance of the law. Whether they be so or not, is a proper question for a jury. Management of this kind, hiying an anchor to the windward for a future day, is unavailing. Hunt V. Jllgur, 6 (,'arr. & Payne 245, was an action for a libel copied by the defendant from one newspaper into another, with the sole addition of the word Fudge. The cause was tried before Lord Lyndhurst, who submitted to the jury the question whether it was the ob- ject' of the defendant by the addition of that word to vindicate the character of the plaintiff, or whether it was introduced merely for the purpose of creating an argument in his favor in case proceedings .should subsequently be had against him ; and instruct- ed them that if the word was added only for the latter purpose, it would not take away the effect of the libel. If on trial of the cause the defendant can show that the party to whom the crime was imputed, had in fact been guilty of such crime, he may justify, although at the tim e of the speaking of the words, the plaintiff was no longer liable to indictment or punishment ; otherwise the jury will be warranted to conclude that the whole of what was said by the defendant is false, and of course will find a verdict for the plaintiff. CIVIL REMEDY— ACTIONABLE WORDS. 21 Supposing it, however, to l»e perfectly true, that in some instances the presumption of prejudice to the plaintiff in society is a ground of action, independent of any detriment in a criminal point of view, yet it appears to be clearly established, that " No charge upon the plaintiff, however foul, will be actionable without special damage, unless it be of an offence punishable in a temporal court of crimi- nal jurisdiction" Thus, by a long series of cases it has been decided, that to say a man is ''forsworn (a)" or 'that he has 22 J taken a false oath, generally, and without reference to some judicial proceeding, is not actionable ; and the reason is, that in the latter case a perjury is charged, for which, wore the charge true, the party would be liable to be indicted and punished : in the other, no more than a breach of morality is imputed, of which the law does not take cognizance [1] . So, to accuse another of having secreted (Z>) a will, for the pur- pose of defrauding his relations, is not actionable : though a person, who by such means possesses himself of the testator'- property, would be regarded by society in no better light than the stealer of an horse, or the picker of a pocket. Again, where, in general, bad princi- ples and vicious propensities are imputed to the plaintiff, he is not entitled to any compensation in damages without proof of a specific loss ; though a person known to possess such principles and propen- sities is as likely to be despised and avoided in society as if he had actually reduced them into practice. The defendant (c) 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 (d~), in his comment upon this case, says, " Upon great consideration and advisement, it was ad- judged that the words in the principal case were not actionable ; for (he adds) the purpose or intent of a /nan. without act, is not pun- (a) Mo. 3G3. Cro. Eliz. 429 ; Popham (/») 8 Salk. 827. 210. ()\v. G2. Cro. Eliz. 185.609.720. (c) Eaton v. Mien, 1 Rep. 16. Cro. 788. 1 Fin. Ab. 404. 1 Rol. Ab. 40. Com. El». 684. Dig. tit. Action on the case for defamation (hreys, the defendant 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 *39 ' it was held, that the words were not actionable, *because it did not appear that a felonious taking was meant. And it seems that to charge a brewer with selling unwholesome (9) 1 Vin. Ab. 423, pi. 27. 1 Com. Buls. 138. Dig. tit. Action on the case for defamation. (s) Cro. J. 158. 8, 9. 1 Roll. Ab. 46. (t) Cro. Eliz. 888. (r) Cro. Eliz. 643, sed vid. 1 Roll. 44. 1 (m) Cro. Eliz. 889. [2] In Andreas and wife v. Koppenheafer , 3 Serg. & Rawle, 255, words charging the wife with being the author of a libel, were held actionable. [3] Action sustained for same charge, Martin v. Stilwell, 13 Johns. R. 275. [4] Action sustained for same charge, Beers v. Strong, Kirby's R. 12. CIVIL REMEDY— ACTIONABLE WORDS. 39 beer is actionable, since the Belling such beer is an indictable of- fence (x). In Sir Lionel Walden (y) v. Mitchell the defendant .-aid, 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 force, it was held, that to say " Thou art a witch and a sorcerer," was actiona- ble (~) : And Gawdy, J. said," If he bewitches men bo as they die, it is felony ; if he use- witchcraft in any other way. he -hall stand in the pillory; so that is a slander in every respect, and a good cause of action." In Mayne v. Digle (a) 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 similar ones to be met with in the reports, it seems difficult to find any other limit for the extent of the action than that laid 'down in '40 the last case ; and though there are dicta and even deci- sions 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 publishing of the plaintiff, that he is uregralor (Z>) ; and the reason given is, because the offence of regrating, is not punishable by loss of life or limb; but this decision cannot be considered as law, since it is contradic- tory to all the cases last cited. So it has been held, that for the words " Thou art a common bar- retor (c-) 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 -aid by Popham, C. J. ( the party an offence for which he may be indict- I, Ma it. JD . 46, and see Purdy v. Slacey, Burr. 2698; they must mous punishment, Ogdenv. Turner, 2 Salk. 696. In Onslowv. B it is - iid they must contain an express imputation of some crime liable to punishment some capital offence or other infa mous crime or misdemeanor. The rule ol Home, is approve! by Lawbxrob, •'. in II dl v. Scholefield, 6 T. It. 694, and by Tii.ch- man, C. J. in Shaffer v. Kintzer, 11 2; McClurg v. Ron, ■'< Binney 21 in Andreas and wife v. Koppenheafer, above cited. Bee also Elliot v. JHlsbury, 2 Bibb 's Kentucky R. 473. In Massachusetts, C. J. Parker refused to adopt the rule of Brooke r v. Coffin, and instead thereof, laid down the following; " an accusation is actionable whenever an of- fenco is charged which if proved may sulject the party to a punishment, though not ignominious, and which brings disgrace upon him." See Miller v. Parish, b l'ick 385. Vol. I. 12 1:; CRIMINAL CHARGE. Where the penalty for an offence is merely pecuniary, it does not appear thai an action will lie for chargingit ; even though in de- fault of payment, imprisonment should be prescribed by the statute, imprisonment not being the primary and immediate punishment for the offence (/)• Any objection as to the extent of the above rule, is in a great measure obviated by the Statute of James I. which where the dam- ages given do not amount to forty shillings, limits the costs to the amount of the damages : this whole provision was found of great use in confining this species of litigation, (which had before increas- ed to a prodigious extent,) within narrower and more convenient boundaries [1] [ *44 ] *2ndly. In what manner must the offence be imputed. Where the imputation contains a direct charge of crime in precise terms, little difficulty can occur in the application of the foregoing rule. In most instances, however, an unpremeditated use of words of doubtful meaning, or an intentional selection of them, for the purpose of impunity, have occasioned much perplexity and litigation. In" a great proportion of cases, the question has been, not whether a charge of a specific offence is actionable ? but whether in fact, any offence has been charged by the words ? The rule of law requires, that to ground an action, " words imputing crime must be precise ;" but it is by no means essential, that they shall carry on the face of them an open and direct imputation. Such a rule, it is clear, would afford no security against calumny, which may be as effectually conveyed in artful allusions to collateral matter, and oblique insinuations, as by the most explicit assertions. It is, however incumbent upon the party who complains that he has suffered from an imputation of crime, to show with certainty, the injurious nature of the communication. In order to establish this point, two circumstances are neces- sary : — 1st. That the words or signs used should either of *45 | *themselves, or by reference to circumstances, be capable of the offensive meaning attributed to them. 2ndly. That the defendant did, in fact, use them in that sense. (0 6 Mod. 104. [1] In New- York, unless the plaintiff recovers a sura exceeding fifty dollars in an action for slanderous words or libel, he recovers no more costs than damages. 2 R. S. 509, § 6. CIVIL REMEDY— ACTIONABLE WORDS. 15 The capability of the words or Bigna to bear a particular con- struction, must, it is evident, appear upon the plaintiff's statement of his case ; for otherwise it would not judicially appear that he was entitled to recover. That the defendant did, in fact, use them in that sense, is a matter of evidence to be decided upon the trial, which will be a subject for future consideration. It may, however, be necessary to observe here, that if it appear from the word- or signs themselves, or from circumstances, that they arc capable of conveying; the particular meaning attributed to them by the plaintiff, it will, after verdict for the plaintiff, be taken for granted, that the words and signs were, in fact, used to convey BUCh meaning that is a matter upon which the jury alone can decide, and which they must be convinced of before they can give their verdict for the plaintiff. Any objection, therefore, to the words or signs a- stated upon the record, is grounded upon the supposition that it docs not sufficiently appear, that they are capable of an actionable meaning. *It will be proper, therefore, next to consider tin' dif- *46 ] ferent kinds of ambiguities which may arise, not only in the particular case where some crime has been charged, and where doubt most frequently occurs, but with relation to cases of slander and libel in general, which arc governed by the same rule.- of con- struction. Words or signs may be divided into three classes : — 1st. Those which bear an obvious and precise meaning on the face of them ; as if A. said to B., " You murdered 0." 2ndly. Those which on the lace of them are of dubious import, and are capable either of a .criminal or innocent meaning; a- if A. says to !>., " You were the death of 0." 3rdly. Those which are prima facie and abstractedly innocent, and which derive their offensive quality from sOme collateral or ex- trinsic circumstances; as if A. say to lb, "You did not murder C. !" which words, from the ironical manner of speaking them, may convey to the hearers as unequivocal a charge of murder as the most direct imputation. With respect to ambiguities arising nut of the second and third classes, it is now the settled rule of law, that both judges and juries shall understand words in that sense which the author intended to convey to the minds of the hearers^ 'as evir *47 dencedby the whole circumstances of the case. That it is the province of the jury, where such doubts arise } to dt cide, whe- 47 CRIMINAL CHARGE. ther the words were used maliciously, and with a view to defame, such being matter of fact to be collected from all concomitant cir- cumstances : and for the court to determine, whether such words, taken in the malicious sense imputed to them, can cdone, or by the aid of the circumstances stated upon the record, form the legal'basis of an action- It was long, however, before this rule, rational as it is, and sup- ported by every legal analogy, prevailed in actions for words; and before the favorite doctrine of construing words in their mildest sense, in direct opposition to the finding of the jury, was finally abandoned by the courts. A very few specimens of cases where the doctrine of the benig- nior sensus was allowed to prevail, may be deemed sufficient. " Thou art as arrant a thief as any in England ; for thou hast bro- ken up J. S.'s chest, and taken away 40/." After verdict for the plaintiff, the court, on motion in arrest of judgment, held, that the action lay not : for, he showeth not that he stole any money, or robbed him of any money ; for an action is not to be maintained by intendment ; but by express words, and the words do not prove any felony committed ; for the money may be taken away, [ *48'] *and the chest broken open in the mid-day (m), and in the presence of divers, and therefore it is not any felony. The defendant said (n), " Thou art a lewd fellow ; thou didst set upon me by the highway, and take my purse from me, and I will be sworn to it !" After judgment for the plaintiff, error was assigned, because the words did not charge the plaintiff with felony, nor with any felonious taking away ; and it may be, he took away the purse in jest, or for some other cause ; and of that opinion were all the Judges and Barons. The defendant (o) said, " Thou art a thievish rogue, and hast stolen bars of iron out of other men's windows !" It was held, that the action lay not ; for the bars of iron are parcel of the freehold, and the stealing of them is not any felony ; and it shall not be intended of bars lying in windows, as was objected that it might he ; for it shall be taken in the best sense for the defendant. And it was said, that it was adjudged in one Bridge's case, that for saying, " Thou art a thief, and hast stolen my corn in the field," no action lies ; for it shall be intended standing corn, which is not felo- ny ; wherefore it was adjudged for the defendant. (m) Forster v. Browning, Cro. J. 687. (o) Cro. J. 204. (n) Holland v. Sloner, Cro. J. 315. CIVIL REMEDY— ACTIONABLE WORDS. 48 *In King (/>) v. Bag-g. In error. The action was [ *■}'.' ] for the words, "Mr. .J. I), was robbed of C !<>, and 100 marks' worth of plate, and Alice Bagg | the plaintiff) and J. 8. had it, and for which they will be hanged '." And after verdict and judg- ment for the plaintiff, ii was assigned for error, that an action lies not for these words : for he doth not say that Bhe Btole it, and it may be that they came to it by law lid mean- : and although he saith that they will be hanged for it. these words by themselves will not main- tain an action, and they do not enforce the first words ; wherefore the judgment was reversed. "Thou Of) dost lead a life in manner of a rogue, I doubt not bui to see thee hanged for striking Mr. Sydman's man who was mur- dered !" And it was held that the words were not actionable, for they arc not positive for the murder of Mr. Sydman's servant ; he might be beaten by the plaintiff, and murdered by another. Actions of slander do not lie upon inference. It seems to be unnecessary to adduce more instances of the preva- lence of this rule of construction ; the following may be adduced in support of the more rational doctrine which now prevails. In Ceely (/•) v. Hoskins, in error. The words *were, [ *50 " Thou art forsworn in a court of record, and that I will prove!" It was contended, after verdict for the plaintiff, that the action would not lie, because he did not say in what court of record he was forsworn, nor that he was forsworn in giving any evidence to the jury ; that it might be intended only that he was forsworn, not judicially, but in ordinary discourse in some court of record : But (per Croke) " Jones, Berkeley, and myself, held clearly that the ac- tion well lay, and that such foreign intendment as Maynard ( for the defendant) pretended, shall not be conceived, and it shall be taken that he spake these words maliciously, accusing him of perjury : and for a false oath taken judicially, upon judicial proceedings in a court of record; and shall be taken according to the common speech and usual intendment : as to say ; such a one is a murtherer, without say- ing whom he murdered, or when, an action lies ; and it shall not be intended that he was a murtherer of hares, unless such foreign in- tendment be shown or discovered in pleading." In Baal (s) v. Baggerley, the words were: "Thou hast forged a privy seal and a commission ! Why dost thou not break open thy (p) Cro. J. 331. (r) Cro. Car. 609. (q) Cro. J. 331. Jenk. 302. («) Cro. Car. 826. 10* 50 CRIMINAL CHARGE. commission ?" And after verdict for the plaintiff, it was [ *ol ] contended for the defendant, that the *words were not actionable ; for it did not say the king's privy seal, nor any writ under the privy seal; also he said not what commission ; and the words subsequent, " thy commission," showed that he meant a commission made by the plaintiff himself: but the judges having taken time to consider- (Berkeley doubting) afterwards delivered their opinions — " That the action well lies ; for the words be spoken maliciously ; and being alleged in the declaration, that he spake them to scandalize him, for forging of the privy seal and commis- sion ; and being found guilty, it shall be intended according to the vulgar interpretation, to mean the king's privy seal, the counterfeit- ing whereof is treason ; and a commission shall be intended the king's commission, under the privy seal ;" and Berkeley agreed with the others. In Somers (0 v. House, the words were : " You are a rogue, and broke open a house at Oxford ; and your grandfather was forced to bring ove*r X80, to make up the breach !" And after verdict for the plaintiff, it was moved, in arrest of judgment ; because, rogue is not actionable ; and breaking open the house, but a trespass ; and making up the breach, might be repairing ; but the court seemed contrary : for upon all the words together, a man who *52 ] heard *them could not intend other than a felonious break- ing of the house ; and though in the old boohs the rule was, to take the words in mitiori sensu, yet per Holt, they would take the words in a common sense according to the vulgar intend- ment of the bystanders. In Baker (u) v. Peirce, the words were : " Baker stole my box- wood, and I will prove it !" After verdict for the plaintiff, Serjeant Darnell moved, in arrest of judgment, that these words are not ac- tionable ; for they shall be taken to mean wood growing, or the like, whereof only a trespass can be committed. That to say, you are a thief, and have stolen my timber, or my apples, or my hops, is not actionable : for where words import either a felony or a trespass, they shall be taken in the mildest sense, unless there be other words to determine them in the -worse sense : as to say, he stole my tim- ber out of my yard, or my hops in a bag ; and cited Mason (re) v. Thompson, — " I charge thee with felony for taking forth from (t) Holt, 39. („) Lord Ray. 959. 6 Mod. 234. Holt, 654. (x) Hutt. 38. CIVIL REMEDY— ACTIONABLE AVORDS. 52 J.D.'s pocket, and 1 will prove it !" The words were held not to be actionable, because it should nut be intended to mean a felony, not being directly affirmed. Hut Holt, C. J. and the court denied that case to be law. for the taking ont *of a *53 J man's pocket must be intended a felonious takir For the plaintiff it was contended, that the words, accordic common parlance, imported a thing of which felony might be com- mitted. And afterwards the court gave judgment fur the plaintiff; Powell, J. observing, " The case cited by my brother Darnell, i- bo, but the later books are contrary; and 1 wdl stick to the later authoi being grounded on so much reason.'' In the case of Burg-es (y) v. Boucher, the court o " There arc several cases wherein it has been adjudged, that 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 ver- dict." The plaintiff brought his action for the words, " He (c) is a clip- per and a coiner!" After a verdict for the plaintiff, it was m in arrest of judgment, that the words did not charge the plaintiff with clipping or coining money ; for they may be applied to many other things ; but judged actionable, for it must be intended that he meant the clipping of money, and in that sense it is usually un- derstood. In Harrison (a) v. Thomborough, the court observ- '."I ] ed, that, " Precedents in actions for words are not of equal authority as in other actions, because norma hquendi is the rule for the interpretation of words, and this rule is different in one age from what it is in another. The words which an hundred years ago did not import a slanderous sense, now may, and vi In this kind of actions lor words, which are not of very great an- tiquity, the courts did at first as much as they could, discountenance them, and that for a wise reason; because generally brought for contention and vexation, and therefore, where tin- words were capable of two constructions, the court always took them miliori sensu. But, latterly, these actions have been more countenanced ; "for men's tongues growing more virulent, and irreparable damage arising from words, it has been, by experience, found, that unless men can get (y) 8 Mod. 240. (*) 8 Balk. 826. 2 Vent. 172. 'J Lev. 51. 2 Sir T. Jo. 235. (a) 10 Mod. 196. 54 CRIMINAL CHARGE. satisfaction by law, they will be apt to take it themselves. The rule, therefore, that has now prevailed, is, that words are to be taken in that sense that is most natural and obvious, and in which those to whom they are spoken will be sure to understand them. In Burton (b) v. Hay ward and his wife, the words [ *55 ] spoken by the wife were, " George Button *(the plain- tiff ) is the man who killed my husband !" her first hus- band being dead. After verdict for the plaintiff, it was moved in arrest of judgment, that these words are not actionable for the un- certainty of the word kilting, for it might be justifiable, or in his own defence, or per infortunium, and shall not be presumed felo- nious, and so made actionable by intendment ; for it is a maxim, that words shall be taken in mitiori sensu. But it was said by Pratt, C. J. " There can be no question but at this day these words are ac- tionable. In former times, words were construed in mitiori sensu, to avoid vexatious actions, which were then too frequent: but now, distinguenda sunt tempora : and we ought to expound words accord- ing to their general signification, to prevent scandals, which are at present too frequent. We are to understand vjords in the same sense as the hearers understood them ; but when words stand indif- ferent, 'and are equally liable to two distinct interpretations, we ought to construe them in mitiori sensu ; but we will never make any exposition against the plain natural import of the ivords" " The word killing signifies a voluntary and unlawful killing, and is actionable. There are a great number of odd cases in the books ;" and by Eyre, J. " the words are to be taken in their worst sense, for a malicious and felonious killing ;" and by Fortescue, [ *56 ] J. " The maxim *for expounding words in mitiori sensu, has for a great while been exploded ; near fifty or sixty years." It was observed by Lord Mansfield, in the King (c) v. Home, " It is the duty of the jury to construe plain words and clear al- lusions, to matters of universal notoriety, according to their obvi- ous meaning, and as every body else who reads must understand 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 the obvious meaning to every man's understanding, must prevail. " If courts of justice were bound by law to study for any one (b) 8 Mod. 24. (c) 1 Cowp. 672, CIVIL REMEDY— ACTIONABLE WORDS. 56 possible or supposable case, or sense, in which the words used might be innocent, such a singularity of understanding might screcu an offender from punishment, but it could not recall the words, orreme- dy the injury. It would be strange to Bay, and more bo to give out as the law of the hind, that a man may be allowed to defame in one sense, and defend himself in another : such adoctrine would indeed be pregnant with the nimia subtilitas which my Lord Coke so justly reprobates." In the case of Peake (d) and Oldham, Lord Mans- field *said, " After verdict, shall the court be guessing [ *57 J and inventing a mode in which it might be barely possible for these words to have been spoken by the defendant, without mean- ing to charge the plaintiff 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, tin.' court ought not to be industrious in putting a construction upon them dif- ferent 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 follows: The defend- ant said to the plaintiff, ' I know you very well! Bow did your husband die?' The plaintiff answered, ' As you may, if it please God !' The defendant replied, ' No ; he died of a wound you gave him !' On not guilty, there was a verdict for the plaintiff; ami on a motion in arrest of judgment, the court held the words were ac- tionable, because, from the whole frame of them, they were spoken by way of imputation; and Lord C. J. Parker said, s It i- very o.ld, 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- [ *58 ] as, if that were in truth the case, the defendant might have demurred, or the verdict would have been otherwi 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 word- a- laid, and have found that the defendant meant a charge of murder." In the King (e) v. Watson and others, Mr. Justice Puller observ- ed, "Upon occasions of this sort, I have never adopted any other (d) Cowp.' 277. (c) 2 T. R. 206. 58 CRIMINAL CHARGE. rule than that frequently stated by Lord Mansfield to juries, desiring them to read the paper stated to be a libel, as men of common un- derstanding, 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 understand them : and we cannot understand them differently in court from what they would do out of court. In Roberts (g-) V. Cambden, which was an action for words alleg- ed by the plaintiff to contain an imputation of perjury. [ *59 ] After a verdict for *the plaintiff, on a motion in arrest of judgment, on the ground that the words did not im- pute the crime with sufficient certainty, Lord Ellenborough, C. J. in delivering judgment, observed, " The question simply is — Wheth- er the words amount to such a charge ? that is, whether they are calculated to convey to the mind of an ordinary hearer, an imputa- tion on the plaintiff of the crime of perjury.. The rule which at one time prevailed, that the words are to be understood in mitiori sensu, has been long ago superseded ; and words are now construed by courts, as they always ought to have been, in the plain and popu- lar sense in which the rest of the world naturally understand them." [1]. And in concluding, the same learned judge observed, that, "without adverting 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, therefore, the rule for arresting the judg- ment 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 construc- [ *60 ] tions, *in what sense they were meant is a matter of fact to be decided by- the jury [2]. (/ ) 5 East, 4G3. (g) 9 East, 96. [1] See Damarestv. Haring,6 Cowen 37, and Walton t. Singleton, 7 Serg. and Eawle, 451. [2] See Van Vechten v. Hopkins, 5 Johns. R. 221 ; Dexter v. Taber, 12 Id. 240; McKinhj v. Rub, 20 Id. 356; Gorham v. Ives, 2 Wendell, 534; Gibson v. Williams. 4 Wendell, 320. CIVIL REMEDY— ACTIONABLE WORDS. GO 2ndly. That they arc to be guided in forming their opinion by the impression which the words or Bigna used were calculated to make on the minds of those who heard or saw them, as collected from the whole of the circumstances. 8dly. That such words or signs will, after a verdict for the plain tiff, be considered by the courts to have been used in their worst sense. With respect to words, which apparently are harmless, and which derive their offensive meaning, wholly from extrinisic circumstances, the preceding observations are applicable: the use of Buch 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 griev- ance is, the loss of character ; and by what means the wrong is effect- ed is perfectly immaterial, either as to the suffering of the party, or the policy of the law providing him a remedy. The (//) defendant wrote a pamphlet, called v - 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 infor- mation, *and the jury found him guilty. Upon motion in | 'ill arrest of judgment, it was shown for cause, to arrest judg- ment, 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 resolved by the court, that this was laid to be ironical ; and whether it was so or not, the jury vcre judges: they found it so. And that if this were not a crime, the defendant might, by contraries, libel any person [1]. Having thus inquired what general rules of construction have been adopted by the courts — their application to the class of cases where crime is imputed, and the degree of certainty and particulari- ty requisite to render such charges actionable, will next be consi- dered. The charge, to be actionable, must in general, as already stated, impute to the plaintiff an act of a criminal naturt . There are, however, some exceptions to this rule : a- where trea- (/.) Holt, 11. 426. [1] See Andrews v. JVoodmanse, 45 Wendell, 232, recognizing this principle. See also, Gibson v. Williams, 4. Id. 320; W'oolnolh v. .Meadows, 5 East. 4G3: and Rex v. Home, 2 Cowp. 683. 61 CRIMINAL CHARGE. son is imputed : one species of which offence consists in the com- passing and imagining 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 (i). [ *62 ] *In the case of Sir John Sydenham (&) v. Man, the words were, " If Sir J. S. might have his will, he would kill the king !" and they were held to be actionable, although they refer- red to the will only ; since it is a great offence to have such a will. So where the party is charged with misprision (7) of felony ; as where the defendant said, " He (m) 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. I. That 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 *63 | used, calculated to impress *upon the minds of the hear- ers a suspicion of the plaintiff's having committed a crim- inal 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 ex- amples cited under each to illustrate this rule, yet, contradictory and inconsistent as many of the cases are, a reference to them can- not 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 indirect, the imputa- tion of an act committed may be inferred, where the defendant ex- presses a suspicion or opinion, or institutes a comparison, or deliv- ers the words as matter of hearsay, or by way of interrogation or ansicer, or exclamation, or uses disjunctive or adjective words, or speaks ironically ; or, in general, where the statement virtually in- (i) 1 Haw. Fl. C. 86. (0 Vid. st. West. 1. 3 Ed. 1, c. 9. (k) Cro. J. 407. (m) Tel. 154. 1 Vin. Ab. 446. CIVIL REMEDY— ACTIONABLE WORDS. 63 eludes or assumes the commission of the principal act, or a strong suspicion of it. From words of suspicion or opinion. Yeoman (n) said of Hext, " For my ground in Allerton 'Ilwt Becks | *64 my life; and if I could find John Silver, I do nol doubt but within two days to arrest Hex1 for suspicion of felony." It was adjudged, that for the first part of the words, " for my ground in Allerton, 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. -dly. Seeking of his life is too gen- eral ; and for seeking only no punishment is inflicted by law. But for the latter words, it was adjudged, that the action lay ; because for suspicion of felony he shall be imprisoned, and his life drawn in question. The defendant hearing that his father's barns were burnt, said (o), "I cannot imagine who should do it but the Lord Stourton," and the words were held to be actionable [1] An action lies for publishing of the plaintiff, " I (/?) think, or I dreamed, he committed a certain felony ;" for although the words be 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 *smcll of | *•'..", the murder ;" and the plaintiff had judgment, after long deliberation and argument ; and this decision was cited and approved of in a number of subsequent cases, (r) So for the words, " I (.v) am thoroughly convinced that you are guilty," &c. for " I am thoroughly convinced," is equal to a positive averment: a man only avers a thing because he is convinced of the truth of it. (») 4 Co. 15. Poph 210. Latch. 17ft (7) 1 Vin. Ab. 435. 3 Buls. 262. (r) 8 Bolst. 249. God. 90. Hal (0) Mo. 142. 1 Viu. Ab. 435, pi. 13. Cart. 21 1. (p) Smithy. Wisdome, Cro. Eliz. 348. (s) Peakc v. Oldham, Cowp. 275. 6 B ie. Ab. 227. [1] " My watch was stolen in Polly Miller'.- bar; I have reason to believe that Tina M. took it, and that her mother Pollj concealed it," Miller v. Miller, 8 Johns. R. 174; " I will venture any thing he has stolen the book," J\~ey v. Oil's, 8 Mass. R. 122; and expressions by the defendant that he had reason to believe that the plaintiff burnt the barn. Logan v. Steele, 1 Bibb. 593, were held to be actionable. See also Bornman t. Boycr. 3 Binney, 515. Vol. I. 13 G5 CRIMINAL CHARGE. So for the words, " If (0 thou hadst thy rights, thou hadst been hanged for such a felony," an action lies. But words of mere suspicion or opinion, and which do not direct- ly or indirectly impute any act, are not actionable (w). [ *Q6 ] In a iate case (x) *where the defendant said of the plaintiff," I will take him to Bow street, on a charge of felony;" (innuendo, that the plaintiff had been and was guilty of forgery ;) it was held that the words were not actionable, as they charged, not that he was a felon, but only suspicion of felony. And the cases of Wood v. Merrick (//), and Pollard v. Mason (z), were cited by Gibbs, C. J. where it was held that the words should affirm the plaintiff to be a felon : that a mere assertion that the de- fendant charged him on suspicion of felony was not of itself action- able. But yet it is difficult to say that an imputation of a crime may not be most effectually conveyed by such an assertion, and if so, the case embraces all the mischief consequent upon the most direct allegation (a) [ *Q1 ] *It seems to be properly a question for the jury, whe- ther the defendant, though he used words of suspicion only, 'did not mean, in effect, to impute the substantive crime to the (t) Brownl. 3. (*) Harrison v. King, 4 Price, 46. In (w) Com. Dig. Action on the case for the Exchequer Chamber, on a writ of error defamation, F. 13, and per Holroyd, J. in brought. Hodgson v. Scarlett, 1 B. & A. 243. Thus (y) Ro'l. Ab. p. 73, pi. 21. 1. 50. it has been held, that for the words, " He (z) lb. Hob. 381. deserves to be hanged," no action lies. 1 (a) In the case of Davis v. Noak, 1 Rol. 43. 1, 10, 15. So no action lies for Starkie's C. 372, where the declaration, in the words " I count thee to be a witch." 1 an action for a malicious prosecution, al- Bol. 46, 1. 35. So it was held, that no leged that the defendant charged the action lay for saying, " I will prove thee to plaintiff with felony, it was held to be be a thief; I will prove it by thy son, or supported by evidence, that the defendant send him to the devil; " for (as was said) stated to the magistrate that he had been the last words denote his doubt. Cro. J. robbed of specific articles, and that he sus- 214. The last decision seems to be of very pected and believed, and had reason to dubious authority; for the first part of the su>pect and believe, that the plaintiff had words, will prove thee to be a thief, clearly stolen them. Per Lord Ellenborough, C. J. denote that an act was meant to. be impu- and Abbott and Holroyd, Js. Bayley, J. ted, and the latter words merely import dissent. But note that Mr. J. Bayley that the fact was within the knowledge of differed from the rest of the court merely the son, who would place himself in jeop- on the point of variance, and not upon ardy by absolving the father. And see the the general question, whether a malicious case scited below, as to adjective words, &c. charge, though of suspicion only, was ac- p. 71, tionable. CIVIL REMEDY— ACTIONABLE WORDS. 67 plaintiff. In the case of Tempest v. Chambers (fc), it appeared that the defendant, having obtained a wan-ant for the apprehension of the plaintiff, (which had been improperly issued upon an informa- tion before the magistrate of facts which amounted to no more than a mere trespass,) on meeting Salmon, an agent of the plaintiff's, said, "I have got a warrant for Tempest, 1 will advertise a reward of twenty guineas to apprehend him; 1 shall transport him for felony." And Lord Bllenborongh left it to the jury to say whether the defendant was speaking with reference to the warrant which had been improvidently issued, or he meant substantively to impute a charge of felony. The jury found for the plaintiff. It is observable that the cases of Wood v. Merrick, and of Pol- lard v. Mason, which were cited as conclusive authorities, in the Exchequer Chamber, in the case of Harrison v. King-, can ^scarcely be regarded as authorities at this day. [ *68 ] The words in the former case were, " I charge you with felony ;" in the latter, " I charge him with felony, in taking money out of the pocket of J. S." In common understanding, the defend- ant would be taken to assert, in the former case, that the plaintiff was guilty of felony; in the latter, that he had actually taken money out of the pocket of J. S. feloniously ; the words, 1 charge you with such a fact, naturally import not. merely that the fact is true, but that the speaker is so convinced of its truth, that he ven- tures to act upon it by making a deliberate charge. From words of comparison. The defendant said, " You (c) are as great a rogue as J. S. , who stole quilts !" So for saying, " Thou (> be immaterial whether the speaker really heard the words or M>1 | unless (g"),as will afterwards be seen, at the time of repeating them (b) 1 Starkie's C. 67. (/) Goldfl. 189: Mo 108. Cro. I (c) Upton v. Pinfold, Coin. 267. (g) U'oolnoth v. Meadows, o East, 463. (d) Cro. J. 687. Cro - J - 16 -- '"" (e) Sid. 63. 69 CRIMINAL CHARGE. he afford the- plaintiff a cause of action against the original au- thor [1]. From words of interrogation (Ji). As where the defendant said, " When (0 wilt thou bring home the nine sheep thou stolest from J. N. ?" So an action lies for saying, " Did (k) you hear that J. S. is guilty of treason ?" A. (I) 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 to be actionable, for though they were spoken in answer to a question, they amount to a charge of stealing goods. The defendant publish the following advertisement : [ *70 ] " This (m) is to request, that if any *printer or other person can ascertain that James Delany, Esquire (the plaintiff), some years since residing at Cork, late Lieutenant in the North Lincoln Militia, was married previous to nine o'clock in the morning of the 10th of August, 1799, they will give notice, Ac, and received the reward." And it was left by Lord Ellenborough, C. J. to the jury to say whether the advertisement imputed a charge of bigamy to the plaintiff. So where the words are spoken by way of exclamation: as, " That («) perjured villain !" From disjunctive words. It has been said that, where two charges are made disjunctively, one of which is actionable and the other not, no action lies. The defendant said, " Thou (o) hast stolen my mare, or didst consent to. the stealing of her." It was held, that the action was not maintainable, 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 foresworn !" Although it was averred that Godwin never did swear any such matter, the charge was held to be too indirect to bear any action. In the case of Stirley (p) v. Hill, the words were, " The (/i) For words of interrogation in gene- Rep. 134. ral, see Mo. 418, pi. 573. 2 Rol. Rep. 165. (/) Hayward v. JSTcylor, 1 Rol. Abr. 50. Palm. 66. 12 Rep. 134. Cro. J. 422. Keb. (m) Delany v. Jones, 4 Esp. C. 191. 559, pi 52. (n) Roll. Ab. 76. (i) Hunt v. Thimblethorpe, Mo. 418. 1 (o) Cro. Eliz. 780. Vin. Ab. 429. (p) Cro. Car. 283. (/c) Earl of Northampton's case, 12 [1] See note [1] page 340, infra. CIVIL REMEDY— ACTIONABLE WORDS. 70 brother was whipped about Taunton 'Cross, for steal- "71 ] ing sheep; or burned in the hand or shoulder." 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 eonsidered as preced- ents at this day, for it is clear that a charge of felony may be com- pletely conveyed by such disjunctive imputations ; and were they not actionable, the legal consequences of slandering mighl in every case be easily avoided. The same objection once prevailed, where the person and not the act was stated in the disjunctive. The defendant said, " She (7) had a child, and either she or somebody else made way with it !" And three justices against the opinion of Bridgman, C. J. adjudged, that the words were not ac- tionable. But in a subsequent (r) case this decision was overruled ; and upon the same principle, no doubt, it would now be held, that words imputing a criminal act in the disjunctive, are also action- able. From adjective words. Where the words impute inclination only, they are not actionable ; as to say, " J. (s) S. is a mur- derous villain !" *But where the participle is used, it is [ *72 ] otherwise; as to say, " J. (7) S. is a murthering villain !" The words in the former case importing an inclination only, in the latter an act done. So the words, " Dr. (u) Sybthrop is robbing the church," were held to be actionable ; and to say such a per- son is robbing such a man, or ravishing such a woman, is action- able. So, " Where is that long shag-haired, murthering, rogue ?" was held to be actionable (re). For the words, u Traitorous knave," an action has been held to be maintainable, though not for the words, " Rebellious knave :" and perhaps this distinction may even now be eonsidered as good law, although many of the nice subtleties which were formerly in fashion are now disregarded; since, though traitorous be 1 mere adjective, not implying any act, yet the Consideration that the of- fence frequently consists in intention only, may well constitute this case an exception (y) to the general rule. (q) Cart. 65, 56. (/) Cro. Car. 318. (r) Harrison v.Thornborough, 10 Mod. (it) 1 Rol. Ab. 176. 196. (x) Cro. Car. 318; Jo. 3'2G. (s) Ld. Ray. 236. (y) Cro. Eliz. 171. Lev. U0. 13* 72 CRIMINAL CHARGE. It is laid down by Sir Edward Coke (V)> that sometimes adjective words will maintain an action, and sometimes not. They arc ac- tionable, 1. When the adjective presumes an act committed. [ *73 ] *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, " sedi- tious (a) and thievish knave," have been held not actionable. And the distinction has been frequently taken, that " thieving rogue," imports an act; "thievish rogue (6)," an inclination only. So for the words, "You (c) arc no thief!" an action lies, if they be spoken ironically. And next, the imputation of an act may be inferred from any statement, which virtually includes or assumes the commission of the principal act, or a strong suspicion of it. The defendant said, " I (d) could prove J. S. perjured, if I would !" and the words were held to be actionable; for, if true, J. S. must have committed an act of perjury. So where the defendant said, " Thou (e) art a rogue, a runaway rogue; and didst run away from Oxford ; and thou art a rogue of record." The words were held to be actionable; for if [ *74 ] *true, the plaintiff must have been convicted of record. The defendant said to the plaintiff, " In (/) Black- bull Yard you could procure broad money for gold, and clip it when you had so done." It was objected, that the words were not ac- tionable, for 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 in 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, and im- plying 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 (h) was put in the round- (z) 4 Co. 19. (d) 1 Vin. Ab. 406, pi. 2. (a) 4 Rep. 19. Cro. J. 65, 66. 2 Bulst. (c) Sty. 220. 1 Vin. Ab. 415. 138. LJ. Ray. 236. (/) Salk. 697. Speed v. Parry. (6) Dorrell v. Grove, Freem. 279. {g) Salk. 697. (c) 1 Vin. Ab. 430, pi. 8. (ft) Beavor Hides, 2 Wils. 300. CIVIL REMEDY— ACTIONABLE WORDS. 74 house, for stealing ducks at Crowland ;" 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 ev- ery 'assizes in the kingdom, where the common topic of [ ''■■> ] conversation is, that such a man was sent to gaol for such a crime ; yet, afterwards, they changed their opinion, and held, that the jury having found the words to have been 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 accord- ing to common parlance. And so in a number of other cases, the asserting the plaintiff to have been confined or punished (i) for a certain offence, has been held to be actionable, for 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 instruc- tions 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 (0 character is infamous ; he would be disgraceful 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 [ *76 ] 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 bringing a direct charge ; but it was a male child of nine years old who complained to me." So where the defeudant said, "I (»») dealt not so unkindly with you, when you stole my stack of corn." The defendant said to a husband in London, " You (») are a cuckoldy old rogue !" and the words were held to be actionable, for 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 actiona- ble of themselves, unless in the ease where the intention is of a treasonable nature (o). (i) Cro. J. 2-17. («) IStr. 171. (k) Roberts v. Camden, 9 East, 93. (o) Cro. J. 471. "To impute evil in- (l) Woolnoth v. Meadows, 5 East, 463. clinations to a man, which were never (m) Cooper v. Hawkswell, 2 Mod. 58. brought into action, is not actionable. 76 CRIMINAL CHARGE. As, if one say to another, "Thou (/>) wouldst have killed me," no action lies [1]. [ *T7 ] *So for the words, " She (//) would have cut her hus- band's throat, and did attempt it," an action lies ; be- cause an attempt,' that is, an act, is charged ; but in the same case it was held, that for the first words, " she would have cut her hus- band's throat," no action could be maintained. 2dly. Where' the act charged is, in legal strictness, impossible. Where a criminal charge is conveyed by the defendant's ex- pressions, the liability to make reparation cannot be effected by any impropriety in the terms of the communication, whether legal or grammatical ; for the loss of character, and its probable conse- quences, constitute the ground of action, without reference to the means employed. The contrary doctrine, indeed, at one time, pre- vailed. It has been holden, that if a married woman say, " You (r) have stolen my goods," the words are not actionable, the words being repugnant ; for as a married woman cannot have goods of her own, she cannot be robbed of any. But in CharneVs case (s>, which was earlier than the preceding, the wife said, " My turkeys are stolen, and Charnel hath [ *78 ] stolen them ;" and *the same objection being made in arrest of judgment, the court said, "The wife did. charge the plaintiff with stealing 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 who heareth the words may not know whether he had a horse or no." And in the subsequent case of Stamp (f) v. White, the defendant's wife said, " Thou art a thievish rogue, for thou hast stolen my faggots !" Although it was objected that the words were without meaning ; for a married wo- Words to be actionable, should be un- Haughton, 2 Buls. 206. 1 Vin. Ab. 440. equivocally so." Per Lord Ellenborough, (3) Lane 98. 1 Vin. Ab. 440, pi. 9. C J. in Harrison v. Stratton, 4 Esp. C. (./ ) 1 Roll. Ab. 74. 6 Bac. Ab. 238. 218. (*) Cro. Eliz. 279. (p) Dr. Poe's case, cited by Coke and (t) Cro. Jac. 600. [1] In Cornelius v. Van Slyck, 21 Wendell, 70, the words ,l you will steal, and I can prove it," were held actionable on demurrer, on the ground that they might well be taken to import a charge that the plaintiff had been guilty of theft. It was conceded where the words plainly import a charge of mere intention to do a criminal act, or amount only to an assertion that they are not actionable. CIVIL REMEDY— ACTIONABLE WORDS. 78 man could not have property of her own, yet it was held, that the words were actionable; and it was to be understood according to common intendment, that the defendant charged the plaintiff with stealing her husband's faggots. So where the defendant said, " These (m) guineas arc Mr. Bendish's (the plaintiff's) ; and were given me to vote for him." It was urged, on motion in arrest 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 judgment was for the plaintiff. The older cases, indeed, carried the doctrine of re- pugnancy to a very unreasonable extent ; and 'the [ Ta ] courts arrested judgments, not only on the ground that an actual inconsistency appeared on the face -of the record, but even where no inconsistency appeared, because such might by possibility exist. The rule, however, seems to be now established, that no inconsis- tency or grammatical impropriety will prevent the words from being actionable, where the intention to charge the plaintiff with the com- mission of a crime plainly appears. II. The criminal quality of the matter charged must appear with certainty. This may appear, 1st. From the use of general terms of known legal import. 2ndly. From circumstances explaining the meaning of terms otherwise doubtful, or innocent. 3rdly. From the mere description of the circumstances constitu- ting the offence. 1st. From the use of terms of known legal import. It seems atone time 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 nun was " a traitor (to), or a thief," did not afford him a ground of ac- tion, "unless he had sustained special damage from the [ '80 ] words. And to such an extent was the nicety carried, that even in cases where the words did state Borne of the circum- stances, it was held to be incumbent on the plaintiff to prove that facts connected with the charge were partially true, in order to ren- der it the more probable that he might have been placed in jeopardy (w) 11 Mod. 174. 00 Bro. Action, surleCas. 27,11. 8,11. 80 CRIMINAL CHARGE. by the accusation. And this affords reason to suppose that, original- ly, 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 sub- jected by a bare general charge, unsupported by any facts or circum- stances which might give it color (V). Thus, in the case of- Jacob O) v. Mills, it was held, that for the words, " He hath poisoned J. S. and it shall cost me 100/. but I will hang him," no action was maintainable, because the plaintiff did not aver (and of course prove) that J. S. ivas dead at the time the words were spoken. The defendant said, " Sir Thomas Holt struck his [ *81 ] cook on the head with a cleaver, and cleaved *his head ; the one part lay on the one shoulder, and an- other part on the other." After verdict for the plaintiff, 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, similar objections were overruled. In the case of Webb (z) 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 arrest of judg- ment, that the plaintiff had not averred that his aunt was poisoned ; but the court would not allow the objection, saying, that the plain- tiff's credit was impeached, whether she was poisoned or not. And the same point was ruled in Talbot (a) v. Case, where it was said, that the death of the person alleged 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 beld that no action lay ; and [ *82 ] a *distinction was taken between the case where the person stated to have been murdered was still alive, and where he was dead ; that, the wife being alive, no action lies, al- though the defendant says that the plaintiff has murdered her ; (x) It seems that formerly slander was (z) Cro. Eliz 569. not actionable, unless it occasioned special (uld be highly unreasonable and inexpedient; since the slanderer might secure impunity by fixing either upon a fictitious person as the supposed victim 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 (c), 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 maintainable, because the plaintiff was not put in jeopardy by the words. It cannot, however, fairly be inferred from this, that the plaintiff is in all cases precluded from recovering, although the person, alleg- ed to have been murdered, should be still alive ; since *the plaintiff's life, or liberty at least, may have been [ *83 ] placed in jeopardy in consequence of the injurious report, though, in fact, at the time of pleading, or upon the trial, the de- fendant may be able to prove the person alleged to have been mur dered to be still living. The words, if actionable without special damage, must be so immediately when spoken; and their actionable quality must then depend upon the fact, whether the hearers were aware that the person alleged to be murdered was really alive ; if they did not know the fact, then all the consequences (the proba- bility of which renders a charge of murder in any case actionable,) may follow ; since, unfortunately, several melancholy instances may be cited where an accused person has suffered for the supposed murder of one who survived hi in. 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, it would probably be presumed that the hearers knew the fact. The plaintiff (d) declared that the defendant said of him," Be 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 f *84 ] any incontinency with A. S. nor any other, nor of any (c) 4 Rep. 16. 9. Jo. 141. Lat. 159. Cart. 65. Comb. 132. (d) 1 Vin. Ab. 409, pi. 4. Poph. 187 84 CRIMINAL CHARGE. 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 incontinency 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 ; because 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. Thus, for the words, " Thou (e) hast committed burglary in breaking his house, and taking his goods." It was held, that no action was maintainable ; it being uncertain, as no person was named, whose house and goods were meant. And, upon the same principle, it was held, that a general charge of forgery (f) was not actionable, without reference to some particular deed, [ *85 ] "instrument, or other subject matter. So it was held, that a general charge of subornation (g-) of perjury was not actionable, unless it appeared that the perjury had been com- mitted. These doctrines have, however been long exploded ; and the rule seems now to be perfectly established, that an action is maintainable for a general imputation conveyed in apt terms. The establishment of this rule necessarily defeated another nicety, which has been alluded to as having formerly been counte- nanced 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 color to the defendant's imputation, since it would be absurd to allow a remedy against general charges where no color 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. As for instance, if for the words, " you committed a murder," the plaintiff be entitled to recover, it would be highly unreasonable in an action for the words, "You murdered J. S." to require him to prove that such a person as J. S. had existed, but was dead at the time the words were spoken. (e) Brown v. St. John, 1 Rol. Ab. 71. (g) 6 Mod. 200. (/) 3 Leon. 231. CIVIL REMEDY— ACTIONABLE WORDS. 85 *It may next be proper to refer to a few cases where general words have been held to be actionable. An action lias been held to be maintainable for the words traitor (//), murderer, (i), thief, (k) sheep-stealer (/>■ For charging another with felony (»»), perjury (n), Bubornation of perjury (o), forgery (/)), robbery (7). It was once held, that to call another a pick-pocket (r), did not amount to a charge of felony ; this decision has, however, been overruled (s). Whilst the statutes againsl witchcraft remained in force, it seems that the term witch was not actionable, unless it was coupled with some act of witchcraft ; the cases, however, relating to this "offence, are so inconsistent with each other, and [ *87 with any settled principle, as to appear incapable of af- fording any illustration of the subject of this treatise. To charge one with having cozened another, has, in a great num- ber of cases, been held to be too indefinite to support an action. The defendant said, "Thou (7) art a cozening knave, and hast cozened me out of 500/." and it was held that no action lay. So to accuse («) another, of cheating is too general to support an action [1]. So to say, he (V) is a rogue, varlet, or the like, is not actiona- ble [2]. So to say, "Thou (//) art a common filcher, a companion of cut throats," &c. So to say, " He (V) is a bloodsucker, and not fit to live in the commonwealth; and his child, not born, is bound to curse him.'' (/() Dal. 17. Ero. Ac. sur le Cas. pi. Sty. 235. 2. 27 H. 8, 14. . (n) Ow. 62. Noy, 01. 1 Vin.Ab.40fi. ['] Mo. 29. (o) Cro. Eliz. 308. Cro. J. laS. 1 Kol. (k) But the term thief will not be ac- Ab. 41. tionable, if it appear from the context that (;,) Jones v. Heme, 2 Wils. 87. it was not used in a felonious sense. Should (. Ow. 17. Uuls. cumbent on the defendant toshow that the 172. Show. 181. <: i. 284. Cm ■' word was not used in a felonious sei (>/) 2 Silk I I Vide infra. Evidence in Defence. ( x ) 4 Rep 1">, b. Ld. Ray. 1117. (0 3 Buls. 101. (,_,) c ro . Kliz. •' I (m) Jo. 32. Cro. Car. 276. Poph. 210. (z) Noy, 64. [1] See Chase v. U'hillock. 3 Hill, 139; Stevenson v. Haydcn, 2 Mass. R. 406. [2] See Caldwell v. Abbey, Hardin's R. 530. Vol. I. 14 87 CRIMINAL CHARGE. 2dly. The criminal quality of the act imputed may appear from circumstances explaining the meaning of words doubtful or innocent. In consideration of law, that is certain which can be so rendered : it is. therefore, of no importance whether the terms used *88 ] be doubtful, or even *apparently innocent, provided it can be shown that they could and did convey the offen- sive meaning which forms the ground of complaint. An imputation of being forsworn is the most common instance of cases falling under this division, and has given rise to a numerous class of decisions [a a]. It has been held, that to accuse another of having forsworn him- self, generally, is actionable («) ; but it seems to be now perfectly settled, that the term is not actionable, unless it appear from the accompanying circumstances to have been meant and understood of such a forswearing as would constitute the offence of perjury (6). [1] Thus, to say (c), " A. B. being forsworn, compounded the prOS- da o] Where the words were " Mr. H.'s oath is not to be taken, for he has been a forsworn man; I can bring people to prove it, and they that know him will not sit in the jury-box with him," it was held that they were not actionable without averments to show that they were spoken in reference to the conduct of the plaintiff as a juror. Hall v. Weedov, 8D. & R. 140. In an action of slander for words charg- ing a party with being/orsnorn, the words though not actionable per se, may be ren- dered so by alleging and proving a colloqui- um, that the words were spoken in reference to testimony given by the plaintiff in an ac- tion depending in a judicial tribunal, in which the plain tiffwas sworn as a witness. It was formerly held necessary to the main- tenance of such an action that it should be alleged and proved, that the court in which the trial was had possessed jurisdiction of the subject matter, and had authority to administer an oath; and that the evidence given by the plaintiff was material to the issue on trial. Now it is held otherwise. The authority to administer the oath, and the materiality of the testimony in respect to which the charge is made, uill be pre- sumed until the contrary be shown. Whe- ther such presumption can even be rebut- ted by proof may well be doubted, for if the charge would naturally be understood by the hearers to impute the crime of per- jury, and there be nothing to induce the belief that the swearing spoken of was extra-judicial, or that the evidence was immaterial, no reason is perceived why the presumption should be allowed to be rebut- ted by proof. The intent of the defendant, unless communicated to the hearers, doe9 not affect the question. It is believed that there is no decision by the English Courts, requiring proof of the materiality of the evidence charged to be false, in order to sustain the action. On the trial of an in- dictment for perjury such proof is indis- pensable. See the following cases; Coons v. Robinson, 8 Baibour's Law R. 655; Jacobs v. Tyler, 3 Hill, 572; Price v. Power, 12 Wendell, 502; 16 Wendell, 454. S. C. in error; Butleifield v. Buffum, 9 New Hamp. R. 156; Coleman v. God- win, 3 Doug. 91: Dub ym pie v. Lofton, 2 McMullan So. Car. II. 112; Harris v. Punhj, 1 Stewart's Alab. R. 231. (<;) 2 Buls. 40. (b) 4 Rep. 15. 2 Buls. 150. Holt v. Scholefield, 6 T. R. 691. (c) Cro. Eliz. 609. 2 Rol. Rep. 410. [1] See note [1] p. 22, ante. CIVIL REMEDY— ACTIONABLE WORDS. 88 edition," is actionable, fur an indictable forswearing must have been intended [2]. So the term " forsworn" is actionable when reference ia made to a court (il) in which false swearing would amount to perjury. The defendant said, " Arthur (< i Oolome ia a forsworn man, and hath taken a false oath in his deposition at Tiverton, where he wa - his law against me ;" and the plaintiff had judgment, the ■forswearing appearing by the description to have amount- *89 ] ed to perjury. So to say, " Thou wert forsworn at such a trial (/)," (with refer- ence to a trial where the offence of perjury might have been commit- ted) is actionable. Where reference is made to a particular court, the imputation is actionable, if perjury could have been committed there. In Buch case, however, it is incumbent on the plaintiff to show that the per- jury could have been committed there [1]. The defendant said, " Thou (g*) wert forsworn at Whitechurch court," and the words were held not to be actionable, because it did not appear that Whitechurch court was a court of record. So it was held, that no action lay for saying, ,- lie ('//) has for- sworn himself in Leake court, without 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, for p jury is an offence punishable at Common Law (%). So, although Ecclesiastical Courts are not "mentioned in the *90 ] statute of .Elizabeth against perjury, yet an action lies for imputing a forswearing in aji Ecclesiastical Court [2]. The defend- er Cro. Eliz. 720. 1 Viu. Ab. 409, pi. (g) Cro. Car. 378. b. 7. (/i) 1 Rot. Ab. S9.pl. : . ». 207. (c) Cro. J. 204. (i) 1 Rot. Ab. 49. (/) Cro. Car. 378. Lut. L292. [2] " You swore to a lie, for which yon now il va 1 in liete I," be! 1 actionable. Ptl- tonv. Ward, 3 ('aims, 78. [1] Although the plaintiff h 1 1 omitt id to met jurisdiction in the curt before which the oath was taken, the declaration w ic ient on motion in arrest after verdict; Niven v. Mtinn, 18 Johns. R. 48. So '* you swore false in mart," wte bel 1 Bnffioient without a colloquium on like motion: Btimillo \. D rf, 1 llr.w. (N. C.) R. 116; and under like circumstances the words " you swore false at the trial ofyonr brother John," were held sufficient; Fowle v. Rabbins, 12 Mass. It. 196. [-] In Chapman v. Gillet, 2 Conn. II. 40, it was held that an action lay for charg- ing the plaintiff with perjury, in giving testimony before a church judicatory in Con- necticut; so held by six judges — three dissenting. go CRIMINAL CHARGE. ant said, " Thou (./) art a forsworn knave, and I will prove thee to be forsworn in the Spiritual Court ;" and it was held that the ac- tion well lay ; for the Ecclesiastical Court is a judicial court, and well known (&)• To say, " Thou (/) wast forsworn before ray Lord Chief Justice, in evidence," is actionable. So to say that another is foresworn before a Justice (m) of the Peace is actionable ; or before such a person, naming him, provided it can be shown with certainty, that the person so named, was a Justice of the Peace. The defendant said, " Thou (w) art a forsworn knave !" The plain- tiff asked, " Where ?" The defendant replied, " In Ilston court ;' ' and the words were held to be actionable, the court alluded to being a Court Leet, where the offence might have been committed. [" *91 ] " Thou (o) art a forsworn man ; I will teach *thee the price of an oath, and will set thee on the pillory." And the words were held to be actionable, because the defendant showed that he meant to impute a perjury, for which the plaintiff ought to stand in the pillory [a a~] . The injurious import of the term stealing, has undergone much discussion. In Baker (p) v. Pierce, the words were, " You stole my boxwood, and I will prove it." Upon motion in arrest of judgment, a long strino- 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 ( vi termi- ni, did import felony. And afterwards, by the opinion of the whole court, the plaintiff had judgment, on the ground, as stated in the report, of all the later authorities (w). *From this, and the later decisions upon this subject, [ *93 ] it seems, that the term stealing takes its complexion from the subject matter to which it is applied, and will be considered as intended of a felonious stealing, if a felony could have been commit- ted of such subject matter [1]. In modern construction.and practice little doubt can arise upon these niceties which appear in former times to have afforded abun- dant occupation to the courts. If, from the plaintiff's declaration, (0 1 Bol. Ab. 70. pi. 47. (u) 6 M id. 28. [1] la Dexter v. Tuber, VI Johns. II. 289, the words wi re, " You M a thief; you Btole hoop poles and saw logs from off Del land." Th instructed the jury that if the defendant meant the plaintiff with taking tim- ber already cut into poles and lu^*, the words were • bnt if he onlj meant to charge the cutting and carrying away timber with a view to convert it in I the words were not actionable. The jury found fur the defendant, an 1 tin- Court refused to set aside the verdict; Spkxckr, J. dissented. See his dissenting opinion and also Stokes v. Stuckcy, 1 McCord, 562. In Findlay v. Bear, 8 Serg. & Rawle, -"71 , i; was held that a charge of having stolen a dog is not actionable; for the reason tint a dog is of th it kind of property of which felony cannot be committed; and yet for killing a dog without good cause an action lies. See Hinckley v. Emerson, 4 Cowen, 351. 93 CRIMINAL CHARGE. it appear, that the charge of stealing could not, from its application, have been meant to impute a felonious stealing: as if, for example, the defendant had said, " You stole an acre of my land ;" the state- ment would be held to be bad upon 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 feloni- ous sense, the verdict would be supported. This doctrine is applicable to every other case where doubtful words, or even those apparently innocent, derive a criminal quality, either from context or collateral circumstances. [ *94 ] The defendant said, " Thou (x) art a clipper, *and shall be hanged for it;" and the court, after a verdict for the plaintiff, said, that the words should not be taken to mean a clipping of clothes, but a clipping of money, for which the plaintiff might be hanged. So for the words, " Thou (t/) art a clipper, and thy neck shall pay for it," an action was held to be maintainable ; for by the sub- sequent words it could not be intended of any other clipping than of money. So when the statutes against witchcraft were in force, the defend- ant said, " Thou (z) art a witch, and I will make thee suffer for a witch." After verdict for the plaintiff, it was contended, that the words were not actionable ; that it had been many times adjudged that witch alone is not actionable ; and that,. " I will make thee suffer for a witch" are not; for it is not said suffer death ; that it might be intended of a citation in the Spiritual Court, which was the usual way before the statute ; or it might be by ducking in the water as the common people used to try those suspected of witch- craft. But it was answered by Rokesby and Neville, Justices, that the words shall be taken as they are usually understood among neighbors in the country ; to suffer is intended to suffer [ *95 \ | deatli ; as they usually *say, How many suffer at this As- sizes ? which is intended, suffer death. And thereto Treby, C. J. after it had been twice moved, inclined. And at last judgment was given for the plaintiff by Treby, C. J., and Rokesby and Neville, Js. ; Powell, J. being of a contrary opinion, because words shall be taken in mitiori sensu, and the word suffer is wholly uncertain what manner of suffering was intended. (x) Walter v. Beaver, 3 Lev. 1GG. 2 (y) 3 Lev. 166. Jo. 23-3. Cro. J. 255, 276. 1 Lev. 155. (z) 3 Lev. 394. CIVIL REMEDY— ACTIONABLE WORDS. 95 The defendant («), speaking of the death of one Daniel Dolly said to the plaintiff, " You are a bad man, and J am thoroughly con- vinced that you are guilty ; and rather than you Bhonld want a hang- man, I would be your executioner." After verdict and judgment for the plaintiff, the defendant broughl a writ of error in the court of King's Bench, assigning as two grounds of error, — 1st. That the words were not in themselves scandalous. 2dly. That they did not become SO by reference to the death of D. D. Lord Mansfield, in affirming the judgment, observed, M It is ai ; that there are many innocent ways by which one man may oc< the death of another ; therefore, the words, 'guilty of the death,' do not in themselves 'necessarily import a [ charge of murder ; and consequently, as no particular act is charged (which in itself amounts to an imputation of a crime) the words are defectively laid. What! when the defendant tells the plaintiff that he has been guilty of the death of a person, is Dot that a charge and imputation of a very foul and heinous kind'.' 1 .Saying that such an one is the cause of another's death, as in the case in 2 Buls. 10, 11, is very different; because a physician may be the cause of a man's death, and very innocently: but the word guilty implies a malicious intent, and can be applied only to some- thing which is universally allowed to be a crime. But the defend- ant does not rest here: on the contrary, in order to explain his meaning, he goes on and says, 'and rather than you should be without a hangman, I will hang yon.' These words plainly .-how what species of death the defendant meant, and therefore in them- selves manifestly import a charge of murder." Where the words merely charge the plaintiff with being deserving of punishment great doubt seems to have 1 n entertained wheth- er they are actionable, and there are many authorities both ways. It has been held, that an action lies for saying, " tf ( b ) you had your deserts, you had been *hanged before now." '97 For the court said, it should be intended to convey imputation of an offence for which the penalty of death was due. So the words, "He (r) hath deserved to have his ears nailed to the pillory." were adjmb e actionable. But for the words, M Thou (d) art a scurvy bad fellow, and hast done thai for which thou deservest to be hanged;"' it was held, that no action could be (a) Peake v. Oldham, Cowp. 275. (c) Cro. ITiz. 884. (b) Cro. Eliz 62. {d) 1 Viu. Ab. 415, pL 5. 97 CRIMINAL CHARGE maintained. So it has been held, that the words, "Thou (e) ahouldest have sate on the pillory, if thou hadst thy deserts," were not actionable, because too general.. \. i greater degree of precision has been required in modern times than formerly, the cases last cited may, perhaps, be considered as the better authorities. If however, the words import a conviction for some offence, it seems they are actionable. The defendant said, "You (/) are a branded rogue, and have held up your hand at the bar." It was held, that the words were actionable, since they imply that the plaintiff was branded according to the statute (g-) . So words or signs apparently innocent or unintelligible, may, by explanatory circumstances, become actionable. The de- [ *98 ] fendant said of the *plaintiff, " He (//) is a healer of felons ;" and the words having been spoken in one of the western counties, wherein " a healer of felons " signifies a concealer of felons, were thus explained, held to be actionable. So the words, " He (i) is mainsworn," were held to be action- able, as published in a part of the kingdom where they were under- stood '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 actionable sense ? — If so understood, the mischief is effected, and the cause of action complete (/c). Where the words are spoken in the Welsh language, but in an English county, it must appear, that the hearers understood Welsh; for otherwise the court will not intend that any there understood the Welsh 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 (Z) understood the language in which the alleged slander was conveyed. And as doubtful or apparently innocent words may f *99 ] *by circumstances, be shown to be actionable ; so may words apparently actionable be explained, by circumstan- ces, to have been intended and understood 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 (e) Vin. Ab. 415, pi. 10. Mo. 243. (»') Hob. 126. (/•) ii. |5. (A-) 1 Roll. Ab. 74. Cro. Eliz. 496. (j/i 1 Jao. c. 7. (0 Cro. Eliz. 865. (h) Hob. 126. Cro. Eliz. 250. Cart. 214. CIVIL REMEDY— ACTIONABLE WORDS. 99 appear that he was conversing with the plaintiff concerning unlawful hunting, when the plaintiff confessed that lie killed several hares with certain engines, upon which the defendant said, ••Thou art a murderer," meaning a murderer of hares so killed (m) [1] [a a]. Formerly a distinction was taken between saying, "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 sub- sequent words show the reason of calling the plaintiff a thief, and that no felonious imputation 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 (w). *Little stress, however, would probably be now laid [ *100 ] upon this distinction, as, in common discourse, 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 (o). 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 ar- rest of judgment, it was held, that although the words, " thou art a (m) 4 Co. 13. ter; and though the words were doubtful, [a <;] The words, " I think the business the doubt would be cured by the finding of ought to have the most rigid inquiry, for a jury, that they were meant in that sense. he murdered his wife, that is, he adminis- Ford v. Primrose, 5 D. and ft. 289. tered improperly medicines to her for a (n) Cro. J. 114. B.L. N.P.6. Hob. Rep. certain complaint, which was the cause of 106. Cro Eliz. 857. Hob. 77. BrownL 2 her death," were held to be actionable, as God. b. 211. Hard. 1. All. 31. Sty. 66. importing at least a charge of manslaugh- (o) 6 East, 4S6. Mo. 422. 1 Wils. 140. [1] So where an action was brought for calling the plaintiff a highwayman, robber and murderer, and it was shown that tin- words were spoken in reference to a transac- tion in respect to which the opprobrious epithets were wholly inapplicable, an 1 were understood by the by-standers to that transaction, it was held that an action could not be sustained. Van Rensselaer v. Dole, 1 Johns. Cas. L'7 >. Although the words be not actionable when the hearers understand the ftcts in refer- ence to which the words are spoken, as where a party is charged with having kiile I the wife of the speaker, when all the hearers know that she is living; they are actionable if the hearers do not understand the circumstances rendering the words innocent. In such case the secret intent of the speiker is immaterial; Henry and wife v. Power, 10 Mee- son & W. 564; Hanklason v. Bilby, 16 Id. 442. See also 1 Bartey, 595; 3 Dana, 138; 5 New Hampshire, R. 203. Vol. I. 15 100 CRIMINAL CHARGE. perjured knave," without any more, would have been actionable ; yet that upon all the 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 decla- ration, the words would have maintained the action ; for the truth of the case was, that in an action between Martin and Wright, the state of the controversy was, whether the stake stood upon *101 ] 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 plain- tiff, had perjured himself. But this special matter was not disclos- ed, 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 accipiendus 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 im- port the true cause and occasion, which manifest the true sense of them." This rule is so clear, and so well established, that any fur- ther illustration of it would be nugatory; and the questions which may arise, upon which party shall the onus of proving or disprov- ing the injurious intention and meaning be imposed ; and how shall the defendant best avail himself of explanatory circumstances in his favor, will be afterwards considered under more appropriate divisions. 3dly. From the mere description of the circumstances constitut- ing the offence. [ *102 ] *In the older cases, much difficulty prevailed with re- spect to the actionable quality of words which contained a mere enumeration of circumstances : it was frequently doubted, in the first place, whether the circumstances, supposing them to be true, constituted an indictable offence ? 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 part, it may be proper to advance a few observations. {p) 4 Co. 18. Yel. 10. 34, 34. 2 Rol. Ab. 343. Mo. 6C6. CIVIL REMEDY— ACTIONABLE WORDS. 102 In considering the class of cases referable to this head, where offences have been charged not amounting to, but connected with, felony, it will be convenient 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 (7) Harbert Croft v. Broivn, Coke, C. J. ob- served, that, in ancient time, " voluntas reputabatur pro facto ;" and that if a *person lay in wait to kill an- [ *103 ] other, and upon his resisting, wounded but did not kill him, it amounted to a felony at Common Law, and the offender was ousted of his clergy ; the intention, manifested by an overt act, con- stituted a felony. The learned judge then proceeded to intimate, that any words charging an overt act done in pursuance 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. But the words, "He (■/*) sought to murder me, and I can prove it," were held to be actionable. In this case it may be observed, the words imported more than a mere inclination to murder; since the term soi/g-ht is shown by the latter words to refer to some overt act capable of proof. But the words, " Thou (.*) wouldcst have killed me," it was held that no action lay, since intention only was charged. In Muney's case (t), Coke, C. J. and Houghton, J. held that the words, " Thou art a knave, *and hast laid [ '1<>! ] in wait to kill me ; and thou hast hired one W. to kill me," were not actionable, because no act was laid to be done, but an intention only ; and that a mere intent 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 decision seems to be very inconsistent with the subsequent doctrine of Lord Coke in Sir Harbert CrofCs case (11) : (q) 3 Buls. 167. Yin. Ab. 440, pi. 9. (r) Cro. Eliz. 308. (0 2 Buls. 206. (s) Dr. Poe's case, vid. 2 Buls. 206. 1 (u) 3 Buls. 167. 104 CRIMINAL CHARGE. notwithstanding therefore, this and some other contradictory author- ities, it may be collected from a general view of the cases, that the charging any attempt to commit a felony is actionable, for such an attempt constitutes an indictable offence (x). 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 hini to poison his wife." After judgment for the plaintiff it was assigned for error, that the words were not ac- tionable ; because they did not charge any act done ; and that it was not like charging the plaintiff with lying in wo.it to commit a murder ; but all the justices and barons, besides Kings-mill, held, that the action lay (ij~). [ *105 ] *The defendant said, " Tibbot '(z) and one Gough agreed to have hired a man to kill me." And judgment was given for the plaintiff by Wray, C. J. and Fenner, J. against the opinion of Gawdy. The defendant said, " You (a) set on folks to murder J. S." And Wylde, J. conceived the words to be actionable, since the of- fence was indictable. The defendant said, " John (6) Leversage would have robbed the house'of J. S. if J. D. would have consented unto it. He persuad- ed 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. The defendant said, " He (c) 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 (d), a charge of hav- [ *106 ] ing solicited another to commit a felony, *was held to be actionable. And in Sir Harbert Croft's case (e) it was held, that to say, " A. did hire a man to rob me," would be ac- tionable. (x) 2 East, 6. - (c) 2 Jo. 157. (y) Cro Eliz. 747, cited by Williams, J. (4) Cro. E. 49. Buls. 201. (e) 3 Buls. 167. So per Grose, J. 2 (z) Cro. Eliz. East, 20, an action lies for charging the (a) West v. Phillips, Keb. 253. plaintiff with having solicited a servant to (6) Cro. E. 710. steal the goods of his master. CIVIL REMEDY— ACTIONABLE WORDS. 106 Whoro the words charge some preparation made in contempla- tion of the commission of a crime. When a man does an act in itself indifferent, but in contemplation of the commission of crime in future, (as 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 opportunity, the act would not, in law, amount to an indictable offence, though it might be a good ground for binding the party to his good behavior (/). It is to be observ- ed, however, that in Lady (g) Cockaine's case, the words charging her with having solicited a pregnant woman to kill her child, were held actionable ; because, if true, there was cause to bind her to her good behavior. The words, however in that case, were clearly actionable *upon another ground, and the reason [ *10T ] given is insufficient, since it appears, from a variety of decisions, that many imputations for which, if true, the party might be bound to his good behavior, are not actionable. The defendant said, " He (Ji) keepeth men to rob me." And it was held, that the words were not actionable. After some conversation about robbing a house, the defendant said, " It (0 was T. M. (the plaintiff) and J. D. that were about to rob E. C.'s house." After verdict for the plaintiff, it was adjudged by Archer and Vaughn, J. 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 indictable, unless it appear that the defendant intend- ed to charge the plaintiff with having solicited, or conspired 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 {k) have caused this boy to perjure 'himself." And the words [ '108 J were held to be actionable, since the facts charged con- stitute the offence of subornation of perjury. (/) But it has been held, that the pro- () know what I am, and I know what the plaintiff is ; I never did such an act," [ *110 ] (specifying some criminal act,) the words would be *act- ionable, provided the hearers understood the offence to have been imputed to the plaintiff by such words. {I) Brigg's case, God. 157. (o) Lawrence v. Wood ward, Cro. Car. (m) Neve v. Cross, Sty, 350. 177. (n) Sir John Knightly v. Marrow, 3 (p) 2 Lev. 150. Snell v. Webling, 1 Lev. 68. Vent. 276. CIVIL REMEDY— ACTIONABLE WORDS. 110 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 maintainable by any of them. The defendant said to three men who had given evidence against him, " One (7) 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 broth- ers is perjured." Although one of the brothers should bring an action, and aver that the words were spoken concern iii'_r him, yet on account of the apparent uncertainty, no action would be main- tainable (/•) [1]. But it has since been held, that for the words " A. (a) or B. mur- dered 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 for him will be conclusive as to the defendant's application of the charge to him, for otherwise they could not have given him damages. The application to the plaintiff maybe *ascertaincd by *111 ] a variety of circumstances ; as from his having been (V) the subject of previous (u) conversation, or from his being described byname, or by any other means which are sufficient to induce the hearer to apply the offensive imputation to the plaintiff. The plaintiff was a justice of the peace, and Receiver of the Court of Wards, and by reason thereof received great sums of mo- ney for the king, and was used with much confidence by the king . and the defendant, speaking concerning him witli one Thomas Whore- wood, spoke these words, " Mr. (x) Deceiver hath deceived the king." After a verdict for, the plaintiff, the court, on motion in ar- rest of judgment, held, that the action well lay ; that the words " Mr. Deceiver," were an ironical allusion and nickname to his office and place ; and that if such crafty evasions should be admitted, it would be an usual practice to slander sans punishment. (q) Cro. Eliz. 479. (0 1 Roll. Ab. 85. 1 Rol. Ab. 75. (r) l'er Tanfield, J. in Wiseman v. («) Cro. J. 657. 6 Bac. Ab. 281. Wiseman, Cro. J. 107. (x) Sir Miles Fleetwood v. Curl, Cro. (s) 10 Mod. 196. Cart. 6G. J. 667. [1] In Gidney v. Blake, 11 Johns. R. 54, the uncertainty was as great as in the case mentioned in the text, and yet the action was held to lie. The words were f •' your children are thieves," The declaration stated a colloquium with the father of the plaintiff, of and concerning his children, and of and concerning the plaiutitf. See 4 Co. 17. b. Ill CRIMINAL CHARGE. If A. B. say to C. D. before whom E. F. is walking, " 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 speak- ing. *112 ] *In the case of J' Anson (c) v. Stuart, the plaintiff was thus described in the libel : — " This diabolical char- acter, like Polyphemus the man-eater, has but one eye ; and is well known to all persons well acquainted with the name of a certain noble circumnavigator (meaning by the last mentioned words to al- lude to the name of the plaintiff, J' Anson.*) From these (a) and a number of similar instances, it may be laid down as a general rule, that the application of the words to the plaintiff is a matter to be collected by the jury, from the particular circumstances 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 casein the declaration as to show that the conclusion could properly be drawn : the consideration of these, however, be- longs to a subsequent division of the subject. (y) l'Rol. Ab. 81. (a) Cro. Eliz. 497. Cro. J. 444. 2 Bar- (z) 1 T. R. 748. nard. Rep. Hughes v. Winter, Keb. 525. CHAPTER II. When an infectious disorder is imputed. Another branch of cases where the law allows an action to be maintained, without special damage, consists of those *where a person is charged with having an infectious dis- [ *llo ] ease, the effect of which imputation, if believed, would be to exclude him from society. It has been said (a), that, " Since man is a being formed for socie- ty, 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 contagious distemper should be in themselves actionable ; because all prudent persons will avoid the company of one having such a distemper. As the ground of proceeding is the presumption that the plaintiff will be wholly or partially excluded from society and its comforts, the action is consequently confined to the imputing those disorders which are so infectious in their "nature and [ *114 ] 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 spe- cial damage, to have been confined to charges of leprosy and lues venerea. For though it was held, that an action lay for Baying, " He (b) buried 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, thai to charge another with having the " falling (c) sickness," 18 actionable. So great, formerly, was the dread of leprous contagion, that an especial writ was proved for the removal of the infected object to some secluded place, where he might no longer be a terror to socie- ty : happily this writ has long lost its use. (a) 6 Bac. Ab. 212. (c) 1 Rol. 4-1. 1. 7. (6) Kit. 173, b. 1 Com. Dig. 252. 114 WORDS IMPUTING DISEASE. 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 (d) alluded to. From the case of Villars and Monsley (e), it appears, [ *115 ] that to say another has the itch, is not *actionable ; though such an accusation would be actionable 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 actionable ; but no case was cited in which this point has been ex- pressly 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, for such an assertion does not represent the plaintiff, at the time of speaking, to be unfit for society, and therefore the substance of the action is wanting ; and it was observed, in the case of Carslake v. Mapledoram (/), 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 expressly 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 un- equivocal designation of the speaker's meaning. [ *116 ] *Without citing the disgusting string of cases upon this subject, with which the older reports abound, it may be deemed sufficient to observe, that wherever it can be collected from the circumstances, that the speakers intended the hearers to understand that the person spoken of was at the time of speaking, afflicted with either of the disorders above mentioned, an action may be maintained. And the meaning may be evidenced either by reference to the mode in which the disease was communicated, the symptoms (h) with which it is attended, its effects upon the person (i) or constitution, the means (A 1 ) of cure, the necessity of avoiding (/) the person infected ; or, in short, by any other allusion capable of conveying the offensive' imputation. (rf) Carslake v. Mapledoram, 2 T. R. (h) Holt. 5G3. 473. (i) Cro. J. 430. 144. 1 Vin. Ab. 488. (0 2 Wils. 403. Cro. Eliz. 214. 289. (/) Carslake v. Mapledoram, 2 T. R. (k) Cro. J. 430. Cro. Eliz. 648. Roll- 473. Str. 1189. Rep. 420. { Mass. R. 253, per Parker, C. J.; and Chipman v. Cook, 2 Tyler, 456. [2] In Lindsey v. Smith, 7 Johns. R. 360; an action was sustained for the words «' Lindsey had been feed by Abner Wood, and I could do nothing when the magistrate was in that way against me.' To render the words actionable, however, they must be spoken of the plaintiff in his official character or conduct. Oakley v. Farrington, 1 Johns. Cas. 129. SPECIAL CHARACTER. 131 Where a person holds an office or situation, in which great trust and confidence must be reposed in him, words which impeach his integrity generally, though they contain no express reference to his office, are actionable ; since they must necessarily attach to him in his particular character, and virtually represent him as unlit to hold that office or situation. Thus it bus been held, that to say of a bishop, " He is a wicked man Qp)," is actionable. The defendant said of a justice of the peace and deputy lieuten- ant (7/), "He is a Jacobite, and for bringing in the Prin Wales and popery." And the words were held to be actionable, though it did not appear that the speaker applied the words to his offices, because without any such application, they imputed such religious opinions and political principles, as .rendered him in law unfit for those situations. So where the defendant said of the plaintiff, who was a justice of the peace (r), " I am in danger of my life, my blood is sought, and I was like to have been murdered; I was at Sir J. Harper's (the plaintiff's) house, and John Harper *drew j" *132 ] me forth to see a gelding in the stable, and then Thomas Beaumond, Sir H. Beaumond's son, did throw his dagger at me twice, and thurst me through the breeches, twice with his rapier to have killed me, all this was done by the instigation of Sir J. Harper, and I can prove it." In this case, although no misconduct in office was particularly pointed out, it was held that the action well lay ; the instigation to do such an outrageous act being against the plaintiff's oath, and a great misdemeanor, for which he was liable to fine and to be put out of the commission. The defendant said to the plaintiff, who was one of the attorneys or clerks of the King's Bench, and sworn to deal without corruption in his office, " You are well known to be a corrupt man, and to deal corruptly." And upon giving judgment for the plaintiff, it was said, quod sernw relatus ad personam, inteUigi debit dc eunditiunc persona; Cs). The defendant said of the plaintiff, who was an attorney? general- ly (£), " He is a common barrator." After verdict, though it was objected, that the words were not actionable, having been spoken (p) 2 Mod. 159. moml, Cr. J. 5G. (q) How v. Prinn, Holt, 652. (s) 4 Itcp. 10. (r) Sir J. Harper v. Francis Beau- (0 Cro. Car. 198, 132 CIVIL REMEDY— ACTIONABLE WORDS. of the plaintiff as a common person, and not in relation [ *133 ] to his office, yet the court held *that the action was main- tainable ; for it is a great slander to an attorney to be called and accounted a common barretor, who is a maintainer of brabbles and quarrels, and said that words are to be construed secundum condilionem personarum of whom they are spoken. The defendant said- of an attorney («), " Thou art a false knave, a cozening knave, and hast gotten all that thou hast by coz- enage, and thou hast cozened all that have dealt with thee." And the court held that the words were actionable, as touching the plaintiff in his profession. An attorney brought an action for the words (re), " I have taken out a judge's warrant to tax Phillip's (the plaintiff's) bill, I '11 bring him to book, and shall have him struck off the roll." Lord Kenyon, C. J. ruled, at nisi prius, that the words were not ac- tionable ; and added, had the words been, " He deserves to have been struck off the roll," they would have been actionable. With respect to this distinction, it may be proper to suggest a doubt, whether the words in the principal case cited would not in common acceptation convey to the hearer the same meaning with [ *13'4 ] the words which the learned judge *is reported to have deemed to be actionable, since they seem as clearly to evince the opinion of the speaker, that the plaintiff deserved to be struck off the roll, and no one would choose to employ an attorney who made exorbitant charges. Words imputing dishonesty to a tradesman, it seems, are not ac- tionable, unless they be spoken with reference to trade. So that to call (?/) a tradesman a cheat, generally, has been held not to be actionable. But otherwise to say, " He (2) keeps false books ;" for the words evidently relate to his course of trading [1]. So to call a tradesman a rogue (a) or a cheat, with reference to his trade, is actionable. But to say generally of such a person, " Thou (w) Cro. Jac. 586. (z) Holt, R. 39. (x) Phillips v. Jansen, 2 Esp. 624. (a) Burr. 1688. (y) 3 Salk. 326. [1] Words charging the keeping false books are actionable when spoken of a mer- chant, Backus v. Richardson, 5 Johns. R. 476; or of a blacksmith, Bxirlch v. JVicker- son, 17 Id. 217; but not when spoken of a sawyer, Raihbun v. Emigh, 6 Wendell, 407. The latter case however, manifestly proceeded on the ground that the business of a saw- yer did not require the giving of credit and keeping of books, for it was admitted that in such cases the words would be actionable. SPECIAL CHARACTER. 134 (&) hast no more than what thou hast got by cozening and cheat- ing,!' has been (c) held not to be actionable. It may, however, be doubted, whether there is any solid dis- tinction between these cases, since every tradesman's livelihood de- pends in some measure upon his general character for honesty and integrity ; and it is difficult to suppose, that B general imputation of dishonesty, if believed, would not operate to his pre- judice. *It seems that some degree of trust and con- [ •135 ] fidence must be reposed in the plaintiff, in order to ren- der words reflecting upon his character for integrity actionable. Thus the words of a carpenter (d), " He has charged Mr. An- drews for forty days' work, and received the money for the work, that might have been done in ten days, and he is a great rogue for his pains," were, after verdict, held not to be actionable. The distinction seems to be this : Where great confidence must necessarily be reposed, as in an attorney or superintendent, words generally reflecting upon his character are actionable ; but where mere ordinary confidence is reposed, in the common courts of hon- est dealing, as that a tradesman shall charge a fair price for his goods, or an artificer, surveyor or mechanic for his labor, the law holds that the words are not so injurious as to bear an action unless they are applied to the plaintiff's trade or business with certainty and precision. So where the office, profession, or employment of the plaintiff, re- quires great talent and high mental attainments, general words, im- puting want of ability, are actionable without express reference to his particular character, for they necessarily include an ability to discharge the duties of such a situation ; but where the employment *is of a mere mechanical nature, the words | 136 ] to be actionable must be applied to it clearly and un- equivocally. Thus to say of a barrister (c), generally, that he is a M dunce," is actionable, the word dunce being commonly taken to mean a per- son of dull capacity who is not fit to be a lawyer [1]. So, to say of a physician (/), that he is " no scholar," is action- al 12 Mod. 307. (c) Peard v. Johnu, Cro. Car. I (c) 12 Mod. 307. (/) 6 Hi,-. Ah. 215. 1 Roll. Ab. 54- (d) Lancaster v. French, Str. 797. Cro. Car. 270. [1] But when the words only impute ignorance or want of skill in a particular suit, they are not per se actionable, Foot v. Broun, 8 John9. R. 01. 136 CIVIL REMEDY— ACTIONABLE WORDS. able, a learned education being considered to be an essential quali- fication in the medical profession. To say of a servant, that he is a " lazy, idle, and impertinent fel- low," is actionable ; for these words, though spoken without express reference to his service, cannot but affect his character as a servant, as no one would be willing to employ a person of idle and imperti- nent habits. In general, however, the words must be spoken with reference to the particular situation of the plaintiff in which case they are action- able if they impute any want of knowledge, skill, or diligence, in the exercise of his office or avocation : as to say of an apothecary («•) " It is a world of blood he has to answer for in this town : through his ignorance he did kill a woman and two children at * *137 ] Southampton; he did kill J. P. *at Petersfield ; he was the death of J. P.: he has killed his patient with phy- sic." So (Ji) where the defendant said of a midwife, " Many have per- ished for her want of skill." The words spoken of a watchmaker were, " He (i) is a bungler, and knows not how to make a good piece of work." After verdict for the plaintiff, the words, on motion in arrest of judgment, were held by the court not to be actionable, not having been laid to be of the plaintiff's trade, but it was said that had the words been, " he knows not how to make a good watch," they would have been action- able. It may, however, be doubted whether this case would not now meet with a different decision ; the point upon which the court gave judgment, was in a great measure technical ; and indeed the averment that the words were spoken in derogation of the plaintiff's workman- ship, seems scarcely to be neces sary, for if it were believed that the plaintiff was a bungler, and could not make any piece of work well, how could it be supposed that he could make a good watch, a piece of work requiring very considerable skill and dexterity [1]. (g) Tatty v. Alncin, 11 Mod. 221. (i) Redman v. Pyne, 1 Mod. 19. (/t) Flower's case, Cro. Car. 211. [1] In Tobias v. Harland, 4 Wendell, 517, the plaintiff being a dealer in patent lever watches, made at a particular manufactory, the defendant, a dealer in the same article made at another factory, speaking of the watches in which the plaintiff dealt, said they were bad, and inferior to the watches in which he dealt. Held on demurrer that the action did not lie; that to render words depreciating an article in which another deals actionable per se, they must import deceit or malpractice in the making or vend- ing. SPECIAL CHARACTER. L37 The law has shown great tenderness in protecting mer- chants *and traders against imputations upon their credit, [ *138 ] which if believed must necessarily operate to their seri- ous prejudice. Formerly (A), indeed, it was held that the words, to support an action, must import bankruptcy: this doctrine has, however, long been abandoned (/), and it seemc that such words spoken of a person in any business are now considered actionable. And it is not essential to the action, that the words should impute want of credit at the time of speaking them. The defendant .-aid, "He(w) came a broken merchant from Hamburgh;" and the words were held to be actionable, since the plaintiff was charged with having been once broken et qui semel est mains $i mpt r pro- sumitur esse mains ineodem genere, and that they were a can discrediting the plaintiff in his trade, and of injuring him in his cred- it, which was a great means of gain. And it is nol necessary that the words should be spoken with express reference to the plain- tiff's trade, since a general charge of want of credit necessarily includes the particular one, and is equally pernicious with a more precise *allegation, thus to say generally of [ 139 ] a merchant, that he is " broken,'" is actionable, these be- ing common and vulgar words of one who fails in his credit and be- comes a bankrupt. Words of this class are actionable when applied to a person carrying on a business purely mechanical, so that to call a dyer (n) bankrupt knave, is actionable [1]. And any words which in common acceptation imply want of cred- it are sufficient, as to say of a tailor (p) " 1 heard you were run away." Formerly, indeed, it was held that to call a trader " bank- ruptcy knave (p)" was not objectionable ; but the distinction be- tween words adjectively spoken, and those containing an express and direct allegation, have, as has already been observed, been long deservedly disregarded. So, to say of a stock-broker () Cro 3. 845, tinglon v. Gladwin, 5 B. aud C. 160. (<;) Morris v. Langdale,2 B. & P. B4. (hi) Saycro/t v. Dunker, Cro. Car. 317. [1] The action has been held to lie for similar words spoken of a drover, Lewis t. Hawley, 2 Day, 195; also of a brewer, Hall v. Smith, 1 Maule aud BeL 287. 139 CIVIL REMEDY— ACTIONABLE WORDS. So of a trader, " You are a sorry pitiful fellow and a rogue, and compounded your debts for os. in 'the pound (V)." [ *140 ] So where the defendant said (5), "All is not *well with Daniel Vivian ; there are many merchants who have lately failed, and I expect no otherwise of Daniel Vivian." So, to say of a pawnbroker (£), " He is a broken fellow." To a milliner (n), "You are not worth a farthing." So though words merely import the speaker's opinion ; as where the defendant said (2;), " Two dyers are gone off, and for ought I know Harrison will be so too within this time twelvemonth." So where defendant said to an upholsterer (//), "You are a sol- dier, I saw you in your red coat doing duty ; your word is not to be taken :" the words were held to be actionable, it being a com- mon practice, at the time they were spoken, for traders to protect themselves against their creditors by a counterfeit enlisting, a soldier having by act of parliament the privilege of freedom from arrest. So where the words spoken of a carpenter (s) ; "He is broken and run away, and will never return again ;" after verdict [ *141 ] for the plaintiff, *it was urged in arrest of judgment, that the words were not actionable, for though broken, the plainthT was as good a carpenter as ever ; but it was answered by the court, that the credit which a man has in the world may be the means to support his skill, for be may not have an opportunity to show his workmanship without those materials wherewith he is entrusted. And where the defendant said of a husbandman (a), "He owes more than he is worth ; he is run away :" the words were held to be actionable, though it was objected that it should not only appear that the plaintiff had a trade, but that he got his living by it. And next; the words are actionable when they throw discredit upon the particular commodity in which the party deals. Thus, to say of a trader (6), " He hath nothing but rotten goods in his shop," is actionable : though it was said in the case referred to, that had the words been " he hath rotten goods in his shop," they would not have supported the action, and that the slander con- sisted in saying that he had nothing- but rotten goods in his shop. (r) Ld. Raym. 1480. Star. 762. borough . (s) 3 Salk. 326. (y) Arm v. Johnson, 10 Mod, 111. (0 Holt. R. 652. (z) Chapman v. Lamphire, 3 Mod. 155. (w) Cro. Car. 265. (a) Dobson v. Thorslone, 3 Mod. 112. (x) 10 Mod. 196, [Harrison v. Thorn- (b)Cro. Car. 570. SPECIAL CHARACTER. 141 So, to tax a bookseller falsely (c) with having *pab- [ "1 1 - ] lislied an absurd poem, is actionable; the evident tend- ency of the imputation being to injure him in his bash So where the defendant said of the plaintiff, \vln» was an innkeep- er (d), "Deal not with Southam, for he is broken, and there is neither entertainment for man nor horse." And words imputing insolvency to an innkeeper arc action though at the time the words were spoken lie was not Bubject to the bankrupt laws (e). So a, false and malicious account (/) of the performance at a place of public amusement will support an action. So where the defendant, who was printer of a newspaper, called the Oracle, published the following paragraph concerning the True Briton newspaper, of which the plaintiff was proprietor : " Times v. True Briton (g-). " In a morning paper of yesterday was given the following char- acter of the True Briton : — that ' It was the most vulgar, ignorant, and scurrilous journal ever published in Great Britain.' To the above assertion we assent, and to this account we add, that the first proprietors abandoned it, and *thatit is the [ *143 ] lowest now in circulation, and we submit the fact to the consideration of advertisers." It was held by Lord Kenyon at Nisi Prius, that the latter words of the paragraph, as affecting the sale of the paper and the profits made by advertising, were actionable. Where the plaintiff was a butcher (A), and brought his action for words taxing him with having exposed to sale the flesh of a cow which died in calving, it was held after verdict, that the words were not actionable, even though special damage was laid and piw This case seems, however, to be very loosely reported, and i- not supported by either analogy or principle. Unless words affecting the plaintiff's means of livelihood fall with- in one of the foregoing descriptions, it may be concluded that they are not actionable. (c) Tabarl v. Tipper, 1 Camp. N. P. (/) Dibdifl v. Swan and Bostock, 1 350. . Esp. 27. (d) 3 Salk. 326. (g) ^ eriot v - Stewart, 1 Esp. 437. (e) Whittinyion v. Gladwin, 5 B. &. C. (M Tasum v. Royers, '1 Salk. 093. 150. Vol. I. 17 143 CIVIL REMEDY— ACTIONABLE WORDS. The defendant said of the plaintiff, who taught girls to dance, "that she was an hermaphrodite (i)" and it was held that the words were not actionable, and that it was no scandal to her pro- fession to say that she was an hermaphrodite, because men usually teach youug women to dance. (i) 3 Salk. 397. C II A P T E R IV. Where the words tend to the pasty's disinherison or af- fect his Title to Land. Words falling within this division cither affect the probability of the plaintiff's succeeding *to an estate in [ *142 ] future, or impeach a title which has already accrued. Instances of the former class, where damages have been allowed to be recovered on account of the manifest tendency of the imputa- tion to defeat the plaintiff's expectations, are exceedingly rare, and seem to have been confined to words impeaching the legitimacy of the birth of an heir apparent. The defendant (a) said to the plaintiff, who was heir apparent to his father and uncle, " Thou art a bastard." After verdict for the plaintiff, the court, on motion in arrest of judgment, held that the action was maintainable, since by reason of the words the plaintiff might be in disgrace with *his father and | *143 ] his uncle, and they conceiving a jealousy of him touch- ing the same, might possibly disinherit him, and that though they eventually should not, yet that the action well lay for the damage which might come; and 'the cases of Vaughan v. Leigh, and uf Banister v. Banister (6), were cited by Jones, J. as in point. In the first of these cases (c) the plaintiff Bhowed that land had been given in tail to his grandfather, and that his father had divers sons, whereof he was the youngest, and his eldest brothers living. That a certain person offered to buy the land, and was willing to give him such a sum of money for his title, and by reason of the words refused to give him anything. After judgment for the plaintiff in the Exchequer, it was assigned for error, that it appeared by the plaintiff's own showing that he had not any present title, and (a) Humphreys v. Stanfield, Cro. Car. (c) Cro. J. 215, by the name of faughan 469. Jo. 388. Godb. 451. t. Ellis. (b) 4 Cro. 17. 143 CIVIL REMEDY— ACTIONABLE WORDS. therefore no cause of action. But the two chief justices conceived that although he had not any present title, it appeared that he had a possibility of inheriting the lands,. and that being offered a sum of money to join in the assurance, although he had not any present title, yet by reason of the words he had a present dam- [ *144 ] age, and in future might receive prejudice *thereby in case he were to claim the lands by descent. This case, though cited as an authority for the former decision, does not warrant it to the full extent, for in the latter a loss had actually accrued to the plaintiff in consequence of the words ; in the former the supposed prejudice consisted in the probability that the expectation of the heir apparent would be defeated. In the case of Turner v. Sterling (d), it was said by the court, " The law gives an action for but a possibility of damage, as an action lies for calling an heir apparent bastard." In an earlier case (e) the court observed, " The word bastard is determinable by the Spiritual Court, but if the plaintiff add further words to entitle himself as heir, or show some possibility of being heir, this shall "make the same words calling him bastard to be ac- tionable. The' decisions upon this point do not, however, appear to have been uniform ; in the case of Turner v. Sterling- (/), above cited, Vaughan, J. said, " I take it not to be actionable to call a man a bastard whilst his father is alive, the books are cross in [ *145 ] it ; nay, if lands had descended, I doubt whether it would be actionable any more than to say one has no title to land." The last express decision upon the point appears to be that of Humphreys v. Stanfield (g-), already referred to, where it was de- cided that words which alleged that an heir apparent was a bastard, were actionable. Words impeaching the plaintiff's present title to lands, have in many of the older cases been deemed to be actionable without proof of special damage. Thus, where a remainder-man Qi) brought an action against the defendant for saying that- the tenant in tail had issue one D. who was then alive, it was held that the action was maintainable. (d) 2 Vent. 2G. Vaughan, J. dissent. (g) Cro. Car. 469. (e) 2 Buls. 90. (ft) Bliss v. Stafford, Ow. 27. Mo. 188. (/ ) 2 Vent. 26. See also 1 Roll. Abr. Jenk. 247. 37, pi. 18. DISINHERISON, &c. 145 It appears, however (£), from a copious class of decisions, that no action can be supported for words affecting the present title of a plaintiff to an estate, without Bhowing that Bome special damage and inconvenience has resulted from them, as that he was prevented from selling or making some advantageous disposition of it: the particular 'nature of such specific prejudice will [ 146 ] be hereafter considered ( />•)• Although the numerous decisions upon the subject seem to 1 no doubt that words reflecting upon a party's present title must, to give a right of action, be attended with special damage, it does not follow as an immediate and necessary consequence of this doctrine, that imputations immediately tending to defeat the prospects of an heir apparent, are not in themselves actionable, though it appears at first sight somewhat strange to say that it can lie considered more prejudicial to impeach a title resting merely in expectancy, than to derogate from one already existing. There is, however, a plain line of distinction between the two cases. Where Lands have al- ready descended to the heir, to call him bastard, can work little prejudice; the false imputation cannot divest the estate, though it may involve the owner in litigation, for which special damage he is entitled to his remedy ; but reflections of this nature, when ca>t upon an heir apparent, may produce consequences infinitely more Berious, for they may induce the ancestor to disinherit the progeny which he conceives to be spurious. In the former case the evil resulting from the 'slander [ '117 can be but slight and temporary ; in the latter it may prove utterly irremediable. The cases relating to words of the lat- ter description are of considerable antiquity and of rare occurrence, and though they certainly carry the doctrine of presumptive and anticipative loss to a great extent, yet they seem to be supported and warranted by the application of sound and general principles to the peculiar exigency of the case. (i) Cro. Eli*. 198. 8 Keb. 158. 1 Vin. Ab. 658. Sty. 119.76. IV; 8ned*v. Badley, 3 Bute. 74. (fc) See title Special Damage. 17' CHAPTER V. Where the Slander is propagated by Printing, Writing, or Signs. Besides the communications which have been enumerated under the preceding divisions, many have been deemed to be intrinsically actionable, although unattended *with special [ *148 ] damage, on account of the mode in which they have been effected. Observations upon this class of cases, relate, either to the reasons and authorities for this distinction, or to the extent to which it has been carried. First, as to the reasons and authorities upon which the distinction is founded. It has been said (a) that " slander in writing has at all times, and with good reason, been punished in a more exemplary manner than slanderous words, for as it has a greater tendency to provoke men to breaches of the peace, quarrels, and murders, it is of much more dangerous consequence to society. Words, which are fre- quently the effect of a sudden gust of passion, may *soon be buried in oblivion ; but slander which is com- [ *149 ] mitted to writing, besides that the author is actuated by more deliberate malice, is for the most part so lasting as to be scarcely ever forgiven." And, that " (6) written slander hereby receives an aggravation, in that it is presumed to have been entered upon with coolness and deliberation, and to continue longer and propagate wider and farther than any other scandal." These reasons embrace three distinct points : 1. The greater degree of danger to the public peace. 2. The greater degree of malice in the author of the scandal. (a) 6 Baa Ab. 202, tit. Slander. (6) 4 Bac. Ab. 449. 5 Co. 125. Ld. Ray. 416. 12 Mod. 219. LIBEL. 149 3. The increased detriment to the object of the slander from its more extended circulation and duration. In the firs! place, although the apprehension of danger to the public peace may furnish a sufficient ground for subjecting the publisher of a libel to penal visitation, that is a consideration which cannot at all affect the right to a civil remedy by action. In the next place, it is clear that written slander may evince a higher degree of deliberation, and therefore of malice, than that which is merely oral; it may, however, be doubted whether that 'superior degree of malice constitutes a [ 15Q ] sound and well principled distinction between oral and written slander. As far as regards the intention of the publisher, it seems to be certain, that malice, in law, is sufficient to support the action ; that is, a party is liable if he voluntarily publish that which is injurious to another, and occasions damage to him without legal excuse (c). Whether, then, the calumniator speak or write that which is injuri- ous to another, malice in law equally exists, and the mere degree of malice, however it may affect the question of damages, does not, in principle, constitute a distinct limit between that which is actionable and that which is not so. Is then the reason for making written defamation actionable with- out special damage, where an oral communication would not have been so, the increased detriment which may probably arise to the party, in consequence of the means of publication which have resorted to ? Such a consideration obviously applies rather to the quantum of injury sustained than to the actual existence of damage ; and if any legal damage can, in any case, be presumed to have arisen from the publication of written slander, must not a similar presumption obtain. though (it may be) to an inferior extent, when the very *same matter is published orally? How do the cases [ 'l'l ) differ but in degree? The extent of mischief merely affects the quantum of damages, and not the right of actios. If damage to an amount which can be estimated by a jury has been sustained, by publishing the scandal to a hundred persons, may not the damage be also estimated where the publication has been limited to ten? Whether a greater degree of damage will accrue from written than from oral slander, must be casual and uncertain ; words (c) Vide Preliminary Discourse, infra, tit. Intention, and supra, p. 9. 151 CIVIL REMEDY: spoken to a multitude, may be more likely to injure their object, than if they had been communicated by writing to one or a few in- dividuals. It is, however, to be recollected, that the very presumption itself, the limitation of which gives rise to this difficulty and apparent in- consistency, is purely artificial and arbitrary, and consequently its limits are naturally of the same description. From the exigency of the case, damage is presumed without proof, that is, the communication is deemed to be a substantive ground of action not in all cases, for so wide a presumption would too much en- courage a spirit of vexatious litigation, but in cases where the neces- sity for making such presumption is urgent and apparent. The principle, then, being once admitted, that damage may, in cases of exigency, be presumed, and an opposite princi- *152 ] pie of public policy requiring *that such a presumption ought not to obtain generally, but should be limited and restrained, it is evidently a mixed question of expediency, arising from the particular nature of any class of cases on the one hand, and of public policy on the other, what limitation shall be applied to them. And consequently, although if the question had depended wholly upon intrinsic reasons, such a distinction between oral and written slander might have been deemed incongruous ; it cannot be so regarded, when it is considered that it depends partly on consid- erations of extrinsic policy, and it may obviously consist well with sound legal policy, to extend the remedy where the defamation is in writing, and therefore capable of an extensive, permanent, and mis- chievous diffusion, beyond, those limits which are assigned in case of mere oral communications. Whether such a distinction can be supported on any just grounds of reason or convenience has been the subject of much controversy ; in the last case in which the subject was judicially considered, the court intimated that they supported the rule on the ground of pre- cedent only (s). The number of actual decisions founded upon the difference be- tween oral and written slander is exceedingly small ; but [ *153 ] the distinction itself has *been very frequently collateral- ly countenanced and recognized by most able and accom- plished judges, and is now fully established. (s) Thor ley v. Lord Kerry, 4 Taunt. 355, infra, 162. LIBEL. 153 It appears to have been held in curly times, that a libel (c) on the character of a private individual was punishable by way of indict- ment. Sir Edward Coke, in his third Institute ((/), cites a record of the conviction of Adam dfi Haven-worth, who was indicted in the King's Bench, in the reign of Edward ill. for the making of a lilted in the French tongue against Richard of Snowshall, calling him therein Roy dc Haveners, &c. and adds, "so a libeller, or publisher of libel, committcth a public offence, and may be indicted thereof at Com- mon Law." This, indeed, was a criminal proceeding, and no instance of a civil action in case of libel appears till long after ; it seems, however, to have been frequently held («), that where a party is indictable for any written defamation, an action is also maintainable at the suit of the party injured. *In the case of Dr. Edwards v. Dr. Wooton (/) in [ *1." I ] the Star Chamber, it appeared that Dr. Wooton had writ- ten to Dr. Edwards a letter, containing scandalous matter, to which he had subscribed his name, and that he had likewise published and dispersed a number of copies of the same letter. And it was re- solved, by the Lord Chancellor Egerton, the two Chief Justices, and the whole court, that this was a subtle and dangerous kind of libel, inasmuch as the writing a private letter, to another, without other publication, would not support an action on the case, but that when published to others, to the scandal of the plaintiff) as it had oftentimes been adjudged, an action lieth. And it was said, that although the defendant had subscribed his name to the letter, yet since it contained scandalous matter, it was to be considered in Law as amounting to a libel. From this case, though the contents of the letter in question do not appear, the opinion of the Lord Chancellor and the two Chief Justices may lie collected, thai generally, Bcanda- lous matter published in writing was a ground of anion. Peacock (§■) exhibited his l»ill against Sir George Kaynal in the Star Chamber, for a bill written under these circumstan (c) It is to be recollected that the term der, 202. 8 BL Coma. 126.5 Camp. C Libel, in the followiug pages, is used to all. It has, however, been said, that in signify any writings, pictures, or other some instances a libel may be indiol signs, tending to injure the character of an although it be Dot actionable. 3 .Mod. 139. individual, or to produce public disorder. Com. Dig. Libel, A. l'. (,/) 74. (/) 12 Rep. 35. (e) Skin. 123. 2 Wils. 201. 4 Com. lir) 2 Browul. 151. Dig. tit. Libel. C. 3. G Bac. Ab. tit. Slaa- 154 CIVIL REMEDY : The plaintiff was heir general to Richard Peacock, who was of the age of 86 years, and had lands of inheritance to the [ *155 ] Value of £800 a year ; the defendant, who had married the daughter of Sir Edward Peacock, who was a younger brother of Richard Peacock, wrote a letter to Richard Peacock, informing him that the plaintiff was not the son of a Peacock, and was a hunter of taverns, and that divers women had followed him from London to the place of his dwelling, that he had a desire to hear of the death of the said Richard, and that all the inheritance would not be sufficient to satisfy his debts, and many other matters concerning his reputation and credit. And it was agreed that this was a libel, and for that the defendant was fined to .£200, and im- prisonment, according to the course of the court ; and the plaintiff let loose to the Common Law for his recompense for the damages which he had sustained. In the case of King- v. Sir Edward Lake (A), the libel was con- tained in an answer to a petition preferred by the plaintiff to the House of Commons, and consisted of many general reflections upon the- conduct ot the plaintiff. After verdict for the plain- [ *156 ] tiff, *it was moved in arrest of judgment, that the terms of the publication were too general to support an action ; but it was said by Hale, Chief Baron, that " Although such general words spoken once, without writing- or publishing them, would not be actionable, yet here they being written and published, which contains more malice than if they had been once spoken, they are actionable." In the case of Sir J. Austen v. Col. Culpepper (£), the defend- ant had forged an order of the Court of Chancery, containing many defamatory reflections upon the plaintiff, and at the bottom had drawn the form of a pillory, and subscribed to it the words, " For Sir J. Austen and his witnesses by him suborned." It was contended that the action was not maintainable, since no certain slander was imputed by the words, and if the words would not support the action, the representation could not, since it was not to be inferred that the parties were perjured, and that though for setting up horns, r persons (y) 5 Rep. 125. 3 B. & C. 33, 4. Viilart v. M, the words were, " lie is an unworthy man, and acts against law ami reason :" and ScroggS and Atkins, justices, were of opinion that by the com- mon law no action would lie, though Such words were spoken of a peer; but North, C. J. considered the words to have been action- able at Common Law ; and held, that no words would be actionable under the statute which were not so at Common Law. (c) See Buller L. N. P. 4, and 12 Co. 133. (d) 2 Mod. 150. 178 CIVIL REMEDY: "Whether such a distinction prevailed or not at Common Law, is at present a matter of curiosity rather than'of practical importance, for it lias been established by a long train of decisions, that the dis- tinction, if not created, has at all events been considered as war- ranted, by the operation of the statutes alluded to. Upon these it has been held, that a remedy by action has been given to the gueat men of the realm, entitling them to a compensa- tion in damages for injurious reflections upon their char- *179 ] acter, *though the statutes themselves no not in express terms profess to bestow such a remedy. And this doc- trine is founded upon the general rule, that whenever (e) a party is prejudiced by the doing of that which is prohibited by statute, he is entitled to damages. It is a remarkable circumstance, that from the time of passing the st. 12 Rich. 2, no civil action appears from the reports to have been founded upon it before the (/) thirteenth year of Henry the Seventh, comprising an interval of more than a century. 2. Next as to the parties entitled to maintain this action. As the statute 2 R. 2. st. 1. c. 5, commences with an enumera- tion of persons inferior in rank to the king, it has been held, that the tatter is not included (#•) within the general words, '" and great men of the realnr" But (/*) that he is included within the first of Westminster. The action has been adjudged to extend to orders of nobility cre- ated since the making of these statutes ; so that although the stat. 2 R. 2, specifically mentions dukes, earls, and barons [ *180 ] only, a viscount (i) has been considered to be *entitled to the action, though the title is of much (&) later crea- tion. It has been said (/), that a female, noble by birth, is not with- in the statute ; but it is difficult to say upon what principle a peer- ess is excluded from the benefit of this statutable protection. As the words derive their actionable essence from their applica- tion to the dignitaries specified in the statute, it must appear that the plaintiff held his rank at the time when the words were pub- lished (m). (e) Keil. 2G. (t) Cro. Car. 136. Palm. 165. (/) Ld. Townsend v. Dr. Hughes, 2 (ft) John Beaumont, the first Viscount, Mod. 162. 10 Co. 75. was created such 18 H. 6. {), which has been already referred to. The action was there brought for speaking the words, " He is an unworthy in an. 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, Serjeant Maynard, for the defendant, allowed that it was too late to contend that an action to recover damag was not maintainable under the statutes of Scandaluni Magnatum upon the principle betorc mentioned, that where a statute prohibits a thing prejudical to another, the person prejudiced is entitled to * recover damages ; but he insisted that the words were not within the meaning of the acts ; because, the term unworthy imported no particular crime, — that it was merely a term of comparison, and that instances of unworthiness might be alleged which would "not support an action ; but that, if the plaintiff i v '- | had been compared to any base and unworthy thing, the words would have been actional le: as in the Marquis (r) of Dor- chester's 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 burii - one of his family in linen acts against law. but that, if the penalty be satisfied, the law is so too. That no instance \ iven in which the plaintiff had acted against law, and therefore that the C ise was unlike the Duke (s) of (n) 5 Ann.c. 8. Art. 23. (q) 2 Mod. 160. (o) Lord Falkland v. Phipps, Comyu's (r) Crom. Jur. of Courts. Rep. 489. 1 Vin. Ab. 649. pL 22. (O HiL 10 C. 2. Hull. 1269. (p) Via. Pal. 5G5. 12 Co. 133 Vol. I. 19 182 CIVIL REMEDY : Buckingham's, who brought an action for the words," You are used to do things against law, and put cattle into a castle where they can- not be replevied ;" for in that case, not only an usage was charged upon him, but a particular instance of oppression. That the words in question were uncivil, but not actionable, — that there were many authorities which shewed 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 (f) him, like himself," which words, in the opinion of Yelverton and Fleming, [ *183 ] 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 between the lords and commons, and great peril and mischief to the realm, and quick subversion thereof. 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 king- dom would be presently in a flame, and turned into a state of con- fusion 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 damnified ; 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, Serjt. that it was the end and object of these statutes to give a remedy against all provoking- and vilifying- words which were used before to exasperate the peers, 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 considered as falling within their scope, which imported great scan- [ *184 ] dal, *and for which an action lay at the common law, but even such things as savored 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 (u), where the words were, "You like those who maintain sedition." The Earl of Lincoln's case, " My lord is a base earl, and a paltry earl, and keepeth none but rogues and rascals like himself." (i) Earl of Lincoln's case, Cro. J. 196. (u) 4 Co. 13. Cro. J. 196. SC AND ALUM MACJXATUM. 184 The Duke of Buckingham'* ease (as), li He has no more con- science than a dog." The Marquis of Dorchester's case, " lie is no more to 1"' valued than the black dog that lies there." All which words had been held to be actionable, though nut touch- ing the persons in any thing concerning the government, nor charg- ing them with any crime, but in point of dignity and honor. Scroggs, J. observed, that " the words here laid are not bo 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 ca may be put of general words which import a crime, and which have been adjudged actionable." *In the Earl of Leicester's case, " He is an oppressor/ [ *185 J were held actionable. And in Lord Winchester's case, " Tie kept me in prison, till I gave him a release," were deemed to be actionable, because 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 th lat the judges haw- always construed in favor of th so actions; and this has been done in all probability to prevent tho - i rs which otherwise might ensue if the lords hould take revenge themselves. Atkyns, J. held, hat under the construction of the statute, the words to be actionable must be horrible as well ' . and such as were punishable in the high commission court, which were enormous crimes. That the statute did no! e: I id to words of a small and trivial nature, nor to all words which '..ere actionable, bul nly to such as were of a greater magnitude, such by which disc >rd might arise between the lor Is and commons, to the great peril of the "ealm, and such which arc great slanders and horrible lies, which ai purposely put into this statute for the aggravation and distinction 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 scandals. The learned 'judge also [ "l s, » ] observed, that in the Duke of Buckingham's case (y), (which was the second which appears to have been determined in an action on the statute,) where the defendant -aid, M You have no more conscience than a dog ;" and in the case of Lord Abergavi nny v. Cartwright, " You care not how you come by goods," the words (.c) Hil. 1G, c. 2. Roll. 1269. (y) 4 Hen. 8. Cromp. Jur 186 CIVIL REMEDY: charged the plaintiff with particular matter, and did not rest barely upon opinion. That in the case of the Bishop of Norwich (2), the words, " you have writ to me that which is against the word of God, and to the maintainance of superstition," were held actionable, because they refer to his function, and greatly defame him. That in the case of Lord Mordant y. Bridges (a), the words " My Lord Mordant did know that Prude robbed Shotbolt, and bade me compound with Shotbolt for the same ; and said, he would see me satisfied for the same, though it cost him an hundred pounds, which I did for him, being my 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 *187 " *positive and certain ; but that where they were doubtful and general, and signified only the opinion of the defend- ant, 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 remedying 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 condition for people to live under such circumstances as not to know how to demean themselves towards 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, with- out some particular crime charged upon the plaintiff, or an allega- tion 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 counsellor, or as he is a man of honor and dignity, are ac- tionable at the common law. That in many cases where a man should express" his particular disesteem, an action would [ *188 ] not lie, as if he *had said, " I care not for such a lord," but that words of general opinion and disesteem were ac- tionable, 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. (z) Cro. Eliz. 1. ■ (a) Cro. Eliz. 67. (6) 1 Sid. 293. SCANDALUM MAGNATUM. 188 And in the case of the Earl of Pembroke v. Staniel (c), the words were, '"The Earl of Pembroke is of so little esteem in the country, that no man of reputation hath any est sem for him ; he is a pitiful fellow, and no man will take his word for two-p 1 no man of reputation values him more than 1 do the dirt under my feet;" and they wore hold to be actionable under the statute, though they would not have been so in the case of a private person. And in the case of Ld. Falkland v. Phipps (d), the terms villain, villainous rogue, scrub, and scoundrel, were held actionable. From these cases it appear-, that general expressions of contempt and disesteem i tending to degrade 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 commission of any crimi- nal and disgraceful fact. 'Where words are spoken of a peer, which would he actionable as spoken of a private person, the plaintiff has it at his option (e) 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, Arc. will be considered in common with the corresponding ones belonging to the proceeding at common law. (c) Freem. Rep. 49. 1 Vin. Abr. 510. (e) Per Twisden. Freem. Rep. 49. pi. 58. {d) Comyn's Rep. 449. 19* CHAPTER VII. Special Damage. *Thus far as to damage in lav, that is, as to those com- [ *190 ] munications which are deemed to be of so hurtful a na- ture, that the law presumes a consequent damage without actual proof. In all other cases, some actual specific damage, in fact, is essential to support an action. Here two questions arise, 1. What, in legal contemplation, amounts to an actual 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 dam- age ? The defendant's act affects either rights already acquired, or pre- vents the acquisition of some further benefit or advantage. Where the plaintiff has been wrongfully charged with the com- mission of some crime, if the imputation rest as a bare charge, not officially made in the usual course of a criminal pro- *191 ] ceeding, the party, it seems, has a right to consider *the expense and labor to which he is put for the purpose of manifesting his innocence as special damage. As where the plaintiff, in consequence of an insinuation that he was guilty of murder, was obliged to have an inquest taken on the body of the deceased (/). But if the defendant proceed according to the usual forms of criminal prosecution, though the plaintiff is entitled to recover dam- ages for the scandal, 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 criminal proceeding itself, and cannot recover (as will (/) Per Lord Mansfield. Peake y. Oldham. Cowp. 277. SPECIAL DAMAGE. 191 afterwards be soon) in a common action for any scandalous matter published in the c >f such a prosecution i . Where a party is prevented from - slling, exchanging, or making any advantageous disposition of Lands, or other property, in con- sequence of the impertinent intei if the d ifendant, he may maintain an action for the inconvenience which he has Buffered, but special damage must be shown ; and the mere appre- hension (A) that *iii consequence of the Blander, the [ 'I'.'-J ] plaintiff's title may be drawn in question, will not sup- port an action. Ami it. is not sufficient to show generally tint the plaintiff intend- ed to sell to any one that would buy, but he must prove that he was in treaty to sell them to some specific person (i), or at least that some one was deterred by tin- slander from making an offer. Neither will it suffice to show, that the value of the lands was les- sened in people's opinions, but proof must be given of damage actually sustained. Where the alleged loss consists in the pre- vention of the sale of lands, it must appear that the words directly tended to defeat the plaintiff's title (A:). In Sir W. Gerrard v. Dic/cerson (/), it was said by Wray. C. J. that in all cases where one doth entitle a stranger, it is not ac- tionable, except it be shown that some damage comes to the pro- prietor by it, viz. that he cannot let it or sell it, &c. The defendant said (to), " M. has mortgaged all his lands tor .£100, and has no power to sell or let the same." And. because no special damage nor particular 'colloquium [ *U>o ] was laid of a treaty to sell them to any person certain. but only in general that he intended to sell it to any one that would buy, which is too general, judgment was stayed. In E/broio v. Allen (m), the action was brought for the words "He is but a bastard, 1 ' spoken of the plaintiff, who had lands by descent; by means of which he was put to great expense to de- fend his title. And two of the justices, against the opinion of Dod. eridge, J. decided, that the words were actionable, the plaintiff (£) 3 BI. Com. 126. 10 Mod. 210, 219, (*) Burr. 2622, 220. Str. 691. (O Cro. i:ii/ (h) Cro. Eliz. 197. lVin.Ab.650.pl. (m) Manm i Jit , 8 Keb. 6. Yelv. 80. Cro. J. 642, contra. Et vide Yin. Ah. 658. pL 21. Sty. 169. 176. Cro. J. 397. Sir W. Junes, 19G. Palm. (t) Manning v. Avery, 3 Keb. 1G3. (n) Cro. J. 642. 19 3 CIVIL REMEDY: having averred in his declaration that he was put to a great charge to defend his inheritance (o). T *194 ] *And next, where the. plaintiff is prevented from ac- quiring some benefit or advantage. In general, where the plaintiff i s hindered by the mere wrongful act of the defendant, from succeeding to any preferment, benefit or advantage whatever, he may maintain an action for the special damage. As, if a patron (p) intend to present a divine to a benefice, and the defendant say of him, " He is an heretic, or a bastard ;" for which reason the patron refuses to present him, and he loses his preferment, 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 (#) [1]. (o) But it has been held, that to insti- litigation; for such a party has, by his ma- tute a civil suit, though there be no good licious and impertinent act, subjected an- ground for it, is not actionable, because it other to the trouble and anxiety of a suit t is a claim of right for which the plaintiff and being a wrongdoer, who has no color has found pledges, is amerciable pro falso of right, he stands in a different situation cramore, and is liable to costs, and there- from the plaintiff in the former suit, who fore that no action lies, unless the defend- merely sought a remedy by legal means; ant be maliciously sued,* with intent to and to constitute special damage, it is by imprison him for want of bail. no means essential that any legal right And it may be urged that the plaintiff is should have been abridged. One who does precluded from recovering from the person no more than the law permits may not be who spoke the words which brought his liable, and yet one who, by undue means, title into litigation, since, in contemplation caused him so to act, may be responsible, of law, he has been already satisfied for Thus, if A. slander B. in a discourse with the false claim. C, the patron of a living, and C. in conse- There is, however, a distinction between quence refuse to present B., no action lies an action against a former plaintiff, for against C, but an action lies against A., making a false claim, and an action against though B. never had any legal claim, and one who, by a false and malicious sugges- has lost no right defined by the law. tion, caused him to assert the false claim, (/>) 4 Co. 16. in order to involve the former defendant in (ury, in the British Parlia- ment. The defendant was an elector of the borough. The 1, Iters contained two charges: 1. Imposition and fraud upon the Vice Chancellor in obtaining an injunction; and 2. dishonorable and dishonest conduct relative to a money transaction, and called upon the plaintiff for an explanation at the hustings. Sir W. Follett, for the defendant, submit- 195 CIVIL REMEDY : Loss of marriage seems to have been always considered as a temporal damage (s), although the words themselves have imputed matter of mere spiritual cognizance. (») Davis v. Gardiner, 4 Co. 1G. Roph. Cro. Car. 155. Case of Sir C. Gerald's 36. 1 Roll. Rep. 34, 35, 109. Mo. -'.00 bailiff, Bull. N. P. 7. ted that, as the plaintiff was a candidate for the representation of the borough, and the defendant an elector, the latter was justified in stating to the other electors the imputa- tions complained of, if he did so bona fide and without malice, believing the imputations to be true. Lord Denman, C. J., charged the jury that it appeared to him that the occasion did not justify the publication, and the plaintiff had a verdict. At the next term, application was made for a new trial on the ground (inter alia) that it was justifiable for an elector bona fide to communicate to the constituency any matter respecting a candidate which he believed to be true and material to the election. The principle was conceded by the court to be correct, but was held in- applicable because the communication had not been confined to the constituency of the plaintiff, but had been published in the Morning Post. When Sir W. Follett stated as above, the ground of his application for a new trial, Coleridge, remarked, " You must go farther than that, and make out that the elector is entitled to publish it to all the world. This publication was in a newspaper." Lord Denman, C. J., also after hearing counsel, observed, " However large the privilege of electors may be, it is ex- travagant to suppose that it can justify the publication to all the world of facts injurious to a person who happens to stand in the situation of a candidate." On the other hand, when at a very early day it was said of a candidate for a public office, "he is an ignorant man and not fit for the place," the judges in England, after the case had been twice argued, seemed inclined to the opinion that the words were ac- tionable, but no judgment was given, Saunderson v. Ruddes, March's R. 146, pi. 217, decided in 17 Car. I. Anno Domini 1642. The other case cited in the text, viz. 1 Buls. 138, is that of Simpso i v. Brooks, decided in 1612. It was an action for saying of the plaintiff, " he is not worthy to bear office in such a place, for he keeps a bawdy house in London." The jury bund for the plaintiff, and the defendant moved in arrest of judg- ment, that the v.crl v. i re not perse actionable. It is not stated in Bulstrodc that the plaintiff was, at tlu timeof the speaking of the words, a candidate for office ; but, ad- mitting him to have been a candidate, the question whether the defendant was liable in an action for damages, if a constituent of the plaintiff, and the words were spoken in »ocd faith, in the belief of their truth, and without malice, could not have arisen on a motion in arrest. The next case on this subject, in England, in point of time, is Har- wood v. Asil i, i Bos. & Pul. 47, decided in 1804, which was brought into the Exchequer Cha.Tiber on writ of error from the King's Bench. Astley declared that he was a candi- date for eh ne of the knights of the shire, to represent the county of Norfolk in Parliament, ....id that with the intent to prejudice him in the esteem of the freeholders of the county having a right to vote. Harwood falsely and maliciously charged him with being a murderer, and with-' ing murdered his own father. The defendant pleaded not guilhj 1 the plaintifi jlned a verdict for £2000 damages. The defend- ant sued out a wi U of irror, ".nd the j augment was affirmed. Sir James Mansfield, C. J. who delivered the opinion of the court, held that the words were actionable in them- selves, and being so, it as immaterial whether they were spoken of a candidate for office or not; that it was impossible for the jury conscientiously to have found a verdict for the plaintiff unless they believed that the defendant was guilty of maliciously speak- SPECIAL DAMAGE. 195 In Malheivs v. Crass (l), which was an action for words, occa- sioning loss of marriage ; afteryerdict for the plaintiff, it was urged on motion in arrest of judgment, that this wae the first case where loss of marriage Mas ever laid for words spoken of a man. and there- fore was not warranted by Ann Davis'j >< ). But the court conceived it to be immaterial, in case of loss of marriage, whether the plaintiff be a man or a woman. In order to support an action grounded opon the lose of marriage it is necessary for the plaintiff to allege and prove that a marriage with some specific person (x) was in contemplation, and was hinder- ed by the speaking of the words. (0 Cro. Jac. 323. (r) 1 Roll. SC. 1. 16. 1 Com. Dig. tit. (m) 4 Co. 11. vide infra. Defam. D. 30. ing the words. He added, " It seems to be supposed that the situation of a candidate for parliament is such as to make it lawful for any man to say any thing of him." To that proposition, he said «• I cannot assent; nor is it to be collected from any of the cases which have been cited. It would be a strange doctrine indeed, that when a man stands for the most honorable situation in the country, any person may accuse him with any imaginable crime with impunity." This case at first blush, would seem to dispose of the question, but on looking at it more closely, it will be found not to do so. As the case came before the court on writ of error, no other judgment than that of affirmance could possibly be rendered. The charge against the plaintiff was truly of a must atro- cious nature; yet if made in good, faith, believing it to be true, the defendant had a right to make it, and to apprise his fellow electors of the character of the plaintiff as he believed it to be, and the law would presume him to be innocent of all wrong, until such presumption was rebutted by proof of express malice ; and we are bound to pre- sume that such proof was given, or the jury, as the C. J. remarked, would not hive found that the words were muliciously spoken. This case therefore, as before remarked, settles nothing. The cases upon this subject which have arisen in the Supreme Court of the State of New-York and Lewisx. Few, 5 Johns. R. 1; Root v. />'■ ?, 7 Co wen, B17; /'■ well v. Dubois, 17 Wendell, '•':;, Cramer v. Riggt, 17 Id. 209; and Tamil v. Dollouay, 17 Id. 426, and 26 M. 888, B. C. Leu-is v. Few was an action for an alleged libel contained in " An Address to tho electors of the State of New-York," on the occasion of a general election when the plaintiff was a candidate for re-electkn to the ifficc of Governor. It wafl in- sisted by the counsel for the defendant, that re of the pabli and the right of the citizen freely to disooSfl the oharaoter, princ nduct of a candidate for office, the plaintiff wis not entitled to sustain the action, unless he proved express malice; and that having tailed to do so, he v iVOT. The court denied this position, and held that the malice implied fn DO the falsity of the publi- cation, was sufi&cient to sustain the action; thus virtually holding that a publication of this kind was not entitled to be considered as a privileged communication. The same doctrine was recognized in Root v. King, 7 Cowen, G17. In the three other cases aboTe mentioned, there is co allusion in the opinions pronounced , to the doctrine of privileged communications. Thus stand the cases upon this question. 195 CIVIL REMEDY: [ *196 ] *The necessity of proving a specific loss, falls with pe- culiar hardship upon unmarried females, who arc thereby frequently debarred from maintaining actions for imputations most unfounded and injurious. In no other case can it be more fairly pre- sumed that the scandal, if believed, will produce detriment, than where an unmarried female is charged with incontinence : and there- fore, in no other case- is the plaintiff better entitled, iti reason and good sense, to' the benefit of that presumption, in order to obtain a remedy for the scandal, and, which is of infinitely more importance, an opportunity of fairly meeting and rebutting the calumny. No species of slander can be more cruel and malicious in its ori- gin, none more pernicious in its consequences : yet, unless some spe- cific damage can be proved, or the charge be committed to writing, the suffering party, whose peace of mind is destroyed, 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, 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 inade- quate one) why the temporal courts should not interfere 'to give 'a remedy in damages. [ *197 " *It has been said that were the courts of law in such cases to entertain an action, it would be productive 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 inflic- tion of penance in the spiritual court. This mode of reasoning is evidently fallacious: if a man contrive by one and the same act, to offend against religion, and to do a se- rious temporal injury to his neighbor, 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 temporal, and that, by rendering himself liable to a trifling penance, he shall rid himself of a load of tempo- ral responsibility. The objection, too, falsely assumes, that the payment 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 defendant, or the reformation of his manners ; the reason, at all events, is a strange one to have weighed SPECIAL DAMAGE. 197 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. *Such, however, is the law upon this point though [ *198 ] formerly much doubt was entertained upon it. In Ann Davit's case, (y), the plaintiff declared that Bhe w virgin of good fame, &c. and that one Anthony ESlcock, citizen of London, of the substance of £3000, desired her for his wife, and had thereon conferred with John Davis her father, and was ready to conclude it, when the defendant, knowing the premises, but intend- ing to injure the said Ann, and to obstruct the Baid Anthony's pro- ceedings, published of the said Ann these words, "1 know Davis's daughter well, she dwelt in Chcapside, and then' 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 plain till", it was moved in arrest of judg- ment, that the words were not actionable, because the defamation was spiritual. But it was resolved by the whole court, that the ac- tion was maintainable : 1. Because, if a woman had a bastard, she was punishable by the statute of 18 Eliz. c. 3. 2. That if the defendant had charged barely with incontinence, the action would have been maintainable, since the ground of action *was temporal, namely, that she was defeated | *100 ] of her marriage. But in subsequent cases, (2) 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 (a), it was held that an ac- tion lay for calling the wife " whore," because, by such means, she might lose the communication and society of her neighbors. In Medhurst v. Balsam (6), the plaintiff declared Bhe had eral suitors to marry her; and that the defendant Baid of her, " She is with child and hath taken physic for it;" by which she became in disgrace, and Losl the society of her neighbors. And it was adjudged that the action lay, though uo Loss of marriage was alleged. (!/) 4 Co. 16. (a) 3 Mod. 120. (z) 1 Lev. 261. Sid. 397. Vent. 4. {b) 1 Vin. Ab. 393. pi. 7. Sid. 397. Vol. I. 20 199 CIVIL REMEDY: This doctrine has, however, been overruled in a variety of ca ses (c). In Og-den v. Turner (d), Holt, C. J. observed, " To [ *200 ] say of a young woman that she *had a bastard, is a very great scandal, and for which, if I could, I would encour- age an action ; but it is not actionable, because it is a spiritual de- famation, punishable in the spiritual court." In Byron v. Ernes (e"), 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 action- able, because they were of spiritual cognizance, and that no tempo- ral loss had accrued : that to say, " a woman has a bastard," was never actionable before the statute for the provision of bastard chil- dren ; 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 bastard becomes chargeable to the parish ; that these words were most scandalous of a young woman ; and that, had it been res nova, perhaps an action would have lain, but that there'were many authorities to the contrary. That it was a crime of which the spiritual court had conusance, and could cen- sure ;' 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 Creavesv. Blanchet (/),judg- [ *201 ] 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 action lay at Common Law for what the Com- mon Law took no notice of. In the above case (g-) also, the court said, that if it were res nova, it were reasonable to make the words actionable, for no great- er misfortune can befal a young woman, whose well doing depends upon her having a good husband, that to be reputed a whore ; but the authorities are too many and great to run counter to them ; the reason of them is, that fornication is a spiritual offence, not punish- able at Common Law, and an action shall not lie for charging one with an offence of which the law takes no notice, without special (c) 1 Lev. 261. 2 Keb. 451. 1 Sid. (e) 12 Mod. 106. 3 Will. 3 396. Ld. Ray. 1004. (/ ) Salk. 695. 6 Mod. 148. (d) Holt. B. 40. ($0 6 Mod. 148. SPECIAL DAMAGE. 201 damages ; and if Ann Davis's case had been pursued, as it had I n contradicted, it would do. From these and many similar authorities, it appears, that the judges have long ago ferl themselves overpowered with the number of tin* decisions upon this point, constantly regretting thai they were no 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 on- | *202 ] ly question contemplated seems to have been, whether the words of incontinency < h ) were actionable, as imputing a crime ; and it does not appear to have been much considered, whether they were not actionable on the broad plain ground that they immedi ly tend to hinder the plaintiff's advancement in life by an advanta- geous marriage. It may, perhaps, lie too late to contend, thai the plaintiff i- titlcd to recover upon this general principle; the courts, however, have manifested a desire to administer every relief in their power to plaintiffs of this description, so that the most trifling loss sustained in consequence of such slander, as of a dinner, or other hospitable but gratuitous entertainment (i), will entitle the party to her ac- tion [1]. 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 (/r) *203 ] and receiving voluntary donations. (h) See the first resolution in Ann T.uiu. 89. Davis's rase, i Coke, 10. (I,-) Hartley v. Herring, B T. B (t) Moore v. Meagher, in Error, 1 [1] The refusal of civil treatment at :i public inn has been held sufficient \ special damage, OlmtlejL v. Milter, 1 Wendell 506 ; Loss of health an I t in- capacity to attend to business, was held on demurrer a sufficient averment damage, Bradt v. Towshj, 13 Wendell 268 ; Proof that the plaintiff was ttu from the house of her uncle, and charged not to return there until she had cleared up her character, was held sufficient to Bustaiu an aotion, William* \. Hill, 49 Wendell 305. So an allegation that individuals who had been in the f providing fuel, clothing, and provisions for the ]'laiiititr, refused to do so any longer in the speaking of the slanderous words, complained of, was held sufficient evidence of spe- cial damage, Beach v. Ranney, 2 Hill, 809. In the ' are reviewed ; and it is said they all proceed upon the assumption that the plaintiff had sustained pecuniary loss in consequence of the slanderous words, and that without such assumption the decisions could not be sustained. 203 CIVIL REMEDY: So, the loss of particular customers by a tradesman is an action- able special damage (/)• 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 spe- cial damage ; so that it has been held to be insufficient for the plaintiff to allege, that in consequence of the words, discord hap- pened between him and his wife (n), and he was in danger of a divorce. Or, to allege that the plaintiff (o) was exposed to her parents' displeasure, and in danger of being put out of their house. Or, to say he lost the affection of his mother (j?), who intended him £100. 2. How must the special damage be connected ivith the slander, to constitute a ground of action ? [ *204 ] It was said by Holt, C. J. that " At Common *Law, if a man do an unlawful act, he shall be answerable for the consequences, especially where the act is done with the intent that consequential damage shall follow (. And it has been said that (?/), where, in consequence of the words, a third person has refused to perforin a contract previously made with the plaintiff, and which he was in law bound to perform, uo action is maintainable ; for the plaintiff, in such case, is ■ t, titled to a compensation for the non-performance of the contract ; and. were he allowed to maintain his action for the slander, he would receive a double compensation for the same injury : first, against tin- author of the slander ; and secondly, against the person who had refused to perform his agreement. This doctrine would, in many instances, be productive of hard- ship to the plaintiff: he may resort, it is true, to his legal remedy against the person refusing to perform his contract ; but this can scarcely be considered as a full and *real com- *206 ] pensation to the party, who, by the defendant's wrong- ful act, has had a benefit in possession wrested from him, and con- verted into a bare legal right (.r). (t) 8 East. 1. imputation of murder, was special damage; (u) 2 Bos. & Pull. 284. 8 East. 1. yet there the plaintiff wis under do legal (z) Besides this, he may have been put obligation whatsoever to incur such expen- to great trouble, and to some expense, in ses. If one man, by a wrongful and uu- respect of which he could not obtain any lieioUR act, is the immediate cause of anoth- compensation, in an action for the breach er man's committing another wrongful act, of contract. It is notorious, that no plain- to the injury of the s ime party, there seems tiff, in such an action, recovers the whole to be no objection, on the I of his costs. If it be said, that he does, in policy or morality, to his reoovering legal consideration, recover his full costs, it faction from each, proportioned to the ex- may be replied, that in Buoh actions it is by tent of the d im tg by e i ih : he no means essential that the special dam ge, does not, either in point of law or (act, '".•- which is necessary to support the action, cover a double remedy for the same injury. should amount to strict legal damage. The The dam tge imme liatelj I by the loss even of a gratuitous donation, if it lias slander, that IB, the loss of character and been intercepted by means of the defen- the loss of the immediate benefit of 1 dant's slander, is sufficient to support the tract, '""' ''"' tr »ohle an 1 extra ei action; and in Peake v. Oldham, Cowp. which he must be put to obtain oompensa- 277, Lord Mansfield held, that the expenses tion for the breach of contract, is distin- of an inquest, which had been incurred by guishable from the damage arising from the plaintiff in consequence of a slanderous the breach of contract. 20* 206 CIVIL REMEDY : [ *207 ] *The defendant (jj) 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 attended. But it was held, by the learned judge who presided at the trial, that the injury was too remote ; that if the performer was really injured, an action lay at her suit ; and that it did not appear but that her refusual to perform arose from caprice or indolence. [ *208 ] *The plaintiff having once recovered damages in an action for words, cannot afterwards recover an ulterior compensation for any loss subsequently resulting from the same words (z): Where the plaintiff (a), knowing the defendant's sen- timents, procures the publication of that from which damage results, he will not afterwards be at liberty to ascribe his loss to the defend- ant's act, but be considered as the voluntary author of the mischief which follows [1] If the objection were well founded, it special damage has consisted of loss of mar- would extend to the exclusion of an action riage, where the party who, by reason of to be brought by any servant who was un- the slander, broke off the marriage, wa9 der contract to serve, though the words under a promise to marry. Qu.; therefore were in themselves actionable; for if anac- ^ide Morris v. Langdale, 2 B. & P. 284 tual dismissal from service would not be an See also the case of Newman v. Zachary, actionable damage by reason of the contract, Aleyn, 3, it was held, that case would lie there could be no sufficient presumption of for falsely representing to the bailiff of a damage to support the action. It would be manor, that a sheep of the plaintiff's was absurd to sustain an action upon a mere an astray, in consequence of which it was presumption of evil consequences, and to wrongfully seized. And see Ld. Holt's ob- deny it where the very consequences had servations, ib. resulted. It is also observable, that the (istone, Bl. Lev. 240. Hi I Rep. 1037. Phillips v. Jarwen, 2 Esp. 210 CIVIL REMEDY— INTENTION. ently of the occasion of publishing and the collateral circumstances, or in connection with them. First, independently of the occasion and circumstances. It seems to be clear, as well upon legal principles as on those of morality and policy, that where the wilful act of publishing defama- tory matter derives no excuse or qualification from col- [ *211 ] lateral *circumstance, none can arise from a considera- tion that the author of the mischief was not actuated by any deliberate and malicious intention to injure, beyond that which is necessarily to be inferred from the very act itself. For if a man wilfully does an act likely to occasion mischief to another, and to subject him to disgrace, obloquy, and temporal damage, he must, in point of law as well as morals, be presumed to have contemplated and intended the evil consequences which were likely to ensue. To run the risk of effecting a serious injury to another, even from want of due care and attention, is necessarily an offence against the first principles of morality ; and even were it otherwise, it would be highly impolitic and inconvenient, as a rule of law, to permit every man to destroy the characters of others, provided he was not actuat- ed by motives of express malice, but acted without consideration, heedless of consequences. Every legal analogy which can be called in aid suggests the same conclusion. According to the general and ordinary rules of Law, a remedy is given for every injury, that is, in respect of every wilful privation of right, and throughout the whole of the wide range of decisions on the subject of injury to a man's person or [ *212 ] property, there is, perhaps, not *one to be found where the liability to make compensation is not necessarily and immediately consequent upon a wilful privation of a recognized legal right, in the absence of a legal justification or excuse, arising from collateral circumstances. Thus, in every instance where a forcible injury is committed against the person or property of another, the actual intention of the author of the mischief is immaterial ; it is sufficient that he did the act either wilfully, or even negligently and carelessly : no defence, in such cases, can be founded on the absence of an actual intention to effect the particular mischief, and none can be made in the absence of collateral circumstances, which furnish some legal justification or excuse. In all such cases, it is the policy of the law, to make the party who is in fault make compensation to the extent of the injury, which he has occasioned to one who was blameless ; and the law not only considers him to be in fault, who MALICE IX LAW. 212 wilfully docs an act likely to occasion mischief, but also every one who produces such consequences l>y culpable carelessness and inat- tention, and want of due regard to the interests of others. Such principles apply themselves to the particular case of slander too forcibly to require any labored application. When the law has once defined the right to character and reputation, it fol- lows, as a legal consequence, 'that any one who wilfully *218 ] deprives another of the enjoyment of that right, offends against the law, and is bound to make reparation in damages co- extensive with the injury. If such observations be well founded, it is clear that, if malice be used as descriptive of this species of injury, it must be understood not generally of actual malice, in the ordinary and popular sense of the term, or, as it has sometimes been called, malice in fact, but of malice in its legal and technical sense, as merely denoting that which is to be inferred from the doing of a wrongful act, wi tin ait lawful justification or excuse (c). That such ma/ice in law, is, in the absence of any legal justifica- tion or excuse, arising from collateral circumstances, sufficient to support the action for slander, seems now to be settled by the cur- rent of authorities. Thus, in the case of the King v. Lord Abingdon (//), Lord Ken- yon observed, that "In order to constitute a libel, the mind must be in fault, and show a malicious intention to defame: for if pub- lished inadvertently, it would not be a libel: but where a libellous publication is unexplained by any evidence, the jury should judge from the overt act ; and where the publication contains a 'charge, slanderous in its nature, they should from thence '-'11 ) infer that the publication was malicious." In the case of the King v. Phillips (e), Lord Ellen borough, ob- served, that "In case of libels, where the' publication is proved, the law will infer malice." In another case (/ ). the same- learned judge observed, that "Every unauthorized publication, which is detrimental to another, is in point ^l' law, to be considered a- mali- cious." In the case of the King v. Oreevy (g"), Le Blanc, .1. Baid, that "Where a publication is defamatory, the law infers malice, unless (c) See Starkie on Evidence, title Mai- (<•) 8 East, 470. ice — Intention. (/") Brown v. Croome, StarkieV (,/) 1 Esp. C. 228. (:/) 2 M. ft ft ^To 214 CIVIL REMEDY— INTENTION. any thing can be drawn from the circumstances of the publication to rebut the inference." [a a] In the case of the King v. Almon (A), the defendant, a book- seller, was convicted of publishing a libel, on proof of the sale of the book containing the libel, by a servant of the defendant, in his shop. And it was said, by the court, that this was prima facie evidence sufficient to ground a verdict upon ; that if the defendant had had a sufficient excuse, he might have shown and proved it, and that any circumstances of exculpation or extenuation ought to have been established by the defendant. [ *215 ] * Abbot, L. C. J. in the case of the King v. Harvey (i) stated to the jury, that " The man who publishes slan- derous matter, calculated to defame another, must be presumed to have intended to do that which his publication is calculated to bring about, unless he can show to the contrary, and it is for him to show the contrary." A wanton disregard of the feelings of others, is, in point of law as well as morals, inexcusable ; so that it is no defence for the pub- lisher of a libel, to say that he was but in jest, for, as has been ob- served by a learned writer, the mischief to the party grieved is no way 'lessened by the merriment of him who makes so light of it (&). The mere absence of malice in particular against the party whose reputation is destroyed, and the excuse that the real motive was not malice, but a desire of gain, is no better plea than that which might be used by a hired assassin (/). [« a] See Haire v. Wilson, 9 B. and (I) Haw. P. C. c. 73, s. 14. It is C. 472, where the court of K. B. held, that scarcely necessary to observe here, that where the tendency of the libel was injuri- these observations do not apply where ous to the plaintiff, it ought not to be left words, in themselves offensive, are used in as a question for the jury, whether the de- jest, but without intention to convey any fendant intended to injure the plaintiff [1] injurious imputation, and where the hearers (h) R. v. Almon, 5 Burr. 2686. do not understand the words in that sense; (i) 2 B. and C. 258. such cases fall under a very different con- (k) 9 Co. 59. Moor, 627. Haw. c. 73. s. sideration, for there is not, in effect, any 14. publication of slanderous matter. [1] The doctrine advanced in Haire v. Wilson, is not as it would seem from the above note, that the question of libel or no libel is to be withdrawn from the jury, where the court are satisfied that the publication is libellous. That case only determines that the jury are not to pass upon the intention of the author or publisher, independent of, and distinct from, the publication, but that they must determine upon the tendency of the publication, and find their verdict accordingly. That it is the province of the jury, and not of the court, to pass upon the question of libel or no libel, is clearly settled by the case of Baylis v. Lawrence, 11 Adolph. & Ellis, 920, in which the case of Haire v. Wilson, is reviewed. See also note [1,] page 358, vol. i. infra. MALICE IN LAW. 215 If, however, the inference of malice be a mere *infer- [ *216 ] ence of law, it is capable of being rebutted : but not, it should seem, otherwise than by proof of such an occasion of publish- ing, as furnishes a legal excuse for the act. In the abstract, to deprive another of his reputation, by any wil- ful or negligent act, is immoral and illegal; but the law, for wi purposes, and upon a principle of policy and convenient uns the right to damages, and affords a privilege and protection to many communications, though they deeply affect the characters of individ- uals: but as such a protection depends on considerations of le policy, it is for the law to prescribe its limits and bound;.. And the law does not, as it seems, extend that protection to any case, merely because an actual intention to injure is wanting, and unless some recognized justification or excuse be supplied by the oc- casion and circumstances attending the publication. From some of the older authorities, indeed, it appears to be doubt- ful whether, if the speaker or writer acted without malice, in the com- mon and popular sense of the word, and intending, (it may be, I good, rather than harm, to another, he was civilly responsible for his act. In the case, of Brook v. Sir Henry Montague (to), *Coke cited a case, where a clergyman, in a sermon, re- [ *217 ] cited a case out of Fox's Martyrology, that one Green- wood being a perjured person and a great persecutor, had great plagues inflicted 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 thereupon brought his action upon the case, for calling him a perjured person ; and the defendant pleaded not guil- ty ; and this matter being disclosed upon the evidence, Wray, 0. J. delivered to the jury, that it being delivered asa story,and nol with any malice or intention to slander any, he was not guilty of the words maliciously, and so was found not guilty | // >. And Popham affirmed it to be good law. when he delivers matter after his occasion as a matter of story, and not with intent to slander any. This case, it is to be observod, is no authority for concluding that the mere absence of a slanderous intention may furnish a legal de- fence, independently of a lawful occasion of publishing; for there was in that case, as will be hereafter Been, a lawful occasion which, in the absence of actual malice, supplied a sufficient justification. (m) He cited 14 H. 7, 14. 20 H. 6, 84 (n) Cro. J. 80. 217 CIVIL REMEDY— INTENTION. For the story was delivered by a clergyman, in the course of dis- charging the duties of his sacred office. [ *218 ] *The plaintiff brought an action against one for saying of him, that he heard he was hanged for stealing of an horse ; and, upon the evidence, it appeared that the words were spoken in grief and sorrow for the news. Twisden, J. cited this, as a case which he heard tried before Hobart, J. who nonsuited the plaintiff, because the words were not spoken maliciously, and all the court agreed that this was done according to law (o). It does not appear, from the short statement of this case, what were the particular circumstances of the case ; yet it seems, in principle, that if any one, trusting to an idle rumor, occasions damage to another, either in law or in fact, he is, on the principle of natural justice, liable to render amends. He is at least guilty of negligence, in giving publicity to an injuri- ous and unfounded calumny. The law, in the ample provision which it makes for the convenience and exigencies of society, necessarily regards the occasion and circumstances of publication, and does not afford indemnity from the consequences of publication of injurious and noxious matter, except with a view to some useful and beneficial purpose, [ *219 ] where a party may be supposed to act honestly *and sin- cerely in the execution of some public or private duty. The gratification of curiosity, by the circulation of unauthenticated rumors, can scarcely be regarded as a fit object of legal protection. If so, it follows that every one who ventures to propagate an unfound- ed calumny, to the injury of the character of another, does it at his peril, and that, unless he can show some lawful occasions for publish- ing, that is, some cause for publishing under the particular circum- stances which the law recognizes as affording a sufficient excuse, the total absence of an actual intention to injure will not avail as a justification. It were almost needless to observe thatj in numerous cases, th law gives an injured party a compensation in damages against the author of the mischief, although the latter was actuated by no mischievous intention. Thus, if a party, in the exercise of his 1 aw ful calling or business, casually injure the property or possession of another, he is liable to make compensation in damages, although he had no intention to injure any one. (o) Lev. 82. Mich. 14. Car. 2. 1 Vin. Ab. 540. MALUM' IX LAW. 219 So it is no justification or excuse to a man, thai he published a libel, to the injury of another, merely in the course of his bus and occupation of a printer, for he, as well as others, is "bound so to carry on his trade or business as aot to in- ( *220 J jure others ( />). Th'" late case of Prosser v. Bromagi (jq) affords an illustration of ili >se principles ; and by this decision, the application of the dis- tinction between malice in law and actual malice, ormalice in fact, and the suffi siency of malice in law to support tin,' action, seem to be fully established. The plaintiffs were bankers, and the charge was, that, in answer to a question put by one Lewis Watkins, whether he, the defendant, had said that the plaintiffs' bank had stopped, the defendant's answer was, it was true lie had been told so, thai it was so reported al <'.. and thai no one would take their bills, and thai he had come to town in conscquenee himself. It was proved thai C. D. had told the de- fendant, that there was a run on the plaintiffs' bank at M. Upon this evidence, it was left to the jury to say whether the defendant had acted maliciously and with ill-will towards the plaintiffs, and that they ought to find their verdict for the defendant, if they thought that he had not acted maliciously. After a verdict for the defend- ant, upon a motion for a new trial, the court (of King's Bench) held that the law recognized the distinction between *these two descriptions of malice, viz : malice in fact and [ 'Ji'l ] malice in law. That malice, in common acceptation, meant ill-will against a person; but in its legal sense, it meant a wrongful act done intentionally, without legal justification <>r excuse : and that, in ordinary action for slander, malic in fact was not es- sential : thai malice in law was sufficient, and wa^ to be inferred from the publishing of the slanderous matter, the act being wrongful and in- tentional, and without anyjusl can-" or excuse (r). (p) 2 St. Tr. 7 547. (q) I B. SI C. 247. (c) Bayley, J. delivered the judgment of the court, and after stating the circum- stanc a Fth learned onsidered the words as pro 1 ed, an I he 'I ea not appear to have treated it as a case of privileged communication; but us the defendant < 1 i < I not appear to be ated by any ill-will against the plaintiffs, he told the jury, that if they thought the Vol. I. 21 words were iu>t Bpoken malicoiuly, I they might unfortunately have pi to the pi dntiffs, the defendan to have their verdict; but if they thought them Bpoken maliciously, they Bnould find for tin- plaintiff 1 ; and tin- jury having found for the defendant, the question, upon a for a new trial, was upon the pro- priety of this direction. It' in an ordinary Blander, (not a oi mmunication,) want ut' malioe is a que*- 221 CIVIL REMEDY— INTENTION. [ *222 ] *So if the author of a libel, though he never intend- ed to publish it, were so negligent to keep it, that Hon of fact for the consideration of a jury, And I apprehend the law recognizes the the direction was right; but if in such a distinction between these two descriptions case, the law implies such malice as is ne- of malice, malice in fact and malice in cessary to maintain the action.it is the law, in actions of slander. In an ordinary duty of the judge to withdraw the question action for words, it is sufficient to charge of malice from the consideration of the that the defendant spoke them falsely ; it jury ; and it appears to us that the direc- is not necessary to state that they were tion in this case was wrong. That malice, spoken malieiously. This is so laid down in some sense, is the gist of the action, and in Styles, 392, and was adjudged in error that, therefore, the manner and occasion of in Mercer v. Sparks. Owen, 51. Noy, speaking the words is admissible in evi- 35. The objection there was, that the dence, to show they were not spoken with words were not charged to have been spo- malice, is said to have been agreed, (either ken maliciously; but the court answered, by all the judges, or at least by the four, that the words were themselves malicious who thought the truth might have been and slanderous, and therefore the judg- given in evidence on the general issue,) in ment was affirmed. But in actions for Smith v. Richardson,* and it is laid down, such slander as is, prima facie, excusable, 1 Com. Dig. action upon the case for defa- on account of the cause of speaking or mation, G. 5, that the declaration must writing it, as in the case of servants' char- show a malicious intent in the defendant; acters, confidential advice, or communica- and there are some other very useful ele- tions to persons who ask it or have a right mentary books, in which it is said that to expect it, malice in fact must be proved malice 'is the gist of the action, but in what by the plaintiff; and in Edmonson v. Ste, sense the word malice, or malicious intent, venson, B. N. P. 8, Lord Mansfield takes the are here to be understood, whether in the distinction between these and ordinary ac- popular sense or in the sense the law puts tions of slander, In Weather stone v. upon those expressions, none of these au- Hawkins, 1 T. R. 110, where a master, thorities state. Malice, in common accep- who had given a servant a character, which tation, means ill-will to a person; but in prevented his being hired, gave his brother- its legal sense, it means a wrongful act in-law, who applied to him upon the sub- done intentionally, without just cause or ject, a detail, by letter, of certain instances excuse. If I maim cattle without knowing in which the servant had defrauded him. whose tney are, if I poison a fishery with- Wood, who argued for the plaintiff, insisted out knowing the owner, I do it of malice, that this case did not differ from the case because it is a wrongful act, and done in- of common libels; that it had the two tentionally. If I am arraigned of felony, essential ingredients, slander and false- and wilfully stand mute, I am said to do hood; that it was not necessary to prove it of malice, because it is intentional and express malice; if the matter is slander- without just cause or excuse: and if I tra- ous, malice is implied; it is sufficient to duce a man, whether I know him or not, prove publication; the motives of the party and whether I intend to do him an injury publishing are never gone into; and that or not, I apprehend the law consfders it as the same doctrine held in actions for words , done of malice, because it is wrongful and no express malice need be proved. Lord intentional. It equally works an injury, Mansfield said the general rules are laid whether I meant to produce an injury or down as Mr. Wood has stated; but to every not; and if I had no legal excuse for the libel there may be an implied justification slander, why is he not to have a remedy from the occasion. So as to the words, against me for the injury it produces? instead of the plaintiff's showing it to be * Wills, 24. MALH'i: IN" LAW. through mere *inadvertence, the contents became public, to [ "223 ] the detriment of another's reputation, he would no doubt, false and malioious, it appears to be inci- dent il to the application by tin; intended master for the character, and Bnller, .1. said tliis is an exception to the general rule, on account of the occasion of writing. In actions of tins kind, the plaintiff must prove the words " malicious " as well as false. Buller, J. repeats in Pasley v. Freeman, 3 T. It. 61, that for words spo- ken confidentially upon advice asked, no action lies, unless express malice can be proved [1]. So in Hargrove v. Le Breton, 4 Burr. 2425. Lord Mansfield states that no action can be maintained again master for the character he gives a servant, unless there are extraordinary circumstan- ces of express malice. But in an ordinary action for a libel or for words, though evi- dence of malice may be given to increase the damages, it never is considered as es- sential; nor is there any instance of a ver- dict for the defendant on the ground of want of malice. Numberless occasions must have occurred, (particularly where a de- fendant only repeated what he had heard before, but without naming the author,) upon which, if that were a tenable ground, verdicts would have been sought for and obtained, and the absence of any such in- stance is a proof of what has been the general and universal opinion upon the point. Had it been noticed to the jury how the defendant came to speak the words and had it been left to them, as a previous question, whether the defendant understood Watkins as asking for information for his own guidance, and that the defendant spoke what he did to Watkins merely by way of honest advice, to regulate his duct, the question of malice in fact would have been proper as a second question to the jury, if their minds were in favor of the defendant upon the first; but as the previous question I have mentioned was never put to the jury, but this was treated as an ordii : Blander, we are of opinion that the question of malii oght not to have been left to the jury. It was, however, pressed npon us with oonsider- brce, that we onght not to grants new tri d, on the ground thai the evi L< did • • any of the OOUUtS in the declaration; but upon carefully attending to the declaration and the evidence, we think we are not warranted in Baying, that there was no evidei to go to the jury to support the declaration, and had the Icirned judge intimated an opinion that there was no such evidence, the plaintiff might have attempted to Supply the dl ' We, therefore, think that we cannot pro- perly refuse a new trial, upon the ground that the result upon the trial might have been doubtful. In granting a new trial* however, the court does not mean i that it may not be proper to pat ' tion of malice as a question of fact for the consideration of the jury; for if the jury should think, that when Watkins his question, the defendant understood it as asked in order to obtain informati regulate his own con luct, it will i under the olass of privileged communica- tions, and the question of malice, in hot, will then be a necessary part of the jury's inquiry: but it dot 9 not appear that it left to the jury, in this case, to ooi - whether this was understood by the defend- ant, as an application to him for a i vice, and if not, the question >.'( < improperly left t" their consideration. V7e are, therefore, of i pinion, that the rule for a new trial must be absolute. Iii the a ise of Dan i i •• l' ■ B. & C 685, Abb.. n, L C. .1 - •• I t ike it to b ll rule, th r an B it, unlawful in itself and injurious t" an- other, is oonsi lere 1 b ith in law an 1 re [1] In Van Spike v. Cleyson, Cro. Eliz. 541, it was hel 1 not to be actionable for on e man to tell another confidentially, not to trust a merchant for (it was said) it is only by way of counsel. 223 CIVIL REMEDY— INTENTION. [ *224 ] be considered amenable in damages. He had no right *to place the character of another in jeopardy without lawful excuse, and, in law as well as morals, is responsible for the [ *225 ] injury which his culpable *negligence has occasioned. The legal principle on which such responsibility is found- ed, is clearly delivered in Buller's Law of Nisi Prius. Every man ought to take care that he does not injure his neigh- bor ; and, therefore, whenever a man receives a hurt [ *226 ] 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 sus- tained (tf). This principle comprehends not only the instance just mentioned, where a writing not intended to be published, is nevertheless, divulged for want of care, but every case in which a noxious publication re- sults from mere levity or thoughtless jocularity ; for though the actual intention to produce mischief might not at the moment actually in- fluence the mind of the defendant, yet he was gnilty of a wilful in- vasion of the natural and absolute right of another man, — an act for which, in point of natural justice, he is responsible, and from which', malice, in its legal sense, is necessarily to be inferred. The plea of minority affords no defence to an action [ *227 ] *for slander or libel, though a precedent is to be found of a plea that the defendant was an infant, within the age of seventeen (r), the validity of such a plea was denied by Lawrence J. in the case of Woolnoth v. Meadows (s). And Lord Kenyon expressly stated, that if an infant utter slander, he is responsible for it in a court of justice (f). But though actual malice be not essential to civil liability, and though it be sufficient that the defendant has acted wilfully, or even negligently and carelessly, without a due regard to the char- acter and reputation of another, yet still the mere act of communi- cating that which is slanderous, will not subject a party even to civil liability, without some degree of culpability on his part. If, for instance, a servant or agent were, in the ordinary course of his duty, to deliver a sealed libel, without any knowledge of its con- to be done maliciously toward the person (7) B. N. P. 95. injured, and this is all that is meant in a (r) Com. Dig. Pleader, 2 L. 2. declaration of this sort, which is introduced (s) 5 East. 411. rather to exclude the supposition that the (0 8 T. R. 337. See also Bac. Ab. tit. publication had been made on some inno- Infancy. Starkie on evidence, tit. Infant, cent occasion, than for any other purposes. MALICE IN LAW. 227 tents, though ho were thus the actual instrument of publics yet if he acted but as th ■ agent of another, without any reason for suspecting that any wrong was inteD I" I. be would not Bubject 'himself to any civil, still less I i any criminal, | 228 J responsibility. This application of a plain ami general principle of natural jus- tice, is too obvious to require further observation in this pla CHAPTER IX. Justification — Truth. [ *229 ] *Having thus observed upon the question of intention, as considered independently of the occasion of publish- ing and of all collateral circumstances, the subject is next to be considered in reference to the occasion and circumstances of the act. These may either constitute an absolute and peremptory defence to the action, independently of the question of intention, or they may supply a qualified or conditional justification, dependent on the actual intention > of the party. The former class, where the defence is wholly independent of the question of actual intention, is subject also to a distinction, depend- ent on the existence or non-existence of a probable cause for the act. In the first place," the defendant is justified, in law, and exempt from all civil responsibility, if that which he publishes [ *230 ] be true (a). For, as has *already been observed, no one, in point of natural justice and equity, can have any title to a false character ; he can show no legal interest in the sup- pression of the truth, or in the continuance of error ; it would be inconsistent with every sound legal principle and analogy, to allow him to recover damages for an injury to that which be either does not, or at least ought not to possess ; and it would be contrary to the plainest and most obvious principles of public policy and con- venience, to permit a man" to make gain of the loss of that repu- («) It may, perhaps, be doubted, (as truth as a collateral ground of defence; has already been suggested, supra, p. 7,) and some reasons, principally technical, whether it might not be more correct to have been assigned for adoptiug the latter consider the falsity of the slander as of the course. Supra, p. 5, in the note, essence of the wrong, than to treat the ABSOLUTE JUSTIFICATION— TRUTH. 230 tation and character in society, which he had justly forfeited by his misconduct ( b ). Sir William Hlackstone (r), in his Commentari •seems to consider the defendant's exemption, in this in- | '- : '-l ] stance, as extended to him m consideration of his mi in having warned the public against the evil practices of a delin- quent. He says, that ii is damnum absque injuria, intimating that the act of the defendant does not constitute a wrong in it- Legal sense; and then proceeds to observe, that this lable to the reasoning of the civil law. l - /•.'///// qui nocenlem infamavit non est cequum et bonum ob earn rem condemnari, peccata enim nocenlium cognita esse et oportere el expedire." Notwithstanding this, there seems to 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 he seen, it is considered a- >m-h in the crim- inal proceeding, and if the act be justifiable, because it confers public benefit, it must be so to all legal purposes; for it would savor too much of paradox to say, that in respect of an individual claiming a private compensation, the act is innocent, because it is beneficial to the public, but that, in relation to the public so bene- fited, the same act is wrongful. It may, therefore, be more consistent to consider the 'plaint iff as having ex- [ *2G2 ] eluded himself from the protection of the law by his own misconduct, than to attribute the exemption to any merit ap- pertaining to his adversary. When a plaintiff is really guilty of the offence imputed he does not offer himself to the court a- a blameless party seeking a remedy for a malicious mischief; his original misbehaviour taints the whole transaction with which it is connected, and precludes him from recovering that compensation to which an innocenl person would be entitled (c). (l>) Sec Preliminary Discourse. By action cannot be maintained for an alleged shoving the truth of tlic slanderous At- libel against the plaintiff, in bis vocation ter, you do not showthat it was not mali- »s an exhibitor of sparring mat ciously spoken or published, but merely v. B . 1. that the party is not entitled todamages, (c) 8 Bl. Com. 126. But although the because he is guilty of the charge imputed, doctrine of the civil law. ii. raofa Per Holroyd, J. in the oase of Fairtnanv. actions, is by i free from. Ives 5 15. & A. G4G. rity, tiwdefence u ly t>> have On similar grounds of public policy, it limited to those insl ere the public has been held, that a man cannot recover was benefited by a publication of the truth. damages for any defamation which affects Bee Preliminary Discourse, xxxvii. him merely in respect of some illegal trade (c) Sec Preliminary Discourse, xxxi. or occupation. Thus, it seems, that an 232 CIVIL REMEDY— OCCASION OF PUBLISHING. That the truth was a good justification, docs 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 author- ities upon this point, though not numerous, fully establish the valid- ity of such a justification. In the case of the King v. Roberts (c/), Lord Hardwicke, C. J. is said to have, thus expressed himself on a motion for an infor- mation 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 mistake, such a thing was never thought of in the case [ *283 ] of Harmanv. Delany (e). I *never heard such a justi- fication in an action for a libel even hinted at, the law is too careful in discountenancing such practices ; all the favor that I know truth affords in such a ease is, that it may be shewn in mitiga- tion of damages ; and of the fine in an indictment or infor- mation " [1]. Aud in another case, it was said by Lee, C. J. (/) (upon the trial of the defcudaut upon an information), 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. Bicker- ton (#•), the Chief Justice (Ji) observed, (upon a motion for a crim- inal information), that though truth be no justification for a libel, as it is for defamatory words, yet it would be sufficient cause to pre- vent the extraordinary interposition of the court. (d) B. R. M. T. 8. G. 2. MSS. 3 Bac. (/) Sel. Ni. Pri. 1st ed. 929. Ab. 455. Dig. Law. Lib. 16. Sel. Ni. Pri. (g) Str. 498. 1st Edit. 929. (h) Sir J. Pratt. (e) Str. 898. [1] Lord Hardwicke in Michaelmas term, 8 Geo. II. A. D. 1735, spoke of the truth being given in evidence in mitigation of damages, and in Underwood v. Parks, 2 Strange, 1200, Mich. T. 17, Geo. II, it is safc the defendant offered to prove the words to be true in mitigation of damages ; and it is still often said that the truth cannot be given in evidence under the general issue either in bar or in mitigation of damages. ' In the time of Lord Hardwicke, it was denied not only by him, but by oth- ers, that the truth could be given in evidence in bar of a recovery, and there was therefore no inaccuracy in speaking of giving the truth in evidence in mitigation, for it was then admissible for that purpose ; but since it has been conceded on all hands, that the truth may be given in evidence in justification of the words spoken, it is in- accurate and calculated to produce a confusion of ideas, to speak of giving the truth in evidence in mitigation of damages ; for if the truth of the words can be shown, the defendant is entitled to claim not merely that the evidence be received in mitigation of damages, but that it shall operate as a bar to the recovery. ABSOLUTE JUSTIFICATION— TRUTH. 233 In tho last two cases, the dicta of the learned judges cannot bo but understood as spoken with reference to the criminal proceeding before them, and therefore as no authorities in reaped of an action. — On the other hand, Hobart, C. J. in the case of Lake v. Halton (i), said, that a libel, though 'the contents be [ *2S4 I true, may lie justified in an action upon the C And Holt, C.J. laid it down expressly, that "A man (A), may justify in an action for words or for a libel', otherwise in an indictment." In the case of T Anson v. Stuart (/), 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 defendant's right to avail himself of a defence of that nature. 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 spok- en (ni), he adds, " What was said with regard to words spoken, will also hold in every particular with regard to libels by printing or writing, and the civil action consequent thereupon. («) With respect to an action for Scandalum Magnatum, it was re- solved in the Earl of Northampton's case (o), that " the publishing of false rumors, either concerning the king or of the high *grandecs of the realm, was in some cases punishable by [ *23o ] the Common Law ; but of this were divers opinions. Ye\ 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. (//) was of opinion, that under the statute, the de- fendant 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 tin; special matter either in pleading or evidence. And in Lord Cromwell's case ( 7 ), the defence in such an action seems to have been considered on the same footing with a common action of slander. The general rule, therefore, seem- to be, that in an action for words, their truth is a good justification | 1 1. (0 Hob. Rep. 253. 126, 11th Ed.; mil Bdwjn'a Ni." 1'ri. 1st (ft) 11 Mod. 99. el 929. (/) 1 T. 11.748. (o) V2 Hop. 1. (m) 3 Bl. Com. 125. (jt) 2 Mod. L60, («) See also 3 Wood. 182; 3 Bl. Com. (q) 4 Co. 13. [1] Until 1792 when the judges of England give their opinion in parliament upon questions put to them ou the Libel Bill, the only authorities for the position that a do- VOL. I. 22 235 CIVIL REMEDY— OCCASION OF PUBLISHING. The plaintiff was charged as accessary to a felony, the principal havin<>- been acquitted : and it was held to be competent for the de- fendant to go into evidence to prove his guilt, because what had passed between others could not affect him (r). Where (s) the words imputed a charge of murder, for [ *2oG ] which the plaintiff had been tried and acquitted *it was held that the defendant might justify specially, and that the truth of such plea might be tried. And it has been said that where the defendant justifies specially, by pleading the truth of a capital offence imputed to the plaintiff (0, on such issue being found against the plaintiff, he may be put upon his trial for the offence without intervention of a grand jury. The justification must be pleaded, and proved with great precision. Thus if the defendant tax the plaintiff with having feloniously stolen a sum of money, it will be no justification that the plaintiff had in fact (w) stolen some other personal chattel [1] . So where the defendant (a;) said of a counsellor at I" *237 ] *iaw, " You are a paltry lawyer, and use to play on both hand's." The defendant justified as to the latter words, (r) Cook v. Field, 3 Esp. C. 133. of murder, she -was thereupon tried and (s) England v. Bourke, 3 Esp. C. 80. convicted at the King's Bench Bar, and (/) 3 Esp. R. 133. Cook v. Field. Many carried down and burnt in Berkshire, remarkable cases have occurred, where the And the Chief Justice mentioned the plaintiff's action for slander imputing the case of a plaintiff who brought his action, commission of a crime, has occasioned his the defendant having called him a high- prosecution for, and conviction of the im- wayman; upon the trial it appeared that puted offence. In the case of Johnson v. he was one; he was taken in court, corn- Browning, 6 Mod. 217. Ld.Holt, C; J. cited mitted to Newgate and hanged. a case (Pigot's case, Cro. Car. 383.) where And Darnell (adds the reporter) remem- a mother recovered damages against her bered the like fate, which befel a client of son-in-law for having maliciously prosecut- his. ed her for the murder of his father. He, (u) Cro. J. 676. to requite her kindness, b ought an appeal (x) Cro. J. 267. fendant might plead the truth of a libel in justification were the dicta of Hc~ bart, C. J. in Lake v. Hatton, Hob. R. 253, and of Holt, C. J. in an anony- mous case, 11 Mod. 99, and the acquiescence of the bar and the court in J' Anson v. Stewart, 1 T. R. 748. See Holt's Law of Libel, p. 280. Since then, how- ever, are the cases of King v. Parsons, in which Lord Kenton, before whom the cause was tried in 1799, observed that it was competent for a defendant in an action for a libel, to plead the truth of the supposed libel in justification; and of Plunket v. Cobbett, tried before Lord Ellenborotjgh in 1804, in which that learned judge observed in his remarks to the jury, " in case the libel had been true it would have been open to the defendant to have justified it on the record." [1] See to the same effect Andrews o. Van Duzer, 11 Johns. R. 38; Van Ness v. Ham- ilton, 19 Id. 349. ABSOLUTE JUSTIFICATION'— TRUTH. 237 that the plaintiff had devised certain articles against F. R. concern- ing misdemeanors Bnpposed to have been done by him, and after- wards promised F. R. that he should not be molested l>y reason of the said articles; and yet, notwithstanding, by the procurement of others, the plaintiff endeavored to prosecute F. R. apon the articles, before the chancellor and commissioners of the Archbishop of Can- terbury; and the plea was held to be bad on demurrer. No suspicion, however strong, will amount to a justification l >n. Neither is common fame any ground for justifying an extrajudicial charge ( c ). In Cuddinglon v. Wilkin* (a), which was an action for publish- ing these words of the plaintiff, "He is a thief:" tic- defendant pleaded, that the plaintiff had been guilty of Btealing six sheep. The plaintiff replied that after the felony, ami before the publication of the words, he had been pardoned by a general pardon. Upon a demurrer, *this replication was holder) to be good, [ '238 ] 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 case, whether the pardon be general or special, of which the defendant might have been ignorant, for that every person who pub- lishes slanderous words does it at his peril. But it was said, that if he had been convicted and pardoned after- wards, it would be otherwise. But (b'j a pardon after a conviction of perjury will not restore the perjured person to his credit. It has long been settled (c), that the truth, if relied npon as a justification, or even in mitigation of damages [1]. must be pleaded. And as the degree of certainty and precision necessary t" complete a justification of this nature is inseparably connected with the form and rule of pleading, further remarks upon this topic will be re- served for the division in which the technical mod,' of framing the plea is considered. (j/) Powell v. Plunkett, Cro. Car. 52. (/,) Sid. 92. (z) Hutt. 18. Bridg. 62. Brownlow, 2. (c) Str. 1200. («) Hob. 81. [1] See note [1] p. L'SG, supra. CHAPTER X. Op Publications made in the Course of Parliamentary or Judicial Proceedings. " *239 ] *The law, also, without regard to the question of in- tention, and on grounds of obvious policy (a), repels the claim to damages in respect of any publication duly made in the ordinary course of a parliamentary or judicial proceeding. In the first place (6), it seems that no member of either house is in any shape responsible in a court of justice for any thing said in that house, however offensive the matter may be to the feelings, or detrimental to the interest of any individual (c) ; for policy requires that those who are by the constitution appointed to provide for the safety and welfare of the public, should, in the exe- [ *240 ] cution of their high functions, be wholly uninfluenced *by private considerations. Accordingly, in such cases, (as has been asserted by a high authority (d~), courts of law possess no jurisdiction. But the privilege does not extend beyond the walls of the house to which the member belongs ; and a peer, who publish- es (e), libellous matter in the public prints, as having constituted part of his speech in parliament, is as open to an action or prosecution as any private individual [1]. (a) See Preliminary Discourse. Rights. 1 W. & M. st. 2. c 2. See 1 Bl. (b) 1 Esp. R. 226. C. 164* (c) By 4 Hen. c. 8. members of parlia- (d) Lord Kenyon, in the Kjpg v. Lord ment are protected from all charges against Abingdon. 1 Esp. Rep. 226. them for any thing said in either house. (e) R. v. Lord Abingdon, 1 Esp. R. 226. And this is further declared in the Bill of R. v. Creevy, 1 M. & S. 273. [1] By the Constitution of the United States, Art. 1, § 7, it is ordained that for any speech or debate in either house, the senators and representatives in congress, shall not be questioned in any other place; and a similar provision is to be found in the constitu- tions of Tuost of the states of the Union in respect to the members of the state legisla- tures. * See Coffin v. Coffin, 4 Mass. R. 1. JUDICIAL PROCEEDINGS. 240 The same rule, as to impunity, suggested and governed by similar principles, applies, to judges, jurors, and witnesses, in respect of any thing published by them in the conrse of a judicial proceeding. Certain charges (/). having been preferred by the plaintiff against an officer of his own regiment, the court martial, after ac- quittal, subjoined the following declaration : "The court cannot pass, without observation, the malicious and groundless accusations that have l a produced by Captain J. against an officer whose character has daring a long period ofservi been so irreproachable as Colonel Stewart's: and the court do unanimously declare, that the 'conducl of *241 ] Captain J. in endeavouring falsely to calumniate 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 appear- ed, 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 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 honorably acquit him." The plaintiff was nonsuited. And afterwards a new trial was refused, on the ground that the words complained of formed part of the judgment of acquittal. [1] So it is held, that no presentment (#•), by a grand jury ran be a libel, not only because persons who are supposed to be returned without their own seeking,, and arc 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 in any way to discourage *thcm from making their inquiries | *242 ] with that freedom and readiness which the public good requires. ( /*) 2 N. R. 341. \;itions of the court in Johnson v. Button, () ; but that, in the principal case, the printing them (which is a publishing of them to the printers and compositors,) was not so great a publication as to have so many copies transcribed by several clerks. It appears to have been urged in favor of the plaintiff, that the complaint was made to a court which had not power fco redress it. But in the case of Kemp v. Gee (. & C. 24, it was hell to be no answer to the action, that the matter published by the defendants was a ooi I what actually took place in the ) » ite, inasmuoh as it appeared that he v. is not then called on to act, either in a judicial or magisterial capacity. (i) 1 Co. 14. [1] An action of slander does not lie for a charge of a criminal ollenec made to a magistrate on which a warrant issues, although the accused be discharged after examin- ation, Schoc/c v. McChesney, 2 P. A. Browne's It. 6. App. 252 CIVIL REMEDY— OCCASION. 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 impropriety of process and want of jurisdiction must concur to deprive the defendant of his justification ; 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 jurisdiction in the particular instance, yet that the proceeding by writ of appeal was in the nature of a lawful suit. [ *253 ] *In Lake v. King- (Zc), 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. Powell, 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. Serjeant Hawkins (hi), 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 manifestly appear, from the whole circum- stances of the case, that a prosecution is entirely false, malicious, and groundless, and commenced not with a design to go through with it but to expose the defendant's character under a shew of legal pro- ceeding, I cannot see any reason why such a mockery of public jus- tice 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 proceeding [ *254 ] *a good foundation of an action on the case, at the suit of the party, whether the court had jurisdiction or not." From these authorities it may be collected generally, that an ac- tion of slander cannot be maintained for any thing- said, or other- wise published., either by a judge, a parly (w), or a witness, in the due course of a judical proceeding, whether criminal or civil, though for a malicious and groundless prosecution, an action, and perhaps an indictment, may be supported, founded on the whole proceed- ing (o). (Zr) 1 Vin. Ab. 389, notes to pi. 67. ( n ) As to the case of an advocate, vide (0 2 Lut. 1571. infra, (wi) PL Cr. 73, s 8. See also Serj. ( ) vide infra. William's note, 1 Saund 132. JUDICIAL PROCEEDINGS. 264 It must, however, be recollected, that the justification does not extend to any publishing which the usual course of judicial proceed- ing does not warrant. Thus, in Lake 7. King, the Lrreat doubt was not whether the exhibiting the petition to parliament was lawful or not, but whether the defendant was warranted in printing and pub- lishing it in the manner alleged ( p ) in his plea. Ami so, in the case of Hare v. Mt H> r ( q >, it was adjudged to be lawful to presenl a petition to the queen, though reflecting upon the character of the plaintiff; but deemed to lie actionable afterwards 'to divulge the contents to the disgrace of '-■">•"> ] the person intended. And though it be matter of public policy, that, the causes for the exercise of authority in the dismissal of an officer Bhould be made known, yet it seems that such a publication must be limited accord- ing to the naturc^of the official duty of the defendant. Thus in the case of Oliver v. Bentinck (?<)> although it was held that the defendant, being Governor in Council of Fort St. G would be justified in publishing, according to the fact, that the ( '< >urt of Directors had resolved to dismiss the plaintiff from the service for a gross violation of the trust reposed in him as commanding offi- cer of the Molucca Islands, and that he, the defendant, had been ordered to erase his name from the army list, yet it was held, that it was essential to the defendant's plea to show on what account it was part of his duty to publish the alleged libel (x). (p) 1 Saund. 132. Lawrence, J. said, " I suppose the plain- er) 3 Lev. 169. See also 4 Rep. 14. tiff's object was to lay before a jury the See R. v. Crccnj, 1 M. \ S. -J73, and the circumstances of this genl nduct, ensuing chapter. . by a question to be raised on this r (u) o Taunt. 456. that could never be permitted in this form; (x) And for want of showing this, the but the plea IS certain!. forth* plea was held to be defective, but leave order is issued to the governor in oounoQ; was given to amend. and it is not Bhown that what the defend- Mansfield, C. J. observed, that it was ant did, he did as governor in council; lie better for the company, for the country, only pleads that he did it as g and for the plaintiff himself' (according to d< the report,) that the cause of his dismissal this in his individual capacity as governor, should be stated, than that it should be Chambre, J. " The only doubt I have is, supposed that the East India Company did that the on what ac- it suo arbilrio. count it became an act in the execution of Heath, J. observed, that it was the con- the defendant's doty to publish this. I'm stant practice here, that when a delinquent we Boppose that I it t" publish has been brought to a court martial, the it in hind-bills and newspapers : The commander in chief has directed the sen- only authority he shows i> t':- erasing tin tencc to be read at the head of every regi- name from the army list, nut for the publi- ment. cation. Vol. I. 23 255 CIVIL REMEDY— OCCASION. *Where, however, a party claims title to an estate, to [ *256 ] the injury of the real owner, though he does it extra- judicially, yet is he not liable in an ordinary action for slander of title, but the plaintiff must recover, if at all, by means of a special action on the case, shewing that there was no color or probable cause for the claim (y). (y) Sir G. Gerard v. Dickenson, 4 Co. 28. Goulding v. Herring, infra, 290. CHAPTER XI. Parliamentary and Judicial Reports. 'Upon the question, how far the reporting of parlia- mentary proceedings can be deemed libellous some dif- [ *257 fcrence of opinion has prevailed. " Upon an information against the defendant, for publishing (a) " Dangcrfield's Narrative," he pleaded that he was, at the time of the publication, Speaker of the House of Commons, and, as such, had a right 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 (6). But in the King- v. Wright (e), an application was made to the Court of King's Bench to grant a criminal information against the defendant for printing and publishing a libel on an indi- vidual. Upon *the defendant's affidavit, it appeared that [ *258 j the charge complained of was a paragraph contained in the report 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, 1 think there was no: the least pretence for the motion ; the application supposes that the publication is a libel, but it is impossible to admit that the proa ing of cither of the houses of parliament Is a libel. " The case of Sir W. Williams, which was principally relied on, happened in the worst of times, but that has no relation to the pres- ent case. There the publication was the paper of a private indi- (a) R. v. Williams, 2 Show. R. 471. Kenyon, C. J. and Grose, J. giving judg. Comb. 18. See Sir R. Atkyns on the Power ment in the King v. Wright, 8 T. R. 'J'J3. of Parliament. (c) 8 T. R. '2M. (6) This case was reprobated by Lord 258 CIVIL REMEDY— OCCASION. vidual, and under pretence of the sanction of the House of Com- mons, 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 proceedings of this court, I find no instance of such an information as the present ; the case of Sir W. Williams is most like this but it must be remembered, that that was declared by great authority to be a disgrace to the country." [ *259 ] *Lawrence J. observed, " It has been said, that the publication of the proceedings in the courts of justice, when reflecting on the character of an individual, is a libel ; to sup- port which position, the case of Waterfield v. the Bishop of Chi- chester has been cited (d) ; but, on examining that case, it appears that the charge there was, that the plaintiff had not published a true account. The proceedings of courts of justice are daily pub- lished, some of which highly reflect on individuals, but I do not know that an information 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 public. Not many years ago, an ac- tion was brought in the Court of Common Pleas by Mr. Curry (e), against Walter, the proprietor 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 information against Mr. Curry. 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 pass- ed in this court ; and in this opinion the Court of Common Pleas afterwards, on a motion for a new trial, all concurred, [ *260 ] 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 individual, the having these proceedings made public more than counterbalances the inconveniences to the private persons, whose conduct may be the subject of such proceed- ings. The same reasons, also, apply to the proceedings in parlia- ment ; it is of advantage to the public and even to the legislature besides, that true accounts of their proceedings should be generally circulated, and they would be deprived of that advantage if no (d) 2 Mod. 118. (e) 1 B. & P. 525. JUDICIAL REPORTS. 260 person could publish their proc without being punished as a libeller." " Though, therefore, the defendant was not authorized by the Eonse 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." This case calls for Beveral observations. En the first place the only question before the court was. whether under the circumsl they would permit a criminal information to be filed, a matter which is usually regarded as discretionary. In the next place it ie to be remarked that, although, the Learned judges gave reasons for refus- ing the rule, which if well founded would go to the general e of sanctioning all true reports of parliamentary and ju- dicial proceedings; yet thai, according 'to several late '_ 1 decisions, the legal privilege of publishing such proceed- ings Is subject to very considerable limitations. And, that the authority of this case to so great an extent has been much tioned (/). Notwithstanding the analogy assumed to exist between the pub- lication of parliamentary proceedings and judicial reports, there seems to be a wide and manifest distinction between them. With respect to many parliamentary proceedings, so far is it from being legally essential to the interests of the public that they should lie divulged, that a party who publishes them is in strictness guilty of a breach of privilege. Courts of justice, on the other hand, are open to all, the common law of the land, is to be Learned principally by attention to the practice and proceedings of such court-, and therefore it is of essential importance to the public that such ] pro- ceedings should, to a great extent at least, be communicated to all. And the court in holding, that no parliamentary proceeding can be deemed libellous, seem to have regarded the subject too abstractedly, and without 'reference to the time, occa- [ *2 sion, and circumstances attending the publication. The question whether a particular publication shall be deemed to be illegal or even criminal, may depend not merely on the matter published, but on the occasion and circumstances of the publishing. It frequently happens, that the publication of that which is injurious (/") Seethe observations of Lord Ellen- Carlile, 8 B - A. 17. I. - r. Clement, borough, C. J. aud Grose, J. in Stiles v. 8 B. .v A. 702. Flint p. Pike, I B. .V C. Nokes, 7 East 493. R. v. Fisher, •-' Camp. tT ;: - 563. R. v. Fleet, 1 13. & A. 37'J. U. v. 23* 262 CIVIL REMEDY— OCCASION. is not justifiable, although the original publication was privileged and sanctioned by the particular occasion and circumstances (g-) . Thus in Lord Abingdon's case, it was held that a peer who publishes libellous matter in .the public prints, as having constituted part of his speech in parliament, is as open to an action or prosecution as any private individual (A). [ *263 ] And in the case of the King v. Creevy (i), it *was held, that a member of the House of Commons was liable to be convicted on an indictment for a libel, in publishing in a news- paper the report of a speech, delivered by him in the house, which contained libellous matter upon an individual. On principles of public convenience the ordinary rule is, that no action can be maintained in respect of fair and impartial reports of a judicial proceeding. This rule is subject to several natural and necessary limitations ; first, as to the subject matter of the report, and secondly, as to the matter in which the proceeding is reported. [ *264 ] *Fjrst as to the subject matter. As the privilege in such cases is founded upon grounds of public policy and con- venience, it ceases where the nature of the investigation is such, that to publish it would obviously be offensive and injurious to the public, as where it involves blasphemous or indecent matter. Where (g) See Lake v. King, 1 Saund. 131 malice, unless any thing can be drawn supra. There it was held that the print- from the circumstances attending the pub- ing a petition to the House of Commons, lication to rebut that inference, and left for the use of the members of that House, them to say whether the circumstances did was justifiable, because that was according rebut that inference; informing them that to the ordinary course of proceeding, but in point of law, the circumstances of its that any other publication not authorized being a publication of a speech delivered by parliamentary practice would have been by a member of the House of Commons, illegal. So in the case of Flint v. Pike, 4 did not rebut it. The jury found the de- B. & C. 473, it was held that it was not fendant guilty, and the Court of King's justifiable to publish the speech of a coun- Bench afterwards held that the conviction sel reflecting on the character of an indi- was proper. Lord Ellenborough in refer- vidual, although no action was maintaina- ence to the observations of the court, in the ble against the counsel. case of The King v. Wright, said he should (A) R. v. Lord Abingdon, 1 Esp. C. '226. hesitate in pronouncing it to be a proceed- (i) 1 M. & S. 273. Le Blanc, J. at the ing in parliament. He also observed that trial, in summing up to the jury, informed when it became necessary to discuss the them that they were to consider, whether case of Curry v. Walter, he should say, the publication tended to defame the that the doctrine there laid down must be prosecutor; that he was of opinion, understood with very great limitations, and that it did, but left the question to that he should never fully assent to the un- them. He further stated that where the qualified terms attributed in the report of publication is defamatory, the law infers that case to Eyre, C. J. JUDICIAL REPORTS. 264 llie very object of the inquiry was to protect the interests of religion, morality, decency, and good order, by repressing impious, blasphe- mous and obscene or Beditions publications, it would not only be im- politic but weak and absurd to allow the Bame matters to be after- wards published with impunity ae parcel of the judicial proc lin'_r. In the case of The BTing*Y. Cariile (K), a criminal information was granted against Mary Cariile, for a libel, entitled the mock trial of Mr. Cariile, but which contained a correct account of what bad taken place apon that trial, in the course of which the whole of Paine's Ige of Reason bad been read. And the court held, that though, as a general position, it was certainly lawful to publish the proceedings of courts of justice, yet that it must be taken with this qualification, that what is contained in the publication musl be neither defamatory of an individual, tending to excite disaffection, nor calculated to offend the morals of the people ; for if its contents were calculated to produce such effects, instead of dis- seminating 'useful knowledge, it would produce great [ '265 ] mischief (/). The publication, also, of ex-parte proceedings in criminal cases is not only privileged by the law, but is regarded as a great mis- demeanor. Where the evidence is ex-parte, the party charged has no means of establishing a defence, and such premature statements tend to excite undue prejudices against the accused, and to deprive him of the benefit of a fair and impartial trial ; and therefore, in several instances, the publication of matters of criminal charge, con- tained in depositions before magistrates, has been held to be indict- able (m). (/,-) 3 B. & A. 167. It was contended, on the authority of (/) See the observations of Beat, J.,ibid. several of the cases above cited, that the Bayley, J. observed, that the case of Curry publication was justifiable, as being a true r. Walter mast be taken with great quali- account of the proceedi n gs in a court of ficatione. justice. (m) See the King v. Fisher and others, But Lord E&enborough, C. J. said, 2 Camp. 503. The printer, publisher, and '« Trials at law fairly reported, although editor of a public newspaper, were indicted they may occasionally proTe injurious t.. for publishing a paragraph, purporting to individual! sen held to-be priri- contain the examinations before s magis- '"-" '■ &et ""■ : " continue M pririlt trate, upon a charge brought against the ,,u ' ,,e,H,| ' lt they produce - prosecutor by Mrs. Popplewell; the publi- manent. and the oil that ai them cation then proceeded to assume the truth »» rivo ;m '' tocMentali but these prelimi- of the depositions, and the guilt of the pro- » u '. v examinations have no soefa privilege, secutor, and to pronounce that he would their only tendency is to prejudge those meet with the reward due to his villainy. whom the law still presumes to be innocent, 265 CIVIL REMEDY— OCCASION. *266 ] *And as the publishing such preliminary and ex-parte statements is an illegal act in respect of its tendency *267 ] to *obstruct the due course of public justice ; and as the same act makes a special prejudice to the particular in- dividual, not by its tendency to deprive him of the benefit of a fair and impartial trial, but by the particular disparagement to his rep- utation and clraracter in society, the publisher is, on the ordinary principle, subject to an action, at the suit of the injured individ- ual (w). In the late case of Duncan v. Tkwaites (o), it was ex- pressly decided, that the defendant could not justify the publication of a charge imputing to the plaintiff indecent conduct to a female child, on the ground that the alleged libel was no more [ *268 ] than a correct account *of the proceeding which had taken place at a public police-office (//). and to poison the sources of justice. It is of infinite importance to us all, that what- ever 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 character; we should then wish to meet a jury of our countrymen with unbiassed minds; but fur this there can be no securi- ty, if such publications are permitted." In the case of the King v. Flet, 1 B. and A. 879, a criminal information was granted against the printer and publisher of a newspaper for publishing his minutes of the evidence taken before a coroner's in- quest on a charge of murder, accompanied by comments on the facts as they occurred. Bayley, J., adverting to the publi- cation of the minutes observed, " That is a matter of great criminality; for the in- quest before the coroner leads to a second inquiry, in which the conduct of the ac- cused is to be considered by persons who ought to have formed no previous judgment of the case. It is a statement of evidence taken wholly ex-parte, and where there is no opportunity for cross-examination. A jury who are afterwards to sit upon the trial ought not to have ex-parte accounts previously laid before them. They ought to decide solely upon the evidence which they hear on the trial. It is therefore highly criminal to publish before such trial an account of what has passed on the in- quest before the coroner. Abbott, J. " Every person who has at- tended to the operations of his own mind, must have observed how difficult it is to overcome preconceived prejudices and opin- ions, and that more especially in matters of sentiment or passion. It is, therefore, most mischievous to the temperate adminis- tration of justice, that a person, either during or before a judicial examination, should publish a statement of facts which are made the subject of a subsequent trial; and it is still more mischievous when that statement i3 accompanied with comments. It is impossible to say that much which exists in this case is not calculated to cre- ate a prejudice in the public mind." (n) Thus, though a nuisance to a public highway be in itself a public offence, and indictable as such, and is not, in the ab- sence of damage to a particular individual, the subject of an action, yet if by reason of such public offence any damage accrues to any individual in particular, he may maintain an action. (o) 3 B. & C. 556. (p) Abbott, L. C. J., in delivering the judgment of the court, upon this point said, " I take it to be a general rule, that a party who sustains a special and particu- lar injury by an act which is unlawful on the ground of public injury, may maintain JUDICIAL REPORTS. And although the objections to the publication of ez-parte state- ments do not apply bo forcibly to civil as they do to criminal pi ceedings, yel it Beems that the publication of ez-parte proceedings, even of a civil nature, when they are injurious to the characters of individuals, cannot i>c justified. For the communication of such ez-parte proceedings, may frequently be attended with great hardship to the individual, and can seldom, 'pre- | *269 ] vious to the final decision, be of importance to the pub- lic as containing any judicial information ( action due administration of justice towards per- unless the of publishing nuke* sons accused of offences, it is impossible to the publication ■ ; and where the Bay that the individual, whose trial may be publication i- a violation of the criminal affected by them, does nol bub! tin a Bpecial jurisprudence of the country, and t! • and peculiar injury, even in that view; nothing to call for it, the publication is not and he certainly sustains an injury to his excusable. character of the same nature as the injury ( il waH bold, that a statement in a (u) Lewis v. Walter, 4 B. & A. 806. newspaper of the speech of a counsel, in a (x) Per Abbott, L. C. J. 4 B. and A. oanM reflecting on the character of the 612. " If a party is to be allowed to pub- plaintiff, who was the defendant in that lish what passes in a court of justice, he cause, without stating any evidence, oouM must publish the whole case, and not not be justified, though the defendant merely state the conclusion which he him- proved that he had copied the paragraph self draws from the evidence." from another paper. 273 CIVIL REMEDY— OCCASION. to individuals, yet it seems that a party who repeated the slander- ous matter to all the world, would be liable to such an [ *274 ] *action ; for the repeating such slander, is not done in the course of the administration of justice, and therefore is not privileged (a). And, although the uttering of slanderous matter may be justified by the occasion on which it is spoken, the subsequent publication of it may be criminal. In the case of Duncan v. Thwailes (6), already cited, it was held that a statement, purporting to be an account of a charge made at a police office against the plaintiff for an attempt to violate the person of Ann Chandler, was not justified by a plea which set forth the depositions, from one of which it appeared that the report wholly omitted the deposition of Desormeaux, a surgeon, in which he had deposed, that to a question proposed by him to Ann Chandler, to a material fact, she had repeatedly answered in the negative, although she had before the magistrate sworn in the affirmative. Neither does the privilege extend to any defamatory observations or comments, made in addition to what passed in court. Thus, where the defendant had published a statement, which he attempted by his plea to justify, as being a fair and impartial ac- [ *275 ] count *of a proceeding in a court for the discharge of in- solvents, but had prefaced that statement by the words " shameful conduct of an attorney," it was held that a justification could not be supported (Z>). (a) See the observations of Holroyd, J. is not necessary to decide, because the in the case of Flint v. Pike, 4 B. and C. narrator in this case has not confined him- 481. See also Lake v. King, 1 Saund. self to what actually passed in court, but 120. R. v. Creevy, 1 M. and S. 273. R. has prefaced the statement with the words v. Lord Jlbinydon, 1 Esp. C.22R. " shameful conduct of an attorney," he (M ° B and C 2 9 6 has therefore taken upon himself to make (6) Abbott, L. C. J. in pronouncing the that allegation concerning the plaintiff; we judgment of the court, observed the ques- think, therefore, the pleas are bad, ^-c. tion°whethcr a person may publish a cor- The judgment was afterwards affirmed in rect narrative of preceedings, in a court of the Exchequer Chamber, 3 B. and B. 297. justice, which contains matter defamatory For further observations on this subject, of a third person not a party to the suit, it see the Preliminary Discourse. CHAP T K i; \i r. Probable Cause. In the next place, the occasion of publishing may supply an abso- lute defence, independently of the actual intention of the publisher but dependent on the existence of 'probable or [ *276 | reasonable cause for the act. It has been seen (a) that the ordinary action for slander is not maintainable where the publication has been made in a judicial pro- ceeding, according to the due course of law. But a special action on the case may be supported in respect of a malicious and unfound- ed prosecution. So, also, it seems, may such an action be support- d against an advocate who has abused his professional situation, for improper and malicious purposes. So, also, is such an action main- tainable in respect of a malicious disparagement of a man's title to an estate though it be made by one who himself claims to be enti- tled. But in all these cases, and perhaps in some others, *it seems that the existence of probable or reasonable [ *277 ] cause for the charge or claim would constitute a legal bar to the action ; or, as it would perhaps be more correct to state it, the want of such probable cause would lie essential to the ac- tion. It is obvious that the allowing probable can-.' to operate as a de- fence must depend on principles of policy and convenience. On general principles of expediency, the absei <>f probable i is essential to the action, and the existence of probable cause is a complete bar independently of the actual intention of the defendant in those cases where it would be impolitic on the one hand to allow the mere occasion to operate as an absolul i bar : bat where, on the other it would be inconvenient to make the liability depend on the mere motive of the publisher, and where public convenience requires that (o) Supra, Chap. 10. Vol. I. 24 277 CIVIL REMEDY— OCCASION. the act should be protected, provided reasonable ground for doiug it really existed. Thus, in the case of a malicious charge in the ordinary course of justice, it would be attended with great mischief and vexation if the prosecutor were to be absolutely exempted from responsibility, al- though he had wantonly perverted the course of law to malicious and vexatious purposes ; it might, on the other hand, be productive of evil to make a prosecutor amenable in damages when [ *278 ] he failed to establish the charge in all cases where *he had acted maliciously ; for in numerous instances it might be highly expedient that judicial investigation should take place though the prosecutor be not actuated by the love of justice, but by the basest motives of personal malice. The public may in numerous in- stances, be benefited by the promotion of inquiry, notwithstanding the immorality of the prosecutor. And, therefore, where a reason- able and probable cause for making the charge really exists, and conse- quently where the public has an interest in promoting inquiry, be the motives of the prosecutor ever so culpable in a moral point of view, it becomes a matter of legal policy and discretion to exempt him from civil liability ; and therefore, in all actions for malicious prosecutions, the want of probable cause is not only invariably essen- tial to the action, but proof of the negative is incumbent on the plaintiff (c). The requiring such proof from the plaintiff is not only a rule of policy and convenience, but of strict natural justice when it is consid- ered how often it happens that the facts on which a criminal prosecu- tion is properly founded, are confined to the knowledge of the prosecu- tor alone, and that if this proof were not required from [ *279 ] the *plaintiff how often a bona fide prosecutor would be exposed to an action against which he might have no defence, from his inability to prove the probable cause which really existed (d). AYhat shall amount to probable or reasonable cause, in this as well as other cases, may be either a question of law, arising simply on the mere facts, or it may depend on the conclusion of the jury from the facts. It is a question of law arising simply upon the facts, and independently of any general conclusion made by a jury in all cases where, from the mere facts themselves, the court can, by the aid of (c) 1T.R 520. 1 Salk. 14, 15, 21. 5 (<2) Infra tit. evidence, and see Starkie Mod. 394, 5. 1 Vent. 86. Carth. 415. on Evidence, Pt. iv., 911. See the cases, Starkie on Evidence, tit. Malicious Prosecution. PRor,Ai;u-: cause. 279 any rule or principle of law, draw or exclude the inference of prob- able cause from Bucb facta < e | [_<' "J- (c) Tims in the case of Oolding v. Crowle, M. 26 G. 8 B. X. P. 14, it is said, "if the plaintiff da prove malioe, yet if the defendant Bhow a probabli he shall hive a verdict, and the judge, m I the jury, is bo letermine whether he hil laintiff having brought an a;,' kinst th" defen Lant tor a malicious pros- ecution tor perjury obi line 1 ■ a motion for a new trial, the conn aside, (it appearing, on the report of the ju Ige that there was prob il ' as a verdict against evidence, hut as a verdict against law ; (note a qumre is added in the margin). So in the case of Candell v. Lou Jon, cor. Buller, J. Guildh. after Trin. 178"), cited in Johnstone v. Sut- ton, 1 T. EL 520. Buller, J. stated to the jury that there were two questions to be determined : 1st, whether the facts in evi- dence were true ; 2dly, whether, if true, they showed a want of reasonable or proba- ble cause ; and the learned judge added, that what is reasonable or probable cau-^e is matter of law, and he then gave his opinion on the case. And iu the case of Johnstone v. Sutton, 1 T. II. 4'.i:3, Lords Mansfield and Loughborough, in stating their opinions for reversing the judgment, observe that the question of probable cause is a mixed question of law aud toot. Whether the circumstances alleged to show it probable or UOt probable are true and existed, is a matter of tool j whether, sup - them to '•>'■ true, int to a ■. of 1 iw, and upon this distinction prooee led th Reynoli- v. A" /< the jury, that in point of law a constable was uot justified in tak- ing a i' ii ty int . without warrant, on a charge of having re o goods, on the mere inform one of the principal fel i other cases, where the con what is reasonable is a . tiocoflaw. Co. Litt. 5G b. I Co. 27 b. Hobari v. Hammond, Cro. J. der v. Harvey, Cro. !'.!: - Bell V. Wordell, Wilk-s, 202. LI. Mansfield, 241. Hill v. Yates, 2 Moore 80. Btar- kie on Evidence, p. iii. 416. So Again there is no probable cause in law where the party d les not a it upon which might of themselves have supplied probable better Ige that there was, in truth, no probab! to one wh ter informed there is no pn See H iw. P. c. b. •_'. o 12. s Anthony Ashley's o is >, 12 I • t of 1 iw, be ! in arresting another, if h bona tide on the opinion yet it' he ■ ion, but from m dioious moti • that he must toil, there Would, u> | law.be a want of probable ■ . - /»' - B it, "ii the other h a author ' probable iy be in \tter of mere judicial into the mere bets, independently of the jury it by no means follows that such must 279 CIVIL REMEDY— OCCASION. '280 ] *Where, on the other hand, the distinction between probable and improbable, reasonable or unreasonable, is always be the case : on the contrary, it seems to be manifest that whenever the facts are numerous and complicated, and do not fall within any particular rule or principle of law, then the jury must draw the conclusion in fact, and that the conclusion in law will follow such conclusion in fact. Thus, in the case of Reynolds v. Kennedy, cited in the opin- ion given by Lords Mansfield and Lough- borough in the case of Johnstone v. Sut- ton, the court held, that the very fact that the sub-commissioners had, in the first instance, condemned the goods, were sufficient to establish the existence of probable cause as a question of law, yet in this case, as well as in the others, where the court has made the legal infer- ence, some prominent facts have existed on which the court could found a gen- eral rule, which was to govern not only .the individual case, but all which should be within its scope. But, in ma- ny instances, the facts are so numerous and so complicated as to render it diffi- cult to apply any general rule, and where it might be highly inconvenient to do so on account of multiplying legal rules and distinctions to a very great extent. A prosecution may be instituted on such unsatisfactory or satisfactory grounds, in point of evidence, that the court might find no difficulty in deciding as a matter of law on the absence in the one case, or the existence in the other of probable cause. Thus, in the case of Isaacs v. Brand, 2 Starkie's C. 167, Lord Ellenborough held that a mere declaration by a principal felon that another person had received the goods, did not afford a probable or reasonable ground for arresting the latter; on the other hand, the fact of finding stolen goods recently after the felony in the possession of another would certainly, in point of law, show probable cause for an arrest; but be- tween such extreme cases, there may be an infinite number of intermediate ones where the law can lay down no precise rules as to the existence of reasonable cause, and con- sequently where the inference must be drawn by the jury. Many instances occur in practice, in actions of this nature as well as others, where the question of what is probable or reasonable is properly left to the jury. Thus, in the case of Isaac3 v. Brand, 2 Starkie's C. 167, Lord Ellen- borough left the question of probable cause, under the circumstances, to the jury, and his lordship pursued the same course in Brookes v. Warwick, 2 Starkie's C. 389. And in general it seems that where no acknowledged rule or principle of law de- fines the limits between probable and im- probable, reasonable and unreasonable, the question is one for the jury, under all the circumstances of the case. See Lord Ken- yon's observations in Hilton v. Shepherd, 6 East. 14 n. Fry v. Hill, 7 Taunt. 397. Starkie on Evidence, tit. Law and Fact, part iii. p. 418. [a a] And see Davis v. Hardy, 6 Barn, and Cres. 225. Davis hired a chaise in the name of Hardy and received from the as- signee of Martin, a bankrupt, the amount of the chaise hire; he did not pay it to the innkeeper or to Hardy, nor did he mention to the latter that he had received the amount. Upon a charge being preferred against Davis, he was examined before one of the magistrates , and admitted most of the facts. On this evidence, the learned judge at the trial was of opinion, that there was sufficient evidence of the want of pro- bable cause for indicting Davis for embez- zlement. Staines, the proprietor of the chaise, was afterwards called as a witness for the defendant, and it appeared on his evidence that he having applied to Davis for payment, Davis requested him not to tell Hardy , for it would do him a great in- jury. The learned judge being of opinion that the subsequent facts coupled with the former, shewed reasonable and probable cause, nonsuited the plaintiff, t though pressed by the defendant's counsel to leave it to the jury whether they believed PROBABLE CAUSE, 280 not defined by any rule or principle "of law, the conclu- [ *- s l ] sion must, it ■ drawn by the jury (/ >. The same protection which is afforded to a 'party in a [ *282 judicial proceeding is with Borne limitation extended to a professional advocate. Bo is not subject to an action, provided the facts * which he alleges are pertinenl to the •■'• ] cause, and are 3ted by his client ; for though a counsel may he expected to exercise a discretion whether the parts which he states, it' true, be material to the issue, yet it would be too much to expect that he should take notice, at his peril, whether the facts themselves be true or false. In the case of 11""'"/ v. Chi- ton ( g) it is 1 iid down, that •• if a counsel scandalous words against one in defonding hi- client 1 , an action lies not against him for so doing, for it is his duty to Bpeak for his client, and it shall be intended to be spoken according to his client's instructions. In the case of Brooke v. Sir Henri/ Montague (A) the plaintiff brought an action against the defendant for these words : " he was arraigned and convicted of felony." The defendant pleaded, that the plaintiff, at another time, brought false imprisonment against J. S., one of the Serjeants *of London, who jus- *284 j tified by warrant from Sir N. Moseley, mayor of Lon- don, for arresting him, to find sureties for the good behavior, and they were thereupon at issue, and found against the plaintiff, who thereupon brought an attaint. And that the defendant, being con- sUiarious el peritus in lege was retained to be counsel with the | jury, and in evidence at the trial in London, spake those words in the declaration ; and STelverton and Coke, attorney-general, being of counsel for the defendant, the court resolved that the justification was good, for a counsellor in law retained hath a privilege to enfi any thing which is informed unto him for his client, and to give it in evidence, it being pertinenl to the matter in question, and not to ex- amine whether it be true or false : bat it is at the peril of him who informs it: for a counsellor is, at his peril, to give in evidence that which his client informs him, being pertinent to the matter in ques- tion, otherwise action on the case lios against him by his client, ae 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 diseri lion what he is to deliver and what not, and although it be false he is Staines's evidence; and the court of King's (/ ) Bee note (O supra, p. 279. Bench refused to grant a new trial. ( j Vol. I. 25 299 CIVIL REMEDY— OCCASION. venson (ej and Weatherstone v. Hawkins (/), the law upon this subject appears 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 enquiring 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 has spoken concerning the latter be mali- cious and defamatory. 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 refusal to quit his master's house till his wages had been paid, was the only act of impertinence provi- ed 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 were strongly suspected of having committed a felony whilst in his master's service, it would be the master's duty to warn others from taking him into their service ; but [ *300 ] 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, con- sidering 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 under- stood as his opinion, that a master may at any time, whether asked or not, speak of the character 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 (g), 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 (e) B. N. P. 8. (/ ) 1 T. R. 110. (g) Mich. 8 G. 3. MALICE IX FACT. *madc to him, there he must plead and prove the truth [ *301 ] of the character in justification. And the rule was discharged. It appears, therefore, to be fully established, that a servant, in an action againsl 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, un- asked, gives a bad character of a servant, he mav justify as in ..titer cases; and though Mr. J. Rooke seema to have expressed an opin- ion somewhat different, there can he no doubt thai the manifestation of forward and officious zeal on the part of a defendant, who. i>n- invited, gives a character to the prejudice of his former servant, would be a material guide to a jury in ascertaining his real mo- tive [ a a ]. Where a plaintiff, knowing the character which his master will give, procures it to be given for the sake of founding an action v. it, he will not be allowed to recover (/*)• Many other cases may be referred to as illustrative of tli principle that a publication warranted by an occasion apparently beneficial and honest is not actionable in the absence of expr malice. The defendant who was sergeant in a volunteer corps, of [09 ] might have sustained an action for defamation against (n) Vid. p. 311. 309 CIVIL REMEDY— OCCASION. that great philosopher, who was laboring to enlighten and amelio- rate mankind ? We really must not cramp observations upon au- thors and their works ; they should be liable to criticism, to exposure, and even to ridicule, if their compositions be ridiculous ; otherwise, 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 another thing. Show me an attack on the moral character of the plaintiff, or any attack upon his character, unconnected with hi6 authorship, and I shall be as ready as any judge who ever sat here to protect him ; but I cannot hear of malice on account of turning his works into ridicule." The counsel for the plaintiff complaining of the unfairness of the publication, and particularly of the print affixed to it, the trial pro- ceeded. The Attorney-general having addressed the jury on the behalf of the defendants, Lord Ellenborough said, every man who publishes a book commits himself to the judgment of the public, and any one may comment upon hjs performance. If the commentator does not step aside from the work, or introduce fiction for the purpose of condemnation, he exercises a fair and legitimate right. In the present case, [ *310 ] had *the party writing the criticism 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, except as the author of the book which is ridiculed. The works of this gentle- man 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, because it is a loss which the party ought to sustain. It is, in short, the loss of fame and profit 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 re- .MALICE IN FACT 310 sist 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 j ,; ;il ] travelled out of the work be criticised for the purpose of slander, the action would not lie; but if they could discover in it anything personally slumbrous against the plaintiff, unconnected with the works he hud given to the public, in that cum- he hud a good cause of action, and they would award him damag ird- ingly. Verdict for the defendant (o). In the case of Tabert v. Tipper alluded to in 'the 312 | 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 children's books) had published and vended bonks of an improper and immoral tendency. Upon the question, whether a witness ought to be cross-examined as to the defendant's having published particular books, Lord Ellcnborough observed, " The main question here is. quo animo the defendant published the article complained of; whether he meant to put down a nuisance to public murals, or to prejudice the plaintiff. To ascertain this, it is material to know the general nature of the defendant's publications, to 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 contrary. Liberty of criticism must be allowed, or we should neither have purity of (o) In the case of Stuart v. Lovell, 2 were open to criticism and ridicule, in the Starkie'8 C. 73, the plaintiff being one of same way as those of any other author, but the proprietors of the Courier newspaper, that the privilege did not extend to ilum- brought his action against the defendant nioua remarks on the private character of and the editor of the Statesman: Lord El- the individual. In that respect the editor lenborough, in summing up to the jury, of a 'enjoyed t: observed, " In the first the plaintiff was taction in common with every other subject- described as the prostituted Courier, and " Since then, the defendant in tin- his full blown baseness and infamy were bad Btigmatiied the plaintiff aa thevene- represented as holding him fast to his rable apostle of tyranny MUD, present connections, and preventing him and afl a man whose foil from forming new ones. It was certainly mil infamy held him fist to fa competent to one public writer to criticise com they left him wi another exerting his talents in all the the power of forming new ones; in all this, latitude of free communication belonging he undoubtedly had . the limits to a public writer, and so it appeared to which had been drawn, and ly which his Lord Kenyon, in the case of Harriot v. conduct ought to have been I Stuart, 1 Esp. c. 487. That the opinions (p) 1 Camp. G and principles of a controversial writer 312 CIVIL REMEDY— OCCASION. taste nor of morals. Fair discussion is essentially ne- [ *313 ] cessary to the truth of history and the advancement *of science. That publication, therefore, I shall never con- sider as a libel, which has for its object not to injure the reputation of any individual, but to correct misrepresentations of fact, to refute sophistical reasoning, to expose 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 dec- laration ; and it was allowed on the part of the defendant, that the plaintiff had not published them, bu£it was contended that they were a fair specimen of his publications. Lord Ellenborough, however, informed the jury, that it was certainly actionable, gravely to impute to a bookseller having pub- lished a poem of this sort, to which he was a stranger ; as the evi- dent tendency of the unfounded imputation was to hurt him in his business. In the case of Heriot v. Stuart (q), it was held that no action was maintainable for asserting in a newspaper that another public newspaper was the most vulgar, ignorant and scurrilous journal ever published in Great Britain. But subsequent words, al- [ *314 ] leging that it was the lowest paper in circulation, *were deemed actionable, since they affected the sale and profits to be made by advertising. In the case of Dibdin v. Bostock (V), which was an action for publishing a paragraph in' a newspaper, stating that the songs at a place of public entertainment were not of the plaintiff's composition as they professed to be, and representing the performances as de- spicable, and as gaining no applause 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 fairly, and without malice or view to injure or prejudice the proprietor in the eyes of the public ; if so done, however severe the censure, the 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." [a a] [1] (q) 1 Esp. C. 4S7. and Malkin, 187, on the trial of an action (r) 1 Esp. C. 29. for an alleged libel concerning a picture of [a a] In Thompson v. Shackell, 1 Moody the plaintitf 's exhibited at Somerset House, MALICE IX LAW. 314 In the late case of Dunne \. Anderson (*)> '' Beemsto have been doubted whether the plaintiff, by pri petition to parlia- d escribing it as a mere daub, Bnr, «' J. left it to the jury to say whether the pub- lication vr&safair and temperate criticism on the painting of the plaintiff, or was made the vehicle of personal malignity towards the plaintiff. He added, " I my- self have acted on the doctrine of my Lord Ellenborough in the case referred t . v. Hood,) though I do not go quite so far B8 he did in that ease, because I think no personal ridicule of the author is justifi- able; but if this be really an honest criti- cism, and no more, the defendant is en- titled to your verdict." Verdict for the defendant. In the case of Sonne v. Knight, 1 M. & M. 71, the plaintiff, an architect, plained of a libel published of him in his | inn; the alleged libel professed to give an account of a new order of architec- ture, called the Bcetian Order, stating it to have been invented by the plaintiff, and illustrated the new order by examples o f such buildings, all the buildings instanced being the works of the plaintiff. Lord Tenlcrden, in summing up to the jury, said, " This publication professes in sub- stance to be a criticism on the architectural of the plaintiff. On such works, as well as on literary product] has a right to express his opini te that opinion may I the merits of the author or arti.-t, the per- son entertaining it is not ] reclude 1 by- law from its fair, B, and tcm- It may be lairly and h the medium of ridicule. In the ; case, tl only stroi ertheh bs, it y< a think I ble, and • muy not be correct, the defendant will be entitled to your verdict ; if you think it unfair and intemperate, and writtui with the intention and for the purpose of in- juring the plaintiff in his profession, by imputing to him that he acts on absurd principles of art, you will find for the plaintiff." Verdict for the defci Whatever can be fairly said of th,e works of an author or of himself, as con- nected with the u-ork, is not act: unless it appear that, under the pretext of criticism, the party takes the opportu- nity of calumniating the author. M'Ltod v. IVakeley, '. 811. (s) o Bing. 88. But sec Lake v. Kimj, and Kemp v. Gee, supra 24 1, 246. [1] In Cooper v. Lawion, SAdolph, u 16, the libel stated that the plaintiff had become surety for a petitioner relative to an election for a member of parliament of a certain borough, and bad made i ath that he was qualified in point of property to be- aoh surety, when in foot lie was uot able to paj ; The authoi jked why the plaintiff, who was unconnected with the borough, in reference to the election of the member of parliament, should have incurred an > \[ i sure of his circum- , and gave a response to the inquiry by b lj ing "tl , the action was broaght for preventing the sale of Lease-hold property, by the assignee of the . against the owner of the property, who had declared at the time of putting np the property "for sale, that the plain- tiff could make no title. It appeared, that the defend- [ '818 J ant was present when the lot \va» put up. and that he then told the auctioneer that it was of no use to -ell it, a- the house was his own ; he was the landlord, ami that no title could he made to it. On this, some persons wh > had intended to hid retired, and the defendant offered to purchase the lease, having also made a pre- ('/) Pcnnymanx. Rabanks, Cro. Eli*. (/) Jenk. 247. 427. ViD. Ab. 651. pi. 11. (/) 8 Taunt 246. Vol. I. 26 318 CIVIL REMEDY— OCCASION. vious offer of the same kind. Previous to the trial, the defendant had obtained possession of the premises by an ejectment, and the plaintiff's attorney had tendered him five quarters' rent, and the costs of the ejectment, if he would deliver back the possession. The jury found a verdict for the plaintiff; but the court afterwards directed a nonsuit to be entered, on the ground that there was no evidence of express malice. But in a subsequent case (g") where the owner of a house had prevented the plaintiff, who held under a lease for years, from disposing of the remainder of his term, by false- ly 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, that " The cir- cumstances of *the defendant's title and interest, may [ *319 ] rebut the implication of malice ; but here it was left to the jury, to say, whether there was malice or not." Where the alleged slander of title was conveyed in a letter, to a person about to purchase the estate from the plaintiff, imputing in- sanity to Y. from whom the plaintiff purchased it, and stating that the title would therefore be disputed ; in consequence of which, the person refused to complete the purchase ; it appeared, that the de- fendant had married the sister of Y. who was heir apparent to her brother. And the court held, that under the circumstances, the de- fendant ought to have the free liberty of stating objections to the title, to the proposed purchaser, as in the case of Gerard v. Dicken- son and others, which was not stronger than the present, though such a liberty was not allowed to a mere stranger, according to the rule in Jenkins's Centuries, immiscet rei se alienee (/*), but that it was impossible to treat the defendant as a stranger ; for though he was indeed a stranger as to any vested interest, he had an interest^ in probable expectation, so as to induce him to bestir himself and look about, lest an improper conveyance should be made injurious to his right. That the question distinctly and substantively [ 4 320 ] was whether *the defendant, in making the communica- tion which he had made, had acted bona fide, believ- ing it to be true (t). (g) Smith v. Spooner, K. B. Mich. 1811. The learned judge who tried the cause had Quaere whether the parties were not the stated to the jury, that if the evidence sat- same as in the case of Smith v. Spooner, isfied them as men of good sense and un- 3 Taunt. 246, in which a nonsuit was en- derstanding, that Mr. Y. was insane, or if tered in the C. P. Mich. 1810. the defendant entertained a lersuasion that (ft) 247. P. C. 36. he was insane, on such grounds as would (i) Pitt v. Donovan,, 1 M. & S. 639. have persuaded a man of sound sense and MALICE IN' FACT. 320 An attorney to a creditor (£), who had previously committed an act of bankruptcy, Btoppod the sale of an estate previously mortgaged and assigned to the plaintiff, by declaring the creditor's bankruptcy, and thai a docket had been made out for a commission : it i . out that an act of bankruptcy had Keen committed, but that do com- mission had been sued out. Onaction brought, it was held, that in order to support it. there should i«' proof of malice, either express or implied ; that if tin- defendant acted bona Jul, . and told tin- truth he did no more than his duty: and though he went beyond what was Btrictly true, Mill, if there was no material variance, and no dif- ference made with respect to the plaintiff's title, the action wa maintainable. In general, where a communication is made in 'conli- [ '-Vl\ ] dence, either by or to a person interested in the communi- cation, supposing it to be true, or by way of admonition or advice it seems to be a general rule, that malice is essential to the main- tenance of an action (/) [1]. So far has this principle been carried, that it has even been held that the publishing an advertisement in a newspaper, involvings suspicion that the plaintiff bad been guilty of bigamy, yet being pub- lished bond fide, at the instance of one who was interested in the discovery, was not libellous (in). knowledge of business, then the defendant 10th of August, 1700, they will give notice would be entitled to the verdict. The jury to Jones (the defendant), No. 11 found for the plaintiff; but the court Duke-Street, St. James's and the] granted a new trial, on the ground that receive the reward." the question was not correctly left to the Lord EUenboroogh, in summing up to jury. the jury, - I although that which (/>•) Hargreave v. LeBreton, Burr. 2422. ifl spoken or written maybe injuri (/) Vide supra, 217, 218. * ne character of 1 1»» ■ party, (m) Delany v. Jones, I Bap. C. 101. bona fide, as with a view of invest The alleged libel was as follows :— > kot, in which the party mak "TEN GUINEAS REWARD. terested, it is not libellous, [f, then •• Whereas, by a letter lately received this investigation was set on foot, and this from the West Indies, an event is stated advertisement published by the plaintiff's to be announced by a newspaper that can wife, either from anxiety to know whether only be investigated by these means:— Bhe was legally the wife of the plaintiff or This is to request, that if any printer or whether he had another wife living when other person can ascertain that James De- he married her, though that is huy, Esq. (the plaintiff), some years since the medium of imputing bigamy to the residing at Cork, late lieutenant in the plaintiff, it i-< just ll in such a North Lincoln Militia, was married pre- case it for the defendant who vious to nine o'clock in the morning of the published the libel, that he pub- [1] See Bradley v. Heath, 12 Pick. 103. 321 CIVIL REMEDY— OCCASION. r *go2 ] *In an action (n) for a libel on the plaintiff, in his profession as a solicitor, the libel, as set out in the dec- laration, was contained in a letter written by the defendant to Messrs. Wright and Co. bankers at Nottingham, and charged the plaintiff with improper conduct in the management of their con- cerns. It appeared, however, upon the trial, that the letter was intended as a confidential communication to those gentlemen, and that the defendant himself was interested in the affairs which he supposed to be mismanaged by the plaintiff. After the cause had been opened by the plaintiff's counsel, Lord Ellenborough, C. J. said, if the letter had been written by the defendant confidentially, and under an impression [ *323 ] that its statements were *iv ell founded, he was clearly of opinion that no action could be maintained. It was im- possible 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 persons whom he addressed ; and if a communication of this sort, which was not meant to go be- yond those immediately interested in it, were the subject of an ac- tion for damages, it would be impossible for the affairs of mankind to be conducted. His Lordship referred to the case Cleaver v. Sarraude, tried on the northern circuit while he was at the bar ; where, in an action like the present, it appeared 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 sup- posed malpractices on the part of the plaintiff ; upon which the judge, who presided, declared himself of 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 con- viction entertained by the plaintiff's counsel of its being founded in law. 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 lishedit under such authority," and with fact respecting her husband, in which sbe such a view. The jury are, therefore, first was materially interested. If it was so to say, whether the advertisement imputes the publication is not a libel, and the de- ft charge of bigamy to the plaintiff, and fendant is entitled to a verdict." The jury if they think it does, then to inquire found a verdict for the defendant, whether the libel was published with a ('0 M'Dougall v. Glairidge, 1 Camp • view, by the wife, of fairly finding out a C. 267. MALICE IN FACT. seen *reason to believe they were groundless; lie there- *824 ) fore consented to withdraw a juror. So, where the person to whom the communication is made ifl in- terested, as iu the case of Cleaver v. Saraude, above quoted, qo ac- tion is maintainable without proof of express malice. In the case of Duntnan v. Bigg < o >. 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 l ame his surety for the price of Buch quantities of beer as Bhould, from time to time, be supplied to him, the defendant promising to inform Leigh of any default 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 senl back as unmerchantable, beer which he himself had adulterated ; 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 Ellenborough, C. J. said, " I am inclined to think that this was a privileged com- munication. Had the defendant gone to any *other man, and uttered these words of the plaintiff, they certainly [ *325 ] 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. Be 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 repre- sentations which he made were intemperate and unfounded, still, if he really believed them at thc-tinm, he cannot bo said to have acted maliciously, and with an intent to defame the plaintiff. To be sure. he could not lawfully, under color and pretence of a confidential communication, destroy the plaintiff's character, and injur." his it, but it must have the most dangerous effect if the communications of business are to be beset with actions <>{' slander. In this the defendant seems to have been betrayed by passion into Borne un- warrantable expressions; 1 will therefore not nonsuit the plaintiff, and it will be for the jury to Bay, whether these expressions were used with a malicious intention of defaming the plaintiff, or with (o) Sittings in London after T. T. Is (i. :'.. (amp. K. 9St. 20* 325 CIVIL REMEDY— OCCASION. faith to communicate facts to the surety which he was interested to know (p) ]1]. [ *32G ] *It must, however, be remarked, that in all these cases, where the occasion is sufficient to raise the question of actual malice, the doctrine must be understood with this limita- tion, viz. that the times and mode of the publication are suited to the occasion. For it seems to be clear, that whether the occasion and circumstances supply an absolute or merely a qualified justifica- tion, dependent on the question of actual malice, they do not extend to justify any publication which is not warranted by the [ *327 ] occasion and circumstances. *In the instance of a brief to counsel, for instance, the publication as between the (p) The parties agreed to withdraw a In the case of Wilson v. Stephenson, 2 juror —For further illustrations of this Price 282, where the defendant had stated division of the subject, see R. v. Enes, that the plaintiff had murdered his, the Andr. 229, Lord Mordington's case, R. v. plaintiff's brother, the plaintiff having, in Jenneaur, 3. Bac. Abr. 452, and R. v. fact, been the innocent occasion of his Bailey, Andr. 22'J. So it was held that brother's death; and the defence was, that the owner of a public house could not the words had been spoken in the way of maintain an action against a neighboring admonition, and the jury found that the publican, for giving a bad character of words were not spoken maliciously; which such house to a person who, being in treaty was recorded as a verdict for the defend- for purchasing it, applied to the defendant ant, the court refused to disturb the ver- for information, provided (as is stated) diet. See further as to words spoken by there is some evidence, though slight, of way of admonition or advice. 2 Brownl. the truth of the assertion. Humber v. 151,152. 2 Burn's Ecc. Law 179. 3 Ainge. Abbott, L. C. J. AVcst. 13 Feb. Bac. Ab. 412. 1819. Manning's Index, tit. Libel, pi. 13. [I] 'To the illustrations given of this division of the subject, it is supposed that the case of Prosser and another v. Bromage, 4 Barn. & Cres. 217, referred to by the author in page 220 svpra, might well have been added here as it settles a most important prin- ciple bearing upon the every day transactions of life. The plaintiffs were bankers and the charge was that in answer to a question put by one Watkins to the defendant, whether he had said that the plaintiff's bunk had slopped? he had answered it was true; he had been told so; that it was so reported at C. and that no one would take their bills, and that he had come to town in consequence thereof. It was proved that C. D.had told the defendant that there was a run on the plaintiffs' bank at M. The defendant had a verdict, and a new trial was granted on the ground of the misdirection of the jury, but Bayley, J. who delivered the judgment of the court observed, " Had it been noticed to the jury how the defendant came to speak the words, and had it been left to them as a previous question, whether the defendant understood Watkins as asking for informa- tion for his own guidance, and that the defendant spoke what he did to Watkins, merely by way of honest advice to regulate his conduct, the question of malice in fact would have been proper as a second question to the jury, if their minds were in favor of the defendant upon the first." See also Pasley v. Freeman, 3 T. R. 51, and Van Spike p Cleyson, Cro. Eliz. 541. MALICK IN FACT. 327 attorney and counsel may not be libellous, and yet, were it to be printed and published, there mighl be a libel in every Line. Where the defendant who had acted as solicitor to a commissi inst Brown, upon a petition to the chancellor to super: mis- sion, published an adress to the creditors in a public newspa] charging the bankrupt with having committed a gross fraud against his creditors, and calling on the Latter to resist the proceedin Lord Ellenborough held thatas the communication might have I made in a manner Less injurious, it was to that extent Libellous (7). (q) Brown v. Croome, 'J Bhew that snch a | •• only 297. Bis lordship observed, that if the effectual mode of oonvenin publication in qdtestion had merely sug- The want of proper caution bad rend gested doubts, without alleging the facts the publication pub- as in the case of Delancy v. Jones, the lished to the world at large ; this ma le an main grievance would have been want- essential distinction, which applied to all ing. If it could be shewn, that an adver the cases; in the inst a brief to tiseuient in the Gloucester paper was the counsel for instance, the pul lioation as only possible means of communicating no- between the attorney and counsel might tice of the cironmstanoes, it might besuf- not be libellous, and yet if it were to be ficient to vindicate the mode ; one per- printed and published, there might be a son could have no right to take measures libel in every line. Every unauthorized for his own benefit to the injury of anoth- publication, to the detriment of another, er. The argument which had been used was, in point of law, to be considered as was ingenious, but the defendant made no malicious, progress in his defence, unless he could So an action will not lie for slanderous words, oral or written, where one mem- ber of a church imputes to another member of the same church the commission of a crime, if the words be spoken or written in the course of church discipline, and it be not proved that the defendant in making the charge was actuate 1 by express malice. Jarvit v. Hatheway, ■'■ Johns. It. 1 JO : O'Donaghut v. Mc'G oern, 23 W( d lell, 26. In conclusion upon this point, " the law" as is well a note to Wyatt \. dorr, " respects communications made in confi lence, di twithst ing they may be false and erroneous and prove injurious to the party. This rule or rather limitation with respect to the general law of libel, applies equally to words writ- ten and spoken. It is meant to protect the communications of business and the neces- sary confidence of man in man. But if the communication be malicious as well a9 false, and under the cloak of confidence be meant to defame, it is no longer within the protection of the rule. The law not only extends this exemption to the confidential communications of friendship, but to all suchc picion of malice. Weatherstone v. Hawkins, 1 T. EL ll 1 ' ; Dunman v. Bigg, 1 Camp. R. 209 ; Rex v. Hurt, 1 Wm. Black. 886 ; - Bums' 1 Law, 779. Under commu- nications of friendship arc included those of man to man in the aid of 1 u-iness, duty- public or private functions, security of property, or of the morals or manners of his family : in a word, every commuui ■ ition the object of which is to assist one man without injuring another, and to discharge the offices of a man, a citizen and christian. The law of libel in this respect, only repeats and confirms the law of moral duty ; and in any doubt on this head, it may always lead us to a safe conclusion in law, to inquir* simply what was our duty as to the point in dispute, in morality." See also note [1]' page 246, supra. CHAPTER XIV Repetition of Slander invented by another. [ *329 ] *The doctrine of justification, on the ground that the defendant has done no more than repeat the scandal which he has heard from another, though of ancient date, rests on princi- ples so dubious and has been so limited in its modern application, that it seems to be doubtful whether in any case such a justification would be permitted to prevail as an absolute and peremptory defence without reference to other circumstances, and the actual intention of the publisher [1]. And for this reason it has been deemed to be more proper to rank this species of defence with those which are of a qualified nature, and which depend, for their consummation, on the absence of ex- press malice, than to class it with those where the very occasion and circumstances furnish an absolute and peremptory bar, independently of the question of intention. The doctrine of justification by hearsay was expressly [ *330 ] recognized in Lord Northampton's *case (a), which was upon an information in the Star Chamber, for scandalum magnatum. The resolution contained in that case, has a plain ref- erence to the rule contained in the statute 1 Westminster, which enacts, that the propagator of slander, concerning the grandees of the realm, shall be imprisoned until he give up the author. The resolution was, " 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 : [1] See note 1, page 340, infra. (a) 12 Rep. MALICE IN FACT. but if J. S. publish that he hath heard generally, without a certain author, that J. <:. was a traitor or thief, there an action stir 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 othen this might tend to th slander of an innocent person ; for, if one who hath Icesam phantasiam, or who is a drunkard, or of no estimation, Bpeak scandalous words, if it should be lawful for a man of credil to repeat them generally, without mentioning the author, 'that would give greater color and probability 1 ] that they were true, in respeel of the credil of the re- peater, than if the author himself should be mentioned (6)." In Crawford 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 Bimilar ob- jection was taken, it was said by the court, that Lord Northampton's case was a complete answer to it. As the consideration of the indemnity consists in the giving the plaintiff a certain cause of action against the author, or at least against a prior propagator of the slander, if the disclosure made fall short of supplying a certain cause of action, it will not avail as a justification. The defendant (e) 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, lie had heard and been told, by one D. Morris, that the plaintiff had run away, for which reason he spoke the word-. *Lord Kenyon, 0. J. in giving judgment forthe plain- [ '332 ] tiff on demurrer, said. " Whether this be considered on the authorities, or on the reason of the case, the justification cai .be supported. The Earl of Northampton'- case is precisely in point. If a person Bay, that such a particular man, naming him, told him a certain slander, and that man. in fact, did tell him so, it i defence to an action to be brought by a pera in of whom the Blander was spoken : but if he assert that slander generally, and "without adding who told him, it is actionable. Then it is said, it is sufficient to repel such action, to disclose, by the defendant's plea, the person (A) The court referred to 34 and 35 Ed. (c) 1 Lei 1, ami 80 Ass. pi 10, in the Exchequer. () Cro. Eliz. 261. DECLARATION — \ KM I". minster, in the county of Middlesex; the plaintiff replied, de in. jttria, &c. and the court awarded the venire to be directed to the sheriff of Middles So, in an actioD for calling the plaintiff a thief, at Dale, in E the defendant pleaded that the plaintiff had committ 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 arresting or setting aside the judgment, though the court would, in such case, award a new venire. But the law upon this point LB altered by the statutes 10 & 17 C. 2. c. 8, and 1 Ann. c. l i; . B. 6 ; the former of which enacts that, after verdict, DO 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 (•/•), the words were, " Look, there is a thiev- ish young rogue, he hath stolen .£200 worth of plate out of Wad- ham College," (meaning Wadham College, in the University of Oxford). The plaintiff brought his action in London ; the defend- ant justified the words, because he said that the plaintiff at Ox- ford, in the county of Oxford, stole certain plate out of Wadham College; the plaintiff pleaded de injuria, SfC. ; and the issue was tried in London, where the plaintiff had a verdict with £50 dam- ages. 'Saunders, for the plaintiff, moved in arrest of judg- [ •847 ment, on the ground of the mistrial, but the court (against the opinion of Twisdcn) conceived that the fault was cured by the statute which was lately passed (s). And this, which ap pears to have been the first decision under the act, has since been acquiesced in. NEXT, AS TO Tin: 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 (/)) Clerk v. James, Cro. Eliz. 870. See (r) 1 Saund. 211. also Bowyer's case, Cro. Eliz. (») 10 & 17 C. 2. (g) SecScrj. William's note, 2 Saund. 6. 347 CIVIL REMEDY. joint interest has been affected by the act of the defendant (J). So that, where a libel reflects upon two partners in their trade, they may join in the action (u) [a a]. But unless a joint interest be affected, several actions should be brought, though the same words be spoken or libel published concerning two [1]. Thus, where A. says to B. and C, " You have murdered D.," B and C. must bring several actions, not a joint one (x). So [ *348 ] it seems, *that two joint-tenants or coparceners may join in an action of slander of their title to the es- tate : for as it must be shown in the declaration, and proved, that the plaintiffs received some particular damage, by reason of the slander, the damage, even as well as their interest in the estate, is joint (?/) . (t) Wellcr v. Baker, 2 Wils. 423. 2 ners) in their joint trade, is not supported Williams' Saund. 116. a. n. 2. by proof that they were addressed to one (u) Maitland v. Goldney. 2 East. 425. of them personally. Solomons v. Medex, 3 Bos. and Pull. 150. Cook v. Batchelor, 1 Starkie's C. 191. Shepp. Ac. 53. Foster v. Lawson, 3 Bingh. (x) Smith v. Croker, Cro. Car. 512. 28. 452. H. 8. fol. 19. Dyer, Shepp. Ac. 53. [a «] An allegation that words were Deacon's case, spoken concerning three plaintiffs, (part- (y) 2 Will. Saund. 117. a. [1] In Sumner v. Buel, 12 Johns. R. 475, it was held by a majority of the judges of the Supreme Court of New-York, that for the publication of a libel against the officers of three companies of a regiment of militia called into public service, an action would not lie at the suit of one of those officers, unless special damage was alleged and proved. Chief Justice Thompson held that when the libel has no particular and personal appli- cation and is so general that no individual damage can be presumed, and the class or individuals so numerous to whom it would apply, that great vexation and oppression might grow out of a multiplicity of suits, no private suit can be sustained; but the offender must be proceeded against by indictment. Spencer and Yates, justices, con- curred. Van Ness, J. dissented and delivered an opinion, in which Platt, J. concurred- The doctrine of Sumner v. Buel, was called in question in Ryckman v. Delavan, 17 AVendell 52, which was an action for a libel affecting the business of the plaintiff as a brewer of beer. The libel charged that certain malting establishments on the hill in Jllbany, were supplied with water from stagnant pools, gutters and ditches for the pur- pose of carrying on the business of malting, &c. The plaintiff averred that he had a malting establishment on the hill, &c. and that to injure him the publication was made. The defendant demurred, and the. Supreme Court upon the strength of the decision of Sumner v. Buel, held that the action did not lie : which judgment was reversed by the Court for the Correction of errors. See 23 Wendell 186; the latter court holding that an action for a libel may be sustained by an individual for an injury to his business re- sulting from a libellous publication, although it affect the business of others engaged in the same calling, unless it be manifest upon the face of the publication that the charges are against a class of society, a profession, an order, or body of men ; and cannot, by possibility, import a personal application tending to private injury. DECLARATION— PARTIES. ■ 348 So, for the words A., or B. murdered D., either A. or B. may bring a separate action (c), Imt they cannot maintain a joint one (a). Where (b") joint actionable words are Bpoken of a hus- band and wife, the tort IS several, and the husband alone may bring the action ; hut the wile may, in Buch ca-e, be joined, provided the injury be laid as done to herself [1]. The case of words spoken of the wife admits of three varieties; 1st. "Where the words are not actionable, but are attended with special damage. 2dly. Actionable without special damage. 3dly. Actionable with special dam In the first case, the damage resulting to the husband is the solo 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 his customers (c). And to join the wife in Buch case would be bad on demurrer, in arrest of judgment, [ *349 ] or in error (d) . But secondly, where the words arc actionable, and no special damage is laid, the wife must be joined, and the declaration must conclude ad damnum ipsorum, for there the action survives : and she must be joined (c) in an action for any slander published of her before her marriage [2]. But thirdly, where the words spoken of the wife arc actionable, and special damage has accrued in consequence to the husband. (z) 10 Mod. 198. (<0 8 T. R. 627. 681. Com. Dig. Bar. («) 1 Roll. Abr. 81. and Fem. 1 Sid. 387. LI Bay. 1-08. (b) Smith v. Croker, Cro. Car. 512. Roll. Ab. 317. (c) 1 Lew. 140. B N. P. 7. (d) Grace v. Hart, Tr. 85 G. 2. B. N. P. 7. [1] See Ebersoll v. King and wife, 3 Binney 565, where it is held the shin ler of hus- band and wife, cannot be joined in the same action. [2] An action for words not actionable per se, spoken of the wife alleging special damage, must be brought in the name of the husband alone ; but for in themselves, spoken of her, the action must be in the names of the husband an I wife, although they live apart under articles of separation, Beaoh and wife v. Uufney and wife, 2 Hill 309. Where, however, an action was brought by the wife tiring apart from her husband under articles of separation, in the 7iamcs of her huebond an I herself, for slanderous words spoken of her, it was held tint a release of the cause ecuted by the husband, wis a good bar to the suit, notwithstanding tint in the articles, the husband had covenanted that suits might be brought in their join! n imet, for any injury to the person, or character, &0. of the wife. Beach and wife v. Beach and wife. 2 Hill 2G0. 349 CIVIL REMEDY. perplexity has arisen on the question whether the wife should be joined or omitted. The difficulty, in this case, proceeds from the circumstance of two distinct causes of action being involved in one and the same transaction, — the actionable words spoken of the wife, and the special damage resulting to the husband. For the former, the husband is not entitled to damages without making his wife a party, and the cause of action survives to her. In the latter case, the loss is several, and peculiar to the husband, and ought not, there- fore, to be stated as the loss of both. Accordingly, where the hus- band has brought the action alone, it has been contended [ *350 ] *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 defendants 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 husband's action, though the special damage result from actionable words spoken of the wife, which re- moves the objection to a separate action, in which he alone is enti- tled to recover damages. In Guy v. Livesay (/), the husband alone recovered in an action of trespass for a personal injury to him- self, and also for beating his wife, by means of which he lost her society for three days. And on motion in arrest of judgment, the court held, that the action was well brought ; for the action was not brought in respect of the harm done to the feme, but the particular loss of the husband, for that he lost the company of his wife, which was only a damage and loss to himself, for which he should have the action, as the master should have for the loss of his servant's service. [ *351 ] *h\ Young- v. Pridd (g-), the plaintiff brought trespass for that the defendant assaulted, ill treated, and carried away his wife, and detained her for half a year, by means of which he lost the comfort and society which he should otherwise have had with his said wife. After verdict and judgment for the plaintiff, error was brought in the Exchequer Chamber, and assigned that the husband had brought the action for the battery of the wife, which he could not do without his wife, and had recovered damages for the battery, and therefore that the judgment was erroneous. But all the justices and barons held, that the husband in that action did not (/) Cro. Jac. 501. ' (9) Cro. Car. 89. DECLARATION— PA RTI I 351 recover damages fur the, battery of his wife, but for the loss which he had in wanting her company. That the /" t quod consortium amisit and abduction of her were one entire conjoined cause of action for which the damages were given. That for the battery, true it was that the wife ought to have joined to recover damages, and that the verdict and judgment did not bar the wife from an action, after the death of her husband, for the battery, or that she might join with her husband in another action. And judgment was affirmed [1]. *In the case of Smith v. Jli.ron (h ), it was held that the husband alone might maintain an action for the ma- [ '352 ] licions prosecution of the wife, by means of which he was put to expense. After verdict for the plaintiff, upon motion in arrest of judgment, grounded on the omission of the wife, the court said, that though the remedy for the scandal might survive to the wile, it was no objection to the husband's action, and that he might undoubt- edly proceed for the battery of the wife, per quod consortium amisit. and yet the action for the beating would survive to the wife. From these cases it appears, that the husband may separately main- tain an action for the damage resulting to himself, from a personal injury they might have maintained a joint action and that the right of action would survive to the wife for the independent injury done to herself. The case of actionable words spoken of the wife, produc- ing special damage to the husband, seems to be, in all respects, per- fectly analogous to those cited ; and on their authority it may be concluded, that a husband, for such words, or rather for the damage resulting from them, may sue without 'his wife. And it seems to be highly reasonable that the husband, in respect of the special damage, should be entitled to a separate action. In case the words had not been intrinsically ac- tionable, the husband musl have Bued alone ; and it can scarcely be contended that the injurious quality of the words can compel him to alter the nature of the proceeding, to recover for the separate tort to himself, the only alteration in the case consisting in the additional mischief to the wife. As the injuries are completely distinct, there seems no reason why the remedies should not be equally indepen- (h) Str. 977. See also Hyde v. Seyu r, B M d. 28. Cro. J. CGI. [1] In Cowdcn v. Wright, 24 Wendell 429, whiofa w.is an actiou by the father for assaulting and beating his son perqvol scrvitium amisit; the Supreme Court rtMntd a judgment because the jury in the C. P. had been charged that in estimating the dam- ages they might take into account the uouuJtJ feelings of the parents, in consequence of the beating of the son. 353 CIVIL REMEDY. dent. A contrary supposition would involve this absurdity, that by the increased virulence of the words, the plaintiff would be placed in a worse situation as to his remedy, since, in case of actionable words, his title to damages would become dependent upon the life of his wife, and would be extinguished by her dying before judgment recovered. Where, on the contrary, the words spoken of the wife are intrin- sically actionable, the husband is not entitled to recover in a joint action, in respect of any mere consequential damage to himself. In such a case, therefore, where the husband and wife join, it would be improper to allege such consequential damage. The [ *354 ] error, however, would be aided by a special *verdict, which excluded the consequential damage and confined the damages to the detriment sustained by the wife (i). NEXT AS TO THE JOINDER OF SEVERAL DEFENDANTS. Where the wrongful act is the joint act of two or more, the plain- tiff may proceed against them in one and the same action ; as, where the slander is contained in affidavits made by [ *355 ] two, *but so connected as to form one slanderous charge (&) [1]. But where two persons speak the same words, the plaintiff must bring separate actions, for the acts are several in their nature, and the tort of one is not the tort of the other. The defendants said to the plaintiff (/), " Thou hast the plate of (i) 2 Mod. 66. 1 Lev. 3. 2 Lev. 101. the per quod could only be taken in ag- Com. Dig. Pleader, C. 87. In the case gravation, as if the words in themselves of Russell v. Come. 1 Salk. 119. Holt, actionable be spoken of a wife, and the hus- R. 699. 6 Mod. 127. The husband and band and wife bring the action, and con- wife brought trespass and false imprison- elude per quod, &c. the husband lost his ment for the imprisonment of the wife, by customers, it would be well, for the words means of which the domestic affairs of the being in themselves actionable, the per husband remained undone, to the damage quod should be taken in aggravation, all of both. After verdict for the plaintiff, it which the court allowed, was moved, in arrefct of judgment, that But Lee, C. J. is reported to have said the business of the husband remaining un- (Str. 1094) , " In a manuscript note which done, could not be to the damage of the I have seen of this case in Salkeld, Holt, wife, and that for such damage the bus- C, J. says, ' I will not intend that the band ought to have brought the action j ud ge suffered the husband's business re- alone. But it was answered, that the maining undone to be given in evidence.' " action being well brought and conceived V c ) 2 East. 426. for the imprisonment, what came under (0 ^ r0, ^ ac - 6*<- [1] To the same effect see Thomas v. Rumsexj, 6 Johns. R. 27. Harris v. Hunting- ton, 2 Tyler, 147, and Patten v. Gurney, 17 Mass. R. 182. DECLARATION— INDUCEMENT. J. S., and we charge thee with that felony." After verdict for the plaintiff, in an action againsi both, judgment was arrested. And the case of an action for mere Blander differs in this respect from an action for charging the plaintiff with felony, and procuring him to be indicted ; for, in the latter, the act of the defendants may be joint, and the plaintiff may proceed against them in the Bame ac- tion ( in ) . Though the husband and wife Bpeak the same words, the plaintiff must bring different actions, and the court will not permit them to be consolidated, for it would be error to join the wife for words spoken by the husband only, and the declaration (//) would be ill cither upon demurrer or in arrest of judgment. But where, in an action against husband and wife for speaking of the plaintiff certain "scandalous words, the \ *356 J jury found the husband guilty, and the wife not guilty, the plaintiff had judgment ; for though the action ought not to have been brought against both, and the declaration would have been held ill on demurrer, yet the verdict cures the error (o). Counts for oral and written slander may be joined in the same declaration (;/), so a count for slander may be joined with one for a malicious prosecution (cf). OP THE AVERMENTS. The declaration in this, as well as in every other action, consists of a clear and technical statement of the facts necessary to sup- port the complainant's suit; so that they may be understood by the party who is to answer them, by the jury who are to ascertain the truth of the allegations, by the court who are to give judgment upon them (/•) and that the parties may afterwards avail themselw the judgment (s). It has been at all times the fashion to preface the |[ *867 legal enunciation of the plaintiff's case with a prelimi- nary panegyric upon his character; this is Buperfluous, since it docs not affect the gist and essence of tin 1 act inn. A man of had character is not to be represented as worse than he really is, and (m) B.N. P. 5. (/)) h'inj v. Waring, 5 Esp. C. 13. (/() Swithen and his Wife v. Vincent (a) Manning v. Fitzherbert, Cro. Car. and his Wife, 2 Wils.227. Subly v. MM, 271. B. N. P. 5. (r) Cowp. G82. Com. Dig. Pleader, C. (o) 1 Roll. Abr. 281. (o) pi. 1 Sty. P. 17. Co. Litt. 388. 2 B. & P. 207. 349. Com. Dig. Pleader, c. 87. («) 8 M. & S. 116. Vol. I. 28 357 CIVIL REMEDY. therefore is entitled to a compensation, to be measured by the excess of the scandal beyond what is really due to him. In oneinstance (t), indeed, it appears that the plaintiff's announcing himself to be of good fame, tempted the defendant to plead, that at the time of publishing the words the plaintiff was not of good fame ; but the plea was held to be bad, since it answered matter of inducement which did not .require any answer. In a modern case, the plaintiff, in an action for a libel, imputing to him seditious principles, prefaced his declaration with a boast of the uniform loyalty of his conduct; it appeared that he had been some time in confinement under the sentence of the court for pub- lishing a seditious libel ; and the Lord Chief Justice (u) animad- verted on the impropriety and absurdity of such a preamble. The allegations relate to the act of publication, the matter pub. lished, the application of the matter published, the mo- [ *358 ] live *in publishing, and to the damage occasioned by it. First, as to the act of publication. This is either of a libel, or of oral slander. In the case of a libel, it appears that a publication in effect must be stated, though no particular form of words is required. In the case'of Baldwin v. E/phinstone (x), it was assigned for error, that in the second count the defendant was charged with having printed the libel, and having caused it to be printed in the St. James's Chronicle, but was not charged with having published it. After argument in the Exchequer Chamber, the Justices and Barons were all of opinion that the judgment ought to be affirmed. That there are various modes of publication, and no technical words are neces- sary to describe it ; that it is sufficient if there be stated in the de- claration such matter as amounts to a publication without using the formal term published, and the jury are upon the evidence to decide whether a publication be sufficiently proved or not. That printing a libel may be an innocent act, but unless qualified by circumstan- ces, shall prima facie be understood to be a publishing: it must be delivered to the compositor and other subordinate work- [ *359 ] men. That Sprinting in a neiospaper admits no doubt upon the face'of it. The court further observed, " It is stated that he caused to be printed." This confirms the fact of publication, because it calls in a third person as agent, to whom the libel must have been communicated. In short, the count does not state generally, as it might have done, that the libel was published, (/) Strachey's case,, Sty. 118. (w) Lord Ellenborough, C. J. (x) 2 Bl. K. 1037. DECLARATION— PUBLICATION. 359 but it expresses the particular moil' of publication, viz: in a news- paper. It thereby puts the publication in issue, and the jury have found it bo. Ii musl be observed, that this was after verdict, which was relied upon by the court, and probably the declaration would have I considered to be defective upon special demurrer, for not Btating a publication in more explicit terms. In this case, too, great Btress was Laid upon the circumstance that the defendant had caused the libol to be printed in a newspaper; had the allegation been simply, that the defendant printed and caused to be printed the libel in question, it would have been difficult have construed it into an averment that he published, for a man may print, and therefore cause to be printed, without the aid or privity of others. The term published is the proper and technical term to 1"' in the case of libel, without reference to the precise degree in which the defendant has been instrumental to such publication; 'since, if he has intentionally lent Ids assistance to its [ '360 ] existence for the purpose of being published, his instru- mentality is evidence to show a publication by him (y). In a declaration for words spoken, it is sufficient to aver that the defendant spoke in the presence (-) of divers persons, without alleg- ing that those present either heard or understood them, and it will be intended that they did hear and understand the words till the contrary appear. But it would be insufficient to aver that the words were Bpokeo, without stating them to have been spoken in the prosence of Borne one («), or without some averment which necessarily implied a pub- lication to a third person, as that the defendant palam etpublice I promulgavit . ii was derided. that such an allegation in an action on the case is '_ r ood, | '861 J though (as was said) it would be otherwise in trespass. If the words be spoken in a foreign language, an averment is necessary to shew that the hearers understood them <' ) ; and even {y) Lamb's case, 9 Rep. (/<) I (;) Cro. E. 480. Noy. 57. Golds. 119. (c) 2 Mod. 41. Cro. J.'3'J. Cro. Car. 199. 2 Lev. 198. (a) Sty. 70. (e) ( ,, B, 8 B. Civ. B. - 361 CIVIL REMEDY. where Welsh words were averred to have been spoken in Monmouth- shire, which once was part of Wales, judgment was arrested after verdict for the plaintiff, because it was not averred that they were spoken before Welshmen, or those who understood the Welsh tongue (/). In the King v. Bereton (g-), the indictment stated that the de- fendant " Scrigsit fecit et publicavil seu scribi fecit et publicari causavit" And judgment was arrested on account of the uncer- tainty of the disjunctive charge ; and in a civil proceeding, such an averment Avould probably be considered defective, if pointed out by a special demurrer. Next as to the publication of the illegal matter. The words are either intrinsically actionable, or they derive their illegality from collateral circumstances ; it is therefore necessary to inquire, in the first place, how the mere words themselves are to be stated and connected with the plaintiff; and secondly, [ *362 ] where they are not *in themselves actionable, how they are to be connected with the collateral facts from which their actionable quality is derived. First, as to the statement of the mere words : it has long been settled, that the declaration or indictment must profess to set out the very words published, and that it is not sufficient to describe them by their sense, substance, and effect. It seems (//.) formerly to have been held to be sufficient to set out the words, not in English, as they were delivered, but in the Latin language ; the permitting which clearly recognized the propriety of a substantial, in contradistinction to an actual and precise statement of the very expressions used, since in many instances it would be impossible to render the expressions used into Latin ones perfectly synonymous. And it appears (i), to have been the opinion of Holt, C. J. in Dr. Drake's case, that the libel might have been set forth in the infor- mation in Latin, in which case a variance, which did not change the, sen se, would not vitiate it. [ *363 ] *No argument can, however, be drawn from this source, in support of a substantial, in opposition to a (/) Cro. Eliz. 865. for uttering traitorous and seditious words (g) 8 Mod. 328. -were cited, in many of which nothing mor e (h) See Hugh Pyne's case, Cro. Car. than the Latin translation was set out . 117, which was submitted to all the judges (i) Holt. R. 351. for their opinion, when many indictments DECLARATION— PUBLICATION. 363 precise statement, the doctrine having been virtually overruled; for if it was sufficient to Bot out a Latin translation whilst the pro- ceedings wore drawn in Latin, it would, on the -am • principle, after the passing of the Btatutes (A), which direct the English to be sub- stituted for the Latin language in all legal proceedings, have been Bufficient«to set out a libel published in French or Italian merely by an English translation. But in the case of Zenobio v. Axtell n motion to that effect, Buller, J. said, that there was a case in Stran . in support of his Lordship's opinion, but that it had sin© over ruh-d in Lord Mansfield's time, and that ho himself had known a variety of nonsuits on the same objection; and judgment was given for the defendant [1]. •So, where A. < e) says of B. and C. "You have com- [ *1~1 ] mitted such an offence," though B. and C. may have sepa- rate actions, each must state the words to have been spoken of both. where the words are spoken (/) ironically, they must l»c stated as spoken, with an averment that they were spoken ironically. Where the declaration stated these words of the plaintiff, " lie stole a sheep of his," (innuendo of the defendant) it was moved in arrest of judgment, that his must refer to the last antecedent, and so that the words were repugnant, for a man cannot steal his own sheep (gO ; but the objection was overruled. Upon the authority, however, of more recent cases, it seems the variance between the words his, as used in the declaration, and mine as proved in evidence, would be a ground of non-suit. "Where the words laid in the declaration, as spoken of a surv were, " Harrison is a scoundrel ; if 1 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 material-, he would have passed my account." *The first witness called lor [ '".7:2 ] the plaintiff proved these words: " Harrison is a scoun- drel; and if 1 had allowed j£20 per cut. he would have passed my account." The second witness proved the words, " Harrison is a scoundrel; and if 1 had deducted 620 per cent, he would have passed my account." Lord Ellcnborough, C. .1. said, that words to l,,- actionable, («) Cro. Ca. 512. (/ ) 11 Mod. B6. (g) 8 Mod. 30. [1) Proof of words spoken in the second person will not BUpp rt a I 'leging the speaking to have been in the third person, MeCon ellv.M C y,7Serg mdBawle 223: so hell on the Btrength of the decision of Lord MLurai u u> in Avarillo v. fi Bull. N. P. 5. Sec also Miller v. Miller, « Johns. B 71. 372 CIVIL REMEDY— DECLARATION. should be unequivocally so, and he 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 X20 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 allowance or deduction from the plain- tiff's bill for the benefit of his employer, and were of a different meaning and import." Where the words alleged in the declaration were, " This is my umbrella, he stole it from my back door," and the words proved were, " It is my umbrella, c^c." and it appeared that the words were not spoken in the house where the umbrella then was, it was held, that the variance was fatal ; for the words, as laid, imported to have been spoken concerning a thing present, those proved [ *373 ] *wero spoken concerning a thing not present at the time (£). Where the words were spoken in answer to a question, and the injurious meaning is to be collected not merely from the terms of the answer, but from the question and answer together, the words must not be laid as a substantive and affirmative proposition, but accord- ing to the fact (Jc). If the defendant has not made an assertion as his own, but has merely alleged that some other person had reported the fact, it must be so averred, and if it were to be averred substan- tively, that the defendant had reported the fact, the variance would be fatal (J) ; for the charge is different, and open to a different de- fence. Where the declaration laid the words as follows, " A.'s wife is a great thief, and ought to have been transported years ago ;" and the words proved were, " A.'s wife is a bad one, and ought, &c." it was held, that the words were misdescribed ; the words laid imputed an act, those proved, suspicion only (w). And variance may consist either in the addition or omission of one or more words, or in the substitution of one word for another. First, in the addition. [ *374 ] *It is not necessary, in case of oral slander, to prove all the words, provided such of them be proved as are material [1]. (i) Walters v. Mace, 2 B. & A. 756. (I) Bell v. Byrne, 13 East.' 554. (/<•) See Bromage v. Prosser, 4 D. <§• (m) Hancock v. Winter, 2 M. & S. C. 217. 502. [1] So held in J\ r orlh v. Van Slyck, 2 Hill 282. STATEMENT OF THE WORDS. 71 The plaintiff declared that the defendant Baid of him, " IT" is a maintainor of thieves, and a strong thief." The jury found the whole to have been Baid except the word strong, and it was adjudg- ed for the plaintiff (») [aa~\. And even where special damage i the gi I 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 word-, as laid, constitute but one charge, the whole must be proved. The declaration stated that the defendanl Baid of the plaintiff, " He is Belling his coals at one shilling a bushel, to pocket the money, and become a bankrupl to cheat his creditors." Opon the trial, the words "and become a bankrupt," were not proved, and the plaintiff was nonsuited (/>). 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 inti r alia or a// tenor em. With respect to variances from omission it *seems. in *375 | case of oral slander, to be suflicient to set out the words which are material, and it is not even necessary to state words which may qualify the objectionable ones ; and in the case of libel, it may be averred in uno quorum continetur inter alia SfC. (>/): for, if something else were added, which did in fact qualify the ob- jectionable words, it may be given in evidence on not guilty (/)• (n) BurgU's case, Dyer 75. must take care of yourself there, mind [) B. v. Ererclon,S Mod. 329. Cro. 615- 645. Sidnam v. Mayo, 1 Roll. R. 429. (t/) Tabait v. Tipper, 1 Camp. C. 350. Cro. J. 407. (2) Cooke v. Smyth, M'ClelL and (b) Buckingham v. Murray. 1 C, & Young, 250. P. 46. STATEMENT OF THE WORD-. 381 were to be set out continuously, ami the sense were thereby to be altered, the variance would be fatal (c). With respect t<> the alteration of one or more letters of a word, the rule seems to be, that if the sense be thereby altered the vaii- anc • will be fatal, but not otherwise ( >h. Wiih respect to the mis-spelling ofa word, provided the not altere I. th • vari inc • is not material, even in an indictment for perjury. In the caseof the King v. Birch I c ),a vari mce was relied upon in favor of the prisoner between the indictment for perjury and the affidavit on which th i prosecution was founded. In affidavit, the defendant swore that he understood and believed, •• The assignment of perjury in the indictment was, that be had false- ly sworn that he understood and believed, &c. omitting the Letters. " Lord Mansfield — " This is an application for anew trial in an indictment for perjury, upon 'the ground of a mate- [ '382 1 rial variance between the affidavit and the indictment, th j letter s being left out of the word understood. We have looked into all the cases on the subject, some of which go to a great length of nicety indeed, particularly the case in Sutton, 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 (g 1 ), which is this ; that where the omission or addition of a letter docs not change the word so as to make it another word, the vari- ance is not material (A). If the omission, even of a letter, render a word of a difleren: nification from that contained in the libel, the variance seems to be fatal (%). A- when the word not was slated 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' iiou ultra be found, that this was not so small a variance of a letter as in false Bpclling or abbre- viations, as if gaine instead of gain, where the word and sense would be the same; but that, in the 'principal (c) Tabari v. Tapper, 1 Camp. 850; (/) 8 Balk. 224. and see Sidnam v. Mayo, 1 Roll. EL 129. («) Leach, C. C. L 168. Cro. J. -107, and quaere, whether if the (/ ) 2 Hawk. PL t'.c. 46. n. 190. passages set out purported to be continu- (ij) Silk ous passage*, when, in fact, they were ex- ('o Bee II r I th C. C. I. 17l'. tractcd from various parts of the public:*- Douglass 19 L S: irkic on evidence, tit- tion, the variance would not be fatal. Variance. Cooke v. Hughes, 1 Iiy. and M. 112. (i) 3 Silk. 224. 383 CIVIL REMEDY— DECLARATION. case the words were different and of different significations ; different parts of speech, the one an adverb, the other a con- junction ; the one positive, the other relative. It was observed, too, that though the objection was in appearance trivial, the conse- quences 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 precedent [1]. [a a] Next as to the application of the matter published. — Where the expressions used are actionable, either in themselves, or by reason of consequential damage, without reference to any extrinsic circum- stances, it is sufficient to shew merely their application to the plaintiff. This is effected by means of a colloquium, or some express aver- ment, that the words were spoken of and concerning the plaintiff, and an innuendo, in stating the words themselves, that he was the person meant (A;). Formerly it was the practice to aver, that the defendant spoke the words in a certain discourse which he had with others, or with the plaintiff himself in the presence of others, concerning the plain- tiff. This was technically called laying a colloquium, [ *384 ] *and till the case of Smith v. Ward (/), it seems to [a a] By the late stat. 9 G. IV. ch. 15, between any matter in writing or in print it is enacted that it shall and may be law- produced in evidence, and the recital or ful for every court of record holding plea setting forth thereof upon the record, in civil actions, any judge sitting at nisi whereon the trial is pending, to be forth- prius, and any court of oyer and terminer with amended in such particular, by some and gaol delivery in England, Wales, the officer of the court, on payment of such town of Berwick upon Tweed, and Ireland, costs (if any) to the other party, as such if such court or judge shall see fit so to do> judge or court shall think reasonable [*]. to cause the record on which any trial (k) The nature and office of an innuen- may be pending, before any such judge or do will afterwards be more particularly court, in any civil action, or in any in- considered. dictment or information for any misde- (I) Cro. Jac. 673. 8 Salk. 328. Sir T. meanor, when any variance shall appear Bay. 85. [1] U. Slates for United States held an immaterial variance, Lewis v. Few, 5 Johns, B. 1. When variances have been held material or otherwise, see Southiuick v. Stevens, 11 Johns. 443; Tillotson v. Chetham, 3 Id. 57 ; Harris v. Lawrence, 1 Tyler 156. [*] In New-York it is provided by statute, that every variance between any instru- ment in writing, and the recital in or reference to in any pleading or writing, shall be disregarded upon the trial of a cause, unless the variance or mistake be calculated to surprise and mislead the opposite party, and to prevent his making due preparation for a full answer on the merits. 2 B. S. 328, § 99, 2d. ed. See also p. 313 and 344, and Mappa v. Pease, 15 Wendell, 672. Matters in print as well as in writing, no doubt are within the meaning of this act. APPLICATION OF THE WORDS. 384 have been doubted whether a declaration without a colloquium would be good. In that case, it was alleged that the defendant said lit' the plaintiff, " He (innuendo the plaintiff) is a thief;" and the court, on being informed thai it was the common course to de- clare that he said de prcefato querente fuec verba, held it to be suf- ficient without a colloquium. But though the custom was to lay a colloquium, it was always held to be necessary to aver that the words were Bpoken concerning the plain till' [a a\. 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 ; for it cannot but be intended that the words were spoken to him with whom the conversation is alleged to have been had (m). But where actionable words are spoken in the third person, as, "He is a thief;" though a colloquium of the plaintiff be Laid, it is necessary to aver that the words were spoken concerning the plain- tiff (»). And it is not sufficient, in such case, to connect *the 185 ] words with the plaintiff by means of an innuendo (o) [1]. But where a colloquium is laid, and there is an innuendo of the plaintiff, it seems that the want of a direct averment must he pointed out by special demurrer, and that it will be intended after verdict, or upon general demurrer," that the words were spoken of the plain- tiff; but where no communication is laid concerning the plaintiff, the omission of such an averment (/?) is fatal to the declaration. Where the person Blandered is pointed out by the prefatory words thy son, thy brother, &c. or my son. my brother, which description may possibly apply to several, it Beems, from the current of decisions, that the plaintiff must aver that he stood in the described relation, [u > be bad, on ■ writ of the defendant did print and publish, of error brought Clement \. Fisher, ~ 15. and concerning the plaintiff, a libel, oou- &C. 159. taining the false and scandalous muter (m) Roll. Ab. 85. pL 8. 1 Will. Sun. folio wing, without alleging that the matter 242. (a) n. 8. was of and concerning the plaintiff, and ('0 Roll Ab. 85. 1. 80. 1 Bid. then set out the alleged libel, which, on Com Dig. tit. Detain. Id. 91; So where from the ambiguity of the terms used in reference to the offence charged, the words have a covert meaning, to render the declaration good, it must be averred that they were spoken with the intent to charge a particalar crime ; the difficulty cannot be obviated by an innuendo. Andrews v. Woodmanse, 15 Wendell, 232. An averment thus made is the subject of proof , whilst an innuendo is not. Witnesses may be called to detail facts and circumstances within their knowledge, relied upon to show either that a crime was imputed, or that it affected the plaintiff; but it seems the courts in New- York hold that it is not proper to" allow the witnesses to state their conclusions from the facts, as to the intention of the defendant to apply the words or libel to the party or circumstances as alleged, Van Vechten v. Hopkins, 5 Johns. R. 211, and Gibson v Williams, 4 Wendell, 320. Mr. Starkie, in his treatise on the Law of Evidence, part iv. page 861, lays down the rule directly the reverse. What is said by him is adverted to and condemned by the learned judge, who pronounced the opinion of the court in Gib- son v. Williams. EXTRINSIC PACTS— WHEN TO BE AVERRED. 393 forgo a bond." After verdict for the plaintiff, it was moved, iu arrest of judgment, that the declaration contained do allegation that any suit was in chancery, or that J. S. forswore himself in his an- swer, or as a witness, or thai the plaintiff suborned J. 8. t<» forswear himself, or shew any particular wherein he forswore himself. But it was held that these averments were immaterial ; for if J. 8. nev- er was sworn, it was scandalous in the defendant to say that the plaintitV procured .1. 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 thai J. 8. had forged a bond, the charge against the plaintiff was nevertheless scandalous. *In an action for the3e word- | i), " Thou hast killed thy master's cook," on motion in arrest of judgment, il i '394 ] was held to be unnecessary to make any averment, shew- ing who the plaiutilV's master was, or that he was the master of the person slain, because the words in themselves imputed .-lander. 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, amongst other causes, it was alleged that an act inn lay not for the words, because it was not shewn that the wife was dead, or how she was killed ; but the objections were overruled (A:), and the plaintiff had judgment. In declaring for the words, "I will call him in question for poisoning my aunt," there needs no averment that the aunt was poisoned (/). There are, notwithstanding, many cases to be found in the books where averments of this kind have been deemed to be indispensable j but as these are contradicted by the more modern decisions (m), and are rather remarkable for their subtlety than for either con- venience or consistency, it would be a wa8te of lime to take further 'notice of them than by citing a few speci- mens. After verdict for the words, "Thou art as arrant a thief as any in England," (») it was held, in arrest of judgment, that the \\ were not actionable, for want of an averment that there was any thief in England. After verdict for the words, "Thou art a murtherer, for thou art the fellow that did kill Mr. Sydnam's man," judgment was re- (i) Cooper v. Smith, Cro. J. 423. («) Pcake v. Oldham, Cowp. 276. (fr) See 1 Vin. Ab. 513, pi. 1. 2. (n) Foster v. Browning. Cro. J. 687. (/) Cro. Eliz. 669, 823. 395 CIVIL REMEDY— DECLARATION. versed for want of an averment that any of Mr. Syd nam's men had been slain (o). The words were, " Whosoever he is, that is the falsest thief and the strongest in the county of Salop, whatsoever he hath stolen, or whatsoever he hath clone (/?), Thomas Haselwood 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 averment would be deemed necessary. It would be sufficient to aver, that the defendant, intending to charge the plaintiff with felony, spoke the words ; and *896 ] in setting them out, to add *an innuendo to the same ef- fect, in which case a verdict for the plaintiff would be conclusive as to the defendant'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 un- necessary proof, and in some instances the superfluity may prove fatal to the declaration. In the case of Snag v Gee (#), where it appeared upon the re- cord that the person with whose murder the plaintiff had been charged by the defendant, was still alive, it was held that no action was maintainable. And where the words of the defendant are general, no explanation is necessary to render them more particular. The defendant (r) 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 imputed were not pointed out in the declaration, and that many indictments for perjury had been quashed, for not show- ing the perjury to have been in a material point. But the court held, that though indictments ought to show the cause of [ *397 ] perjury, yet that in an action *for words which is ground- ed on the speech of another, the charge cannot be en- larged further than the other spoke. So, in cases where a felony is charged, it is unnecessary to make any averment, introducing any circumstances relating to a felony actually committed ; so, with respect to imputations of forgery or (o) Batons v. Ball, Cro. J. 331. See a (7) 4 Rep. 16. 1 Vin. Ab. 409, pi. 4. conjecture upon the original reason of this (r) Sir R. Snowe v. , Cro. Car- scrupulous nicety, p. 81. 321. (p) Shepp. Ac. 269. EXTRINSIC FACTS— WIIK \ TO BE AVERRED. 397 perjury, where the meaning can be collected from the defendant's own words, no averment ought to be m ide M to the existence of any circumstance to which the defendant might by possibility allude, since it has been long settled that their existence lb perfectly imma- terial to the maintenance of the action l s ). But in case of a charge of forswearing unless from the accom- panying words, it be clear that a judicial forswearing was meant, the plaintiff must show upon the record thai fondant alluded ho some particular forswearing which amounted to perjury. Tim-, in a declaration for saying, (/)" A. B. being forsworn, compounded the prosecution," no introduction of extrinsic facts is necessary, since an indictable forswearing must have been meant; but in de- claring for the words (w), " He has tor-worn himself in Leake Court," it is necessary to show that Leake Court was one 'in which the offence of perjury could have been commit- [ 893* ] ted. In the King v. Home (.?;), the libel, as stated in the information, was averred to be of and concerning his said majesty's government, and the employment 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 beloved 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 majesty's) troops at or near Lexington and Concord, &c. in the province of Massachusetts." The defend- ant having been found guilty, objected, in arrest 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, La giving judgment, observed, " The words in the present case are, that the defendant, of and concerning the king's government and the employment of his troops, said, • that innocent subjects had been inhumanly murdered by the king's troops for preferring death to slavery.' Do these words import, in 'their natural and obvious sense, that the king's tro ■•'■'. , '.' ] 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 comprehends all the executive power, (s) Vid. Supra. 85. (M Cro. Eliz 009, (tt) 1 Roll. Ab. 39, pi. 7. GBac.Ab. (*) Cowp. 682. 207. Vol. I. 30 399 CIVIL REMEDY— DECLARATION. both civil and military, that he employs all the national force, and that his troops arc the instruments with which part of the executive government is to be carried on. The introductory part of this in- formation 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." " It has been truly said, that the king's troops may, like other men, act as individuals, but they can be employed as troops by 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 government,' 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 for that reason only inhumanly murdered by the king's order, or the orders of his officers.' The motive imputed tends to aggravate the inhumanity of the act, and consequently of [ *400 ] the imputation itself, because it *arraigns the government of public trust, in employing the means of the defence of the -subject, in the destruction of the lives of those who are faithful 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 record." With respect to the allegation of collateral circumstances, in reference to which the publication is actionable, care should be taken not to allege them too minutely, and not to allege more than is necessary, for where the actionable quality of the publication de- pends wholly on its connection with collateral matter, a variance in proof of those matters has frequently been held to be fatal. Where the words are actionable in reference to the special char- acter of the plaintiff, as a physician, barrister, clergyman, or trades- man, a prefatory averment of such his character and situation is of course in all cases essential. In the description of the special character in which the plaintiff sues, some nicety is to be observed, in not averring [ *401 ] more than is necessary ; *for, since the averment of character is material, the plaintiff upon the trial will be EXTRINSIC PACTS— SPECIAL CHARACTER. 401 bound to prove it, with all the circumstance* with which the de- scription in the declaration is encumbered, though a much more simple one might have Bufficed. In an action for words, the plaintiff ( //) declared that he w nedicinis doctor; and it was moved in arresl of judgment, because he did not shew that he was licensed by the College of Physicians, or that he wasagraduate of one of the univen scordingto the Btatute ( z). Bnt Bankes,C. J. and Crawley, J. were of opinion that the act was a general one, which need not be pleaded. And even had the Btatute been a private one, it Beoms that the plaintiff in such an action would not be bound to set out his title, since, in general, an action on the case against a wrong doer for a disturbance, it ia sufficient for the plaintiff to allege his right gene- rally, without showing a title (a). And in an action brought by a physician, it is suffi- cient to aver (b) that he had used and exercised 'the [ *402 ] 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 (c) ; and if he were unable to prove it, he would fail. But though the plaintiff need not aver how lie came by his title, he must describe it in apt terms. Thus, in an action broughl by a barrister, he ought to aver that he is homo consiliarius; and it is not sufficient to say that he is eruditus in lege Qd). It was formerly held, that it was necessary for a tradesman (e) to aver in an action for words of his occupation or trade, that he got his living by buying and selling: but this anise 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, which has long been exploded ( / » : it is sufficient to aver that the plaintiff exercised the trade, and derived profit from it. • Next it should appear that the special character "be- [ '408 ] longed to the plaintiff at the time of the publication. So little precision has been required as to this statement, that it lias been held that the averment by the plaintiff, that he is of such a trade, or has exercised it for divers years < g ). without Baying ultimo (y) Dr. Brownlow's case, Mar. 116. pi ( 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 arrest- ed. 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 ivas a justice (m) of the peace for the county of Leicester, 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 (n)" [ *405 ] *It seems, in general, to be sufficient to allege gcneral- (h) 2 Roll. R. 84. 1 Vin. Ab. 588. (I) Cro. Car. 282. See also 2 Roll. 84. (i) All. 63. 64. 1 Vin. Ab. 538, note to Dan. 170. pi. 3. (mi) Beaumond v. Hastings, Cro. J. 240. (k) Cro. Jac. 222. Yelverton, 159. (h) 2 Roll. 85. EXTRINSIC PACTS— AVERMENT OF. 405 ly that the plaintiff was a physician, barrister, or attorney, at the time of the alleged injury, without more. 1 1 is ann ic issary to aver that the plaintiff has qualified himself to act in the situation or office, in respect of which he is Blandered, according to the enactments of any Btatute (o ). Where the words or libel derive their injurioua quality from ex- trinsic circumstances, which are averred upon the record, it is ob- vious that the allegations by which the words or libel are applied to such extrinsic subject matter, become descriptive of the nature of the injury. And, consequently, that a material variance in proof from such averments must be fatal. Where the plaintiff stated that he was the proprietor and editor of a newspaper calumniated by the defendant, it was held to be in- sufficient to prove merely that he was the proprietor (/?). Where the declaration stated that the plaintiff was an attorney of the Court of King's Bench, and had been employed by the de- fendant, as his attorney, to defend an action, wherein one *G. "W. L. had been the plaintiff and the present de- [ *400 ] fendant had been the defendant, and the words, " I have got rid of a rogue in Willey, and I have got rid of a bigger rogue in Parry" (the plaintiff), were alleged to have been spoken of the plaintiff's conduct in that cause ; it was held, that as the words were laid as spoken of the plaintiff, in the conduct of a certain ac- tion, that action was the ground work of the inquiry, and that its existence ought to be proved (q). In an action (/•) for a libel on a constable, alleged in both counts of the declaration to have been published of and concerning his con- duct in the apprehension of persons stealing a dead body, it was averred, in what that conduct had consisted, viz. that he had carried that body to Surgeon's Hall; and it was held to be necessary to (o) Sec TTaillcy v. Herring, 8 T. R. And it ma held, that i; ifficient 13j_ to show that the coats had bean levied and (p) Herriot v. Stuart, 4 Esp. C. 487. paid, and that all t lio papers had been Ld. Kenyon, C.J. See also Steveni v. given up to the defendant, and that notice AUridge, 6 Price, '_';> I R. v. siunr, l had been given to the defendant to prodoea Leach, C. C. L. 79. 2 East's P. C. 580. all papers, Ac. Lord Kenyon said, that he R. v. Ellis, Russell and Ryan, 188. Sell- presumed that the roll bad been carried in. ers v. Till, 4 B. and C. G55. But see to which the plaintiff might have had ac- Lewisv. Walter, 3 B. and C. 108. Supra, oeea, and given ■ oopy in «vi I 398. (r) Tccsdalc v. Clement, 1 Chitt; (. of certain misdemeanors, and that in furtherance of Buch proceedings, and to bring the sunt.- to b . certain sums of money, belonging to the parishioners were applied in dis- charge of the expenses ; and that the defendant, to cause it t i lected that the plaintiff had fraudulently applied money beli ing to the parishioners, falsely and maliciously publish hJ of and con- cerning the plaintiff, and of and concerning his conduct in his office of vestry clerk, and of and concerning the matters aforesaid, a cer- tain libel, &c. It appeared upon the trial, upon the production of the libel, that the imputation was, that the plaintiff had applied the parish money in payment of the expenses of the prosecution after it had terminated. And it was held, that the variance was unimportant ; for it was immaterial to the character of *the libel, whether the money were so applied before or | '410 ] after the termination of the prosecution (c). (yi) Lewis v. Walter, 3 B. and C 13S. But where the plaintiff alleged that he was treasurer and collector of certain tolls, and that the defendant published of him, as such treasurer and collector, " You are gathering the toll for your own pocket," thereby then and there meaning that the plaintitF, so being such treasure and collect- or, was guilty of collecting tolls for the purpose of improperly applying them to his own use; the plaintiff having proved that he was treasurer only, and not col- lector, the variance was considered fatal, nd the court of K. B. refused to set aside a nonsuit. For the words were applicable to the plaintiff rather in his oharaoter of collector, than of treasurer; the plaintiff was bound to prove that the words were applicable to him, in the manner which he himself had pointed out by his innuendo. Sellers v. Till, 8 B. and C. 655. (z) May v. Brown, 3 B. and C. 113. In the case of Lord Churchill v. Hunt, '2 15. and A. 685, the declaration alleged that, before the publication of the libel, a carri- age in which E. S. was riding, was passing on a certain highway, and that the plaintiff was also driving another carriage, and that it happened without any negligence, default, or furious driving un the p irt of the plaintiff, that the two carriages came in contact together, whereby the in which the sail E. B. was riding, i oidentally overturned, and the -ii 1 1". 8. was injured, and that the defendant pub- lished a libel of and concerning the plain- tiff, and of and concerning the said acci- dent The jury found, on an issue taken on a special justification to part of the al- leged libels, that the accident had been oc- I bj the hard and furious driving of the plaintiff, and found a verdict with ■ part of the irhi ih « tfl not justifl i motion to enter a verdict for tl on all ; I wai oonten led th it the allegation that it happened without furi- ous driving on the part of the plain- till", was part of the description of the accident. But the court held that the aver- 410 CIVIL REMEDY— DECLARATION. The plaintiff declared that he had been a wool-stapler at Ciren- cester and that at the time when the words were spoken he was a brewer at Oxford, and that the defendant spoke of him, as such trader, these words, " Mr. H. the plaintiff) and B. have both been bankrupts ; Mr. H. at Cirencester;" the plaintiff proved [ *411 ] that he was, when *the words were spoken, a brewer at Oxford ; but gave no evidence of his having been a wool- stapler, and proved also that the defendant spoke the words, " He was a bankrupt at Cirencester," and it was held that the evidence supported the allegations, for a trader at Oxford might have been a bankrupt at Cirencester (a). With respect to words published in a foreign language, and phrases or terms whose use is confined to a particular district or class of people, and not generally understood, it has, as already observed,. been said, that no averment as to their meaning is neces- sary (6). This doctrine seems nevertheless a little extraordinary, since, without such an explanation, the question of law does not ap- pear open upon the record (c). Suppose for instance, an action to be brought for calling the plaintiff Idoner (d), without any aver- ment.of the meaning of the term, and that the defendant demurred ; since an acquaintance with the Welch tongue forms no part of legal education or practice, the judges would be placed in a strange situation if they were bound to give their judgment upon [ *412 ] the legal meaning of the words ; but an averment, as *to the meaning, would preclude all doubt, since, by his de- murrer, the defendant would allow that the meaning of the word was perjured or forsworn, as alleged in the declaration, and judg- ment would be given accordingly. 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. Laivrence, the plaintiff averred that the Welch words Ded ingaes Will. Ross in mudon, signified that the plaintiff was forsworn, though in fact they signified that lie was perjured; and, after a verdict for the plaintiff, judgment was ar- rested (e). ments were divisible, and that the allega- (c) Hob. 126. 1 Roll. Ab. 86. Zenobio tion was no part of the description of the v. Axtel, 6 T. R. 162. accident. (d) In Welch signifying perjured. (a) Hall v. Smith, 1 M. and S. 287. («) Sty. 263. Ross v. Lawrence. (b) See 1 Will. Saund. n. 242. EXTRINSIC FACTS— COLLOQUIUM. 412 In an action for Blander of the plaintiff's dtle, it is wfficient to aver his right generally, without Betting forth bis title. Tim- it I been held to be sufficient to aver that the plaintiff was lawfully nes- ted of certain copper mines, Bituate, &o. and of certain ore got- ten and to be gotten from the Baid min ■ f )■ In the next place it is necessary to connect the publication with the previous farts, by means of an appropriate averment ( g ). Where the words arc actionable, affecting the plaintiff *in a special character, an averment that they were ap- [ *418 ] plied to him in that particular character is necessary (//), unless that application necessarily appear from the words them- selves ; in which ease, the general allegation that they were Bpoken concerning the plaintiff, is Bufficient. The defendant said of a tradesman (i), " He is a sorry pitiful fellow, and a rogue; he compounded his debts at live shillings in the pound ;" and the declaration was held to be good, without an express colloquium of the trade. 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 eheat you ; he has cheated all the farmers at Epping, and dares not Bhew 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 jus- [ *414 ] tice, but could never get any thing at his hands hut injus- tice ;" it was held that the words were actionable without any col- loquium, and that the court would intend that the words were spoken of him as a justice, and not as a private man (/). So, where the defendant said of an attorney, " II- ifi a common barretor;" it was held to be unnecessary to aver that the words were spoken of the plaintiff in his profession, for the court would (/") Rowe v. Roarh, 1 If. and B. 804 SaviU v. Jdrdint, 2 II I Burmtt {(,) To avoid circumlocution, the term v. FFWZ«, 12 Str. 1169 colloquium is frequently used, not in its 826. Ld. Ray. 610. B Mod. 271., Ci .Car. strict sense as denoting a conversation on 117. the subject of the matters previously (») Uu& Raymond, li I :^iv. averred, but as a general averment, that Smith. the publication was made of and concern- (fc) -I., v. 62 ing those f icts. (/) Cro. Car. 16,192,469. C* (ft) Savage v. Robery, 2 Salk. 694. 1 !*▼. 280. 414 • CIVIL REMEDY— DECLARATION. intend it, and that the words were to be construed secundum con- ditionem personarum of whom they were spoken. So, where (wi) 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 (V), " Thou art a drunken fool and an ass ; thou wert never a scholar, and art not worthy to speak, to a scholar ;" the words were held to be actionable, though no colloquium was laid of the plaintiff's profession. In general, where facts extrinsic of the words and of the plain- tiff's character are necessary to support the action, the [ *415 ] plaintiff must aver that *the publication was made in re- ference to those facts. The declaration (o) stated that the plaintiff, a constable 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 forsworn, and it was held, that the declaration was bad without a colloquium of the oath so taken, because it was necessary for the declaration to shew 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 exche- quer 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, before you," meaning and insinuat- ing 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 defendant to the said R. W. the plaintiff's servant, were laid thus: "Your [ *416 ] *master (meaning the plaintiff) has both cheated people out of their wages, and forsworn himself;" thereby mean- ing 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 colloquium laid of the plaintiff's answer to the bill in chancery, and that it did not appear that the words (m) Cro. Car. 265. («) Cro. Car. 270. (o) Drake v. Corderoy, in error, Cro. (/>) Hawkes v. Hawkey, 8 East, 427. Car. 288. EXTRINSIC FACTS— COLLOQI'ITM. 41G were spoken in relation to that answer, and that without such an averment the innuendo was unwarranted. And in general, as prefatory averment of the defendant's intention to injure the plaintiff, or to impute a particular charge, though it be coupled with a subsequent innuendo to the same effect, will not supply the want of an express averment, that the words were spoken, or libel published of and concerning the plaintiff, on other subj matter which is essential to the Blander (q). 'The averment ought to extend to the whole of the [ '417 ] prefatory matter necessary to render the words actiona- ble. The plaintiff (r) declared, that some evil persons unknown, had feloniously shorn the sheep of (\, and that there being a com- munication between the defendant and another, concerning the shearing of those sheep, the defendant said, " I- do not know who did shear the sheep ;** and being asked who it was, he replied, that it was the plaintiff, innuendo felonice, and Eoughton and Doderige, Justices, against the opinion of Croke, J. held, that the words were not actionable, since the colloquium was of the shearing of the Bheep only, and not of the felony. It has already been seen that the danger of a variance may often be incurred by the indiscreet averment of too much prefatory mat- ter, and an improper application of the words or libel to such facts. It is, however, to be observed, that although more than is necessary be previously alleged, yet that if the colloquium or averment supply the words or libel to so much only of the previous matter a proper and necessary, a variance in not proving the rest will not be material. Thus, where the plaintiff averred that he followed two trades, and that the defendant, intending to injure him in those sev- eral trades, in a certain Mr-course which he had of and [ "41s J concerning the said plaintiff in one of his trade.-, .-poke the word- set out, it was held that though the plaintiff failed in proving that he followed both trades, yet that, having proved that he followed the trades concerning which the words were alleged to have been spoken, he was entitled to recover (*). (q) R. v. Marsden, 4 M. and S. 164, libellous expressions were directly applied where it was held to be insufficient in an to him by means of an innuendo. A' indictment, to aver that the defendant pub- Johnson v. Aylmcr, Cro. J. 126. Luwjidd lished the libel with intent to vilify the T. Bancroft, Str. 921. R. v. .ildcrlon, prosecutor, &c. without an express aver- Say. 180. ment that the libel was published of and (r) 3 Duls. 83, Helly v. Ucndcr. concerning the prosecutor, although the (s) Figgins v. CogtyotU, 3 M. and S. 418 CIVIL REMEDY— DECLARATION. INNUENDO. Next, with respect to the nature and office of an innuendo. An innuendo may be defined to be an averment which explains the meaning of the defendant's publication by reference to facts previ- ously ascertained by averment or otherwise (f). An innuendo is frequently necessary, where the language of the defendant is apparently innocent and inoffensive, but where, never- theless, by virtue of its connection with known collateral circumstan- ces, it conveys a latent and injurious imputation. Where from the anbiguity of the defendant's expressions, it is doubtful who was meant, it is the proper office of the innuendo to render the allusion clear, by specifically pointing out the [ *419 ] meaning. 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 by reference. Thus in the case of Sir Miles Fleetwood v. Curl (w), the plaintiff was receiver of the court of wards, and the words were laid in the declaration, with an innuendo, as follows : " Mr. Deceiv- er (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 (x), for publishing a libel in " Mist's Journal," it was shewn by proper averments and innuen- dos, that in a pretended piece of Persian history, the king and sev- eral other members of the royal family had been libelled, and that the king was represented under that of the name of Merewits, the Queen under that of Sultana, and that the character of the young Sophia was intended for the Pretender. In Baxter's case (j/), it was shewn that by the word Bishops, the Bishops of England (c) were meant ; in the King 1 v. [ *420 ] Franklin, that by " ministers," *were meant the minis- ters of the King of England (a). In an action for charging the plaintiff with having 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 3G9. Note that this was previous to the (w) Cro. J. 557. 2 Roll. Rep. 148. case of Leicis v. Waller, 3 B. and C. 138, (x) Barnard, K. B. 304. Djg. L. L. 24. where it was held that such an averment is (y) 3 Mod. 69. divisible. (*) 3 Bac. Ab. 454. (0 2 Salk. 513. 1 Lord Ray. 256. 12 (a) 11 Mod. 99. Mod. 139. 1 Will. Saund. 243. JNMKNDO. 420 of Wales) was restored to his rights, the court held, that this was certain enough, even without an innuendo. In Tutchin's case (&), the introductory part of the information stated, that the libel was written concerning the royal navy of this kingdom, and the government of the said navy. One part of the libel was, "The mismanagements of the navy (innuendo the royal navy of this kingdom) have been a greater tax upon the merchant 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 (c), the information in 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 solemnity *of [ *421 ] the Chevalier's birth, and if hereditary right be any rec- ommendation, he has that to plead in his favor." 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, sutlicient to verify the charge. The most important rule of law relating to this species of aver- ment is, that its office is merely to explain by pointing out the defend- ant's allusion, and that it can in no case be allowed to introduce new matter. And the reason for this is a most substantial one ; for were it otherwise, there would be no sufficient and distinct averment of the existence of those facts which in point of law are essential to render the words actionable. For instance, suppose the defendant had said," You are forsworn," which words would not be actionable, un- less spoken ( ) 1 Will. Saun. 243. INNUENDO. 427 with the situation of the college in the University of Oxford, so that the innuendo might be expunged without affecting the cause of ac- tion. In Roberts v. Cambden (7), the defendant Baid, " II" (meaning the plaintiff) is under a charge of a 1 *428 ] tion for perjury. (J. W. had the attorn il'a directions to prosecute ;" and an innuendo that tin- attorney-general for the county palatine of Chester was meant, was rejected a- BUT- plusage. An innn m lo, when repugnant or insensible, may be rejected (r). The record of Nisi l'rius stated, that the said William Bpofi the said James these scandalous words following: " Ee (innuendo the said William) is a thief," where the innuendo should have been of Jam •-•. After a verdict for the plaintiff it was held that he was entitled to his judgment, since the innuendo was void, and an appa- rent misprision. It docs 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 connected with the facts stated ; its office seems more properly confined to mere reference of the defendant's moaning to previous matter; and, indeed, such an averment would be improper, since the actionable nature of t!i3 charge is a matter of law, which the court will collect from *the facts, if they [ *d29 ] warrant such a conclusion ; and if they do not, no innu- endo 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 impute a charge of wilful murder, it is unnecessary for the plaintiff t ) assert, by way of innuendo, that the defendant meant to impute the very crime of murder. In Peafce v. Oldham (*), in error, the plaintiffs declared, that upon a colloquium concerning the death of one Daniel Dolly, the defendant said to the plaintiff, " Von are a bad man, and I am thoroughly convinced that you are guilty (meaning guilty of the death of the said Dolly,) and rather than that you should want a hangman, 1 will hang you." After a general verdict with damages, the defendant brought a writ of error. Judgment however, was affirmed, though the count alluded to contained no express allegation, by way of innuendo or (7) 9 East, 93. innuendo explained tu mean crater (r) Cro. Car. 512. See also R v. Ay- («) 1 Cowp 1175. Ittt, 1 T. R. 63, where door was by the 31* 429 CIVIL REMEDY— DECLARATION. otherwise, that the defendant intended to charge the plaintiff with the crime of murder. And though in the above case special damage was laid, it appears that the court held the words to be in themselves actionable ; and Lord Mansfield observed, " These words plainly [ *430 ] 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 explanation will not vitiate the declaration, provided such an intention can be collected from the circumstances. Thus, in the case last alluded to, where a collo- quium 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 (0- An innuendo in one count may be supported by a colloquium in a previous one. In Tindall v. Moore (w), 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. Cotten. 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, [ *431 ] for *that every count in a declaration is a substantive count, and that the innuendo (meaning the same house) could not relate to the summer-house mentioned in the first set of words. But by the court, although the last set of words be not of themselves actionable, yet they shall have relation to the former set. From these decisions it appears, that the colloquium and innuendo are averments, whose office it is to connect the defendant's publi- cation with the prefatory matter. That the first is a general averment, connecting the whole of the publication with the previous statement ; 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. (t) See also Woolnoth v. Meadows, 5 (u) 2 Wils. 114. East, 4G3, and Dame Morrison v. Cade, Cro. J. 162. AVEBMENT OF MALICE. 431 That the want of colloquium cannot be supplied by an innuendo. That the oflicc of the innoendo is confined to :i -iui j>le explana- tion of the defendant's meaning bj reference to previous matter. That it cannot, in any ease, supply the want of prefatory averments and of a colloquium, in order either to explain or extend the mean- ing of the words or libel Bel out, where Buch an explanation or ex- tension, with reference to extrinsic matter, is necessary. It would not lie easy, or perhaps possible, to point out a more clear and convenient process for technically Btating a "case upon the record, than this, which has with great [ "432 ] wisdom been adopted by the law from very early times; it combines simplicity witli precision, separating the law from the facts, and exhibiting a statement of the cause of action on the face of the record, plain and distinct in all its pari-. It is true that, in some instances, justice may be defeated from want of attention to the maxims which regulate this kind of state- ment ; but it is equally true, that tins cannot happen without faulty inattention to a few plain and rational rules, and that the failure might have been prevented by the exertion of a moderate share of 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 rules, are too great to be placed in competition with the rare and partial inconvenience arising from ignorance or inattention. •avbrment of malice. Next, as to the averment of the defendant's intention. [ *433 ] Malice cither in law or fact is essential to the action, and, consequently, a corresponding allegation is essential to a com- plete declaration. No precise and prescribed form of words is requisite for this pur- pose, though tli>' term malicious^ as applied to the matter published, and maliciously to the act of publishing, are the most usual and ajh propriate terms (a). Any form of words will suffice from which the malicious intent can be inferred ; thus it has beeo held to he sufficient t<> aver, that the defendant spoke the words or published the libel falsely or (a) As to tho limited and technical sense this species of injury, vide supra. 3, 20'J, in which malice is used as descriptive uf 292, and infra, 464. 433 CIVIL REMEDY— DECLARATION. wrongfully (£), or that the defendant machinans pejorare dixit (c). And Rolle, C. J. (d) was of opinion, that in a declaration it is not necessary to use either the words falsely or maliciously, though it is otherwise in case of an indictment or information. But it is suggested by Mr. Serjeant Williams, in his *notes on [ *434 ] Saunders (] notes. Formerly it was held (.v) that, where the words were not action- able, 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 declaration; but that, when the words themselves were actionable, particular instances of such damage could not be given in evidence, unless spe- cified on the record. But the modern practice (0 docs not warrant this distinction, and at the present day it seems that in both cases the particu- lar damage must be specified [1]. The general rule of pleading, as to special damage, is, tint, it must be averred with that degree of certainty and particularity which the case admits of, in order that the defendant may be aj>- prized what it is he comes to answer, though in som • cases where particularity would be productive of inconvenience, and the circum- stances arc not immediately within the knowledge of tin- party, a more general statement has been deemed to be sufficient. •Thus the averring generally, that by means of the | '111 ] publication, several customers ( not naming them > left the plaintiffs house, is not sufficiently precise < " >. (q) See Peake v. Oldham, Cowp. Rep. though the record is one of another ourt 275. (*) B row ni itij v. Newman, 1 8b (r) This is done at chambers, as of (/) 15. N. 1'. 7. 1 Will. S.uin 1. 248. n. course, without a motion in court. The 5. Btr. application must be made to the judge (■») 11. N P. 7. 1 BoH Air. 68. 8 T. who tried the cause (if at the assizes,) R. 130. [1] Same doctrine held iu Herrick Y. Lapham, 10 Johns. 881; Htrth v. liingwalt, 3 Yeates o08. 441 CIVIL REMEDY— DECLARATION. And so, where the alleged damage consists in loss of marriage (V), the plaintiff must point out the individual with whom the marriage would otherwise have been contracted. And for the same reason, where the plaintiff states a marriage with J. N. to have been hindered, he cannot afterwards give in evidence loss of marriage with any other person (y). 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- aggravation (s). Where the special damage consists in the (a) plaintiff's having been prevented from disposing of, or selling his estate, it is necessary to shew how he was prevented, as that he had taken some steps for the purpose of selling and that the bidding was stopped by the defend- ant's act ; but it is unnecessary to specify the names of any of the bidders. * Where the plaintiff (6), who had been a preacher in [*442 ] a chapel to a dissenting congregation, averred generally in the declaration, that by reason of the words the per- sons 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 cour.t held, on motion in arrest of judgment, that where a plaintiff brings an action for slander, by which he lost his customers in trade, he ought, in his declaration, to state the names of those customers, in order that the defendant may be enabled 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(c). Where actionable words are spoken, within the scope of a private jurisdiction, the declaration may allege a consequential loss of cus- tomers 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 whatsoever (d). Where the words are in themselves actionable, and the par- (x) 1 Sid. 396. 1. Vent. 4. Cro. J. 499. (b) Hartley v. Herring, 8 T. R. 130. 12 Mod. 597. . (c) 4 Burr. 2124. (y) Lord Ray. 1007. (d) Ireland v. Blockwell in error, Cro. (2) Per Cur. in Wether ell v. Clerkson, C. 570. 12 Mod. 597. 2 Lut. 1295. (a) Smead v. Badley, Cro. J. 397. Sir W. Jones, 196. AVERMENT OF DAMAGE. 442 ticular 'character of the plaintiff is stated in aggra- [ *443 ] vation, it is not necessary to state the cirenmstan 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 Btate the fact generally, and it is unnecessary to Bet forth the writ to the Bheriff(e). In general (/), the place where the words are Bpoken is imma- terial; yet, it has been said that if the plaintiff state the plai way of aggravation, and not merely as venue, he will be bound to prove the speaking 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. In Buch case, however, if it should appear on the face of the count that the words were spoken at different times, and that some of them were not actionable, judgment would be arrested, if entire damages were given for the whole count. And a count for oral slander (§•) may be joined with a count for a libel in the same declaration. 'And the imposing cri- men feliohcB and causing (/*) a plaintiff to be brought [ *444 ] before a magistrate may be joined with a complaint for a malicious accusation before the magistrate. If the plaintiff recover, he cannot, it seems, afterwards recover in respect of any special damage which accrued subsequently from the speaking of the same words (t). Where the words are intrinsically actionable, special damage, though averred, need not be proved (&.) In the proceeding by writ of scandalum magnatum, the plaintiff declares (am pro domino reg-e quam pro scipso (i), though he is entitled to the whole of the damages recovered. It has been held (»*), that the -tatutc 2 R. 2. st. 1. c. 5, is a general law, and that the plaintiff need not recite it in his declara- tion ; but that if he undertake to recite it and vary from it in any material point, the declaration will be bad. (<>) Harwood v. Sir J. Aslley, 1 N. II. 47. was an aggravation of the false and mali- (/) 13. N. P. 5 tamen qu. & vil St.irkie emus M e nta t i on . on Evidence, tit. Variance. Plac: (i) B. N. P. 7. tamen qu. & \ii. 2 ( - (x) It). 1 t_v . ate. (y) Bynev. Moore, 1 Taunt. 589. (M Bee Davit v. Abflfc, 1 Stark - C (z) But note that a juror was after- 377. and it was hell, in that c J wards withdrawn. three of the judges (Bay ley, J. disseuti- 448 CIVIL REMEDY— DECLARATION. mere words without going before a magistrate and perferring crimen that is a charge of felony, without reference to the precise mode. [ *449 ] In the case of Blizard v. Kelly (c), it was held, that a court alleging that the defendant had wrongfully, and without reasonable or probable cause, imposed the crime of felony on the plaintiff, was good after verdict. In the case of Coleman v. Goodwin, cited from the note book of Gibbs, L. C. J. the ninth court of the declaration, on which the plaintiff had obtained a gen- eral verdict, alleged that the defendant had imposed the crime of having been guilty of unnatural practices on the plaintiff, and the count refused to arrest the judgment, saying that it must be under- stood to mean an accusation before a magistrate, but that in such an accusation it was not necessary to make use of words of legal charge, that is made out afterwards by evidence. But if the defendant, before the magistrate, stated facts, which shewed the plaintiff to have been guilty merely of a tortious con- version of the defendant's goods, on which, however, the magistrate erroneously issued a warrant for felony, the circumstances will not warrant an allegation that the defendant charged the plaintiff with a felony (d~). [ *450 ] 2dly. The determination of the prosecution *must be shown by proper averments (e). Where the plaintiff has been actually acquitted by the verdict of a jury, it ought to be alleged that the plaintiff was, in due form of law, acquitted (/) according to the fact. And it would, it seems, be insufficient to allege merely that the plaintiff was released and discharged from ente,) that such a charge is supported by rell, Str. 114. Parkes v. Langley, Gil. R. evidence, that the defendant stated to the 1G3. magistrate that he had been robbed of cer- (/ ) The word acquitted must be taken tain specified articles, and that he sus- in its legal sense, viz. by a jury, 2 T. R. pected and believed, and had good reason 231. Where the declaration alleged that to suspect and believe, the plaintiff had the plaintiff, by a jury of the county of stolen them. , was duly and in a lawful manner ac- (c) 2 B. & C. 283. quitted, and by the record it appeared that (d) Leigh v. Webb, 3 Esp. C. 167. 1 the jury found the plaintiff not guilty; and Starkie's C. 67; and see Cohen v. Morgan, upon, that verdict the judgment of the court 6 D. & R. 8. was that the plaintiff should go thereof ac- (e) Willes, 250, n. a. 1 DotIg. 215. 10 quitted; it was holden to be sufficient for Mod. 209. Com. Rep. 190. 1 Esp. C. 79. reddendo singula singulis, the plaintiff was Bac. Ab. Action on Case, II. Com. Dig. duly acquitted by a jury, that is, found not Action on Case, Conspiracy, C. 5. 2 T. B. guilty of the facts, and in a lawful manner 225—232. 1 Will. Saund. 228, 9. Alver- acquitted by the judgment of the court. ton v. Tregono, Yelv. 116. Lewis v. Yar- Hunler v. French, Willes, 517. MALICIOUS PROSECUTION. 450 the said imprisonment (,•) 9 Bast, 160. Qret i v. Rtnnelt, 1 the Case, Conspire . A!.. Action T. 11. 656. "• " (/) Stoddart v. Palmtr, 8 B. & C. 2. [o) ] r B ■•'' u - IBorr.Wl 1 Wita. Co. Litt. 305. ll'ii i v. Briggt, 1 Lord 232. B.N. P. 14. Bay. 35. 3 Salk. OGJ. See the case of 32* 452 CIVIL REMEDY— DECLARATION. 3dly. The damage resulting to the plaintiff. This may be either to his person by imprisonment, to his reputation by scandal, or to his property by expense (p) ; or it may consist in the personal la- bor and trouble imposed on the plaintiff in procuring his acquittal or discharge, and the pain and anxiety of mind naturally occasioned by the pendency of' a criminal charge. (p) See 1 T. R. 493. Gilb. .Cas. L. & E. 185, 202. 12 Mod. 208. Chitty on Plead- ing, vol. 2, 290, 3d edit. CHAPTER XII. Of the Dependant's Plea. *Thc principal circumstances of which the defendant [ *-!■', :; ] may avail himself in resisting an action for slander have already been adverted to (a), the technical mode of answering the charge on the record is next to be noticed. Under this division it is to be considered — 1st.- In what cases the defendant may give his defence in evidence under the general issue, and in what instances he is confined to the plea of the general issue. 2dly. In what cases the defence may be pleaded specially, and in what cases it must be so pleaded. 3dly. How it should be specially pleaded. 1st. The defence may consist cither in a mere denial of the fact of publishing the injurious matter as alleged, or of the damage al- leged to have resulted from it, when such consequential damage is the gist of the action, or of matter of justification or *excuse, arising from collateral circumstances, or in [ *454 ] some matter which has discharged a previously existing right of action. The plea of the general issue, ' not guilty,' obliges the plaintiff to prove all the facts, as alleged in his declaration, which arc essential in law to his right to recover ; consequent lv the plea of the general issue is proper and sufficient in all cases where the defendant means to deny or disprove any fact essential to the plaintiff's ease. As where he means to deny that he Bpoke the words, or published the libel set forthin the declaration, or that the terms of the alleged slander were used in the calumnious and ac- tionable sense attributed to them by the plaintiff, or that tin' injuri- ous consequence alleged by the plaintiff resulted from the act of speaking or publishing complained of. And he may also, in all cases where T the oca-ion and circum- stances of the speaking or other publication are such as to call <>n (a) Supra, Ch. 9 to 11 inclusive. 454 CIVIL REMEDY— DEFENCE. the plaintiff to prove express or actual malice, establish such occa- sion and circumstances by evidence under the general issue, and the proof will serve as a defence, unless it appear that he acted not honestly according to the occasion, but out of actual malice and ill-will. For in such cases, that is where the occasion and cir- [ *455 ] cumstances of the speaking the words, or *publishing the libel, throw.it on the plaintiff to prove a dishonest and malicious intention in fact, such proof becomes an essential part of the plaintiff's case ; and, therefore, the evidence offered to rebut it is properly admissible, under the plea of the general issue [1]. So again, if the immediate occasion and circumstances of the publication be such as to exclude the plaintiff's action altogether, without regard to the question of motive or intention, the general is- sue is a sufficient plea ; for then the defendant has not acted wrong- fully or maliciously in a legal sense ; in other words, the occasion rebuts the inference of legal malice (6), which is essential to the ac- tion. (b) It is again to be observed, that legal the existence or absence of actual malice malice is the same in effect with the ab- was constituted the legal limit to the ac- sence of legal excuse, where the act itself tion. It would, in process of time, be dis" is wilful, and is unlawful. And, therefore, covered that such a limit was inconvenient it would be more proper to say, that by in itself, and not sufficiently supported by law the particular occasion is a bar to the principle to constitute the general bound- action, than to say that the particular oc- ary between legal and illegal communica- casion rebuts the inference of malice. Mai- tions; that it was better that the law ice, in the legal sense, being but negatively should, in reference to the occasion, dis- essential to the right of action, it is but tinguish between privileged and, illegal superfluous and circuitous to say, that the communications, and that on the one absence of a legal excuse is rebutted by the hand, some occasions ought to consti- existence of a legal excuse, and so the ac- tute a>n absolute defence, without refer- tion is barred. It is probable that at an ence to motive; that, on the other, where early period, and before the law itself had, the law afforded no protection, the mere by the aid of increased experience, de- absence of an actual and deliberate inten- clared and defined the circumstances which tion to injure ought not to be a defence to should afford a legal defence, but when, an action for wilful defamation. Malice, nevertheless, it still was necessary to lay however, was still retained as a descriptive down some limit, in order that mutual com- term, though it had necessarily acquired a munications might not be too much fettered, new and technical sense. [1] The defendant may accordingly, under the general issue, show that the alleged slander consisted in a communication to the appointing power of the state, in reference to the conduct of the plaintiff as public officer, or to officers, judicatories or individuals authorized by law to redress grievances, Thorn v. Blanchard, 5 Johns. R. 508; How- ard v. Thompson, 21 Wendell, 319, Vander zee v. McGregor, 12 Wendell, 545: O'Don- aghue v. Mc Govern, 23 Wendell, 26; 1 Tyler's R. 164; 2 Id. 129; 2 Serg. & Rawle, 23; PLEA— GENERAL ISSUE. 455 *And, therefore, the defendant may shew that when he did the act complained of, be was acting as ;t ju Ig juror, or as a party or witness in a judicial proeeedi ig [1]. 4 Ed. 420; 8 Pick. 870; Woodward v. Lander, 6 Can, and Payne, M8; /..' i f. Fj/"- /ori/, 1 Moody and Robinson, L98; and it seems he may di I inplica- tion be made to parties who have no direct mea • ef. Fairman v. Ives, 5 Barn, and Aid. 647. Or in communications on matl to per- sons iuleresteil in the subject mutter of the communications, altboagh th chnnicler or credit of the plaintiff, Spike v. Cleyton, I 1 •" 4 I . Prosier v. Bro- mnge, 4 B. and C. 247; Del any v. Jones, I Esp C. I II; .'/ D r. < . 1 Camp. C. 267; Dunman v. Btoy, 8 Camp. C. 260; Brown v. C 2 8tfl C 297; 7Wd v. Hawkins, 8 Can-, and Payne, 88; IT/itonl v. G4'6&«, 8 Neville an i M i» Ding, 467; Shipley v. Tollmnter, 7 Carr. and Payi Coc&ayne v. Hodgkituon, 5 Carr. and Payne, 543; Godson v. Flower, 2 li. an 1 B. 7: Bradley v. Hath, 12 Pick 163, or in giving the character of a servant, Weaiherstone v. //. 1 T. li. 110; Rogers V. Clifton, 8 Bos. and Pnl 687; Edmonson v. Stevenson, Bull. N. P. Hodgson v. Scarlett, 1 Barn, and Aid. 240, per Lord Ellenborough. [1] The defendant may show that the act complained of wis done by him as a judge, a juror, a u-it/iess or par/i/ in the course of a judicial proceeding, whether civil i r crimi- nal. 2 Inst. 228; 2 Roll. R, 198; Palm. Ill; 1 Viner's Ab. 887; Cro. KHz. 280; Lafre v. King, 1 Saund. 131 ; or as a member of a military court martial or court of inquiry, Jede/ v. Sir JoAn JV/oo/-e, 2 N. II. 241; Home v. Bentinch; 8 Price, 226. So the defendant may, under the general issue, show that the publication was a /< ti- tion to the Legislature for redress of grievances. See Hare V. Mellen, 8 Lev. I Co. 14, and the resolution of the House of Commons in England in Kemp v. Gee, 9 Feb'y, 8 Will. iii.. supra p. 245; that the words alleged to be libellous were spoken by him as a member of tin Legislature on the floor of the House. 1 Black. Comm. 164; King\. Lord Mingdon, 1 Esp. R. 226; Bex v. Creeoy, 1 Maule & Sel. 278; Hast- ings v. Lusk, 22 Wendell 417, per Chancellor Walworth; 4 Mass. R. 1 ; 8 Pick. 314; or upon an application in the usual course to a magistrate or peace officer for process, Bam v. Lamley, Hntt. 188. See also Barbaud v. Hookham, 6 Esp. C. 109. Johnson v. Evans, 8 Esp. C. 32; Burton v. Worley, 4 Bibb. 38; and Saocft v. McChesney, 4 featea 607. Or that the publication took place in the usual course of a civil or criminal proceeding in courts of justice. 1 Roll. : ' : ; 1 Coke 14; 2 Bnrr.817; Cro. J. Comm. 126. 10 Mod. 210, 219, 800. Str. 691. Dyer 286. So, the defend nit may. under the general issue, sh..w that the words were bj ken by him as an advocate or counsel on the trial of a cause, and that they were relevant to the matter in issne. Such seems ihe unavoidable oonolusii n to be drawn from tl of Brooke v. Sir If nry Mo itague, I ro. Jao 90, and // i 5 i lett, 1 Barn, and Aid 232, notwithstanding the doubts suggested by the learned editor. Supra] note O). and infra page 460, note (m). Whether, under the plea of the e/« n ral issue the defendant may show th it the publi- cation is ,/ true and faithful BOCOUnl of a judicial pi acceding, or must p specially to enable him to give the proof, is, perhaps, questionable. L have doubted upon the question. Curry v. Walton, 1 Bos. and Pul. 526; and the able author of this most valuable treatise had seri us difficulty in making up h i in reference to it. The most prudent course, theref re, as the question .-till rem decided, probably is, to plead it specially; and if it be advisable to do B0 where the pub- lication relates to a judicial proceeding, it dearly is so when it relates to a pai liamen- 456 CIVIL REMEDY— DEFENCE. Under this pica the defendant may also shew that the publica- tion complained of was procured by the contrivance of the plaintiff, with a view to an action, for in such case he. was the voluntary au- thor of the mischief (c). He may also shew, under this plea, that the action has been dis- charged by matter subsequent as by accord and satisfaction (d), or by a release. ■ *4£7 - *Next, in .what cases is the defendant confined to the plea of the general issue. Where the defendant seeks simply to deny the fact of publishing the alleged slander or its ap- plication, or consequences, according to the ordinary and elemen- tary rule of pleading, he must confine his plea to the general issue, , and cannot plead the matter specially, for though it were specially pleaded, it would still amount but to the general issue. So it seems that in all cases where the circumstances and occasion of the speaking the words, or publishing the libel, do not furnish an absolute bar to the action, without regard to the defendant's motives and intention, but merely throw it on the plaintiff to prove malice in fact, the defendant cannot plead such occasion and circumstances specially, but must plead the general issue ; for such facts do not supply an absolute bar to the action, but merely a continual one, the conditipn being the absence of express or actual inalicej which is (c) King v. Jl'aring and ux. 5 Esp. (d) Lane v. Applegate, 1 Starkie's C. 0. 13. See also Smith v. Wood, 3 Camp. 97. The plaintiff agreed to -waive his 323. Where the defendant having shewed right of action , if the defendant would to the -witness, at the request of the latter destroy certain documents, which the de- a caricature of the plaintiff, it was held fendant accordingly did, and it was held that this was not sufficient to support the that this evidence was admissible in bar action. See also Weatherstone v. Hawkins, of the action under the general issue. IT. R. 110 [1]. tary proceeding ; the latter, it seems, not being regarded with the same favor as the former. See supra p. 261 and note (/). In reference to the question whether, in the case of privileged communications, it is necessary to plead the defence specially, it may be well to add what was said by Lokd Desman, 0. J., in the case of Lillie v. Prin. The defendant, an attorney, was prose- cuted in an action for a libel for writing a letter to a former client, warning him not to have any thing to do with the plaintiff. The question submitted to the court was, whether under the new rules of pleading adopted in England in Hilary Term, 4 Wm. IV., the defence of privileged communication should be specially pleaded. Lord Den" man said, " We are all of opinion that this defence does not require to be pleaded specially. It goes to the very root of the action. It shows the party not guilty of malice, and consequently it is open to him without having pleaded it." 5 Adolph. and Ellis 645; 1 Neville and Perry 16; and 2 Harr. and Woll. R. 645, s. c. See also what is said by Chancellor Walworth on this question in Hastings v. Lusk, 22 Wendell 416. [1] See note [1] p. 208, supra. FLEA— GENERAL ISSUE. 457 always a question for the jury. Such facts, therefore, cannot be pleaded specially, for if tl I effectwould be to take away that question offset from the consideration of the jury, upon which the whole case 'depended («) the decision [ *468 ] of which lay within their own peculiar province. Such a plea would be bad in point of Law, in reference to the ordinary and elementary principles of pleading; for every plea ought to disclose such facte as, if they be true and Btand un- contradicted and unqualified, supply an answer to the action. But in the class of cases alluded to, all the facts might be true, and . by reason of the existence of express malice they would afford no answer to the action. It seems, therefore, to be clear in principle, that whenever the occasion and circumstances of the Bpcaking or publishing do not furnish an absolute bar to the action, but merely throw it on the plaintiff to prove malice in fact, the defence cannot be specially pleaded, but must be given in evidence under the general issue (/). If the repetition of slander, from the report of another, allbrds not an absolute and peremptory bar to the action, but 'merely a qualified one, dependent on the absence of ex- [ *4o9 ] press malice, it seems to be very doubtful whether such a defence can be specially pleaded (g). [1]. Where the action is brought for claiming title to an estate, by means of which the plaintiff is prevented from selling or letting it, and the declaration alleges that the defi odant asserted a false title. knov:ii/g- it to be false , if the defendant has in fact any color of claim, he should plead the general isMie ; by which means the plain- tiff will lie obliged to prove, under the general issue, that the defen- dant knew it to be false (//.) | and the fact of knowledge cannot, it seems, be traversed in pleading (i). (r) Abbott, L. C. J. in the c be bound to prove under the v. Waller, I 1!. & A. 605, iutimated, that and it would confess and avoid. special matter of defence could n"t be (/) Bee Lewie v. Waller x \ B. ft A. pleaded in lor, unless it supplied an an- I Bwer to the charge of malice If the plea [g) See Lewis t. WalUr, 4 D were, in odd tion to tic disclosure i f so ih 6 I •. supi i facts a* rendered proof <>f actual malice Co - I - essential, also to negative the existence of («) 4 Co. ia Ci Mj malice, it would he demurrable; for, con. bo held because there could bo no proper torary to the first oiles of pleading, it would venue. both deny that which the plaintiff would [1] Sec note [1] p. o 10 supra. 459 CIVIL REMEDY— DEFENCE. As the action for a malicious prosecution, is an action on the case in which the plaintiff is bound to allege all the circumstances of the prosecution, and that it was instituted maliciously and without pro- bable cause, the proper plea in bar is the general issue. 2dly. On the other hand, it seems to be clear, that in all cases where the occasion or circumstances attending the speak- [ *4G0 ] ing or publishing, *furnish an absolute bar to the action, the defence may be specially pleaded ; for, in all such cases, the plea admits the facts alleged by the plaintiff, but shews, by the allegation of other additional facts, that, upon the whole of the case, the plaintiff is not entitled to recover : in other words, the defendant by his plea confesses and avoids the statement made by the plaintiff; and, therefore, he may plead (j ) specially that the im- putation was true, that the words were spoken, or the alleged libel published by the defendant, as a member of either house of parlia- ment, in the course of his parliamentary duty (&). By a judge act- ing in his judicial capacity (/). By an advocate in the magagement of a cause where they are pertinent to the issue, and have been sug- gested by the client (m). By a party to a parliamentary or judicial proceeding, according to the ordinary course of such proceed- ings (n). So, the defendant may not only by means of a special [ *461 ] plea justify his act, but he may also show by *extrinsic mat- ter, that the words or alleged libel are not in their own nature actionable. For although such a defence involves a denial of that which the plaintiff, under the plea of the general issue, would be bound to prove, that is, that the words or libel were really used and applied in the injurious sense and manner alleged by the plaintiff; yet, it admits the speaking or publishing the words or libel stated, and sup- plies facts, which, if true, show that the matter published is not in its own nature actionable ; and consequently, renders the allegations of the plaintiff, as to the motives of the defendant, and the applica- tion of the matter published, wholly immaterial (o). (j) Such a defence, as will be seen (n) Lake v. King, 1 Saund. 132. 3 must be pleaded specially; see below [1]. Lev. 169. (/<•) 1 Esp. C. 226. 1 W. &-M. st. 2. c. (o) If the fact be justified, the motives, 2. R. v. Crcevy, 1 M. & S. 27-3. intention and manner are immaterial, (/) 2 N. R. 141. Burr. 807. (?n) Cro. J. 90. Poph. 69. See Scar- lett v. Hodgson, 1 B. & A. 232. [1] See note [1] p. 456, supra. SPECIAL PLEA. 401 The general rule, as laid down in CromwelV* case | p), is, that the defendant shall never be put to the general issue when lie con- fesses the words and justifies them, or confesses the words, and in- special matter shows that they arc not actionable. And therefore it has been held that, in an action for calliu plaintiff a murderer, it may be pleaded that the word Was used in the course of a conversation about unlawful hnnting, and that the words merely imported that the plaintiff was *a [ *4«'>J ] murderer of hares (q). So, where the plaintiff declared upon an imputation of an unlawful maintenance, it was held that the defendant might justify by showing that the words were used in ref- erence to a lawful maintenance (r). So, in the case of Kinnersley v. ( 1 <><>per (s). The plaintiff de. clared that he had taken an oath, which was recorded in the court of the (iuildhall, in a judicial proceeding; and that the defendant speaking of that oath, had said, that he had sworn falsely. The de- fendant, 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 general issue. But the justices were of opinion that the matter was traversable, since the action was grounded upon it. In the case of Lord Cromwell v. Denny (t), 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 Northlin- ham, which was a benefice with the 'cure of souls: and [ ' 163 J that the plaintiff procured J. T. and J. G. to preach sev- erally in the church of Northlinham ; who, in their sermons, in- veighed against the Book of'Common Prayer, which was established by the Queen and the whole parliament in the first year of her r and affirmed it to be superstitious and impious; upon which the plaintiff and defendant, Bpeaking in the said church of these ser- mons, because the vicar knew that they had no licence, nor were authorized to preach, when they were ready to preach, before their sermons, forbade them, but they, by the encouragement of the plain ti if, proceeded, when the plaintiff said to the defendant,"- Thou art a false varlct, I like thee not." To which the vicar said, " It (/») 4 Rep. 14. Pooh. 66. (s) Cro. E. 168. 4 Rep. 14. (?) 4 Rep. 14. (0 4 Rep. 14. (r) Cro. Jac. 00. Vol. I. 33 463 CIVIL REMEDY— DEFENCE. is no marvel that you like not of me, for you like of these (innuendo the said J. T. and J. G. ) that maintain sedition against the Queen's proceeding." It was moved, by the plaintiff's counsel, that the plea was bad, since, if the matter contained in it amounted to a jus- tification, then upon a 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 matter by which the sense of the word sedition appears, upon the coherence of all the words, not [ *464 ] *to mean any violent and public sedition, as it had been described to mean, and as ex vi termini the word itself imports (u). It seems, also, that the defendant may either plead, or show by evidence on the general issue, that the right of action which once existed has been discharged as by a subsequent release. It seems also that, in general, any matter which in law discharges a right of action, for any slander or libel, may be either given in evidence under the general issue, or may be specially pleaded. Thus the defendant may give accord and satisfaction in evidence under the general issue (x). So the defendant may, by his plea, disclose special mat- [ *465 ] ter which shows that the plaintiff has *sustained no dam- age from the words, provided the special damage be the gist of the action. Where the plaintiff alleged that by reason of the speaking of the words he had lost his marriage with J. S., the defendant pleaded that J. S. was the aunt of the plaintiff (?/) : but, in such a case, the plea of wow damnificalus would be bad (s). In the next place there are some grounds of defence which must be pleaded specially, and which cannot be disclosed in evidence un- (u) See also Brittrklge's case, 4 Co. 18. plaintiff might have retained his verdict; The words set out in the declaration were, but had the plaintiff omitted the latter Mr. Brittridge is a perjured old knave, words, the defendant might have shown and that is to be proved by a stake parting the context by his plea, and so have de- the lands of H. Martin and Mr. Wright; featcd the action. after a verdict for the plaintiff, the defend- (x) Lane v. Jlpplegate, 1 Stnrkie's C # ant succeeded in arresting the judgment; 97. But the statute of limitations must, for though it was held by the court, that as will be seen, be pleaded, the words in italics were actionable, they (y) Dyer 26. It has been said, that the were of opinion, that their force was ex- defence would not be admissible under the plained away by the latter, which showed plea of the general issue. B. N. P. 7. that no judicial perjury was intended, so tamen qu. that, had the latter words been omitted the (z) lb. Sl'F.CIAL I'LKA. 465 der the general issue, even although they afford a conclusive bar to the action. In the first place, whore the defendant means to insist that the imputation is true, he must as wrll.it Beems, upon general principles of Law, as on considerations of policy and convenience, plead such defence specially [a «]. On legal principles he musl do so, for the fact whioh supplies the justification is collateral to the cause of action, and the proof of it does not contradict or repel any matter which the plaintiff would be bound to prove ( a ). •On grounds of convenience and policy, it is obviously *466 ] necessary, that a party charged with the commission of an illegal or immoral act, should be apprized, by means of a special plea, of the nature and circumstances of the charge, in order that he may be prepared to meet it, and, if it be unfounded, to refute it. The rule of law upon this head has long been settled, that the de- fendant, if he mean to rely upon the truth of that which he has pub- lished, either in bar of the action or in mitigation of damages, must plead it specially [1]. Formerly a distinction was made in this respect between wordB imputing an offence generally, and such as charged a particular and specific one. In the case of Smithy. Richardson (&), the twelve judges were unanimously of opinion, that where the words import a general "felony, as " Thou art a thief," or " Thou stolest [ *4G7 ] a horse," or any other thing not specifying the person [a a] So the defendant is not at liberty in principle, essential to the right of action, to give evidence in mitigation of damages This is, however, a subject of mere specu- of any fact which would lie evidence to latiou; for undoubtedly, the rule is per- provc a justification of any part of the libel, fectly well settled on the grounds of pub- for he ought to justify as to that part, lie policy, that such a justification mast be Vessey v. Pike, 8 Carr. and Payne 612, pleaded; and even independently of that («) Sec Smith v. Richardson, Willes rule, the proof of the truth of the charge 20. It seems, however, to be very ques- would lie on the defendant, for the law tionable, whether the rule does not rest would presume the plaintiff's innocence better upon the foundation of policy and till the contrary appeared. Vide supra, p. convenience, than on the strict rule of 229, and p. ■">. in the note, pleading; in other words, it is doubtful (/>) Willes 20. whether the falsity of the charge is not, [1] This doctrine is fully recognized in Andrew v. /',.• />,:,/, 11 Johns. 11. 38; Shephard v. Merrill, 13 Id. 475; Van Ankin v. Wutfall, 14 I 1. 288; Else v. Ferris, Anthon's N. P. 23; and B•) Woolnolh \ . '.' ! rest of comment, since a separation is ne- (/) Mills v. Spencer, Bolt's D. cessary, for the purpose of defence, the de- (;») Bee 4 15. and A. 605, supra, 4">7. ifandant ought to take upon himself the (n) G Bac. Ab. 241. fro. Car. 193. burden of making it, in order that the Salk "206. 1 Sid. 95. court may see what parts he means to jus- (o) Cro. Car. 535. tify. And the defendant not having done (») 2 Will. Saund. G3, a. so, the court held that the plea was bad, [1] See note [1], p. 340, supra. 474 CIVIL REMEDY— DEFENCE. within six } T cars, because, though that was the fact, the special damage, which is the cause of action, may have arisen within the six years ; he ought, therefore, to plead that the cause of action did not accrue within the limit. But where special damage is consequent upon actionable words, it is (as it is said) sufficient to plead that the defendant did not speak the words within the limited time. 4thly. How special matter must be pleaded. Observations upon the manner of pleading relate to the plea of justification generally, to particular pleas, or to the joinder of dif- ferent pleas. [ *475 ] *1. To the plea of justification generally. The plea of justification in general must confess the publication as laid down in the declaration, otherwise it will be bad on demurrer (q~) ; and this is an immediate consequence resulting from the great rule of pleading, which requires the party pleading either to confess the previous matter, and avoid it, or to traverse it. In Johns v. Gittens (r), the words laid in the declaration were, " Thou hast played the thief with me, and hast stolen my cloth and a half yard of velvet." The defendant pleaded that the plaintiff was his tailor, and that upon such a day he delivered 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 (s). [ *476 ] *If the defendant justify specially, it will not be neces- sary for him in his plea to deny the innuendos and epi- thets contained in the declaration ; for if the fact be justified (£), the motive, intention, and manner are immaterial. Unless, from the particular occasion of speaking the words, the day or the place be- come material, the plea should adopt the day and the place stated in the declaration without a traverse ; but when they become mate- rial, and differ from those stated in the declaration, the plea should (q) Jon. 307. Cro. Eliz. 153. A plea held that the defect was cured. Cro. Car. of justification will sometimes cure a de- 288. fective declaration. The words were " He (r) Cro. Eliz. 239. is forsworn," and there was no averment (s) See also Cro. Eliz. 153. Bellingham to connect them with a judicial oath; but v. My nor s. the plea averring that the words were spo- (0 Burr. 807. ken in reference to a judicial oath, it was SPECIAL PLEA. 47G traverse the speaking of the words on the clay or at the place laid in the declaration. Thus, if the plaintiff declare of wards spoken at I>., in the county of Salop, and the defendant mean to justify the publishing them in a judicial proceeding at Westminster, he should traverse (ti) the publishing them at B., in Salop, at any time. 2. Tin: special plea of justification, grounded upon the truth oi the publication, may be considered, firsts with reference t<> the mat- ter contained in the plea; and, secondly, with regard to the charge complained of in the declaration. The same degree of certainty and precision are required in this plea as are requisite in an indictment or information. *In Wyldv. Cookman (as), the words were, "Thou "ITT wast forsworn in such a leet, on such a day." The de- fendant pleaded that the plaintiff the same day was sworn with others before the steward, to present, &e. and that they presented such a ditch not scoured ad nocumentum, etc. which was false and so justifies, but did not say that they knew it to be false of theif own proper knowledge. It was moved, on demurrer, that they might have presented it upon evidence. Gawdy and Fenner, Justices, held, that it was properly and commonly to be intended that the presentment was false of their own knowledge, and so perjury ; and that if they presented it upon evidence, the plaintiff ought to shew it in his replication. But Popham, J. said, that a man may not jus- tify by intendment, 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. Secondly, as to the nature of the plea, with reference to the words laid in the declaration. 'Where the original charge is in itself specific, the | '478 ] defendant need not further particularize it in his plea. In an action on the case (//) for calling the plaintiff thief, and say- ing that he stole two sheep of J. 8., the defendant pleaded that the plaintiff stole the same sheep, by reason of which he called him thief, as well he might ; and the plea was held to be good (: >. (w) See the case of Buckley v. W'oott, site in a plea. See the cases cited below, 4 Rep. 14. 1 Salk. 222. 1 Will. Saund. 478, &0, 82, n. 3. ( y ) Br. action stir cas. 27 H. B, 22, pL 3- (x) Cro. Eli*. 492, as to the degree of (;) 1 Roll. Ab. 87. Certainty and particularity which is requi- 478 CIVIL REMEDY— DEFENCE. Though the charge imputed to the plaintiff be general, as laid in the declaration, the defendant must, in his plea, charge him with specific (a) instances of offences of the same nature with the gener- al charge. Thus a defendant is not at liberty to charge a person with swindling, without shewing specific instances of it; for when- ever one charges another with fraud, he must know the particular instances upon which his accusation is founded, and therefore ought to disclose them (6). In Morrice v. Lang-dale (r), which was an action for calling the plaintiff (who was a stock jobber) a lame duck, the defendant jus- tified, pleading generally that the plaintiff had not [ *479 ] *fulfilled his contracts. Upon demurrer, Lord Eldon, C. J. observed, that it had been strongly argued in support of the demurrer to the plea, that in consequence of its generality 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 the case of Newman v. Bailey, the plaintiff, a justice of the peace, brought an action against the defendant, for having charged him with " pocketing all the fines and penalties forfeited by delin- quents whom he had convicted, without distributing them to the poor, or in any manner accounting 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 " *480 ] 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 (d). (a) Styles. 118. Strachey's case. See (c) 2 B. & P. 284. the illustrations cited below, and Lane v. (d) Hil. 16 G. 3. 2 Chitty's C. T. M. Howman, 1 Price, 76. 665. So, where a libel charged an attorney (b) Johnson v. Stuart, 1 T. R. 748. with general misconduct, viz. gross negli- SPECIAL PLEA. -1«j The matter alleged in the justification to be true, most, in every respect, correspond with the imputation complained of in the declar- ation. 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 1 1 ». And so with regard to every circumstance at all material, the facts Bel op by way of justification in the pica must be strictly conformable with the imputation charged in tin- 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 12th year of James the first. The defend- ant pleaded that the plaintiff 'was a bankrupt on the [ *481 ] Irsl day of April, in the 15th year of the same reign, and that therefore he published the words ; and the plea was held bad (/), because it was not averred that the plaintiff continued a bankrupt to the time of publishing the words, for he might after- wards recover his credit in trade. Id Fysh v. Thorowgood (g), the plaintiff declared " that a com- mission issued out of the Exchequer, directed to the plaintiff and one J. S. by force whereof they took and returned the examina- tions of several witnesses, and that thereupon the defendant said, that the plaintiff had returned as depositions the examination of divers that were never sworn." The defendant pleaded in bar, that he did return the examination of one J. S. who was never sworn. Upon demurrer, it was adjudged that this was no good justification in bar. because it is of one witness only, whereas the charge was in the plural number. Where the declaration alleged that the plaintiff was lawfully pos- d of mines and ore gotten and to be gotten from them, and was in treaty for the sale oT the ore: and that the defendant pub- lished a malicious, injurious, and unlawful advertise- ment, cautioning persons against purchasing *the ore [ *482 J per quod he was prevented from Belling it ; plea, that the adventurers or persons having an interest or share in the mine, gence, falsehood, prevarication, and making demurrer to be insufficient. Holmes v. out expensive Mils of costs, in respect of CaUtby, 1 Taunt. 548 [1]. business done for the defendant, a plea of (c) HiUdtn V. Jlferetr, Cro. "J. 676. justification merely repeating the same (/) L'pshecr v. Belts, Cro. J. general charges, without specifying any (g) Cro. Eliz. 628. particular acts of misconduct, was held on [1] See Van J\'ess v. Hamilton, 19 Johns.R. 368. 482 CIVIL REMEDY— DEFENCE. thought it their duty to caution persons against purchasing the ore, &c, as persons purchasing such ore would be called on for the amount, and that a bill in equity was about to be filed by the ad- venturers ; it was held, on special demurrer, that the plea was in- sufficient, both because it did not disclose the names of the adven- turers, and show who they were ; and secondly, because it did not show that the defendant, in publishing the advertisement, acted under the authority of the adventurers (/*). So it was held, that a plea that the plaintiff had been confined in England on a charge of high treason, was not supported by proof that the plaintiff had been apprehended by virtue of a warrant from the Duke of Portland, one of the secretaries of state, on suspicion of high treason (i). Where the libel charged the plaintiff with acts of barbarity to a horse, and that one of its eyes was literally knocked out, and that the plaintiff had ordered a person who had the care of it not to let any person see it ; and issue was taken, on a general *483 ] plea that the statement was true, and the *jury negatived the fact of knocking out the eye, but found for the de- fendant as to the rest ; the court held that the plaintiff was entitled to the verdict (j ) . But it is sufficient if the substance of the libellous charge be jus- tified. The supposed libel (A;) alleged that a serious misunderstanding had taken place among the independent dissenters of M. and their pastor, in consequence of some personal invectives thrown from the pulpit by the latter, and that the matter was to be taken up seri- ously. The defendant in his plea alleged that the plaintiff, whilst officiating as minister, published from a part of the chapel, in the presence of his congregation, of and concerning one M. P. the teacher of a Sunday school, the scandalous words following : " I have something to say which I have thought of saying for some time, namely, the improper conduct of one of the female teachers : her name is Miss Fair ; her conduct is a bad example and disgrace to the school ; and if any of the children dare to ask her to go home, she shall be turned out of the school and never enter it again : Miss Fair does more harm than good, and thereby gave great [ *484 ] offence to divers of the dissenters, to wit one — *and one — and occasioned a serious misunderstanding amongst (h) Rowe v. Roach, 1 M. & S. 304. ( ; ) Weaver v. Loyd, 2 B. & C. 678. (i) Bell v. Byrne, 13 East, 554. (fc) Edwards v. Bell, 1 Bing. 403. SPECIAL PLEA. 484 the dissenters." After a verdict for the defendant, the court held that the plea was an answer to the declaration, although the libel alleged a misunderstanding to have taken place between the pastor and his congregation, whilst the justification alleged the misunder- standing to have taken place among the congregation only. Care should be taken to apply the justification where the matter of justification admits of it, to the whole of the imputation contained in the declaration. If any part he left uncovered, the plaintiff will, on proof of the words or libel stated (or without proof, if the gene. ral issue be not pleaded), he entitled to damages in res] t of that part of the charge to which the justification is not pleaded, even al- though such justification might have been pleaded to the whole charge. The plaintiff declared for these words {inter alia), he (meaning the plaintiff,) has robbed me to a serious amount ; the de- fendant pleaded the general issue ; and as to the. words, " He has robbed me," pleaded that the plaintiff had on such a day, robbed him of a loaf of the value of three pence ; the plaintiff proved the words as laid ; the jury found the justification as pleaded, but were directed by the learned judge who tried the cause, to give some damages in respect of the words which were not justified ; and they found a verdict *for the plaintiff, with forty shil- *485 ] lings damages. The court (/), afterwards discharged a rule nisi, which had been obtained for entering judgment for the defendant, non obstante veredicto. It would be proper, in such a case, to plead the justification to the whole of the words, and to aver that the plaintiff had robbed the defendant to a serious amount, alleging the robbery according to the facts; this would raise the question, of fact, as it seems rather than of law, whether, as alleg- ed, the robbery was to a serious amount. Where the defendant pleads in justification, that the alleged libel is a fair reporl of a judicial proceeding, he ought to Bhew in his plea that he has given a true ami accurate report of the proceeding. And it is not sufficient to allege that the alleged libel is in sub- stance a true and accurate report. For the substance is nothing more than the inference which the publisher of the libel has drawn from what passed at the trial (m), it ought to be shewn that the re- port is a true and accurate report, or at least that no necessary matter has been omitted, in order that the court may, on demurrer, be able to decide whether it was lawful to publish that report (n). (/) Bayley and Holroyd, Js. in tho C. (m) Flint v. Pike, 4 B. :»nd C. 473. P. Lancaster. («) See theobservation> of Littlcdale, J. Vol. I. 34 486 CIVIL REMEDY— DEFENCE. Besides, the plea would neither deny that the libel was published with the malicious motives alleged in the declaration, nor would it shew to the court that it was necessary that the public should be made acquainted with the matter stated in the alleged libel. The plaintift' declared on a libel which professed to give a short summary of a trial of an' action, and after that summary, to give an outline of the speech of the counsel for the defendant in that cause ; and the libel set out part of a speech, containing severe reflections on the conduct of the plaintiff, the attorney for the plaintiff in that cause ; the defendant pleaded that the alleged libel was, in sub- stance, a true report of the trial. But the court, upon a general demurrer, gave judgment for the plaintiff (o). So again, where the plaintiff declared on a libel in a public news- paper, which purported to contain a true account of the speech of a counsel, upon an indictment for a conspiracy ; the re- [ *487 "| port, *after setting out the speech, added, " the first wit- ness called was R. P. who proved all that had been sta- ted by the counsel for the prosecution ; and then stated, that in con- sequence of another witness being unable to prove a deputation from the under sheriff, the jury, under the direction of the court, were obliged to give a verdict of acquittal. The defendant pleaded (inter alia) that, at the trial of the indictment, the counsel for the pros- ecution made the speech set out in the supposed libel ; and that having so stated the facts, the said R. P., by his testimony, proved all that had been so stated by the counsel for the prosecution, and then alleged the inability of the other witness, &c, and the conse- quent acquittal. And, upon a general demurrer, it was held that the plea could not be supported : the publication, to be justifiable, ought to have stated the evidence, in order that those who read the report might judge for themselves ; and if a party is to be allowed to publish what passes in a court of justice, he must publish the whole case, and not the conclusion which he himself draws from the evidence (jf). Where the defendant justifies the speaking of the words, or pub- lishing the alleged libel in the course of a parliamentary or judicial proceeding, he *must shew, in his plea, that [ *488 ] in Flint v. Pike, 4 B. and C. 473. In the and not merely state the conclusion which case of Duncan v. Thwaites, 4 B. and A. he himself draws from the evidence. 612, Abbott, C. J. said, " If a party is to (o) Flint v. Pike, 4 B. and C. 473. be allowed to publish what passes in a court (p) Lewis v. Walter, 4 B. and A. 605. of justice, he must publish the whole case. SPECIAL PLBA. t8fi 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, Btated in the declaration, is left unprotected by the matter of justification pleaded. The defendant (9), had ex- hibited his bill iii the Star Chamber, alleging that the plaintiff v. a procurer of murders and piracies: the declaration alleged the ex- hibiting of the bill, and that the said defendant, at B., in the county of Salop, said, that the said lull and the matters contained therein, were true. The defendant, in his plea, confessed the exhibiting of the bill in the Star Chamber, and that he, in tin: said court at Westminster, spoke the said words absque hoc, that he the words in the county of Salop before or after the day mentioned in the declaration, by which he excluded the day itself, for which rea- son the plea was held to be insufficient. But judgment for the plaintiff in this case was afterwards reversed, upon writ of error in the Exchequer Chamber, because the defendant 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 petition to the members (r) of a committee of the *House of Com- [ *489 ] mons, the plaintiff, in his declaration, alleged generally that the defendant had published the libel to " divers subjects." The defendant justified the publication to divers persons being mem- bers of the committee, 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 publi- cation to divers people by name, if the defendant justify the publi- cation to some of them by name, he must traverse a publication to the rest. 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 con- sistent with the declaration, and therefore with the averment that the publication is the same. But if the plaintiff declare of a pub- lication to A. B. C. and D., the defendant, in justifying a publica- tion to A. and B., cannot aver it to be the sain-. 1 publication with that complained of but should traverse the publication to C. and D. 0). Where part of a publication consists of a report of judicial pro- (q) Buckley v. Wood, -i Co. 15. (s) See 1 Will. Saund. 133, n. 4, and 22, (r) Lake v. King, 1 Saund. 120. n. 2. 489 CIVIL REMEDY— DEFENCE. ceedings and the rest of comment, since the separation is [ *490 ] necessary for the *purpose of defence, the defendant ought (0 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 be 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 imputes 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 (u). The defendant may, under the statute (z), by leave of the court, join a general plea of not guilty to the whole declaration, with a plea of special justification to the whole or part (y). Thus he may jus- tify so much as imputes to the plaintiff the commission of a specific crime, as perjury (». And he may plead not guilty, as to part of the words, and justify as to the residue (a). [ *491 ] *When the words, as stated on the record, appear to be' demurrable, it may be useful to recollect the rule which Sir E. Coke (6) termed " an excellent point of learning in actions for slander," namely, " observe the occasion and cause of speaking them, and how it may be pleaded in the defendant's ex- cuse. 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 on a demurrer, in which, upon the pleading and otherwise, 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 demur in law, when, after the trial of the matters in fact, the matter in law will be saved to you." (0 7 East, 493. («) Styles v. JVokes, 7 East, 493. (it) Per Le Blanc, J. 7 East, 507. (o) Rich v. Holt, Cro. J. 267. (x) 4 Ann, c. 16. (b) 4th Rep. (y) See Tidd, 603, 4 edit. CHAPTER XVII. Of the Replication. [ »492 ] *It seldom happens that any thing can be replied to the defendant's special plea, expect the general replica- tion of de injuria propria, &c. which puts the whole of the defend- ant's plea in issue (a). In some instances, however, a special replication becomes neces- sary. As, where the original slander imputes to the plaintiff the commission of a specific crime, and the defendant pleads in justifi- cation that the plaintiff was really guilty, the plaintiff may reply, that, after his commission of the crime, and before the speaking of the words, he was pardoned (6). 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 slander, does it at hjs peril ; but that if a man who had committed felony, secretly procure a pardon, and ano- [ *493 ] ther, not knowing of *the pardon, cause him to be appre- hended for felony, he would be justified, because what ho did was for the advancement of justice. But where the pardon is general, containing clauses of exception, it seems the plaintiff should aver that his case docs not fall within any of the exceptions (c). And even after a pardon, if the defendant merely say that the plaintiff was a thief, the pardon (d) will be available. («) 1 Saund. 244, n. 7. (c) Hob. 67. (b) Cuddington v. Wilkins, Hob. 81. (<0 Hob. 82. 494 CIVIL REMEDY— DEFENCE. Where the plaintiff has stated the publication, generally, to have been made to divers persons, not naming them, and the defendant justifies the publication to particular persons, as to the members of a committee of the House of Commons, if the plaintiff mean to in- sist upon a publication to any others, he should state such publica- tion by way of new assignment (e). (e) See 1 Saund. 133, and Chitty on Pleading, 603. TREATISE LAW OF SLANDER AND LIBEL, AND INCIDENTALLY OF MALICIOUS PROSECUTIONS. Nescit tox niissa revcrti. By THOMAS STARKIE, Esq. of Lincoln's inn, barrister at law. FROM THE SECOND ENGLISH EDITION OF 1830. WITH NOTES AND REFERENCES TO AMERICAN CASES AND TO ENGLISH DECISIONS SINCE 1830, By JOHN L. WENDELL, COUNSELLOR AT LAW. VOL. II. HARTFORD, CONN. PUBLISHED BY JOHN L. WENDELL, 1858. Entered according to Act of Congress, in the year 1848, By JOHN L. WENDELL, in the Clerk's Office of the District Court of the Northern District of New York. WEST BROOKFIELD, MASS. PRINTED BY THOMAS MOKET. CONTENTS OF VOL. II. CHAPTER I. Of the Evidence for the Plaintiff, -----._ i CHAPTER II. Of the Evidence for the Defendant, ...... 84 CHAPTER III. Proceedings after Verdict, 105 CHAPTER IV. Of Costs, 113 CHAPTER V. Of the Writ of Prohibition, 117 CHAPTER VI. Publications against Religion, - - 129 CHAPTER Vn. Publications against Morality, - - - - . . - 15o CHAPTER VIII. Publications against the Constitution, &o. lt;o CHAPTER IX. Publications Exciting to an Illegal Act, 207 CHAPTER X. Publications against Sound Policy and Convenience, - - - 216 i v CONTENTS. CHAPTER XI. Of the Publication of the Libel, 225 CHAPTER XII. Of the Defendant's Intention and Collateral Circumstances, - - 240 CHAPTER XIII. Proceedings against Offenders, - 259 CHAPTER XIV. Proceeding by information ; Indictment ; Seizure of Papers, &c. - 272 CHAPTER XV. Evidence in Criminal Proceedings for Libel, .... 309 CHAPTER XVI. Of Trial and Verdict, 327 CHAPTER XVII. Of Proceedings After Verdict, 360 Precedents, 373 ciiaptj; it i. Of the Evidence, The natural order of the evidence, in an action for slan- [ *1 ] der, on the part of the plaintiff, where the general issue has been pleaded, is 1st. Of special character and extrinsic facts, when they arc es- sential to the action. 2dly. Of the act of speaking the words or publishing the libel. 3dly. Of the truth of the colloquium and innuendos. 4thly. Of the defendant's malice and intention, where malice in fact is material. 5thly. Of the damage. First, as to the proof of special character, and other extrinsic facts. Where the special character is essential to the action, it is al- leged either generally or particularly. When it is generally alleged, it is usually sufficient to prove, by general evidence, that the plaintiff is in the actual possession of the office or situation in which he has been defamed, without *strict proof of any legal inception or investment. [ *2 ] For in an action against a mere wrongful invader or disturber, a party is not to be put to the hazard or peril of giving detailed and conclusive proof of his title ; and it is to be presumed, till the contrary be shown, that he acted legallv. Ami, therefore, where a plaintiff avers generally that he filled any particular situation or oflice, in which he has been calumniated, or that lie exercised any particular profession or business, it is suffi- cient to give general evidence of his having acted in that office or situation, or of his having exercised that particular profession, or carried on that trade or business. If the declaration allege that the plaintiff was, at the time of the alleged injury, a magistrate or peace officer (/), it is sufficient to show that he previously acted as such. (/) PerBuller, J. Berrymanv. Wise, 1 T. It. GG6. Gordon's case, Leach. 581. R. v. Shelly, Leach, 581, n. Vol. II. 35 CIVIL REMEDY— EVIDENCE. If it allege that the plaintiff was an attorney of such a court, it is sufficient to show that he was before and at the time, practising as an attorney of that court (g-). It has indeed been *doubt- [ *3 ] ed, whether, under an allegation that the plaintiff was at the time of the alleged slander a physician, it was necessary to produce a diploma ; and the judges of the Court of Common Pleas were equally divided upon this question (A). The declaration stated, that the plaintiff at the time of [ *4 ] *speaking the words, was " a physician." Upon the 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 town of Yarmouth ; that Dr. Girdlestone, who was also a physician at Yarmouth, and of longer standing than the plaintiff, had been attending one Richard Helsden as a patient, and that the defendant was employed as his apothecary. That Dr. Girdlestone being ob- liged to leave Yarmouth for a day, the plaintiff was sent for, at the request of Helsden's wife, and prescribed for him ; the prescription was made up by the defendant. On Dr. Girdlestone's return, the (g) Beriymu-n v. Wise, 4 T. 306. Star- kie on Evidence, part iv. 372. In the case of Berryman v. Wise, 4 T. R. 8G6, the plaintiff averred that he was an attorney of the Court of King's Bench, and having been employed in a particular cause, had received a certain sum of money, which the defend ant charged him with swindling, ad- ding a threat, that he would move the court to have him 4: struck off the roll of attornies." Upon the trial before Thomp- son, Baron, at the York assizes, the plain- tiff pi'oved the words, and his having been employed as an attorney in that and others suits. It was objected that the plaintiff had not proved the first 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 attornies ; but the ob- jection was overruled, the learned judge reserving the point with liberty to move to enter a nonsuit. Upon motion made to that effect, the court were of opinion, that the evidence was sufficient, for the defend- ant's threat imputed that the plaintiff was an attorney. And Buller, J. said, in the case of all peace officers, justices of the peace, cmstables, &c. it is sufficient to prove that they acted in those characters, without proving their appointments, and that even in case cf murder. Excise and custom-house officers, indeed, fall under a different consideration, but even in their case, evidence was admitted, both in civil and criminal suits, to show that the party was a reputed officer prior to the 11th G. I c. 10, s. 12. (A) Smith v. Taylor, 1 N. R. 196. In the previous case of Pickford v. Gulch, Cor Buller, J. Borchester assizes, 1787, the action was brought for calling the plaintiff a quack. The declaration alleged that the plaintiff had used and exercised the profession, &c. of a physician, &c. To pi-ove 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 necessary to produce the plaintiff's diploma; on which it was produced in court, and the plaintiff recovered. SPECIAL CHARACTER. 4 plaintiff requested that lie might be sent for; Dr. G-. refused, and the defendant then, with reference to the transaction, said, " 1 and Dr. (!. both thonghl thai Eelsden was doing well, till Mrs. Eelsden called in Dr. Smith, who has npset all that we have done, and die he (Helsdcn) mu3t." Metises v. Thornton was cited, mi the part of tin- defendant, t<> prove it to be necessary for the plaintiff to show *that he was a regular physician. His lordship *5 was of opinion, that the case was irrelevant, and the plain- tiff obtain* ! a verdict lor £100. The ease was afterwards argued on a rule to show cause why tin) 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 Heath. J. agreeing that the plaintiff was entitled to recover without further proof ; and Rooke and Chambre, Justices, conceiving it to be requisite for the plaintiff to prove that he was lawfully authorized to practice. As the court were equally divided, the plaintiff of course retained his verdict. The argument for the necessity of proving a regular diploma in that case, seems to resolve itself principally into the question, whe- ther, where a statute prohibits the entering in a particular situation or office, without some particular previous qualification, it be neces- sary in an action by a party aggrieved, in that character, to prove such qualification; for no precise form is essential to the constitut- ing a physician (i) ; and physicians were contemplated and recog- nized by the law as such, before the passing of the statute, which made particular qualifications essential to the legal excr- *cise of their profession. On general legal principles, it *G seems, that no such proof is essential ; for in general, it is to be presumed, that a party who acts in a particular situation. acts legally in that situation, 'and that he has conformed to and not violated the law in so acting. This presumption is made in favor of innocence, even where the plaintiff seeks to enforce a civil contract, which would not be valid without such conformity (Je). A fortiori the presumption ought to be made against a mere wrong-doer (J). It has been expressly decided, that an attorney in an action for a libel upon him, in his professional character is not bound t<> prove (t) See 5 Com. Dig. tit. Physician . recover for business done without proof of (/c) As in an action on an attorney's qualification, hut that is by the express bill, sec Starkie on Evidence, tit. Attorney, provision of the statute. By the express provisions of the statute 65 (/) See Starkie on Evidence, iv. 124 I. G. 3, c. 194, s. 21, an apothecary cannot 6 CIVIL REMEDY— EVIDENCE. that he has duly taken out his certificate according to the statute O) [I]- r *7 *In the subsequent case of Pearce v. Whale (ri), the court held that it was not sufficient for the defendant to show that the plaintiff, who sued as an attorney for fees, had neg- lected to take out his certificate in previous years, without also giving evidence to negative his re-admission as an attorney. But although the allegation of character be general, yet if there be reason to apprehend that the defendant means to dispute the plaintiff's title to the office, situation, or other special character to which the slander or libel relate, it would be prudent to be prepared with the best evidence to establish the fact. For although the proof of the negative might lie, in the first instance, on the defendant, yet such evidence might be offered as would suffice to estab- [ *8 ] lish the negative in the *absence of affirmative proof, the more especially if the plaintiff was apprized of the defend- ant's intention to dispute the plaintiff's title to the special character. But where the plaintiff himself specifies the particular mode in which he was invested with the particular character in which he has been injured; he must, it seems, prove such a descriptive allegation, with its circumstances although a more general allegation would havfc been sufficient. For though a totally irrelevant allegation may be rejected as surplusage, one which is material to the cause of ac- tion, and which is descriptive of the legal injury, must be proved as laid (p). (m) Jones v. Stevens, Exch. Trin. T. for fees, yet that he did Dot by the omis- 1822, 11 Price, 235, it was held in that case sion, entirely lose his character of an attor- that an attorney might recover for a libel ney, and was not to be subjected, in addi- upon him in his professional character, even tion to the penalty and disability imposed although evidence was given on the part of by the statute, to be aspersed and reviled the defendant, that no certificate had been in that character. But note, that no nega- taken out by the plaintiff from Nov. 1813 to tive evidence was given to show that the Nov. 1814; or from Nov. 1821 to Feb. 1822 plaintiff had not been re-admitted. See when the last certificate was obtained, and Pearce v. Whale, 5 B. & C. 38. that the plaintiff had, during those periods, („) 5 B. & C. 38. practised as an attorney; notwithstanding ( p ) The rule in principle seems to be this evidence, the court held that although this, that if the plaintiff, instead of aver- the plaintiff might be disabled by the stat. ring his special character generally merely 37 G. 3, c. 90, from maintaining any action alleges the mode of appointment or invest- [1] In an action by a physician for words imputing want of skill, it was held that proof that he had practiced in his profession with reputation for several years, was suffi- cient evidence of his being a physician. Digest of South Carolina Reports, p. 163. See also McPherson v. Cheadell, 24 Wendell, 24, and Finch v. Gridlefs exr's. 25 Id. 469. SPECIAL CHARACTER. 8 •The defendant (?) said of the plaintiff, "Tic is a [ "■» ] quack, and if h • shews you a diploma, it is a forgery." The declaration averred that the plaintiff " was a physician, and had regularly taken his degree of doctor of phj In support of this averment, he produced a diploma, purporting, on the face of it, to have been granted by the University of St. Andrew's, in Scotland, and to have the Qniversity seal appendant to it. To authenticate this, a witness was offered, to prove that the rector and professors of the University of St. Andrew's had acknow- ledged, in his presence, 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 acknowl- edgment by the seal-keeper of the University, that the seal append- ant to the diploma was the seal of the University. Lord Kenyon, C. J. deeming tins evidence to be insufficient, the plain- tiff was nonsuited. A motion for a new 'trial was after- [ *10 wards 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 necessary on account of the plain- tiff's allegation." Lord Kenyon, C. J. 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. But, in general, if the slander or libel assume that the plaintiff possesses the character, or fills the situation or office in which he is defamed, or assumes the truth of facts to which the slander or libel ment, he must prove the fact, for, being should not be presumed from evidence that material to the right of action, it cannot be the party has acted in the particular char- rejected; if it were rejected, no sufficient acter. If it is to be presumed, from such cause of action would be alleged. But evidence, that the party is an attorney, where the plaintiff alleges his appointment why is it not also to be presumed that he cumulatively, as if he allege that lie is an has been admitted an attorney. The latter attorney, and has been duly admitted, &o. presumption indeed necessarily involves or that he is a physician, and has taken his the former; a presumption "f a particular degree, &o. it may well be doubted wheth- fact necessarily includes the presumption er, in principle, strict proof of his admis- of every thing whiofa is t-Miitial" to that sion or diploma be necessary. For such fact, and without which it oould not have allegations may be regarded as cumulative been. rather than descriptive, and there seems to ( Ibid. 275. R. v. Hensey, 1 Burr. (u) 4 Esp. C. 117. 644. Ld. Preston's case, 4 St. Tr. 446. (v) In a late case, evidence of the opinion De La Motte's case, Howell's Eq. 2 T. R. of an inspector of franks at the post-office, St - Tr - vo1 - 21, 810. The Attorney Gene- whether the writing was in a natural or ral v. Le Merchant, 2 T. R. 201, note (a), imitated character, 'was held to be of so B - N > P - 236 - R - v - Caior < 4 Es P- C ' 117 " little weight, that the court of K. B. re- PUBLICATION. 28 mcrly, the rule in criminal cases was more rigid than in civil ac- tions (//) [1]. The wilful and intentional delivery of a libel, l>y way of sale or otherwise, as by a bookseller or hawker, is a sufficient publication, though the party bo publishing did not know the con- tents I : ). *So a printer is liable, though he printed a [ '-'•' J libel in the way of his trade (a). A defendant may be guilty of publishing a libel not only by dis- tributing copies of it with his own hand, but by employing an agent for the purpose (/>)• The declaration generally avers, that the defendant published and caused to be published ; but the latter words seem to be perfectly unnecessary, either in a civil or criminal proceeding; in civil pro- ceedings, the principal is to all purposes identified with the agent employed by him to do any specific act, and in treason and misde- meanors (Y) all accessories arc considered as principals. A consent by the master to the act of the servant in printing a libel, is prima facie evidence of a publication by the master (//). An allegation that the defendant published the libel is satisfied by proof that it was established by his agent (47, Hargreave's ed. would make him safe in dispersing them. (b) 7 East, 63. Bao. Ab. tit. Libel, 158. And that, on this foundation, it has been (c) 2 Hale's P. C. G13. constantly ruled of late, that the baying (. Where the defendanl haa admitted that he is the author of a par ticnlar book, errors excepted, it is incumbent upon him to prove that the errors pted are material I p). In the case of libel, aa well as in all others, whether civil or criminal, presumptive evidence must be resorted to in failure of di- rect and positive testimony ; and the Bame reasonable infer I presumptions are to be made by the juriea as in all other instances. In criminal cases it is always, and in civil casea it ia in some in- stances, necessary to prove a publication within the particular couq- ty. It seems that whenever the publication of a libel has once been authorized by the defendant, he ia guilty of a publication in whatever county the libel shall afterwards be in consequence published (?). 1/ (;?) R. v. Johnson, 7 East, Co. R. V. Dodd, 2 Sess. C. 33. 13ac. Ab. tit. Libel, 497. Wool's Ins. 445. (o) R. v. Watson, 1 Camp. 215, infra, p. 86. (») R. v. Hall, Str. 416. ( Starkie'a C. CI. ,',//. 1 B. .v A. (x) The Seven Bishops' case, 4 St. Tr. (y) A. did not state where he received 804; 1 .lac II., where the defendants, in it, but it was assumed, and no doubt it Middlesex, admitted their si-natures to a W8S the fact, that he received it in Middle- petition which hut been prepared and sex. signed in Surry; but it was held that this (;) i. c. in the public newspapers. 41 CIVIL REMEDY— EVIDENCE. The learned judge left it to the jury to say, whether there had been a publication in Leicestershire, by an open delivery of the libel. The question and the principles relating to it, were discussed, on the motion for a new trial, with all the aid which talent, learning, expe- rience, and unwearied diligence could supply. The ultimate, al- though it seems not the unanimous, decision of the court was, that the evidence was sufficient to warrant the conviction (a). [ *42 ' *5ome proofs are to be noticed which apply particularly to the proprietors and publishers of newspapers. Upon *43 "I an indictment for a libel, *published in a newspaper called the World, proof that the' paper was sold at the defend- ant's office, and that he as proprietor, had given a bond to the stamp office, as required by the stat. 29 Geo. III. c. 10, s. 10, for securing (a) R. v. Sir Francis Burdett, Bart. 4 B. & A. 717. The judges delivered their opinions seriatim. Best, J. was of opinion that there was presumptive evidence of an actual publication in Leicestershire, and that the sending the libel by the post, from that county, amounted to a publication. R. v. Watson, 1 Camp. 215. R. v, Wil- liams^ Camp. 505. Codes Lib. 9, tit. 86; and see GirdwooiPs case, East's P. C. 1116. 1120. Holroyd, J. was of opinion, that the composing and writing a libel in the county of L. and afterwards publishing it, al- though the publication was not within the county of L , was an offence sufficiently charged as a substantive offence in the in- formation, and which gave jurisdiction to a jury of the county of L. (see R. v. Beere, 2 Salk. 417. Carth. 409. Holt's R. 421, R. v. Kntll, Barnard, K. B. 305. R. \. Carter, 9 St. Tr.) and that the composing and writing, with the intent afterwards to publish, also amounted to a misdemeanor; and that a jury of the county of L. might inquire as to tho publishing in another county, in order to prove the defendant's intention in composing and writing in the county of L. And that, in the case of an aggregate charge, part of which, being in itself a substantive misdemeanor, is com- mitted within a particular county, the jury may inquire into the remainder, although done elsewhere; that there was reasonable evidence of a publication in L. ; and that a delivery of a libel within the county, al- though it be sealed, is a publication in law. Bay ley, J. was of opinion that there was not sufficient evidence to support a pre- sumption that there had been an open de- livery of the libel in L., considering that positive proof might have been given by calling B. as a witness. He gave no opin- ion on the question, whether a close de- livery amounted to a publication. He held, that the whole corpus delicti must be proved within one county; and that there was no distinction in this respect between felonies and misdemeanors. He gave no opinion on the question, whether the com- posing a writing, with intent to publish, constituted an offence. Abbott, L. C. J. intimated his opinion, that mere delivery constituted a publica- tion. He held that the facts warranted the conclusion that the paper had been de- livered by the defendant in L., to B., in the state in which it had been delivered by the latter to A. That, even supposing the libel to have been delivered by the defend- ant in a different county, yet as the whole was a misdemeanor, compounded of dis- tinct parts, each of which was an act done in the prosecution of the same criminal in- tention, the whole might be tried in the county of L. where one of those acts had been done. PUBLICATION' 43 the duties on advertisements, and that he had from time to time applied to the stamp-office respecting the duties, was held to be strong evidence to prove a publication by him (6). Hart and Wliite the printer and proprietor of a newspaper called •■ The Independent Whig (c)," were indicted in London, for a libel published in that paper. The prosecutor gave in evidence the affidavits .swum by the de- fendants, according to the stat. 38 Geo. III. chap. 78 (d), with (6) R. v. Topham, 4 T. It. 126. (c) 10 East, 94. (d) By sect. 1, no person shall print or publish any newspaper until certain affi- davits, or affirmations, &e. Bhall have been delivered to the commissioners of stamps &c. By sect. 2, these most contain a true de- scription of the printers, publishers, and proprietors, or of two of them, and of their places of abode, of the proprietor's share in the paper, and the house in which it is intended to be printed, and of it* title. By sect. 9, all such affidavits and affirm- ations, or copies thereof, certified to be true copies according to the act, shall, in all proceedings, civil and criminal, touching 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 paper, be received and admitted a< conclusive evi- dence of the truth of all stub m wters set fortli in Buch affidavits or affirmations, as arc hereby required to be therein Bet forth, against every person who shall have ■worn, or affirmed such affidavits or affirm- ations; an 1 Bhall also be receb e 1 and ad- mitted, in like manner, as sufficient evi- dence of the truth of all Bucb matters, against all and every person who Bhall not have signed or sworn, or affirmed thi but who shall be therein mentioned to be a proprietor, printer, or publisher of such newspaper, or other paper, unless the con- trary Bhall be satisfactorily proved. The section then contains an exception in hvor of such as have, before the publication of the paper in question, delivered in to the commissioner an affidavit, &c, stating that they have ceased to be the printers, ic. of such paper. By the 10th section, in some part of every newspaper, kc. shall be printed the names, additions, and pi ices "l abe de of the printers and publishers, and of the place where the Bame is printed. Bj Beet 11 it shall not be necessary, after any such affidavit, &C. or a certified copy thereof, Bhall have been produced in evi- dence as aforesaid, against the persons v. hu signed and made such alii davit, or are therein named, according to this act, or any of them, and after a newspiper, or other such paper as aforesaid, shall be pro- duced in evidence, intituled in th manner as the newspaper, or other paper mentioned in such affidavit or copy is inti- tuled, and wherein the name or US the printer and publisher, or printers and publishers, and the place of printing, men- tioned in such affidavit, or affirmation, for the plaintiff, informant, or prosecutor, or -eking to recover any of the pen- alties given by this act, to prove that the newspaper or paper to which such trial re- lates, v> is 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 servants or workmen, or where he or they, by themselves, or their Bervants or workmen, usually carry on the r publishing paper, or where the b ime is nsuallj By Beet 18, it is enacted, th it a certified copy of such affidavit or affirmation shall be delivered by the commissioners to the person requiring it, upon payment of one shilh: By sect. 14, in order to prevent the in- 43 CIVIL REMEDY—EVIDENCE. *44 their hands-writing *thereto and delivered to the commis- sioners, containing all the particulars required by the [ *45 act *and, among the rest, the description of the place *46 where the newspaper was printed, which *was in London. An officer from the Stamp-Office, (which is not in Lon- don) 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 ; *47 and *it was also proved that the defendant's printing- house was at the same place. The defendants were fouud guilty, but a new trial was afterwards moved for, on the ground that the evidence at the trial was insuffi- cient to prove a publication in London ; that the 9th clause of the act cited made the affidavit evidence of nothing more than the mat- ters contained therein, which, by reference to the second clause, are the names, additions, descriptions, and places of abode of the print- ers, 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 convenience 'which might result from re- quiring the personal attendance of the commissioners, it is enacted, that a certifi- cated copy of any affidavit or affirmation, proved to be signed by the person who has the custody of the original, shall without proof that he is a commissioner or officer, 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 produced, and certified, shall also be received as evidence that the affi- davit or affirmation of which they purport to be copies have been sworn or affirmed according to this act; and shall have the same effect in evidence as the originals would have had in case they had been pro- duced and proved to have been duly so certified, sworn, and affirmed, by the per- son 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 any news- paper, 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 handwriting, 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 ap- plication by any person to the commission- ers or their officer, to have such paper pro- duced in evidence in any proceeding, whe- ther civil or criminal, such commissioners or officer shall, at the expense of the appli- cant, at any time within two years from the publication, 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 applicant, on his giving reasonable security at his own expense, for returning the same; and that in case such commissioner or their officer cannot, by reason of a previous application comply with the terms of a subsequent one, they shall comply with such subsequent one as soon afterwards as they shall be able so to do. PtJBLIOATlOK. 47 printed in one place may be published in another; that the 11th section is confined to actions or informations for penalties given by the act; that the object of the 17th clause was to fix the printing and publication upon the parties described in the stamp-office docu- ments, by comparing the newspaper so delivered with any other of the same impression published in the county where the trial is had ; but that a publication to the commissioners, under th>[" further proof, Bince the words of it, plaintiff, informer, prosecutor, &j. were general, and not confined to informants seeking to recover penalties. Where the defendant, having exhibited a libellous paper, retains it in his possession, if, after notice to produce it, he refuse, parol evidence may be given of its content-;, and that even in cases of (e) Lord Ellcuborough, C. J. gave no opinion. Vol. II. 37 49 CIVIL REMEDY— EVIDENCE. treason (/) / and a printer may prove that he received a libel in manuscript from the defendant, and returned it to him (g-). To prove (A) the publication of a newspaper, an unstamped copy may be given in evidence, and the witness may swear, that similar papers were published. A delivery of a newspaper, according to the provisions of the stat. 38 G. III. c. 7.8, to the officer of a stamp-office, is a sufficient publication, though it, is directed by the statute, for the officer has an opportunity of reading it (i). *50 ] Where the libel has been published in a foreign lan- guage, it must be shown, by means of a sworn interpreter, that the translation set out in the declaration is a correct one (&). "Where an indictment charges the defendant with composing, print- ing, and publishing a libel, he may be found guilty of the printing and publishing, or of the publishing only (/). Where a governor of a British colony has made communications to the attorney-general of the colony as such, the latter is not bound to reveal them in an action against the former (n). So it has been held to be optional, on the part of a barrister, whether he will dis- close what passed in court upon his making a motion for a criminal information (o). According to the general rule of law, that a wit- ness is not bound to criminate himself, no witness is bound to answer a question, where the answer may tend to shew that he has been guilty of publishing a libel, for which he may be indicted (/?). Next, as to proof of the colloquium or inuuendos. — Having proved the act of speaking the words, or publishing the libel, *51 ] the next step is to *prove their application to the plaintiff, and to the extrinsic matters whose existence is alleged in the introductory part of the declaration or indictment, where the illegality of the words or libel depends upon their application to such extrinsic facts. This is usually done by the testimony of one or more witnesses who know the parties and circumstances, and who can state their judgment and opinion on the application and meaning of the terms used by the defendant, as alleged in the declaration or indictment. As such evidence is simply as to a result or conclusion (/) See Le Merchant's case, 2 T. R. (n) Wyattv. Gore, Holt's C. 299. 201. Layer's case, 6 St. T. 229. ( ) Per Eyre, C J. 1 Esp. C. 456. (g) R, v. Pearce, Peake's Cas. 75. (p) Moloney v. Bariley, 3 Camp. C. (/i) Ibid 210; supra, vol. I. p. 251; and see Starkie (t) R. v. Amphlitt, 4 B. & C. 35. on Evidence, pt. iv. 1740. {k) Supra, vol. I. p. 368. (0 R. v. Williams, 2 Camp. 506. R. v. Hunt, ib. 583. 2 East's P. C. 515, 6. MALICE. 51 which the witness may have derived from a great variety of circum- stances, ii is sufficient if, in the first instance, he Btate his belief and opinion as to the defendant's meaning generally, if he think proper, to inquire as to the means and grounds which the witness hud for forming that conclusion. The meaning of tin- defendant, as averred by an innuendo, is* a question of fact, to be decided by tin' jury (//). Where the words arc spoken in a foreign language, or where the terms are ambiguous, and it is doubtful in what sense the speaker intended *thcm, the question is, in what sense [ '."»_ ] the hearers understood them ; and if, where words may have two meanings, the hearers understood them in an actionable sense, the action is maintainable : for the slander and damage con- sists in the apprehension of the hearers (r). Where slander is pub- lished in a foreign language, it is necessary to shew that the hearers understood the language, for it will not be presumed that being ignorant of the words, they afterwards repeated them to those who understood them (a 1 ). But it seems that where the words arc ac- tionable in respect of extrinsic facts, as for instance, that they were spoken of the plaintiff in his character of an attorney, it is not es- sential to shew that the hearers knew the fact at the time of the speaking, for they may know it afterwards, and communicate the words to those who know it (/). Next as to the evidence of malice and intention. — It has been already observed, that where words have been uttered, or a libel has been published of the plaintiff, by which actual or presumptive damage has been occasioned, the malice of the defend- ant *is a mere inference of law from the very act, for [ *53 ] the defendant must be presumed to have intended that which is the natural consequence of his act (u). In such instances, therefore, it is unnecessary to give evidence of malice in fact or actual malice, unless it may be by the way of aggravating the damages. In other cases, the occasion and circumstances of the speaking and publishing repel the action, cither peremptorily and absolutely, or (q) Per Lord Ellenborough, 0. J in are wrong, the doers are answerable for all Roberts v. Cambden, 9 East, 96, Sir W. evil intents and damages. lb. Blackstone. 2 W. Bl. 902, and Gould, J. (t) P. C. Hob. 268; and see 1 Vin. Ab. in Oldham v. Peake, 2 W. Bl. 959, Cowp. 507, and Gilb. Cas. L & E. 1 17. 278, and see Penfold v. U'cstcotc, 2 N. K. (0 P- G Fleetwood v. Curley, Hob. 267. 335. (u) Prosser v. Bromagc, 4 B. ft C. -47- (r) Fleetwood v. Curley, Hob. 2G7; for supra, vol. I. 220; R. v. Harvey, 2 B. & where slanderous words are spoken, which C. 258, supra, vol. I. p. 215. 53 CIVIL REMEDY— EVIDENCE. unless express malice exist ; and in this latter class of cases, where actual malice is essential to the action, it lies on the plaintiff to prove the fact. Where the burthen of proving express malice is thus thrown upon the plaintiff, he may give in evidence any expres- sions of the defendant, whether they be oral or written, which indi- cate spite and ill will, for the purpose of shewing the temper and disposition with which he made the publication complained of. It has, however, been held, that other words or libels are not admissible evideuce to show the quo animo, unless they relate to the same subject. An action was brought for a libel published in a periodical work, called the Satirist, or Monthly Meteor, which sta- ted (inter alia~) that the plaintiff, being prosecuted by *54 ] the attorney-general, *had fled the country, that he might save himself from the pillory. To prove the ma- licious motive of the defendant, the plaintiff's counsel proposed to read extracts from a subsequent number of the Satirist, but Sir J. Mansfield, C. J. rejected them all, except one, which had immedi- ate reference to the former libel (x) . But it is to be remarked that, in this case, there was no doubt as to the animus ; the publication was clearly libellous in itself, and -the occasion of publishing did not render proof of malice in fact necessary. As nothing turned upon the defendant's real in- tention, the evidence was inadmissible ; for it is perfectly clear that subsequent libels cannot be received in evidence, with a view to enhance the damages, for they are substantive and independent causes of action. And in the subsequent case of Stuart v. Lovell (#), where the publication declared on was clearly libellous, Lord Ellenborough, C. J. rejected evidence offered of the publication of subsequent libels, observing that such evidence would certainly be admissible to show the intention of the defendant, were it all equivocal, but that they were not admissible for the [ *55 ] *purpose of enhancing the damages [1]. A case, there- fore, of equivocal intention, as where the question de- (x) Finnerty v. Tipper, 2 Camp. C. 72. (y) 2 Starkie's C. 93. His Lordship said you might as well give in evidence one highway robbery on the trial of another. [1] In Thomas v. Crosstvell, 7 Johns. R. 271. Spencer, J. intimated his opinion that subsequent publications were not admissible in evidence, even to show the quo animo ; though he deemed it unnecessary to the right adjudication of that case to settle the rule of law upon the subject. MALICE. 55 pcnds on the existence of malice in fact, differs widely in this re- spect from one which admits of no doubt on the subject ; where such a doubt exists, and where the material question in the cause is, whether the defendant was justified by the occasion, or acted from express malice, it seems, id principle, that any circumstances are admissible which can elucidate the transaction and enable the jury correctly to conclude whether the defendant acted fairly and honestly according to the occasion, or main fide and vindictively, for the purpose of causing evil consequences. In an action for a malicious prosecution of an indictment for per- jury, evidence was admitted of an advertisement published by the defendant pending the prosecution, although an information had been granted for publishing thai advertisement (;). In an action for words imputing perjury, the plaintiff was allowed to prove that, subsequently to the speaking of the words, the de- fendant had preferred an indictment against him (a). But in such cases the jury are not to consider the effect *of such evi- dence in measuring the amount of the damages, but [ "5G ] merely as a circumstance to prove malice (&). It was once doubted whether, in admitting evidence of this na- ture, a distinction ought not to be made between words not action- able in themselves and those which are so. In the case of Mead v. Daubigny (c), Lord Kenyon rejected evidence of words actiona- ble in themselves, and not mentioned in the declaration ; but his lordship afterwards changed his opinion, and admitted such evi- dence in a subsequent case (d). In Riissef v. 'Macquister (ut of justice, or even of necessity, when it is considered how often it hap- pens that the facts upon which a prosecution is properly founded are confined to the knowledge of the prosecutor alone ; and if this proof were not to be required on the part of the plaintiff, every prosecutor would in such a case be left exposed to an action, against which he might have no defence (m), if malice were to be inferred from the apparent want of probable cause. *It has already been seen, that what will amount to *73 probable cause, may be either a question of laiv, to be decided by the court on the particular facts, as found by the jury, or may be a conclusion or inference of fact to be drawn by the jury(.t). Evidence of the express malice will not dispense with proof of the absence of probable cause (//). Where, upon an indictment for a malicious prosecution for perjury, it appeared that part of the affidavit on which perjury had been (t) 1 T. R. 520. 1 Salk. 14, 15, 21; 5 Mod. 391, 405. 1 Vent. 8G. Carth. 415. Where a party robbed or injured merely states actual facts to a magistrate, on which the latter acts accoi'ding to his own discretion, the action it seems is not main- tainable. The complainant cannot, in pro- priety, be said to be the prosecutor of the person against whom the magistrate may think fit to issue his warrant; and whether there be or be not probable cause for issu- ing the warrant, there was, at all events, probable oaase for making the statement, and no malice can be inferred from a mere statement of facts according to the truth. Where the defendant went before a magis- trate, and state 1 the fact of his having lost a bill of exchange, and the magistrate's clerk stated the substance, but added that the plaintiff bad feloniously stolen the bill; there being no evidence of malice on the part of the defendant, it was held that the plaintiff had been properly nonsuited. Co- hen v. Morgan, 6 D. & R. 8. (u) See Ld. Kenyon's observations in Sykes v. Dunbar, 1 Camp. 202, in note ; and in Smith v. Macdonall, 3 Esp. C. 6. These reasons do not, as has been seen, ap- ply to a case where a party makes an extra- judicial charge against another. (x) Supra, vol. I. p. 279. Where a felony has been committed, though not by the plaintiff, a private person may justify not only a prosecution, but even an actual arrest, if he acted on fair and reasonable grounds of suspicion. But in an action of trespass, it would be necessary that the de- fendant (not being a peace officer,) should plead specially the grounds on which he acted. See Mure v. Kuye, 1 Taunt. '.'A. MCloughan v. Clayton, '2 Starkie's C. 1 15. Haw. b. "J, e. 12, s. 15. In such ca- ses, therefore, it may be a question of law for the court, whether the circumstances were sufficient to justify an arrest. who did not himself believe, on facts with- in his knowledge, that the party w:rs guilty would be justified in making an arrest. Haw. b. 2, e. 12, s. 16. Sir Anthony Ash- ley's ca^e, 12 «'o. 92. {y) Turner v. Turner, 1 Gow. 50. CIVIL REMEDY— EVIDENCE. assigned had been falsely sworn, but that there was no probable cause for some assignments of perjury, on some of the *74 ] "transactions contained in the affidavit, it was held that the action was maintainable (?/), for there being no prob- able cause for some of the charges in the indictment, it was pre- ferred with probable cause (Y). The fact of ma/ice, which is a question for the jury (a), ' *75 | is usually inferred from the want of any *probable cause for the prosecution (6). No evidence of malice can be more cogent than the proof that the defendant knew that the plaintiff was innocent £ a a ] . It is invariably necessary, in an action of this nature, to give some positive evidence, arising out of the circumstances of the pros- (y) Reed v. Taylor, 4 Taunt. G16. (z) PerGibbs, C. J. Reed v. Taylor, 4 Taunt, 616. (a) See Johnstone v. Sutton, 1 T. R. 543. Yet there may be cases so circum- stanced, that though the courts might not go so far as to infer malice in point of law, without the aid of a jury, yet they would leave it to the jury to imply malice. Where a bank inspector, in the absence of circum- stances which would justify suspicion, charged the holder of a forged bank-note, which he had refused to give up to the in- spector, with a felonious possession of the note, Ld. Ellenborough said, that to press for a commitment, under such circumstan- ces, was such a crassa ignorantia, that it amounted to malice. Brookes v. War- wick, 2 Starkie's C. 389. See also Isaacs v. Brand, 2 Starkie's C. 167. Supra, vol. I. p. 282, in the note. The defendant had held the plaintiff to bail, as adminis- tratrix, for a debt due from the estate; and upon the trial of the action, for maliciously holding to bail, the plaintiff relied wholly on the mere fact of her having been held to bail, when she was not liable to arrest, and gave no extrinsic evidence of malice. The jury having found a verdict for the plain- tiff, with five shillings damages, the court upon a motion for a new trial, doubted whether the very fact of holding the party to bail, under such circumstances, was not evidence from which malice was to be im- plied, and refused to disturb the verdict. Fletcher v. Webb, 11 Price, 381. (6) Incledonv. Berry, 1 Camp. 403. Saville v. Roberts, 1 Salk. 14. Ld. Ray. 374- [. A defendant failing in his proof of justification, may offer evidence in mitigation of damages, Morehead v. Junes, 'J B. Blunroe, 210. So in an action for defamation either party may with a view to the damages gjlve evi- dence to prove or disprove the existence of a malicious motive ; but if the evidence giv- en for that purpose by a plaintiff, establishes another cause of action, the jury should be cautioned against giving damages in respect to such other cause of action, Pearson v. Lemaitre, 5 Maun. & G. 700 ; G Scott. N. R. 607. 98 CIVIL REMEDY. fact receive such information (7). As where the libel refers to a newspaper as the medium of communication (u). In a late case the defendant was allowed to inquire of a witness whether he had not read the substance of the alleged libel in a pub- lic newspaper (x). In Miillett v. Hu/lon, (y), the declaration stated that the plaintiff was about to take a house, but that the defendant in order to prevent him, addressed, a letter to the owner, containing the following pass- age: " Mr. Hulton cannot for a moment 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 [ *99 ] seducer, into the neighborhood 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 dam- ages. He admitted, that not having pleaded the truth of the words, he could not prevent a verdict from passing against the defendant ; but that, 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, the defendant should be at liberty 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 Ellenborough, C. J. said, that as the pleadings 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 newspaper, if the newspaper, could be produced, he would admit it as evidence, as having caused the defendant to adopt what he had written in the letter, he having so referred to it [ a a] (0 lb. see R. v. Burdelt, 4 B. & A. 717. [a a] So when the libel purported to be (u) Mullett v. Hullon, 4 Esp. C. 248. a report of a coroner's inquest, Lord C. J. (x) Wyatt v. Gore, 1 Holt's C. 303. Abbott held that what really passed at (y) 4 Esp. 248. . the taking of the inquest was evidence un- [1] Although the proof adduced by a defendant in justification of a charge of forgery falls short of establishing thespecialplea.it maybe taken into consideration in miti- gation of damages. Per Tindal, C. J. in Chalmers v. Shackell, 6 Carr. & Payne 475. In an action for a libel purporting to be a report of what occurred before commission- EVIDENCE IN MITIGATION. 99 It is no defence to shew that the plaintiff has been in the habit of libelling the defendant, but it is evidence, it has been said, der the general issue in mitigation of dam- show in mitigation that lie copied the libel- ages. Being short of a justification, it is, lous paragraph from a public newspaper, said the C. J. upon the general principle bat not that many other journals publish- admissible as governing the damages, ed the same statement Saunders v. J/< Is. East v. Chapman, 1 Moody & Malkin 46. G Bingh. 213. So it was held that the defendant may ers of inquiry respecting corporations, it was held that the defendant could not give evidence of the accuracy of the report as a matter of justification, but that he might give such evidence iu mitigation of damages. Charlton v. If 'alton, C Carr. & Payne 385. In Morris v. Duane, 1 Binney 90, n. the defendant was allowed to give in evidence, in mitigation of damages, a paper containing the libellous charge, which had been in the possession of a preceding editor, to whose establishment he had succeeded, for the purpose uf showing that the defendant had not devised the slimier. This decision was approved in Coleman v. Southwick, 9 Johns. R. 49, where C. J. Kent conceded that evidence that the defendant had been told by a third person, that what was alleged to be libellous had appeared in a public newspaper, would have been admissible had it been offered to be proved by the persun giving the information, and this although a plea of justification had been interposed. So in Oilman v. Lowell, 8 Wendell 673, the defendant had spoken slanderous words of the plaintiff, when no occasion which the law justifies authorized him to speak; but still he had cause to believe that whit he uttered was the truth, and it was held that he should have been permitted to show the facts and circumstances of the case, in mitigation of damages. The plaintiff, against whom a judgment had been rendered in a justice's court, to prevent the issuing of an execution, had made oath that he was a freeholder, and that the deed of his property was duly recorded. The defendant, on diligent search at the clerk's office, not finding the deed on record, charged the plaintiff with false swearing. The deed was in fact re- corded, but the names of the parties had not been entered in the index, in consequence of which, the record of the deed was not found at the time of the search. On the trial, the defendant offered to prove the above fact.-, in mitigation of damages, but the judge refused to receive the evidence, and the plaintiff obtained a verdict for $250. Anew trial was granted, on the ground that the evidence ought to have been received in miti- gation of damages. C. J. Savage, who pronounced the judgment of the court, mani- festly was inclined to go farther. The facts, he observed, go far to diminish the quan. turn of malice ; perhaps they show as far as can be done the absence of malice ; but all that was done was to direct the evidence to be received in mitigation. There is one other ground of mitigation to which it may be well to advert. // seems that an admission by the defendant when interposing his pica that at the time of making the slanderous charge, he acted under a mistake ot foots, would be available in miti- gation of damages. See the language of the court in Lamed v. Buffington, Z .Mass. It. 646, as qualified in Alderman v. French, 1 Pick. 19. Sie also what was said by C. J. Savage in J\Iu/>es v. Week*, 4 Wendell 668, and the intimation of Nelsoji, 0. J- in HotchkUs v. Oliphant, 2 Hill, 515, that a withdrawal or recantation of the charges by way of atonement, would be admissible in evidence in mitigation of damages. In Starkie's Ev. Part IV., p. 882, it is Said th it B defendant indicted for publishing a li- bel was permitted to prove, with a view to the mitigation of punishment, that he stop- ped the sale of the publication. 100 CIVIL REMEDY. [ *100 ] *in mitigation of damages (s). The latter, however, of these positions is too large, and it seems that, at most, the defendant cannot be allowed to do more than prove the publica- tion of libels by the" plaintiff, which are connected with the libel, which is the subject of the action (a). As where such previous libels constitute the provocation to the principal libel (6) [1]. As the defendant, when he insists upon the truth of the imputation, must plead it specially, the proof must of course depend in a great measure upon the allegations upon the record ; there seems to be little if any difference between the evidence in proof of a specific charge, thus involved in a civil proceeding, and the evidence which is essential to support an indictment containing a similar *101 ] ^charge (c) [2]. It may indeed happen, that more pre- cise evidence may be necessary to support such a justifi- cation than would be sufficient to sustain an indictment, for the proof, in the former case, is governed by the allegations in the plea, and allegations in a plea may frequently require precise proof, though they would not have done so in an indictment. For instance, if the slander consist in charging the plaintiff with having stolen sov- ereigns in the plural, the plea must necessarily charge him in the plural also, and the defendant would fail in his justification if he could prove no more than the stealing of one ; .but on the trial of an indictment for larceny, the variance would be wholly immaterial. It has been seen that, though the slander be general, the plea of justification must be particular (d). But should the plaintiff, instead of demurring to a plea for generality, take issue upon it, the defend- ant will still be bound to prove the slander or libel as stated in the declaration with all its circumstances of exaggeration (e) ; even although the plea merely state that the matters alleged in the sup- (z) Finnerty v. Tipper, 2 Camp. 7G. Abbott, L. C. J., whether general evidence See Pasquin's case, ib. and Tabartv. Tip- would be admissible to prove the fact ; it per, 1 Camp. 380. seems, however, to be clear in principle, (a) J\Iay v. Brown, 3 B. & C. 113, gene- that the libels themselves ought to be ral evidence that the plaintiff has been in strictly proved. the habit of libelling the defendant is inad- (c) Cooke v. Field, 3 Esp. C. 233. missible. Finnerty v. Tipper, 2 Camp. (d) Supra, vol. I. 477. 76. Wakcley v. Johnson, 1 R. & M. 422. ( e ) Weaver v. Lloyd, 2 B. & C. 678. (b) Ib. It was doubted in that case, by [1] See also Walls v. Frazer, 7 Adolph. & Ellis 223; 2 Scott's Exch. R. 642; Beai(h!ey v. Maynard, 4 Wendell 336 and 7 Id. 500, S. C. in error ; and Gould v. Weed, 12 Wendell 12. [2] Same doctrine, Woodbeck v. Keller, 6 Cowen, 118. EVIDENCE IX JUSTIFICATION. 101 posed libel are true in substance and effect (/) ; where a libel charged the plaintiff 'with having knocked out the [ *102 ] eye of a horse and other nets of cruelty, and the defend- ant pleaded that the matters contained in the alleged libel were true in substance and in fact, the jury having found that it was true in all particulars, except that the eye was not knocked out, the court held that the plaintiff was entitled to a verdict on that plea (i, r ). But it would not be necessary in such case to prove circumstances which were not ingredients in the slanderous charge (//). Where words, not contained in the declaration, are given in evi- dence in order to prove malice, the defendant may, under the gene- ral issue, prove the truth of those words (i). The acquittal of the plaintiff, on an indictment charging him with the same offence as is specified in the plea, does not preclude the defendant from proving the truth of the charge (/«;), nor, indeed, does it seem to be evidence at all. Evidence of general good character is admissible to rebut the pre- sumption of guilt (/). And the plaintiff may adduce general evidence of good "character, before any evidence | *10o ] to the contrary has been adduced on the other side ('»)• Where the defendant justifies, alleging that he heard the words from another whose name he mentioned when he reported them, the proof depends on the issue taken. Upon issue taken on the general replication de injuria, &c, it lies on the defendant to prove, that lie heard the very words spoken by such third person, as alleged in the plea, and that on repeating them he gave up his author ; for the object of the plea is to shew, that the defendant has afforded to the plaintiff a certain cause of action against another. It would not be sufficient under this issue to prove, that the third person spoke the words to the same effect with those alleged (n) [1]. In actions for malicious prosecutions and other special actions on (/) lb. (>«) k'ingx. Waring, 5 Esp. C. 13. (g) Weaver v. Lloyd, 2 B. & C. GTS. But there the action was brought by a scr- (h) Edwards v. Bell, 1 Bing. 403. Su- Yant for giving a false character. See aute, pra v. I, p. 483. p. 60, note (ui). (i) Wurnev. Chadwell, 2Starkie'sC. (") See Lord JVorthomffonU eate,12 457. Collison v. Loder, B. N. P. 10. Rep. 202. Crawford v. Middliton, 1 Lev. (k) England v. Bourlce, 3 Esp. C. 80. 32. Maitlandv. Golding, 2 East, 425. (/) See Starkie's Law of Evidence, part B'oolnoth v. Meadow, o East, 403. iii. 365. [1] See Vol, I. p. 320, n. [1]. Vol. II. 40 !03 CIVIL REMEDY: the case, where the plaintiff is bound to prove express malice and the want of probable cause, the defendant is at liberty to prove that the fact was true, or give any other evidence to show probable cause under the general issue, without a special justification. [ *104 ] For this is merely to repel the proof which is *necessary to sustain the plaintiff's case ; thus, in an action for slan- der of title, where the slander consists in alleging that the plaintiff had encroached on his landlord's land, it was held, that the defend- ant was at liberty to prove that encroachments had in fact been made (o). (o) Watson v. Reynolds, 1 M. & M. 1, Pitt v. Donovan, 1 M. & S. 639. Supra, and see Hargreave v. Le Breton, 4 Burr. vol. I. 320.' 2422. Smith v. Spooner, 3 Taunt 246. CHAPTER III. Proceedings after Verdict. [ *105 ] * Where the situation in which the defendant was act- ing at the time of speaking the words, or publishing the libel, was such as to rebut the implication of malice, and no express malice was proved, the court will, after a verdict for the plaintiffs grant a new trial (a) ; and this, even though the defendant 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 (6). But where the false assertion of the defendant is material, no new trial will be granted, though the defendant had an interest in the subject matter affected (c). Where the damages are so outrageous as to induce a strong pre- sumption of partiality in the jury, a new trial will be granted in an action for slander, as well as in other cases, though in *106 ] such an action "the amount of the loss sustained from the injurious act depends upon circumstances of all others the most appropriate for the calculation and assessment of a jury [1]. In the case of Lord Townsend v. Dr. Hughes (d), which was an action for scandalum magnatum, the words were, " He is an un- (a) See the observations of the Court in (c) See Smith v. Spooner, vol. i. p. 317. Bromage v. Prosser, 4 B. and C. -17. (,/) 2 Mod. 150. (b) 4 Burr. 2422. [1] In Coleman v. Soulhtrick, 9 Johns. It. 51, Chief Justice Kknt, in an action frr libel said, " The question of damages was within the proper and peculiar province of the jury. It rested in their sound discretion under all the circumstances of the case, and unless the damages are so outrageous as to strike every one with the enormity end in- justice of them, and so as to induce the court to believe that the jury must have acted from prejudice, partiality or corruption, we cannot consistently with the precedents, interfere with the verdict. It is not enough t<> say that in the opinion of the court the damages are too high, and that we would have given much less. It is the judgment of the jury and not the judgment of the court which is to assess the damages in actions for personal torts and injuries. See also Sovthwick v. Stevens, 10 Johns. R. 143; Coffin v. Coffin, 4 Mass. R. 1; .Veal v. Lewis, 2 Bay's R. 204. 106 CIVIL REMEDY: worthy 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 per- sons of credit, and that, at the time when they were alleged to be spoken, many clergymen 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. 3dly. (Which was the principal reason,) because they were ex- cessive. North, C. J. and Wyndham and Scroggs, Justices, were of opin- ion, that no new trial ought to be granted, that in a civil action, where the words themselves are actionable, without an [ *107 " averment of special damage, the jury ought to take *into consideration the whole of the damage which the party might sustain, since he could not bring a fresh action ; that it was im- possible for the court, to tell what value to set upon the honor of the plaintiff; that the jury were, by law, judges of the damages ; and that it would be very inconvenient to examine upon what ac- count 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 Gun- ston v. Wood, where the plaintiff, in an action on the case for call- ing him a bankrupt, recovered £1500 damages; 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 appear perfect upon the face of the record, the defendant may take his objection, either by moving in arrest of judgment within the usual time, or by bringing a writ of error. It has already been seen what are the rules to be observed in the construction of the defendant's expressions ; that they are to be taken according to their plain and obvious meaning, and [ *108 ] in the *sense in which the hearers or readers understood them. PROCEEDINGS AITKR VERDICT. 108 After a verdict for the plaintiff, by which the defendant's act, meaning, and intention, have been ascertained to correspond with the statement upon the record, the courts will nol listen to trivial exceptions, but require the party objecting to poinl out (c) a sub- stantial objection upon the face of the proceed in 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 vcrdid (/"). Where there are several counts in the declaration, and entire damages are given, if one count be defective, judgment must be ar- rested for the whole, since it is impossible lor tic court to appor- tion the damages, and to say what abatement ought to be made in respect of the vicious count (oper v. Bissell, 15 Johns. R. 318; Sayrc v. Jcirrtt, 12 Wendell, 186, The same rule prevails in South Carolina, where the court say that they do net oonour with the King's Benofa of Eng- land on this subject, JVeal v. Lewis,- Bay, 204, and Hojjs. Wilson, 1 Not! and McCord, 216. So in Pennsylvania, the court directs the verdict to be entered upon the good counts; Kennedy v. Lowry, 1 Binney, 8975 u,lt l ''' s oaooot be done ou a writ of error: Shafer v. Kintzer, 1 Binney, 687; Cooper v. Bissell, 15 Johns. R. 318. See note [1) p. 112, infra. 40* 100 CIVIL REMEDY : laid merely in aggravation. If the declaration consist of several counts, in one of which the words are not actionable, and no special damage be averred, or, supposing 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 by motion, or reversed by writ of error (&). Where, therefore, there is any doubt as to the validity of any one count, (/), it is a matter of prudence to have the damages as- sessed severally, or to take a verdict upon the other counts only. In (m) Rich v. Holt, the words laid down as spoken of [ *110 ] the plaintiff at one time were, " You *are a paltry law- yer, and used to play on both hands ;" at another, " He is a furtherer and maintainer of felonies." The defendant as to all the words, except those in italics, pleaded not guilty, and as to those a justification. The plaintiff replied de injuria propria, SfC. The jury, upon the first issue, found the whole of the words, and assessed damages for the whole ; they likewise found the second is- sue 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, how- ever," that the plaintiff was not entitled to judgment under the first assessment, 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 furth- erer and maintainer 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 actionable. It is said to be the practice in the Court of Common *111 ] Pleas, to award a venire de novo where judgment is ar- rested in such case, upon payment of costs, in order that the plaintiff may sever his damages (n). But in the case of Holt v. Scholejield (o), in the King's Bench, a venire de novo was re- fused. (fe) See the cases 2 Will. Saund. 171, d. (o) 6 T. R. 61. Sed vid. Eddows v. (Z) Burnet v. Wells, 12 Mod. 420. Hopkins, Doug. 376. (m) Cro. J. 267. (ti) 2 Will. Saund. 171, d. Barnes, 478, 480. PROCEEDINGS AFTER VERDICT. Ill 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 entered for the defendant, upon the Judge's certifying that no evidence was given of them at the trial. Hut Lord Camden said it would be very dangerous, after a ver- dict of twelve men recorded by the Court, to refer to the Judge's notes in order to alter it, and he thought there was no precedent of such a case, and that the verdict could not be varied. 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 (7), or by awarding [ 'Hi! ] a v. f. de novo, where such evidence has been given, in order that the plaintiff may ascertain to what damages he is enti- tled for so much of his cause of complaint as will support damages. It does not distinctly appear, upon what principle actions for slan- der form an exception to the general rule [1]. (p) 2 Wils. 300. and it is done by the judge who tried the (q) This is now the ordinary practice, cause upon summons at chambers. [1] See Hopkins v. Beedle, 1 Caine3, 347; Lyle v. Clason, Id. 583; Livingston v. Rogers, id. 587. CIIAiTER IV. Of Costs. [ *113 1 *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 record 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." [1] This statute, it has been held, does not extend to actions of scan- dalum magnatum, nor to those where the special damage is the gist of the action, as in case of slander of title (a), nor to actions for libel (6). [ *114 ] *But where the words are in themselves actionable, 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, without proving the special damage ; and if he were in such case entitled to costs, where the damages were un- der forty shillings, the statute might in all cases be evaded by a sug- gestion of special damage. This construction is. however, not free from inconvenience ; since where special damage has actually ac- crued, the circumstances of the words being in themselves actionable, may operate to the plaintiff's disadvantage, and he may be placed («) 2 Bl. 10G2. 2 Ld. Raym. 1588. (b) Hall v. Warner, T. 24 G. 3 Tidd. Prac. Reg. 111. Cro. Car. 1 10. Jon. 196.. 861 . Sed vide note (1) supra. 2Ld. Kay. 931. 1 Salk. 206. 7 Mod. 129. Willes, 438. 1 Barnes, 132. 2 H. B. 531. 3 Burr. 1688. 1 Str. 645. [1] In New- York, in an action for slanderous words or for a libel, brought in the Supreme Court, unless the plaintiff obtained a verdict for a sum exceeding fifty dollars, he recovers no more costs than damages, 2 R. S. 509, sec. 6. COSTS. 114 in a worse situation, by that very presumption of law which was in- tended for his advantage. And where it clearly appears, as by a special verdict and separate assessment, that the special damage was actually <•, 1 by the jury, it seems reasonable that the plaintiff should have full co though the damages do not reach the statutable limit (c). Where the words are actionable, ami other matter likewise ac- tionable is stated as a distinct injury, and not as a mere cousequence of the words, the plaintiff is entitled to full costs; as •where the declaration, after stating the words imputing [ *115 ] felony, averred that the defendant procured the plaintiff to be imprisoned (//). "Where there are different counts in the declaration, some contain- ing words not actionable, and others containing actionable ones, and special damages 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 damages assessed must have been given in respect to the consequential damage (e). The statute extends to damages found under a writ of inqui- ry (/)• It has been held that the statute extends to inferior courts, which hold pleas to a less amount than forty shillings only («•). But by the st. 58 G. III. c. 30, s. 2, in all actions for slanderous words, in any court which hath not jurisdiction to hold plea to the amount of forty shillings in such suits, if the jury assess the damages under thirty shillings, the plaintiff shall recover only so much costs as the damages so given or assessed shall amount to, without further in crease. The 22d and 23d C. 2, c. 9, is very general in its terms, which comprehend "all personal actions." *By ' 1 1 * » ] 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 defendant, or that the freehold or title of the land mentioned in the declaration was chiefly in question, the plaintiff incase the jury shall find the dam to be under the value of forty shillings, shall not recover more costs (. 7th ed. 1 Ld. 163. Cro. Car. 307. Ray- 181. Hull, on Costs, 38. 116 CIVIL REMEDY: than damages. At first it seems, that the statute was held to ex- tend to all personal actions (/t) ; but it appears to be now settled that it is confined 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 (/i). This statute, therefore, does not affect the present class of actions. And since the case of slander is not considered to be within the latter statute, a justification does not entitle the plaintiff to full costs, where the damages are below forty shillings (i). (h) 2 Keb. 849. 3 Keb. 121, 247. (i) Halford v. Smith, 4 East, 566. (h) See Tidd's Prac. (4 Edn.) 861 where Barnes, 128. 2 Wils. 158. the authorities on the subject are collected. CHAPTER V. Of the Writ of Prohibition. *A prohibition to the Ecclesiastical Court is grounded [ *117 ] either upon a defect in their jurisdiction or upon some irregularity in the course of their proceedings. The power of these courts, in cases of defamation, was expressly recognized 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 punishment 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 punishment pro salute animoe (a) and not to award any temporal compensation in the way of damages for loss of character {b~). And the latter position appears still more clearly *from the statute of Articuli Cleri (c) ; [ *118 ] which enacts, that " In defamations, prelates shall correct, the king's prohibition notwithstanding; 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 (d) 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 Com- mon Law; but provided the slander do nut 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 ac- tion at Common Law (c). Thus a suit was instituted in the Spiritual («) 2 Inst. 492. (d) 2 Burn. Boo. L. 120. Ld. Ray. 212 (A) lb. 397. Godb. 517. 2 Salk. 892. 11 Mod. 112. (e) 9 Edw. 2, c. 4. (0 2 Ins. 493. 118 CIVIL REMEDY : Court for calling the plaintiff a false knave, and a prohibition was granted. And it was said (/), that though these words do not imply any offence of which the temporal law takes cog- f *119 ] nizance, yet being also not of spiritual cognizance, *the Temporal Courts will grant a prohibition that the Eccle- siastical Courts (g-) may not exceed their jurisdiction. And the same rule holds though the words be spoken of an eccle- siastical person. The words spoken of a parson were, " He (Ji) has no sense ; he is a dunce or blockhead, and deserves to have his gown stripped over his ears." And it was held that the defendant was not punishable in the Spiritual Court ; for a parson is not pun- ishable 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 de- prived for want of learning, he must bring his action at Common Law (t). So it has been held that to call a dean " a knave" was not suable in the Spiritual Court. But where words (Je) 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 tem- T *120 ] poral courts, no prohibition will be granted (7) ; so *that no prohibition lies m a suit for the words, " he is a cuck- oldy knave (m) ;" and the rule is the same though it should be suggested that the words were spoken through heat and passion(w). Where the words themselves are of mere spiritual cognizance, but special damage ensues, for which an action is brought in a tem- poral court, it seems that no prohibition is grantable. In the case of Evans v. Brown (o), where the words were of mere spiritual cognizance, a prohibition was moved for upon a sug- gestion that the plaintiff below had brought an action at law for the words, grounded upon special damage sustained by reason of the defendant's speaking them. It was contended, that this was like the case where one calls a woman a whore and thief: in that case she shall not have .an action in the Ecclesiastical Court for the ( 2Salk.692. Y' 2 Ing 695 (m) Gobbet's case, Cro. Car. 339. Golds. (h) Coxeter v. Parsons, Salk. 692. 172. (i) Holt. R. 593. JVelson v. Hawkins, (n) L) Cro. Car. 22','. Str. linn. | ,,,. r ;ir . ( affidavit of the custom. It seems, generally, that any(c) words from which the intention to impute whoredom ran be collected, will td for prohibition. The Spiritual Oouii is bound to allow the defendant the advan- of any justification which would have availed him at Common Law (d). The plaintiff proceeded in the Spiritual Court 'for the [ *125 | words, "You had a bastard (< >." I • defendant pleaded that the plaintiff had be I for this hav- ing a bastard, and ordered to keep the bastard, at I Norwich. Notwithstanding this, the court proceeded, an I fondant, in the Spiritual Court, move 1 for a prohibiti - 1 i n -_r the Bpecial matter, to which th i oth t party demurred. It was judged that the prohibition should stand : for, being sentenced to Wi- the reputed father by the Justices of the Peace, which is by the authority of the Statute Law. that sentence could not beimpe in the Spiritual Court, or elsewhere ; and all are concluded to say the contrary until it be reversed. By the 1st Edw. III. st. 2. c. 11, " No suit .-hall be made in the Spiritual Court against indictors. The Commons d<> grievously complain, that when divers persons, as well clerks as lay people, have been indicted before sherilVs in their turns, and after th.- in- quest procured be delivered before the Justices, after their deliver- ance they do sue in the Spiritual Court against such indictors, sur- mising against them that they have defamed them, to the - damage of the indictors, wherefore many people of the shire be in fear to indict such offenders : the king will, that in BUch i, every man that feeleth himself aggrieved the:- j *126 ] shall have a prohibition fram id in the < iry upon his case." Though the statute in term- comprehends indictment- before sher- iffs in their turns only : it seems that it eztonds to indictments in all other court-, and to all witnesses and other- who have affaire in temporal courts ( / ). By the st. -1 (>. 111. c. -ll.no suit for defamatory word- -hall be brought in any of tin- Ecclesiastical Courts, unless the -aim- -hall be commenced within six calendar months from the time when Bach words shall have been uttered. (c) Str. 471. (•) Cro.J.626. 9 B (d) Com. Dig. tit. Prohibition, G. 11. (/) 12 Co. 43. 126 PROHIBITION. The distinction as to the time of moving in prohibition is, that where the defect alleged is extrinsic of the libel itself, the party- must apply before sentence in the Spiritual Court ; for where the Spiritual Court has an original jurisdiction which is to be taken away upon account of some matter arising in the suit there, after sentence the party shall never have a prohibition, because he him- self hath acquiesced in their manner of trial, which is a waiver of the beneiit of a Common' Law trial. But if the defect of jurisdiction appear upon the libel, the party never comes too late (£•). [ *127 ] *In the early part of the reign of Queen Anne, a prohi- bition was moved for to stay a proceeding in the court of the Earl Marshal against the defendant, for having said to the plain- tiff, who was a knight, " You a knight (//) ! you are a pitiful fellow, and an inconsiderable fellow," to the great scandal of gentlemen and of the order of knighthood. From the judgment given by Lord Holt upon this occasion, it appears that a prohibition had been sent to a Court of Honor some years before, (though it had then been contended that under the st. 13 Rich. II. c. 2, the proper mode of resisting any encroachment by such courts, was by a writ from the Privy Council to restrain them ;) since in all cases of encroachments by courts of inferior jurisdiction, the proper remedy is by writ of prohibition. With respect to the court itself to which the prohibition prayed for was to be sent, it appeared that it had been held before the Constable and Marshal till the 18th year of H. 8. when the Consta- ble (i) was attainted of treason, and the office extinguished ; but that the pleas relating to matters of law had since been held before the Earl Marshal only. But the court were of opinion, [ *128 ] that whatever color there might be to *hold plea of some things before the Marshal alone, there was no pretence to hold plea (&) of words. (#) Jlrgyle v. Hunt, Str. 187. (k) Several instances of great oppres- (h) Chambers v. Jennings, 7 Mod. 125- sion, where this court held plea of words (i) Stafford, duke of Buckingham. are cited iu Hume and Ld. Clarendon. CHAPTER VI. Publications against Religion. 'II LYING thus considered the nature and extent of the [ *129 J civil remedy, in respect of malicious and injurious com- munications, the subject is next to be regarded in reference to the interests of the public. It may be asserted generally, that the wilful and unauthorized publication of that which immediately tends to produce mischief and inconvenience to society, is a public offence. The present branch of the subject may be considered, 1st. In reference to the essentials which constitute the offence. 2ndly. The mode of prosecution and punishment. First, in reference to the essentials which constitute the offence: These regard — 1st. The nature, quality, and tendency of the matter published. 2ndly. The act of the party concerned in the publication. ordly. His motive and intention. 4thly. Collateral circumstances. •First, as to the nature, quality and tendency of the [ *130 ] matter published. The offence may consist in the tendency of the communication to weaken or dissolve religious or moral restraints, or to alienate men's minds from the established constitution of the state, or to engender hatred and contempt of the king or his government, or the houses of Parliament, or the administration of public justice, or in general to produce some particular inconvenience or mischief, or to excite in- dividuals to the commission ofbreaches of the public peace*, or other illegal acts. Blasphemies against God and religion may be regarded spiritual- ly, as acts of imbecile and impious hostility againsl the Almighty, or temporally, as they affect the peace and good order of civil society. It is in the latter relation only that BUCh offences are properly cogni- zable by municipal laws. To attempt to redress or avenge insults to a supreme and omnipotent Creator, would be absurd : but when it ie 41* 130 CRIMINAL DIVISION. considered that such impieties not only tend to weaken and under mine the very foundation on which all human laws must rest, and to dissolve those moral and religious obligations, without the aid of which mere positive laws and penal restraints would be ineffica- cious, but also immediately tends to acts of outrage and vio- (a) (a) The following are the remarks of the learned Michaelis, on the question -whether blasphemy ought to be punished in the ; temporal courts — Michaelis on the Mosaic Law, vol. 4. p. 491; Smith's Translation. With regard, then, to blasphemy, is it irrational, barbarous, and superstitious, that any punishment should be inflicted on the crimes which are usually comprehend- ed under this name ? Almost all nations have accounted it just, and some have pun- ished such crimes with extreme severity. At present, however, the objection that blasphemy injures not God, he being infi- nitely exulted above it, is trumpeted abroad with loud approbation. It does not, indeed, appear very striking to me; and those who make it would seem to have conceived that the intention of punishing blasphemy were to procure safety to God : that, however, could scarcely have been the unanimous idea of so many nations, and these, too^ differing so widely in civilization, climate and religion ; for most of them would pro- bably have conceived, that if God wished to avenge this crime, he would take ven- geance at his pleasure, and would not want the aid of human laws for this purpose. On God's account, then, punishments for blasphemies are not necessary ; but per- haps they are necessary for the sake of our neighbor, who, if he believes in a God, or holds his religion, whether true or false, to be true, always feels himself extremely scandalized by them. Nor is it only blas- phemy against the true God that ought to be punished, but even that against false gods, supposed saints and fictitious religion, whenever they happen to be the gods, saints, and religion of the people. Putting blasphemy entirely out of the question, has any man a right to call me to my face, on account of my opinions, whether true or false, or, which is the same thing, on account of the philosophy which I adopt, a foci, a profligate, a vil- lain ! He may be of a different opinion, and may, if I chocse to hear him, give his reasons with great animation, in which case, should a harsh word escape him in the keenness of argument, I am bound to overlook it, because I might myself be guilty of the same fault; but if, without having this apology, he should tell me to my face, The philosophy uhich you adopt is nonsense; it is abominable ; it is impos- ture ; and its author is a, villain and a rogue — I certainly should not be censurable for repaying such insolence with manual chastisement, if the magistrate would listen to no complaint on account of it. And if the man had treated me with such gross rudeness in the presence of others — of my children, perhaps, or my servants, before whom I should thereby have appeared in a contemptible light, his offence would be so much the greater; I oug'ht to have it in my power to complain of it ; and though, in- stead of doing so, I were to give him a drubbing, I certainly should have the ex- cuse of what is called a Justus dolor to plead. Again, the offence would be further aggravated, and my right to revenge it the better if he had addressed me in such inso- lent language in a place where he had no title to be without my permission — for ex- ample, in my own house. Now to the man who from his heart be- lieves his religion, and regards it as tb e way to eternal bliss, and as the comfort both of life and death, and who, of course, wishes to educate his family in the knowl- edge and belief of it, nothing can be more offensive than to hear another speaking against it, and employing, not arguments (although even these he might let alone, because every man has a right even to err, without our forcibly interfering to rid him IJLASPIIEMY. 130 lcncc, *bcin«r for the most part, gross insults to those [ *131 who believe in the doctrines which are held op to Bcorn of his errors,) but insolent and contemptu- IIlore the scoffer at reli. in society, ous language, and bloa iheming its gods, its jf uc succeed in making really oontempti- prophets, saints, and sacred things. Where ble, T I not think it necessary fa the religion in question is only tolerated a word. Btill the state is bound to protect every per- To the complete du son who believes it, from such outrages, or whether he disl elievea in a ' ther, it cannot blame him it' he has not the pa- ,, r i, u t only as concerning himself in human tiencc to bear them. But if it he the es- j^tr^iis, as punishing sin an 1 ruling the tablished national religion , and of course world, and consequently I the person not believing it to be only tole- me r of the only I rated by the state, and though he enjoys fog to the spirit of la? .tion its protection just as if he were in a strange whatever, because no n be house, such an outrage is excessively gross; placed on such a person, his oath being a and unless we conceive the people so tame me re nonentity; nor is be to betrut as to put up with any affront, and of course farther than he is under inspection, likely to play but a very despicable part on Should he be a malicious rascal, punish- the stage of the world, the state has only ments would 1 e insufficient t" secure us to choose between the two alternatives, of against his attacks, because the man who cither punishing the blasphemer itself or has no dread of another world, can hope to else leaving him to the fury of the people, escape punishment by suicide. lie is The former is the milder plan, and therefore therefore a very dangerous member of so- to be preferred, because the people are apt ciety. If again the state does not proceed to gratify their vengeance without sufficient U p n this principle, if it tolerates the Athe- inquiry, and of course it may light upon ; s t and the Infidel, nay, and protects him the innocent. too, although no dependence can be placed Nor is this by any means a right which on \ x \ 3 do'mg anything in return for the de- I onlj* claim for the religion which I hold f ence f the country, because he can give to be the true one; I am also bound to ad- himself a dispensation from all oaths, and mit it when I happen to be among a people putting arms into his hands might be from whose religion I dissent; were I in a hazardous; still such a man must suspect Catholic country to deride their saints or that he is, as I before expressed it, in a insult their religion by my behavior, were strange house wherein he cannot possibly it only by rudely and designedly putting on claim equal rights with others. His oath my hat, where decency would have suggest- cannot so much as be valid for a proof in ed the taking it oil ; it were 1 in Turkey to an y judicial process. He t light, therefore, blaspheme Mahomet, or in a Heathen city to behave as a man in a Btrange house will its gods; — nothing would be more natural naturally do, without insulting by his than for the people, instead i f Buffering it, blasphemies the people who lodged and pro. to avenge the insult in their usual way, tect him, and yet get nothing from him in that is tumultously, passionately, and im- return, or else he cannot think it unjust moderately ; or else the state would, in that he should be punished if he does. order to secure me from the effects of their In fit, the doctrine that llasj'hcmy fury, be under the necessity i f taking my oinjhl not to be puni me to punishment upon itself, and if it border upon thi religion; for does a favor both to me and other dissent- thus, the infidel would h ive a right to blas- ers from the established religion, because pheme and we should beol ear it it secures us from still greater evils. Of Nay, even ind reviling religion is, the mischief that the blasphemer, and still likewise, a persecution of it, and one that is 131 CRIMINAL DIVISION. r *132 ] *and contempt, they necessarily become an important sub- ject of municipal coercion and restraint (6). [ *133 ] *The importance of cuch restraints is strongly illustra- ted in the instance of judicial oaths. The foundation of [ *134 ] these is as a belief in a superintending *Deity, who watch- es over the affairs of men, and who will, in a future state administer rewards and punishments with reference to [ *]35 ] their conduct here. *To remove therefore so solemn and weighty an obligation, would be to overthrow, or at least to weaken, that confidence in human veracity which is necessary for the purposes of society, without which no question of property could be decided, and no criminal brought to justice (c). [ *136 ] *Upon the dangerous temporal consequences likely to proceed from the removal of religious and moral re- straints, the punishment for blasphemous, profane, and immoral (d) publications is founded, without any view to the spiritual correction or amendment (e) of the offender. Blasphemy against the Almighty by denying his being or provi- dence, contumelious reflections upon the life and character of Jesus Christ (r/), and in general scoffing, flippant, and indecorous remarks and comments upon the scriptures, are offences at Common Law, for Christianity (e), as has frequently been asserted by high author- ities, is part of that law. There arc also some offences against Christianity in particular, which will be afterwards noticed, as having been defined by certain statutes. The first instance of prosecution for words reflecting on religion occurred in the 15th year of James I. f *137 ] Atwood (/) was convicted upon an indictment *before Justices of the Peace for saying " the religion now pro- felt very sensibly by its friends; for if I am SO cietas civium inter ipsos Liis immortali- oblio-ed to let another person insult me to bus interpositis tarn judicibus tam testibns. my face, I must consider it as inflicting a Cic. de LL. deep wound upon my honor. (d) 11 Mod. 142. (6) Offences of this nature, because ( e ) 4 131. Comm. 59. Fitz 65. 2 Roll, they tend to subvert all religion and mo- Ab. 78. rality, which are the foundation of govern- (r/) Haw. P. C. Book, 1, c. 5. 1 Vent, inent, are punishable by the temporal 295. 3 Keb. GOT. 4 Comm. 59. judges with fine and imprisonment. Haw. (e) 4 Bl. Com. 59. 1 Haw. PL Cr. c. 5. P. C.B.I, c. 5. 1 Vin. 293. 2 Str. 8S4. 1 Vent. 293. 11 (c) Utiles esse opiniones has quis negat Mod. 142. 1 Str. 416,788. Fitz. 65. 2 cum intelligat quam multa firmentur jure- Roll. Ab. 137. Cro. J. 24, 421; Infra, jurando; quantte salutis sint foederum re- 138, 143. ligiones. quam multos divini supplicii me- (/) Cro. J. 421. tus a scelere revocarit; quamque sancta si BLASPHEMY. 137 fesscd was anew religion within fifty years ; preaching is but prat- ing and hearing of service more edifying than two hours' preach- ing." It was assigned, for error, that this was ;t:i offence not in quirablo upon indictments before .Justices of the Peace, but only be- fore the High Commissioners ; and it was referred to 1 1 1 ■ - Attorney- General (g-) to consider thereof, and he certified that it was not inquirable before them, and of that opinion were the whole court. In i lie King v. Taylor (//), the defendant was convicted upon an information for saying that "Jesus Christ was a bastard, a whore- master; religion was a cheat : and that he neither feared God, the Devil, nor man." Hale, Chief Baron, observed, that such kind of wicked and blasphemous words were not only an offence against < !od, and religion, but a crime againsl the laws, state, and government and therefore punishable in this (i) court; that to say religion is a cheat, is to dissolve all those obligations whereby civil societies are preserved ; and that Christianity is parcel of the laws of England; and, therefore, to reproach the Christian religion is to speak in sub- version of the law [1]. In the cases of Clendon (K) and Hall (/), the defend- [ "1 - ants were convicted of having published libellous reflec- tions upon the Trinity, and it does not seem to have been doubted in those cases whether the offence was of a temporal nature. In the case of the King v. Woohton (in), the defendant had been convicted of publishing five libels, wherein the miracles of Jesus Christ were turned into ridicule, and his life and conversation ex- posed and vilified. It was moved in arrest of judgment, that the offence was not punishable in the Temporal Courts. Put the court declared they would not suffer it to be debate 1. whether to write against Christianity in general was not an offence of temporal cog- nizance. The counsel for the defendant further contended, that the intent of the book was merely to shew that the miracles of desus were not to be taken in a literal but in an allegorical sense, and therefore that the book could not be considered as aimed at Chris- tianity in general, but merely as attacking one proof of the divine mission. But the court said they were of opinion, that he attacking Christianity in this way was destroying 'the [ *P>9 ] (.-;) Sir Henry Yelverton. CO E. T. 10 Ann, oite 1 Str. 78 I. (/i) Vent. 293. o Keb. Rep. (0 1 Str. 416. (0 i.e. of K. B ("0 Str. 884. Fitsgibb. 64, Barnard. [1] BLAsriiEMY held to be punishable at Common Law, in The People v. Rubles, 8 Johns. 11. 2'JO. 139 CRIMINAL DIVISION. very foundation of it ; and that though there were professions in the book that the design of it was to establish Christianity upon a true bottom, by considering these narratives in scriptureas emblem- atical and prophetical, yet that these professions could not be credited, and that the rule is, aNeg-alio contra factum non est admit- tend a. But the court, in declaring that they would not suffer it to be de- bated, whether writing against Christianity in general was a tem- poral offence, desired that it might be noticed that they la.id their stress upon the term general, and did not intend to include disputes between learned men upon particular controverted points ; and Lord Raymond, C. J. in delivering the opinion of the court said, " I would have it taken notice of, that we do not meddle with any dif- ferences in opinion, and that we interfere only (n) where the very root of Christianity is struck at ;" and with him agreed the whole court. An information (o) was filed by the Attorney-General (/?) against Jacob Hive for publishing a profane and blasphemous libel, tending to vilify and subvert the Christian religion, and to blas- [ *140 ] pheme *our Savior Jesus Christ, and to cause his divin- ity to be denied, and to represent him as an imposter, and to scandalize, ridicule, and bring into contempt, his most holy life and doctrine ; and also to cause the truth of the Christian religion to be disbelieved and totally rejected, by representing the same as spurious and chimerical, and a piece of forgery and priestcraft. An information (#) was exhibited against one Peter Annett, by the Attorney-General, for a certain malignant, profane, and blasphe- mous libel, intituled " The Free Inquirer," tending to blaspheme Al- mighty God, and to ridicule, traduce, and discredit his Holy Scrip- tures, particularly the Pentateuch, and to represent, and to cause it to be believed, that the prophet Moses was an imposter, and that the sacred truths and miracles recorded and set forth in the Penta- teuch were impositions and false inventions, and thereby to diffuse and propagate irreligious and diabolical opinions in the minds of his Majesty's subjects, and to shake the foundations of the Christian (n) Fitzgibbon, GG. ( 9 ) Mich. 3 Geo. III. 1763. 2 Burn's (o) Hill, Term, 29. G. II. 1756. Dig. Ecclesiastical Law, 781. L. L. 83. (r ) Hil. 4, G. III. (p) Charles Pratt, Esq. afterwards Chief (s) Sir Fletcher Norton. Justice of the Common Pleas. BLASPHEMY. 140 religion, and of the civil and ecclesiastical government established in this kingdom. Being convicted upoo this information, the sentence of the Court of King's Bench was, that 'he should suffer one [ '111 month's imprisonment in Newgate, Btand twice in the pillory, once at Charing Cross, and once at the Royal Excha and then lie confined in Bridewell to hard labor for >■ . and to find security for his good behavior for the remainder of his life. An information (r) was exhibited by the' Attorney-General («) again.-t John Wilkes, for publishing an obscene and impious libel, ending to vitiate and corrupt the minds ami manners of his Ma- jesty's subjects; to introduce a total contempt of religion, modesty, and virtue; to blaspheme Almighty God; and in ridicule uur Savior and the Christian religion. In the King v. Williams (O the defendanl was convicted of hav- ing published a libel, entitled •• Paine's Age of Reason," which denied the authority of the Old and New Testament, Q that reason was the only rule by which the conduct of men oughl to be guided, ami ridiculed the prophets, .Jesus Christ, his disciples, and the scriptures. Upon being brought up to receive sentence, .Mr. Justice Ashurst observed, that such doctrines were an offence not only against Cod, but against law and government, from their 'direct tendency to dissolve all the bonds and obli- [ "1-IJ I gations of civil society : and that upon this ground it was, that the Christian religion constituted part of the law of the land (u). (0 Before Lord Kenyon, C. J. at the l>c stripped of one of its principal Banc- Gnildhftll, 1797. tions— the dread of future punishment, 00 He observed, that "although the This crime was farther aggravated by the Almighty did not require the aid of human motive in which it was eived; there tribunals to vindicate his precepts, it was, oould be i nevertheless, t\<. to Bhow our abhorrence of of passion, to which man v . lS . such wicked doctrines, which were not only posed by the frailty of his n iture; it could an offence against God, but against all law have proceeded only from a cool and i. and government, from their direct ten- unit spirit." Mi-. Justice Ashurst then dency to dissolve all the bonds and obliga- i the judgment art, tions of c'nil society. It was up0 n this which was, "that the defendant be im- ground that the Christian religion consti- prisoned in the 1 rone tuted part of the law of the land. But if year, there to be kept to hard labor, and the name of our Redeemer was Suffered to that, at the expiration thi -hall be traduced, and his holy religion treated give security to the amount of £1000 for with contempt, the solemnity of an oath, his good behavior for the rest of his life." on which the due administration of justice Lord Kenyon said, that the sentence was depended, would be destroyed, and the law light, very light indeed, considering th 142 CRIMINxlL DIVISION. Daniel Isaac Eaton was convicted upon an information [ *143 ] filed by the Attorney-General (x), of having published an impious libel, representing Jesus Christ as an impostor — the Christian religion as a mere fable — and those who believed in •t as infidels to God. Upon being brought (#) up to receive the judgment of the court, though his counsel addressed the court for the purpose of mitigating the punishment, no exception was taken to the legality, or propriety of the conviction. It appears, therefore, to have been long ago settled, that blasphe- my against the Deity in general, or an attack against the Christian religion individually, for the purpose of exposing its doctrines to contempt and ridicule, is indictable and punishable as a temporal offence at Common Law. The same doctrine has been fully recog nized in several recent cases (c). With respect to the extent of this offence, and the na- [ *144 ] ture and certainty of the words, it appears, *in the first place, to be immaterial, whether the publication be oral (a) or written ; though the committing mischievous matter to print or writing, and thereby affording it a wider circulation, would un- doubtedly be considered as an aggravation, and affect the measure of punishment. Again, it does not, in principle, seem to be material, whether the direct attack is made upon religion in general, or upon some par- ticular proof or evidence in support of it: thus, in Woolston's case, the publication was considered to be illegal, though the immediate and professed object of the writer was to overthrow the evidence of the divine mission supplied by the miracles, and to degrade them into mere emblems and allegory. The court were there of opinion, that a general and deliberate intention to subvert Christianity might be evidenced by an attempt to weaken one of the several proofs upon which its credibility rests ; and, indeed, it would be inconsistent to inflict penalties for any general attack upon the system of Christi- nature of his offence, which was horrible to years, and to find sureties for his good be- Christian ears; he had known a case of havior for the term of his life. Also in the less enormity, where the defendant was case of R. v. Wadiington,\ B. & C. 26, sentenced to three years imprisonment. and R. v. Taylor, who in lid. T. 1828, (x) Sir Vicary Gibbs, Knt. - was sentenced to pay a fine, and to suffer (y) Easter Term, 52 G. III. one year's imprisonment, for a blasphe- ( = ) Rex v. Carlile, 3 B. & A. 1G1, mous discourse. where the defendant having been convicted (a) The King v. Alwood, Cro. J. 421. of publishing two blasphemous libels, was, The King v. Taylor, 3 Keb. Rep. G07. in Mich. T. GO G. III., sentenced to pay a Vent. 293. The King v. Taylor. Hil. T. fine of £1500, to be imprisoned for three 1828. BLASPHEMY. 144 anity, ami yet to allow its foundations to ba gradually sapped and undermined with impunity. It may be asked, is every publication which 'tendi to | *14o ] weaken any particular argument which has been adduced to prove the existent fa superintending Deity, or the truth of Christianity, illegal and indictable? There can be no doubt as to the general right of inquiry and discussion, even upon the most sa- cred subjects, provided the license be exercised in the Bpirit of tem- perance, moderation, and fairness, without any intention to injure or affront (b). In the cases cited, the defendants were charged with having exposed Christianity and its doctrines to contempt and ridi- cule, for the purpose of introducing & general disregard of religion. And in Wooslton's case the court desired it might be particularly noticed, that they laid stress upon the term general, and did not in- tend to include disputes between learned men upon controverted points. There are no questions of more intense and "awful in- | L46 ] tercst, than those which concern the relations between the Creator and the beings of his creation ; and though, as a matter of discretion and prudence, it might be better to leave the discussion of such matters to those who from their education and habits, are most likely to form correct conclusions, yet it cannot be doubted that any man has a right, not merely to judge for himself on such subjects, but also legally speaking, to publish his opinions for the benefit of others. When learned and acute men enter upon these discussions with such laudable motives, their wry controversies, even where one of the antagonists must necessarily be mistaken, so far from producing mischief, must in general tend to the advancement of truth, and the establishment of religion on the firmest and most stable foundations. The very absurdity and folly of an ignorant man. who professes to teach and enlighten the rest of mankind, are usually so gross as to render his errors harmless : but be this as it may. the Law interferes not with his blunders so long as they are honest ones, justly consid- ering, that society are more than compensated for the partial and (b) See the trial of the publisher of its sanctions, *has a right to deny Paine's Age of Reason, The learned conn- existence, and to pour forth Buoh shocking sel for the prosecution (Mr, Erskine) ob- and insulting invectives as the lowest es- sarved, " Every man lias a right toinvesti* tablishments in tin' gradations of civil an- nate, with reason, controversial points of thority ought not to be Subjected 1 0, ami the Christian religion; but no man, eon- which would soon be borne down by vio- sistently with a law which only exists under lence and disobedience if they were." Vol. II. 42 146 CRIMINAL DIVISION. limited mischiefs which may arise from the mistaken endeavors of honest ignorance, by the splendid advantages which result to religion and to truth from the exertions of free and unfettered [ *147 " minds. It is the mischievous *abuse of this state of in- tellectual liberty which calls for penal censure. The law visits not the honest errors, but the malice of mankind. A wilful intention to pervert, insult, and mislead others, by means of licen- tious and contumelious abuse applied to sacred subjects, or by wil- ful misrepresentations or artful sophistry, calculated to mislead the ignorant and unwary, is the criterion and test of guilt. A malicious and mischievous intention, or what is equivalent to such an intention, in law, as well as morals — a state of apathy and indifference to the interests of society is the broad boundary between right and wrong, If it can be collected from the circumstances of the publication, from a display of offensive levity, from contumelious and abusive expressions applied to sacred persons or subjects, that the design of the author was to occasion that mischief to which the matter which he publishes immediately tends, to destroy or even to weaken men's.sense of religious or moral obligations, to insult those who believe by casting contumelious abuse and ridicule upon their doctrines, or to bring the established religion and form. of worship into disgrace and contempt (c), the offence against society is com- plete. The legislature has, nevertheless, deemed it proper to fortify the Common Law restraint by several penal enactments, [ *148 ] *applicable to particular persons and cases. By statutes 1 Ed. VI. c. 1, and 1 Eliz. c. 1, s. 14, whoever reviles the sacrament of the Lord's supper shall be pu nished by fine and imprisonment. By stat. 1 Eliz. c. 2, if any minister shall speak any thing in derogation of the book of Common Prayer, he shall, if not beneficed, be imprisoned one year for the first offence, and for life for the second; and if he be beneficed, he shall for the first offence be im- prisoned six months, and forfeit a year's value of his benefice ; for the second, he shall be deprived and suffer one year's imprisonment ; and for the third, shall in like manner be deprived, and suffer im- prisonment for life. And if any person whatsoever shall, in plays, (c) Sir William Blackstone, in his com- cussions of the rectitude and propriety of ment upon tbe Statutes cited below, ob- the established made of worship, yet con- serves, " It is clear that no restraint should tumely and contempt are what no estab- be laid upon rational and dispassionate dis- lishment can tolerate." 4 Bl. Com. 51. BLASPHEMY. 148 songs, or other open words, speak any thing in derogation, deprav- ing or despising of the said book, or shall forcibly prevent the read- ing of it, or cause any other service to be read in its stead, he shall forfeit for the first offence 100 marks, for the second l ( ><>. and for the third, shall forfeit all his goods and chattels, and Buffer impris- onment for life. By the 13 Eliz. c. 12, a person ecclesiastical, advisedly affirming any doctrine contrary to the articles established at a con- vocation, *holden at London, in the year 1562, is Liable [ '149 ] to deprivation, if he persist in his error. By tin- '■'> J. 1, c. 21, whoever shall use the name of the Holy Trinity profanely or jestingly in any stage play, Interlude, or show, shall l)e liable to a penalty of £10. By stat. 9 and 10 Will. III. c. 32, if any person educated in, or having made profession of the Christian religion, shall by writing, printing, teaching, or advised speaking, deny any one of tin' persons of the Holy Trinity to be God, or assert or maintain that there are more gods than one, or deny the Christian religion to be true, or the holy scriptures to be of divine authority, he shall, upon the first of- fence, be rendered incapable to hold any office or place of trust : and for the second, be rendered incapable of bringing any action, being guardian, executor, legatee, or of any legacy or deed of gift, or to bear any civil or military office or benefice ecclesiastical, and shall suffer imprisonment for three years from the time of conviction (//). By the st. 53 G. III. c. 100, s. 2, the provisions of the last cited act arc repealed so far as they relate to persons denying, *as therein mentioned, the Holy Trinity. [ *150 ] An offender against the st. 9 and 10. W. III. c. 32, is still indictable at common law, for a statute inflicting a new punish- ment docs not take away the old one, unless it change the offence or make it of a different nature (e). ( made high treason to affirm by ( fined £5, sentenced to the pil- judge. The defendant never appeared to lory, and imprisoned three years. Hilary reC eive the judgment of the court, and was Term, 31 Geo. II. 1758, K. B. MSS. The consequently outlawed. 82 Geo. III. B. K Kins; v. Dr. John Shebbcarc. 1792, MS. The King v. Puine. The King v. Paine. This was an in- (/<•) Hale's PL Cro. C 115. See also formation against the defendant, filed by Hugh Pine's case, Cro. Car. 117, where the Attorney-General, as the author and other capital convictions for speaking publisher of a malicious libel, the tendency words in that reign are cited, of which was " to traduce and vilify the (/) Surrey, anno tricesimo Henrici Oc- late happy revolution, the settlement of tavi Henricus Marchia, Exon pradilorie the crown and regal government, as by dicebat. 1 like well of the proceedings of law established, and also the Bill ot Rights Cardinal Pool, et ulterius. But I like the legislature, government, laws, ans not the proceedings of this realm, and I parliament of this kingdom" The libel trust to see a change of the world, et ulte- likewise contained many seditious and rius. J trust once to have a fair day up- ssandalous reflection upon his present ma- on those knaves which rule about the king, LIBELS AGAINST THE KING. 167 But in less arbitrary times, the legality of such proceedings has been much questioned ; and the rigor of the doctrine has ;it all events been greatly mitigated. It has been most hu- manely observed (in), that words may be Bpoken 'in | '168 ] heat, without any intention ; or be mistaken, perverted, or misremembered by the hearer; their meaning depends always on their connection with other words and things ; they may Bignify differently, even according to the tone of voice with which they are delivered ; and sometimes silence is more expressive than any discourse. Since, therefore, there can be nothing more equivocal and ambiguous than words, it would be unreasonable to make them amount to high treason. Of this opinion were Stamford, Ld. Coke, Ld. Hale (//), Sir Michael Poster (o), and Sir William Hlack- stone (/;), whose opinion has just been cited ; and in the reign of Charles the First, some very atrocious words having been spoken concerning the king by one Pine, all the judges certified, that "though the words (7) 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 treasonable." It seems to be clear (r), however that words joined to an act may explain it, and that words of persuasion to kill the king, or manifesting an ^agreement, or consultation, or direction [ *169 ] 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, am >unt to an overt act of treason, in proof of the compassing the king's (s) death ; but even in such case it seems that a publication is not necessary, though in arbitrary times, the contrary has been adjudged, particularly in the instances of ct ultrius. I trust to give them a Buffet berius, and others, committed many assoss- onc , and the Act of Union, or that parliament has not authority to limit the descent of the crown. By the 3(3th Geo. III. c. 7, it is enacted, that if any person Bhall imagine or intend death, destruction, or any bodily harm to the per- son of the king, or to depose him, or to levy war, in order by force to compel him to change his measures or counsels, ) Noy 105. Haw. PI. Cr.o. 23. s. 5. 173 CRIMINAL DIVISION. In the reign of Elizabeth (e), all the Justices and Barons of the Coif assembled in Serjeant's Inn, concerning a book, devised by- one Brown, containing the following passage, u Every preacher run- neth to the queen now, as though he were to be directed by her to tarry for reformations to be had for matters of the church. If the magistrates will agree, all is well ; if they will not, they are not of the church, and it is a shame to tarry for them, or for a parliament) or proclamation." And it was held by all, that this was a moving of insurrection and sedition (/). [ *174 ] *ln the Digest (#■) 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 either hot or cold : therefore, because thou art luke- warm, it will come to pass that I will spew thee out of my mouth." But the justices came to no resolution. John Wilkes (li) was convicted upon an information filed by the Attorney-General (f), for printing and publishing a malicious libel, entitled The North Briton, No. 45, tending to vilify and tra- duce the king and his government — to impeach and disparage his veracity and honor — and to represent and make it believed that his majesty's most gracious speech, delivered from his throne to the par- liament, on Tuesday the 19th day of April, 1763, con- [ *175 ] tained many falsities and gross *impositions upon the public ; and that his majesty had suffered the honor and dignity of his crown to be sunk and prostituted, and the interests of his subjects and allies to be treacherously betrayed ; and also to render the king and his government contemptible and odious, and to excite tumults, commotions, and insurrections, &c. &c. An information (&) was filed by the Attorney-General against the printer and proprietor of the Morning Chronicle newspaper, for publishing the following paragraph, with a malicious intent to alien- ate from the king the affections of his subjects : — " What a crowd of (e) Dig. L. L. 65. - (g-) D. L. L. 6G. Sav. 49. (/ ) The question proposed was, wheth- (h) Dig. L. L. 69. Informations were er the publication was an offence within also filed against Kearsley and Williams, the 23d Eliz. c. 2, which was a temporary for printing and publishing the same, stat. ; but under the construction which (i) Charles Yorke, Esq. the judges put upon this book, it was a li- (k) R. v. Lambert and Perry, 2 Camp, bel at common law. 398. LIBELS AGAINST THE KING. 175 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 becoming nobly popular." Lord Ellenborough, 0. J. in summing up to the jury observed, " The first sentence admits of an innocent 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 system,' 1 think, is a change of political system, not a change in the frame of 'the established government, but in the measures of policy [ *176 ] which have beeD for some time pursued. By total change of Bystem, is Certainly not meant subversion or demolition ; for the descent of the crown to the successor of his majesty is mentioned immediately after. The writer goes on to speak of the blessings that may be enjoyed upon the accession of the Prince of Wales ; and therefore cannot be understood to allude to a change inconsistent with the full vigor 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 may be expected, is expressing a wisli or a sentiment that may not be innocently expressed in reviewing the political condition of the coun- try. The information treats this as a libel on the person of his ma- jesty, and his personal administration of the government of the coun- try. But there may be error in the present system, without any vicious motives, and with the greatest virtues, on the part of the reigning sovereign. He may be misled by the ministers he employs, 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 meat question of policy, either foreign or domestic. I know of but one Being to 'whom error may not be imputed. If a person who | '177 admits the wisdom and virtues of his majesty, laments that in the exercise of these he has taken an unfortunate and errone- ous view of the interests of his dominions, I am not prepared to say that this tends to degrade his majesty, or to alienate the affections of his subjects. 1 am not prepared to say thai this is Libellous: but it must be with perfect decency and respect, and without any imputa- tion of bad motives. Go one step further, and say or insinuate, that his majesty acts from any partial or corrupt view, or with an intention to favor or oppress any individual or class of men, and it 43* 177 CRIMINAL DIVISION. would become most libellous. However, merely to represent that an erroneous system of government obtains under his majesty's reign, I am not prepared to says eyceeds the freedom of discussion on political subjects which the law permits. Then comes the next sen- tence : ' Of all the monarchs, indeed, since the revolution, the suc- cessor of George the Third will have the finest opportunity of be- coming 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 lenient or more [ *178 ] *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 improper motives ? or that his successor may render himself nobly popular by taking a more lively interest in the welfare of his subjects ? Such sentiments, as it would be most mischievous, so it would be most criminal to propagate. But if the passage only meant that his majesty, dur- ing his reign, or any length of time, may have taken an imperfect view of the interest of the country, either respecting our foreign relations, or the system of our internal policy ; if it imputes noth- ing 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 defendants 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 certainly 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 viitues. What connection it has with the passage set out in the information, it is for you to determine. Tak- [ *179 ] ing that passage substantively, and by itself, it is a *mat- ter 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 defend- ants guilty. But if, looking at the obnoxious paragraph by itself, you are persuaded that it betrays no such intention ; or if, feeling LIBELS AGAIXST THE KING. 179 yourselves warranted to import into your consideration of it a pi age connected with the Bubject, though considerably distant in place, and disjoined by other matter, yon inter from that connection that this was written without any purpose to calumniate the personal government of his majesty, and render it odious to his people, yon will find the defendant not guilty. The question of intention is for your consideration. You will not distort tin' words, but give them their application 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 ma- jesty is the only thing interposed between the subjects of this country and the possession of great blessings, which are likely to be enjoyed in the reign of his successor, and thus *to [ *180 ] render his majesty's administration of his government odious, it is a calumnious paragraph, and to be dealt witli as a libel. If, on the contrary, you do not see that it means distinctly, accord- ing to your reasoning, to impute any purposed mal-administration 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. I will take the instance 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. AVe are at this moment suffering from a most erroneous principle of his gov- ernment, in turning the balance of power against the Spanish mon- archy, in favor 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 greatest monarchs who have ever reigned — monarehs who have felt the most anxious solicitude for the welfare of the country, and who have in some respects been the author- 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 earnest wish to see that error corrected, be considered 'as disparaging them, or [ *1S1 ] tending to endanger their government '( Gentlemen, with these directions, the whole subject is for your consideration: Ap- ply your minds candidly and sprightly to the meaning of the pas- sage in question ; distort no part of it for one purpose or another, and let your verdict be the result of your fair and deliberate judg- ment (/)." (I) The defendant was acquitted. 181 CRIMINAL DIVISION. In the case of the King; v. Harvey (m), it was held to be an in- dictable offence to publish falsely of the king, or of any other person, that he labored under mental derangement. The libel was as fol- lows : — " Attached as we sincerely and lawfully are to every inter- est connected with the sovereign, or any of his illustrious relatives, it is with the deepest concern we have to state, that the malady under which his majesty labors is of an alarming description. It is from authority we speak." The libel then stated several facts relating to the king's illness. At the trial, before Abbott, 0. J. at the London Sittings after last term, the publication of the libel was proved in the usual manner, and it was admitted, by the counsel for the defendants, that th*e libel imported that the king labored under insanity ; and that that assertion was untrue ; but it was [ 182 ] urged to the jury that the defendants *believed the fact to be true, and that they were warranted in so doing, by rumors which had been very prevalent on the subject. The Lord Chief justice, in his address to the jury, after stating the import of the publication, proceeded as follows : — " To assert falsely of his majesty, or of any other person, that he labors under the affliction of mental derangement, is a criminal act. It is an offence of a more aggravated nature to make such an assertion concerning his majesty, by reason of the greater mischief that may thence arise. It is distinctly admitted by the counsel for the defendants, that the statements in the libel were false, in fact, although they assert that rumors to the same effect had been previously circulated in other newspapers. Here the writer of this article does not seem to found himself upon existing rumors, but purports to speak from authority, and inasmuch as it is now admitted that the fact did not exist, there could be no authority for the statement. In my opinion, the publication is a libel calculated to vilify and scandalize his majesty, and bring him into contempt among his subjects. But you have a right to exercise your own judgment upon the publication, and I invite you so to do. The jury found the defendants guilty (n). (wi) 2 B. & C. 257. swer — " The man who publishes slander- (n) After the jury had retired about two ous matter, calculated to defame and vilify hours, they returned into court, and the another, must be presumed to have in- foreman said that the jury wished to have tended to do that which the publication is the opinion of the Lord Chief Justice, calculated to bring about, unless he can whether it was or not necessary that there show the contrary, and it is for him to should be a malicious intention to consti- show the contrary. There may indeed be tute a libel. To this question the Lord innocent publications of that which, in its Chief Justice returned the following an- own nature, is injurious to another, as, for LIBELS AGAINST THE KING. 182 *Ncxt as to libels on the government : it is the undoubt- [ *1 83 ] ed right of every member of the community 'to publish [ *184 ] his own opinions on all Bubjects of public and common in- terest, and so long as he exercises this inestimable privilege candidly, honestly, ;in. 1 sincerely, with a view to benefit society, he is not amen- able as a criminal. This is the plain line of demarcation : when this boundary is overstepped, and the license is abused cither for the wan- ton gratification of private malice, iii aiming a Btab at the private character of a minister, ander colm- ami pretence of discussing his public conduct, or where either public men or their measures are de- nounced in terms of obloquy and contumely, under pretence of i posing defects and correcting errors, but in reality for the purpose of obstructing and impeding the administration of public affairs, or of alienating the affections of the people from the king and his govern- ment, and by weakening the tics of allegiance and loyalty, to pave the way for sudden and violent changes, sedition, or even revolution ; in these and similar instances, where public mischief is the object of the act, and the means used are calculated to effect that object, the publication is noxious and injurious to society, and is therefore criminal. It has justly been observed that the life of government is reputation, an administration destitute of the support and encour- agement to which the good opinion of the people is essen- tial, must necessarily be timid and indecisive, and *consc- [ *185 ] quently weak and ineffectual. It has been asserted by high authority (o), that " every freeman has an undoubted right to lay what he pleases before the public— to forbid this is to destroy the freedom of the press; but if he pub- lishes what is improper, mischievous, or illegal, he must take the consequence of his own temerity." instance, the motion was afterwards made for a new gora, Bayley on Bills, 448. Rusj. audRy. trial, upon the ground of a supposed mis. c. c I.. 291. Bee further, as to contempts direction on the part of the Chief Justice, against the kin ' the case but the court were of opinion, that his di- of ./. 8c U, ( r publishln s. O. reotion was right, that tl a that B. June Seas. 1788. Haw.P. C. c. 28, ft. 4. the fact was communicated from authority (o) 4 Bl. Comm. 161. where it turned out to be false, was a I 185 CRIMINAL DIVISION. On the trial of James Perry and another (/?), on an information for a libel, the Attorney-General, in his opening to the jury, observ- ed, " From the bench you will hear laid down, from the most re- spectable authority, the law which you are to apply to those facts. The right of every man to represent what he 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 questioned. I shall never think it my duty to prosecute any person for writing, printing, and publish- ing, fair and candid opinions on the system of the government and constitution of this country, nor for pointing out what [ *186 ] *he may honestly conceive to be grievances, nor for pro- posing legal means of redress." It would exceed the proposed limits of this treatise, to cite cases in detail under this division ; every case, indeed, falling within it, is too intimately involved in its particular circumstances to admit of any abstract rules less general than the elements which have been laid down as essential to such an offence, the plain intrinsic tenden- cy (#) °f the communication to produce public disorder, and the malicious intention of its author (r). (pj Before Ld. Kenyon, 1793. See of government. Sid. 219. Rol. 773. Bac. Ridgway's Collection, &c. 2 vol. 371. Ab. tit. Libel, 450. (tate of the public peace and the tranquility of the kingdom, &o. and to bring his present majesty's treaty of peace into contempt and disgrace, and also to detract, scanda- lize, traduce, and vilify the administration of his present majesty's government uf the kingdom, and his priucipal officers and ministers of state, and to represent them as persons of no integrity or ability, and as enemies of the public good of the king- dom, &c The information then proceeded to the publication of the libel, and set out the libellous matter, which was to the effect of the above allegations. The defendant's counsel were Mr. Fasakerley and Mr. 'Boutle. [ *189 ] After the evidence had concluded on the part of the crown, Mr. Fazakerley offered to prove some of the c ntenta of the libel to be true, lie wis immediately in- terrupted by Lord Raymond, Lord C. J. — •• \- • pj ir saying that you can prove what is oharged on the defendant to be true, it is my opinion that it is not material whether the foots charged in a libel be true or false, if the proseoution be by indictment or information, and that writing and print- ing may be libellous, though the scandal is not charged in direct tern.-, but only ironically." His Lordship added, " even a private man's character is not to be 187 CRIMINAL DIVISION. Contempts against the King's Judges, and scandalous reflec- tions on their proceedings, fall within the same consideration scandalized, either directly or indirectly, because there arc remedies appointed by law, in case he has ipjured any person without maliciously scandalizing him in his character. And much less is a magis. trate, minister of state, or- other public person's character* to be stained, either directly or indirectly. And the law reck- ons it a greater offence, when the libel is pointed at persons in a public capacity, as it is a reproach to the government to have corrupt magistrates, substituted by his majesty, and tends to sow sedition and dis- turb the peace of the kingdom. Therefore, I shall not here allow of any evidence to prove that the matters charged in this libel are true, for I am only abiding by what had been formerly done in other cases of the like nature." The observations of Sir Philip Yorke, Attorney-General,- on the part of the pros- ecution, seems to have been afterwards adopted by the court. He observes, "There is another thing mentioned, which i3, that if this Hague letter was construed a libel, it would tend to the utter destruc- tion of the liberty of the press. My lord, I am really at a loss to know what sort of liberty they mean. I hope they do not mean a licentious and unbounded liberty to libel and scandalize his majesty or his principal officers and ministers of state, or his magistrates, or even any of the mean- est of his subjects, whenever they think fit. Gentlemen, I would have you to know that even the prerogative of the king is founded upon law, and limited by it, [ *190 ] *and so are all things relating to his subjects, and it cannot be supposed that a printer only is exempted, and at liberty to use his press for what purposes he pleases. If he is, I desire that the defendant's counsel would point out that law. No, the law is not so absurd as to allow such a liberty of the press. The liberty meant is to be understood of a legal one. He may lawfully print and publish what belongs to his own trade, but he is not to publish anything reflecting on the character and reputation and adminis- tration of his majesty or his ministry or his ministers, nor jet to stain the charac- ter or reputation of any of his subjects. For, as I said before, to scandalize and li- bel people is no part of his trade; so I say it is only that liberty of the press which he is to use that is regulated by law and sub- jected to it, and if he breaks that law and exceeds that liberty of the press, he is to be punished for it, as well as for breaking other laws or liberties. And, gentlemen, though it has been insinuated to you, from the other side, that the making such things a libel came from the Star Chamber, yet I must tell you, that the printing such de- famatory expressions or slanderous news was deemed a libel, and punished accord- ingly, long before the Star Chamber. It is a law made in 1275, in the third of King Edward the First intitled 'An Act that none shall report slanderous news whereby discord shall artee,' &c. &c. So, gentle- men, you see that this law of libel is not a new law, or one that came from the Star Chamber, but one that has been almost of five hundred years standing; therefore I hope you will not suffer yourselves to be amused by such things. The Court of Star Chamber, punished without juries, but though juries were taken away, jet the law remained the same as to libels and crimes. So I hope it appears to you to be very plain, that the liberty of the press is limited and governed by law, and that the piw sets limits both to the king and his subjects " The defendant after a charge from the Chief Jus' ice, who admitted the full force and propriety of the Attorney- General's *address, was found [ *191 ] guilty. The term following, he was sentenced to pay a fine of £800, to be imprisoned for one year, and to find se- curity for his good behavior for seven years, &c. No arrest of judgment was ever moved for, or writ of error brought CONTEMPTS, ETC. 188 with the last mentioned class of offences, Bince nothing tends more to disturb public order than to infiu ions concerning t ; . ministration of justice. Offences of this nature may consist eith >r in the more gross no- tation of decency, by makin if contumelious and insolent lan- u|inii the no « 1. Btate Trials, toL 0, p. The King v. Home. — This wis an in- formation filed againsl the defendant by his rn ij> - - \ G • il "ii behalf of his in ijesty, for writing, printing, and publishing two libels. The first count of the information - thai the a ud John II": ne being a wi malicious, seditious, an 1 ill-disposed per- soti, and being greatly disaffected to our said present sovereign lord the king, and to his administration of the government of this kingdom, and tin' dominions thereunto aging, and wickedly, maliciously, and Seditiously intending, devising, and con- triving to .stir up and excite discontents an 1 seditions, among his majesty's subjects, and to alienate and withdraw the affection, fidelity, and allegiance of his sail majesty's subjects from his said majesty, and to in- sinuate and cause it to be believe 1, th it divers of his siid majesty's innocent and deserving Bubjeots had been inhumanly murdered by his Bai 1 majesty's troops in the province, oolony or plantation of the M issaohusetti B iy in New England, in America, belonging to the crown of Great Britain and unlawfully and wickedly, to se l.i c and en sourage his said maj< - subjects in the ;-ai 1 province, colony or plantation, to resist and oppose his ma- jesty's government, "ii the 8th d.iv of June, ill the 15th year of the reign, &0., with f roe and arms, ;it 1. in Ion aforeS lid, ill tli" parish of St. .M i; y 1. -N W, in the ward "i" Cheap, wickedly, malioiously, an 1 tioiisly did write and publish and and prooure t" be written, and publish certain false, wicked, mal nda- lous. and Seditious libel, of and Ot □ 'Thing his said majesty's government and (lie em- ploy tnent of his troops according to the te- Vol. II. 44 nor and effect following: — •• King's Arms Tavern, Cornhill, June Tth, 1 770. At a special meeting, this d iy, of several members uf 'the Cohsti- [ ' tutional Society, daring an ad- journment, a gentleman pr post 1 that a subscription should be immediately entered into, (by such of the members present who might approve the purpose, for raising tho sum of £100 to be applied to the relief of the widows, orphans, an 1 aged parents of our belove 1 American fellow subjeotS who faithful to t he character of Englii preferring death to Blavery, were for that reason only inhumanly murdered by the king's (meaning his s ii 1 m ijesty's) troops at or near Lexington and Concord, in the province of Massachusetts, (meaning the said province, colony, or plantation of Massachusetts Bay in New England, in America,) on the 19th of last April, which sum being immediately collected, it was thereupon resolved that Mr. Home (mean- ing himself the Baid John Home,) do pay to-morrow into the bands of Messieurs Brownes and Collison, on the account of Dr. Franklin, the said sum of £100, and th a Dr. Franklin be n ■ apply the same to the above mentioned purpose. John Borne (meaning himself tl John Borne,) in contempt of our sail lord . the 1 iws f this kingdom, to the evil and pernicious example of all others in the like fending, and also against the peao said i" the king, his orown and dignity." There were other counts in the inl tion, charging the said John Ho'rne with causing the same libel to be printed in tho London Packet, OX New Lloyd's livening Post, and Morning Chronicle, or London advertiser. 191 CRIMINAL DIVISION. guage 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 [ *195 ] office, are indictable (s). As if one give the lie to a The defendant pleaded — Not guilty. The information was tried at the Sit- tings in London after Trinity Term, 1777, before Lord Mansfield, by a special jury, and the defendant found guilty of all the offences charged in the information. The Courts of K. B. afterwards passed the following sentence upon Mr. Home : — " To pay a fine of £200, to be imprisoned one year, and to give securities for his good behavior for three years." After- wards the defendant brought a [ *193 ] writ of *error in the House of Lords, but the judgment of the King's Bench was affirmed. Cowp. Rep. 672, and 11 St. Tr. 2G4. ; see also R. v. Burdcit. 4 B. and A. 115, 314. The -fifing v. Cobbett. — This was an in- formation filed by the Attorney -General against the defendant, for a libel publish- ed in the " Weekly Register," in the form of a letter signed Juverna. It was a libel upon the ad ministration of the Irish gov- ernment, and upon the public character and conduct of the Lord Lieutenant and Lord Chancellor of Ireland. Mr. Cobbett was not the author, but merely the pub- lisher of this letter. After the libel hid been proved, and the defendant's counsel heard, Lord Ellenborough, in his address to the jury, observe!, "the law of Eng- land is a law of liberty ; and, consistently with this liberty, we have no imprimatur, there is no such preliminary license neces- sary. But if a man publish a paper he is exposed to penal consequence, as he is in doing every other act, if it tend to the prejudice of any individu il. It is no new doctrine, that if a publication- be calcu- lated to alienate the affections of the people, by bringing the government into disesteem, whether the expedient be by ridicule or ob- loquy, the person so conducting 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 an- other. The case of the King v. Tutchin, decided in the time of Lord Chief Justice Holt, has removed all ambiguity from this question ; and although at the period when that case was decided, great political con- tentions existed, the matter was not again brought before the judges of the court by any application for a new trial." Again, his lordship says, " No man has a right to render the person or abilities of another ridiculous, not only in publications, but if the peace and welfare of individuals or of society be interrupted, or even exposed by types and figures, the act by the Uw of England is a libel." And again, " It has been observed, that it is the right of the British subject to exhibit the folly or im- becility of the members of the government. But gentlemen, we must confine ourselves within limits. If, in so doing, individual feelings are violated, there the line of in- terdiction begins, and the offence becomes the subject of penal visitation." The de- fendant was found guilty, but not called up for judgment, having redeemed himself by giving up the author of the libel, who was immediately prosecuted and convicted. E. T. K. B. 1801. The King v. Johnson, 7 East. G5. (s) 1 Sid. 144. Str. 420. 2 Rol. Ab. 78. In The King v. Revell, 1 Str. 420, it was held that the words "you are a rogue and a liar," spoken to a justice of the peace in the execution of his office, were indictable, and that such words spoke n of him in his absence would also have been indictable. See also R. v. Darby, 3 Mod. 139. Other cases may be referred to, in which the same doctrine has been repeated in the judgments of the court upon defendants convicted of public libels. In the case of The King v. Cobbett, K. B. 1810, for a li- bel, tending to excite disaffection in the CONTEMPTS, ETC. 195 judge of a court lect, (t) in the face of the court ; or, being ad- monished by him to pull off his hat, («), Bay, M 1 donot value what you can do ;" or tell liiui in the face of the coart, that he is for- sworn < ./•>, or call him a fool (y), or say, •• If 1 cannot have jus- tice here, 1 will have it elswhei When reflecting words are spoken of the judges of the superior courts, at Westminster, the Bpeaker is indictable both at common law and under tho Mutates of Scandalum Ifagnatum, whether the words relate to their office or not. With respect to inferior magistrates, such as justices of the peace, it seems to bo clear, on the authorities, that abusive ami de- famatory words spiilceii of them in their absence, and which do not relate to the execution of their office, 'arc ' 19 i J not indictable (a). And even although the words affect them generally in their office, as where they impute want of ability, capacity, or integrity, it seems thai they are not indictable. For though the contrary seems to have been held in Darby s case (£), *yet that decision has been materially im- l'.'T ] army, and the cases of The King v. Fish- er, The King v. Lnvcl, The King v. Gale Joifs, and the King v. Drunkard*, the same general principles were expounded and applied. See also The King v. Bur- detl, 4 B. and A. 115, 314. (/) ()\v. 118. t Mo. 470. Cro. Eliz. 581. (») Ray. 78.' 1 Keb. 451, 165. (.r) 2 ltol. Ab. 78. (;/) Cro. Eliz. 78. (:) 1 Bid. 144. Keb. 508. (a) Sec the following note. (/<) 3 Mod. 189. (S. C. Comb, 65- Carth. 14.) The defendant was indicted for ■peaking scandalous words of Sir J. rlearle, a Justice of the Peace, viz. "Sir John Kearle is a buffleheaded fellow and doth not understand the law ; lie is not tit to talk with me ; I hive baffled him, and he hath not dune my client justice." And the court is reported to hive held, that though the words were not actionable, yet they were indictable for the reason given in the text. In the subsequent bom of the Queen v,Langley, Sulk. 697, on an indictment for Baying to the Mayor of Salisbury, you are a rogue and a rascal ; Holt, <'. .' . held that the words were not indictable, the mayor not being in the execution of his office nor a patent officer ; and that it did not appear that the mayor was a j i-ticc of the peace, at least, not by commission from the king ; yet that, if the word? had been written, an indictment woul I h ive lain. Et per totam curiam, words th.it directly tend to a breach of the peace, as if one man challenge another, are indicta- ble ; and the commission of oyer and ter- miner de propal itionibus verborum is to bo construed of words against the govern- ment or scandalum mngnatum, &0. ; but for these petit offences which are contra bo- nos mores, the law has another provision, by requiring surety of 'he peace and good behavior, in default whereof the ma trate may commit him, when spoken out ) 1 Tide's P. C. 616. proachful or provoking speeches or (/;) R. v. Phillips, 6 East, 4G4. /?. v. tares, tending to make an; quarrel or dis- Soulherlon, G East, 12G. R. v. Higgitu, 2 tnrbance, he shall, upon bein3 convict- East, 5. ed thereof, wh punishment as a (c) By the 22 G. II. c. 28, " If any Court Martial shall impose, person, on board the fleet, shall use re- ('/) G East, 4G1. 208 CRIMINAL DIVISION. •written, or printed publications ; the former are not indictable, though they be scurrilous, and reflect upon the character of an individual, or even be addressed personally to him, unless they (e) [ *209 ] amount to a direct *solicitation to a breach of the peace, as by a challenge to fight. The defendant (/) said 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 in- dictable, since they were not spoken to him in the execution of office ; that if they had been put into writing they would have constituted a libel, which would have supported either an indictment or an ac- tion ; but that they were but loose or unmannerly words, [ *210 ] like those spoken of an alderman of *Hull — " When he puts on his gown, Satan enters into it," which were ad- judged to be not indictable ; and Holt, C. J. said, that words direct- ly tending to a breach of the peace, may be indictable ; but other- wise, to encourage indictments for words, would make them as uncer- tain as actions for words are. But it seems to be perfectly settled, that any malicious defamation of any person, expressed in print or in writing, or by means of pictures or signs, and tending to provoke him to anger and acts of, violence, or to expose him to public hatred, contempt, or ridicule (g-) 'amounts to a libel in the indictable sense of the word. And (e) 6 Mod. 125. Ld. Ray. 1030. 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 not 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 in- citements to violence, seems to be well grounded apprehension, that, to subject the speakers of abusive words to punishment, would be to cherish a spirit of petty litiga- tion, the inconvenience of which would outweigh the mischief intended to be re- medied. The experiment was made with respect to actions (vol. i. 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 Holt observed, that to encourige in- dictments for words would render them as uncertain as actions for words are. Supra 197. By st. 9 Ann. c. 14, s. 8, in case any person shall challenge another, or provoke 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. 42. (/) The Queen v. Langley, 6 Mod. 125. (g) 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. Supra, v. i. c. 5. As every person desires to appear agree- able in life, and must be highly provoked by such ridiculous representations of him a9 tend to lessen him in the esteem of the LIBELS ON INDIVIDUALS. 210 since the reason is, that each publications create ill blood, and manifestly tend to a disturbance of *the public peace, | -11 ] the degree of discredit is immaterial to the essence of the libel, since the law cannot determine the degree of forbearance which a party reflected upon will exert before he ie excited ami pro- voked to acts of outrage, and therefore prohibits equally all imputa- tions conveyed by such means, ami possessing such a tendency. The grounds of the distinction between oral ami written provoca- tion, are to be sought after in practical wisdom ami experience, rather than in principle, inasmuch as the tendency to produce illegal violence is oftentimes stronger in the former case than in the latter : for instance, contumelious and insulting language is more likely to in- flame the party to whom it is applied, to acts of outrage, when it is uttered publicly in his hearing, than if even the same expressions were to be conveyed to him by a private letter, 'when the insult would be divested of its main aggravation, — its publicity — and the distance of the offended party from the aggressor would allow any irritation which was created an opportunity to subside, without vent- ing itself in an act of violence. It seems that, in general, where a defamatory libel reflecting on the character of an individual will support an action for damages, the publication of it amounts to the indictable offence, inasmuch as it *tends to [ *212 ] provoke animosity and violence, and to disturb the peace of society (//). An indictment (t) also lies for a libel reflecting upon the memory of a person who is dead, if it be published with the malevolent pur- pose to injure his family and posterity, and to expose them to con- tempt and disgrace; for the chief (A*) cause of punishing offences of this nature, is their tendency to a breach of the peace ; and al- though the party be dead at the time of publishing the libel, yet world, and take away his reputation which (h) Skinn. 128. 2 Wils, 201. Com. Dig. to some men, is more dear than life itself; tit. Libel, o. S. Bac. Ab. tit. Slander, -i*l'. it has been held, that not only charges of 3 Bl. Com. 126. 2 Camp. It. 511, and, aflagrant nature and which reflect a moral therefore as to the extent of the offence, turpitude ou the party, are libellous, but see Vol. I. c. 5. p. 1-1S. In some instances also such as set him in a scurrilous, igno- an indictment lies for words which would minious light, whether expressed in print- not support an action. See Com. Dig. Ind. ing, or writing, or by signs, or pictures, D. R. v. Darby, 3 Mud. 189. for these equally create ill blood and pro- (?) 5 Co. [25. Haw. PI. Cr. o. 73. S. 1. voke the parties to acts of revenge and The King\. Tophum, 1 T. \\. 126. breaches of the peace. Dae. Ab. tit. Libe^ (A) Haw. PL Cr. c. 73. s. 3. 5 Co. 125. A. 2. ' R. y. Walter, 2 Esp. C. 51. 212 CRIMINAL DIVISION. (according to Lord Coke) it stirs up others of the same family, blood, or society, to revenge, and to break the peace. In the case of the King- v. Chrichley (7), an information was grant- ed against the defendant, for publishing the following libel, reflect- ing upon Sir C. Gaunter Nicoll, Lady Dartmouth's father, and on the government : " On Saturday evening died of the [ *213 ] small pox, Sir C. G. Nicoll, Knight of the *most honor- able 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 observ- ed by Lord Kenyon, C. J. in the case of the King- v. Topham (m), " To say that the conduct of a dead person can at no time be can- vassed ; 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 de- ceased, 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 defendant for publishing a paper containing an account of a murder committed [ *214 ] 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 affi- davit set forth, that several persons mentioned therein, who were re- cently arrived from Portugal, and lived in Broad-street, had been (I) 4 T. R. 120, in the notes. cerned with the Swedish East India Com- (m) 4 T. R. 129. pany; the English proprietors hope lie will (n) 3 13ac. Abr. 494. 2 Barnard. K. find some measures to raise buhea tea in B. 138. 166. The King v. Osborne, D. L. Sweden, that the Company my have an L. 79. opportunity to ship off some of their bad An indictment for a libel on several per- bohea tea, instead of having it burnt as sons, to the jurors unknown, is bad. R. usual." Upon motion for an information, v. Ormc (or J I we,) and Nut. Ld. Hay. Lee, C. J. observed, " Where a paper is 480. 3 Salk. 224.; but a libel upon one of published, equally reflecting upon a nura- a body of persons without naming him, is ber of people, it reflects upon all, and a libel upon the whole, and may be so de- readers, according to their different opin- scribed. The defendant published the fol- i on9l m ay apply it so." 7?. v. Jenour,7 lowing advertisement in a newspaper: ]\i o d.400. An information has been grant- Whereas an East India Director has raised e d for charging one of several trustees with the price of green tea to an extravagant a breach of trust- R. v . Griffin, Rep. T. rate, the same gentleman being also con- H. 39. See below tit. Information. LIBELS ON INDIVIDUALS. 214 attacked by multitudes, in various parts of the city, barbarously treated, and threatened with death, in case they were found abroad any more ; and it was objected, that no information could be grant- ed, because it did not appear, in particular, who the persons reflect- ed upon were. But by the court. ••Admitting that an information for a libel may be improper, yet the publication of this paper i- de- servedly punishable in an information for a misdemeanor, and that of the highest kind ; such sort of advertisements neces- sarily tending to raise tumults and disorder among the |; '~\~> ] people, and inflame them with an universal spirit of bar- barity, against a whole body of men, as if guilty of crimes scarcely practicable, and wholly incredible (o)." (o) R. v. Osborne, 2 Kel. 230. pi. 183. 2 Barnard. K, B. 138, 1C6, and see below tit. Information. Vol. II. 45 CHAPTER X. Publications against sound Policy and Convenience. Next, every publication is intrinsically illegal which tends to produce any pu blic inconvenience or calamity. Under [ *216 ] this division, those rank highly, in respect of the magni- tude of their results, which tend to disturb the amicable relations which subsist between this and other nations, by malicious reflections upon those who are possessed of high rank and influence in foreign states. As the natural tendency of these is to involve the government in a foreign war, their authors have, in several in- stances, been punished as offenders at common law. Thus, in the case (a) of the King v. D'Eon, an information was filed against the defendant 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 [ *217 " *of France. The information charged the defendant with an intention to defame the character and abilities of the Count de Guerchy ; to render him ridiculous and contemptible ; to arraign his conduct and behavior in his character of ambassador; and to cause it to be believed that he had, after his arrival in this kingdom, been guilty of unjust, unwarrantable, and oppressive pro- ceedings towards the defendant and his friends ; 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 (c) was found guilty upon an information, for having published some severe reflections upon the Queen of France, in which she was re- presented as the leader of a faction ; and Mr. Justice Ashurst, in passing sentence, observed, that unless the authors of such publica - («) Easter T. 4 G. 3. 1764. K. B. MSS. prisoned in Newgate for the space of two Dig. L. L. 88. years, and afterwards to give security for (b) Sir Fletcher Norton. his good behavior for the space of four- (c) Hil. 28 G. 3. The defendant was teen years, sentenced to pay a fine of £500, to be im- PUBLICATIONS AGAIN ST SOUND POLICY. 217 tions were punished, their libels would be supposed to have been made with the connivance of the state. The defendant, John Vint ( found guilty upon an information charging him with having published the following libel, " The Emperor of Russia is rendering himself obnoxious *to his subjects, by various acts of tyranny; and ridiculous in the eyes of Europe, by his [ *218 ] 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 arc likely to return to this country without their freight : with intent to traduce the Emperor of Russia, and interruptand disturb the friendship sub ing between that country and Great Britain. Jean Peltier was found guilty upon an information, charging him with having published a malicious libel, with intent to vilify Napo- leon Bonaparte, ihe Chief Consul of the French-Republic, and to excite and provoke the citizen- of the said republic to deprive the ■aid Napoleon Bonaparte of his consular dignity, and to kill and destroy him, and to interrupt the friendship and peace subsisting be- tween our Lord the King and his subjects and the said Napoleon Bonaparte and the French republic. The most obnoxious passages of the libel were these: " 0! eternal disgrace of France; — Ca-sar, on the Banks of the Rubicon, has against him in this quarrel, the Senate, Pompey, and Cato ; and in the plains of Pharsalia, if for- tune is unequal, if you must yield to the destinies, Koine in tin . sad reverse at least remains to avenge you a poignard among the last Roman." "As for me, far from envying 'his (Bona- parte's) lot, let him name (I consent to it) his wor- [ »219 ] thy successor ; carried on his shield, let him lie elect- ed Emperor. Finally (and Romulus recals the thing to mind), 1 wish that on the morrow lie may have his apotheosis. Amen ! " — Upon the trial, Lord Ellenborough, C. J. referred to the cases of Lord George Gordon and Vint, ami Baid, " 1 lay it down as law, that any publication which tends to disgrace, revile, and defame per- sons of considerable situations of power and dignity in foreign coun- tries, may be taken to be ami treated as a libel : and particularly where it has a tendency to interupt the amity and peace between the two countries." By the statute 35 II. VI II. c. 14 (e), it is made felony to de- clare any false prophecy upon occasion of arms, fields, or letters. (d) 40 G. III. (e) S«e also 3 and 4 Ed. VI. aud 7 Ed. VI. 219 CRIMINAL DIVISION. By st. 5 Eliz. c. 15, " If any person advisedly and directly ad- vance, publish, or set forth by writing, printing, signing, or any other open speech or deed, tc any person or persons, any fond, fan- tastical, or false prophecy, upon or by the occasion of any arms, fields, beasts, 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 [ *220 ] make any rebellion, insurrection, *dissension, loss of life, or other disturbance, within the realm, &c. upon the first conviction he shall suffer one year's imprisonment, 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 impeached for any offence against the act, unless within six months after the offence commit- ed(/). It has been from early times considered as an offence at Common Law, to attempt by means of false rumors, to raise the price of provisions, or other necessaries of life. In 43 Ass. (g-) it was presented that a Lombard did procure to promote and* enhance the price of merchandize ; and the Lombard demanded judgment of the presentment for two causes — 1. That it did not sound in forestalling ;— 2. That of his endeavor, or attempt by words, no evil was put in urc, that is, no price was enhanced ; but both objections were overruled ; " Whereby," says [ *221 ] Sir E. Coke (/*), it appears that the attempt by *words to enhance the price of merchandize, was punishable by law, and did sound in forestalment. And from (i) the same report it appears, that to attempt by such rumors to diminish the price of any staple commodity, to the pre- judice of* the dealers in general, is likewise an offence at common law; for it is there said, " Knivet reported that certain people came to Coteswold, in Herefordshire, and said, in deceit of the peo- ple, 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." (/) By 23 Eliz. c. 2, it was made fel- cies to any such intent, or to wish or de- ony to ca. offence, if it ever existed as such against the law of the country, probably did not survive the court which created it. An information (c) was exhibited against the defendant, fur caus- ing to be framed, printed, and published, a scandalous libel. Upon evidence it appeared, that two printed libels had been found at the lodgings of the defendant, upon wan ants from the principal Secretary of State to search there. The opinion of the court was, that this was no ciiine within the information, though he g •no account how they came there ; and that the having |" *229 ] a libel in possession without delivering it to a magistrate, was punishable in the Star Chamber only. In the subsequent case of the King v. Beare, Lord Holt C. J. is reported to have said, that the collecting and transcribing of libels (/), for the purpose of publishing them, is criminal, though no publication should ever take place ; since men ought not to be allowed to have such evil instru- ments in their keeping. But in another report of the same case, the defendant having been found guilty of writing and collecting certain libels, it was said, that the collecting had been better out of the case (#•) ; and it is clear that judgment was given on the ground that the defendant wrote the original libel, since though Lord Holt intimated that the bare copying of a libel was criminal, he said there was no necessity for the opiuion, because the defendant had been found guilty of writing the original (A). Upon the different reports of this case, Lord Camden remarked ; " If all this be law, and I have no right at present to deny it, when- ever a favorite libel is published, the whole kingdom in a month or two becomes criminal, and it would *be ditii- [ *230 ] cult to find one innocent jury amongst so many millions of offenders (*)." With respect to the bare fact of committing libellous matter to print or writing, the nature of the act appears to lie much more doubtful ; since, though it has been expressly decided that the bare act of writing, without publication, is criminal at common law, the grounds of that determination afford room for doubt. Under the jurisdiction of the Court of Star Chamber, some pub- (c) Vent 31. E. 21. C. 2. 15 Yin. King v. Rosenstei n, 2 C. & P. Ni. Pri. Ca. Ab.89.pl. 6. Dig. L. L. 10. 414. Park, J. thought it highly doubtful (/) Carth. 409. Holt E. 422. whether the having in possession an ob- ((/) S.ilk. 417. Ld. Ray. 414. 9cene libel with intent to publish it was an (/i) 2 Salk. 419. indictable offence. (i) 11 St. Tr. 322. The case of the 230 CRIMINAL DIVISION. lication appears to have been held essential to the completion of the offence ; since even in cases where libels had been sent to the indi- viduals libelled, it was doubted whether the Court had jurisdiction — a question which never could have been raised, had the mere act of writing been sufficient to complete the offence. Thus, in the case (&) of Dr. Edwards and Dr. Wooton, the letter had been written to Dr. Edwards himself, and it was said, that the latter should be punished, ( although it was [ *231 ] solely writ to the plaintiff without any other *publication,) in the Star Chamber, for that it was an offence to the King, and a great motive to revenge. And the same question oc- curred in the case of Barrow v. Llewellin (7), where the letter had been sent sealed to the party, as also in the case of Sir Baptist Hicks (rti) and no instance appears, in which the Star Chamber punished for a libel without some publication. In the case of Lewis Pickering (w), in the Star Chamber, the defendant confessed the publishing as well as the composing of the libel ; and in the resolutions which are subjoined to the case, no hint is given that the mere making of a libel without- a publication would be punishable in that court : on the contrary, the reasons for punishing the offence of libelling are expounded, and are such as can apply to those cases only in which a libel has been actually published : and in the 4th resolution, after the explanation given of the different kinds of libels, the various modes of publication are immediately specified. In Lamb's case (o) the bill was exhibited against the defendants for the publication of two libels ; and it was resolved, [ *232 ] " that every one who "shall be convicted in the said case, either ought to be a contriver of the libel, or a procurer of the contriving of it, or a malicious publisher of it, know- ing it to be a libel ;" the resolution then goes on to expound, what shall amount to a publication, and afterwards repeats, that every one who shall be convicted, ought to be the contriver, procurer, or publisher of it, knowing it to be a libel. Upon the face of this re- solution it appears to be doubtful, whether the contriver and procu- rer were considered as severally punishable for their acts, though no publication should take place ; or whether the resolution does not suppose, in the first place, that the offence has been completed {k) 12 Co. 35. 5 J. 1. (n) 5 Co. 125. 3 J. 1. (Z) 1 Hob. 62. 13 J. 1. (o) 9 Rep. 59. 8 J. 1. (m) Hob. 215. PUBLICATION. 232 by a publication, and then proceeds to define what degree of agency shall render any party concerned responsible for the whole effect produced. In favor of the former construction it appears, that the actors arc separately and disjunctively enumerated a< liable to be convicted: and this interpretation was adopted by Lord Holt. In support of the latter construction, it may be observed, that the words, " every one who shall be convicted in tin.' said case," refer immediately to the case of the defendants, who were prosecuted for publishing two libels ; that in the subsequent part of the resolution it is said, " If the defendant write a copy of a libel, and do not publish it to others, it is no publication ;" which affords some "reason for inferring, that a publication was deem- | '-'■'• •"• ] cd to be in all cases necessary before any conviction could take place ; since the passage, if understood in this sense, that a person who commits a libel to writing is not punishable, unless he afterwards publish it, is sensible and intelligible ; but if, on the oth- er hand, the construction be this, that a person who writes a libel, but does not publish it, is not punishable as the publisher, but is nevertheless liable as the contriver, as was contended for in the case King- v. Beare, — then the passage is apiece of idle tautology, and amounts to no more than this, that a person, who docs not pub- lish a libel which he has written, is not guilty of a publication. The resolution afterwards proceeds to say, " but it is great evidence that he published it, when he, knowing it to be a libel, writeth a copy of it." Upon which it may be observed, that the resorting to presumptive evidence, by making the act of writing proof of publica- tion, would be nugatory, if that act of itself constituted a distinct and substantive offence. Samuel Paine, a minister, was tried upon an information (p), setting forth, that he was the author, composer and publisher of a malicious libel against the late Queen Mary, styled " Her Epitaph." *The jury found, by way of special verdict, *234 ] that a certain person, to them unknown, did pronounce, dictate, and repeat the words contained in the libel which the de- fendant did write ; and if that will make him guilty of the composing and making of the libel, then they find him guilty, and as to the publication, they find him not guilty. After argument the Court ob- served, " the making of a libel IS an offence, though never publish- ed ; and if one dictate and another write, both are guilty of iuak- (jo) 5 Mod. 1G3. 1 Salk.281. Comb. 357. Carth. 405. 1 Ld. Ray. T20. Holt, 294. 234 CRIMINAL DIVISION. ing it ; to what purpose should any one write or copy after another, but to shew his approbation of the contents of a libel and the better to enable him to keep it in his memory, and repeat the contents of it to others." The matter was, however, adjourned, and it does not appear that any judgment was given. The defendant Beare (#) was found guilty of writing and collect- ing, but acquitted of the making and composing of several libels stated in the indictment. Upon motion in arrest of judgment, Holt, C. J. said, " Before I come to the objections against the verdict, I shall consider whether it be not criminal to write a libel, [**235 ] although a man be not the composer or contriver there- of." The learned judge observed, that it is the putting of the words into writing, which is the essence of the offence ; for the party is not guilty unless he put the words into writing ; 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 (V)?" 1 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 concern- ing 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 evi- dence 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 pub- lication, which indeed it is not ; that the case of John De North- ampton 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 [ *236 ] copying of a libel was a libel, *because it comprehends all that is necessary to make it a libel, the same scandal- ous matter, and the same mischievous consequences ; since it is by this means perpetuated, and may come to the hands of other men, and 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 refer (q) Ld. Ray. 417. Cart. 409. 12 Mod. (r) 813. 219. 2 Salk. 417. PUBLICATION. 236 red to several cases (.*), to prove that writing a libel without pub- lishing it, was punishable in the Star Chamber. The parallel drawn by Lonl Bolt, in the above case, seems to be objectionable, since it assumes the offence to bave been completed. If A. hold B. whilst C. beats him, A. is guilty of the beating, but the offence, that is, the battery, here is completed; to suppose then, that the case in question is analogous to it, is to assume that the of- fence of libelling is complete without a publication; the question was not whether an aider or abettor to an offence actually committed was punishable as a principal, but whether any oflenco had in fact been consummated, or the whole rested in mere intent and preparation, as if A. had supplied *C. with a stick [ *237 ] for the purpose of beating B., but no battery had actually taken place. Neither do the cases relied upon appear to be applicable : in that of John De Northampton (7) it is stated, that the letter was written to John Ferrers, one of the King's counsel ; and the confession runs thus: Et quia prmdictus Johannes cog-noscit dictam literam per se scrip/am Roberto de Ferrers 8fc. ;" now if " written to" merely im- ported the address of the letter, which never passed from the de- fendant, there was no occasion to confess the writing of it to Robert 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 («), Justices, are inappli- cable ; since in those instances there was a publication of the libel to the party defamed. Knell (./•) was tried upon an information charging him with hay- ing printed and published a libel, entitled " Mist's Weekly Journal." It was proved that the defendant was a printer's servant, aud his business was to prepare the type for printing oil', which business was called composing *for the press; that the [ *238 ] defendant and another composed together the libel in question, taking the alternate columns. For the defendant it was objected, 1. that since the defendant took a distinct part, that which he composed could not bear the construction put upon the whole ; and 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 iu part is a principal in the whole, (t) Hob. 62, 216. 12 Co. 35. (x) Hill. 8. G. 9. BarnaH. K. B. 305. (0 3 Ins. 174. D. L. L. 26. (./) Hob. 62, 215. 12 Co. 35. Vol. II. 46 238 CRIMINAL DIVISION. and, therefore, as the defendant assisted in the composing, a circum stance essential to the printing, he, by that act, made himself con- cerned 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 pub- lication. But the Chief Justice directed the jury to acquit the de- fendant of 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 [ *239 ] *criminal nature of the act, where it is confined to the mere writing, printing, or preserving of a libel, it seems to be perfectly clear that every person who maliciously lends his aid to the construction of a libel, subsequently published, or who con- tributes 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 LamUs case (V), where a libel has been published, proof that the defendant commit- ted it to writing, or, by parity of reasoning, did any other act con- tributing to its existence, is great evidence that he published it, un- less he can satisfactorily explain the motive of his act. (y) The defendant was afterwards sen- tenced to stand upon the pillory twice and to be kept to hard labor in Bridewell for the space of six months. D. L. L. 124. in Sir Francis Burddfs case, Plolroyd, J. expressed an opinion that the composing and writing of a libel with the intent after- wards to publish it, amounted to a mis- demeanor. In that case there was an actu- al subsequent publication by the defendant, and it was held, by a majority of the judges, that there was a sufficient publica- tion within the county where the defendant had composed and written the libel, (r) 9 Co. 59. CHAPTER XII. Op the Defendant's Intention, and Collateral Circumstances. 'After the observations which have already been so | r *240 ] frequently made on the subject of intention, little re- mains to be said. In point as well of principle as of precedent, malice is essential to the offence constituted by any illegal communication (a). This, however, considered as an universal rule, must be understood of malice in its legal and technical sense, as denoting in cases where the act itself is injurious and unlawful, the absence of legal excuse ; for in the failure of circumstances which justify, excuse, or at least modify the act, a rational being must, in law as well as morals, be taken to contemplate and intend the immediate and natural conse- quences of his act. *Wherc a party is instrumental to a publication of that [ *241 ] which is noxious and illegal, without any moral blame imputable to himself, he cannot be criminally, even although he may be civilly responsible. A lunatic or madman, incapable of distinguishing between right and wrong, is not a lit object of penal visitation [1], neither is a party punishable who publishes a libel without knowledge of its con- tents, provided his ignorance wen 1 not in itself culpable: as where a servant delivers a scaled letter without knowledge of its libellous quality, in obedience to the command of his master, and without any reason for supposing the order to be illegal. But where the act is knowingly and intentionally done, it is plain (a) See Haw. PI C. c. 78,8. 1,6, Co. to constitute civil responsibility, s'upra. 125, 5. Mod. 1GG. Salk. 418 4 Bl. Comtn. vol. I., p. 209, 210, a fortiori it is essential 125, 150. As malice is necessary in older to make a party criminally amenable. [1] Insanity has been held a good defence in an action for words. Dickinson v. Barber, Mass. R. 226. See also Homer v. Marshall's adm'x. G Munf. 4G6. 241 CRIMINAL DIVISION. that the mere absence of an actual intention to injure cannot absolve from criminal responsibility, when circumstances are wanting which the law recognizes as supplying an absolute or modified justification. Where an act is voluntary, injurious in its tendency, and illegal in its quality, it would be contrary to all legal principle and analogy to allow the offender to justify or excuse himself, cither on the oround that he mistook the law, or that he offended against the law with such goo.d motives as ought to excuse him. To allow the plea of mistake would be to confer a premium upon ignorance, [ *242 ] and afford an excuse for every possible enormity ; to allow every man to set up his own crude opinions against the wisdom of the law, would be at once to overthrow the law, as an universal rule of conduct; there is no law when obedience is mere- ly optional. The same principles apply, where a man negligently and heedless- ly does an injurious and mischievous act, without using proper caution : gross inattention to the interests of others is morally as well as legally speaking, sufficient to render the offending party amenable for the consequences (6). In the case of the King- v. Harvey (c), which was one of an (&•) It is unnecessary to cite authorities posing it to be the latter, administers it to to shew that, in numerous instances of another. But it is ignorance of the act criminal responsibility, an actual intention and its consequences which absolves from to injure is not material, and that the wilful guilt ; and even ignorance of the nature of doing of a noxious act, or the wilful omis- the act and its probable consequences will sion of a legal obligation, is sufficient to not absolve, except in the absence of all constitute criminal responsibility. carelessness, negligence, and inattention. There is, it is true, a distinction between If a chemist or apothecary were even by civil and criminal responsibility in respect mistake, yet in consequence of negligence cfthe agent's understanding and knowledge and inattention, to administer poison in- of consequences; one who was so defective stead of medicine, he would be criminally in point of understanding, as to be unable liable for the consequences, to distinguish between right and wrong, And ignorance to excuse from penal cen- woukl not be criminally though he would sure must be ignorance in fact and not be civilly responsible for the consequences ignorance of law. Thus, though a person of his act. who without any negligence administered And where one who can distinguish poison instead of medicine would be ex- right from wrong, does an act which in it- cusable for want of knowledge of the fact, self is unlawful, but does it through mis- yet if he were voluntarily to destroy one take or ignorance, but without any blame who was excommunicated or outlawed, he even of negligence or carelessness, he would be guilty of murder, although he is not criminally responsible; as where a ignorantly supposed that he was bound to man has had poison delivered to him when kill him when he met him. he asked for wholesome medicine, and sup- (c) R. v. Harvey, 2 B. & C. 257. INTENTION. 242 information against the defendant for falsely and mali- ciously publishing a libel, asserting that the King *was af- [ *243 ] flictcd with mental derangement, the jury, having inquir- ed from the Court whether, in order to convict a defendant for the publication of a libel, a malicious intention must not have existed in his mind, the Chief Justice answered, that a person who publishes that which is calumnious, concerning the character of another, must be presumed to have intended to do that which the publication is necessarily and obviously calculated to effect, unless he can shew the contrary, and the onus of proving the contrary lies upon him. *And in the case of the King v. Sir Francis [ "244 J Burdett (c), where the publication alleged that divers liege subjects of the king had been inhumanly cut down, maimed and killed, by certain troops of the king, the learned judge, in summing up, informed the jury that the intention was to be collected from the paper itself, unless explained by the mode of publication or other circumstances, and that if its contents were likely to excite sedi- tion, the defendant must be presumed to intend that which his act is likely to produce. The question therefore arises, what circumstances docs the law regard as affording either an absolute justification, independently of the actual intention of the publisher, or a qualified or modified jus- tification dependent on the absence or existence of malice in fact. What circumstances then afford an absolute justification independ- ently of intention. The same principles of policy and convenience which have been already observed upon in reference to justifications in civil actions, apply also, for the most part, (but with one striking exception,) to criminal prosecutions. Whenever it happens that the law, for the sake *of ex- | *245 ] eluding some greater degree of inconvenience, deprives individuals of their remedy by action, without regard to the mischief occasioned, or the malice of the author, the same reasons ordinarily exclude a criminal prosecution, which would usually produce the same kind of inconvenience even to a greater extent. Hence it is that no one is criminally responsible in respect of any publication duly made in the ordinary course of any parliamentary or judicial proceeding. Thus, as has already been observed, in reference to the civil remedy, no member of either House is responsible in a (c) R. v. Burdett, 4 B. & A. 95. 40* 245 CRIMINAL DIVISION. court of justice for any thing said in that House, and in such cases, to use the words of Lord Kenyou (/), courts of law possess no jurisdiction. The immunity, which the law for wise considerations thus extends to publications made in the ordinary course of parliamentary or judicial proceedings, is confined to such as are warranted by the oc- casion. If a member of either House of parliament publish his speech beyond the walls of the House, he can claim no privilege, but stands precisely in the same situation with any other per- son (#■). [ *246 ] *In the case of the King v. Creevey (A), it was held, that a member of the House of Commons was liable to be- convicted on an indictment for a libel on the character of an indi- vidual, although the publication was a correct report of a speech made by the defendant in the House of Commons, and had been published by him in consequence of an incorrect report having been published in other newspapers. So it is also clear that if any party to a judicial proceeding were to be guilty of any publication of defamatory matter, which was ex- trajudicial and not warranted by the ordinary course of proceeding, he could derive no justification or excuse from the occasion. Lr the, case of the King v. Salisbury (**), it was held that it was indictable to publish a scandalous petition to the House of Lords, or a scandalous affidavit made in a court of justice. As one who faithfully reports judicial proceedings is not civilly, so neither is he criminally responsible; the same reason which ex- cludes an action in the one case, repels a prosecution iu the other ; although the characters of individuals may casually [ *247 "| suffer from the publicity of such *proccedings, a superior degree of benefit arises to the public at large. It is a matter of public policy not only that the mode of ad- ministering justice should be known to all, but also that the condem- nation of offenders against the law should be publicly announced ; for the conviction of any member of society of a crime, in many respects operates in rem ; it affects the state and situation of the individual as a member of society, and therefore the public have an (/) R. v. Ld. Abingdon, 1 Esp. C. (h) 1 M. & S. 273. 226, supra vol. I. p. 239 ; see also the (;') 1 Ld. Ray. 341 ; vide supra vol. I, King v. Wright, 8 T. R. 293, supra vol. p. 253, 326. I. p. 257. (<7) R. v. Ld. Abingdon, 1 Esp. C. 226. R. v. Creevey, 1 M. & S. 273. JUSTIFICATION. 247 interest in knowing the fuet. It lias even been held, that everyone was bound to tak • notice of an attainder in the county where he liv- ed (/»•;. it seems that to publish even by writing Of print, accor- ding to the truth, that a party lias been convicted of a crime, is a good justification to a criminal charge, as well as in a civil action. It has already been seen (/) that the principle on which this im- portant privilege is founded is limited both in respect of the subject matter reported, and of the mannt r in which it is reported. A< the authorities on this subject have already 'been no- [ *248 ] ticed, it is unnesessary again to cite them. And next it has been seen that it is, under some modifications, a good defence to an action to shew that the defendant, at the time of the publication, gave such a description of the author of the slan- der, and the words he used, as would enable the plaintiff to recover against him. And it seems that, according to the ancient law, the surrendering the author was sufficient to exempt a party who repub- lished the slander from punishment. It appears, from the statutes of Scandalum Magnatum, that no punishment was to be inflicted in case the defendant gave up the author of the false tale, and that the imprisonment, even after conviction, was to cease upon the of- fender's discovering the first mover of slander (ni). It does not, however, appear that such a defence to an indictment at common law has ever been allowed ; nor could it in principle be admitted («), since the law regards not the truth or falsity of the libel, but only its tendency to provoke and injure ; and, therefore, where the matter is noxious and injurious, and immedi- ately tends to a 'breach of the peace, the publisher cannot [ *249 ] be allowed to protect himself by the plea that he was not the author of the scandalous matter, but, on the contrary, that at the time of publication he truly declared who the author was [1]. But it is to be observed, that the making such a disclosure, at the time of publication, may be material as evidence to rebut the infer- (jfe) 8 P. W. 494. Staunf. 96. 8. c. 4, f. (/) Vol. I. p. 5 o, urn], therefore, it has been said that, ou (w) Vol. I. p. 176. an indictment against one as an accessory (n) If a highwayman shall at the gal- after the ftwt in harboring a felon, an at- Iowa arraign the justice of the law and tainder of the principal, within the county, if those who condemned him, he who pub- was proof of the previous knowledge of Ushee shall not go unpunished. 4 Head, the attainder. s '- Law, 164. Dig. L. L. 82 [1] See Vol. I. p. 310, note [1] as to the effect of disclosing the name of the author of the slander, even in a civil action. 249 CRIMINAL DIVISION. ence of malice, which would otherwise arise from the contents of the libel itself : as, for instance, if a party to whom a libel was published shewed it to the person reflected on, with a bona fide intention of giving him an opportunity for making an explanation which the other was entitled to demand, or with a friendly intention to enable him to exculpate himself or seek his legal remedy. And even a subsequent disclosure is usually regarded as a cir- cumstance to be considered in mitigation, where the fact of publica- tion cannot be -justified. It is usually more material to the party aggrieved to identify the anonymous and secret assailant of his rep- utation, whether it be for the purpose of civil redress or future safety, than to punish the mere instrument of his malice ; and such a re- paration, though it be tardy, is frequently the only one in the power of the offending party. [ *250 ] It is now to be observed that there is one great *dis- tinction (which has already been alluded to,) between justifications in civil and criminal proceedings ; in the latter the truth is not, as in the former, a ground of justification. It has al- ready been seen that the truth is a justification in a civil action, not solely on grounds of extrinsic and collateral policy, but also because the very foundation fails on which the claim to damages might other- wise .be erected, that foundation being the falsity of the. defamatory charge (r;). On the other hand the tendency of the defamation to produce a breach of the peace, is of the essence of the offence, as far as the public are concerned ; and, therefore, the truth or falsity of the publication is collateral to the offence — the imputation, it is obvious, may be not the less provoking because it is true. As it is essential to prohibit all direct incitements and provoca- tions to break the peace of society, by acts of violence and outrage, so also is it necessary to provide against indirect provocations, which are not distinguishable from more direct attempts either in point of motive or of mischievous results. If a party were to send a letter to another, directly soliciting him to commit a breach of the peace, no one could doubt the [ *251 ] criminality of the *act. Were the writer to go further and specify some wicked or dishonorable act, as the ground of challenge, or to use expressions of contempt or abuse cal- culated to excite irritation, and to occasion the party addressed to comply with the request, it would readily be admitted that the state (o) See the Preliminary Discourse, and supra vol. I. p. 229. JUSTIFICATION. 251 of the case would not be altered for the better, and even though the writer omitted the direct request, but used expressions just as likely to produce the same result, it would be difficult to contend that the case was altered, either in point of intention or of probable con quences. At all events, therefore, the law is not inconsistent in admitting such a justification in answer to a claim for compensation in dama- ges, at the suit of a guilty party, and in rejecting the same justifi- cation on a prosecution for the benefit and security of the public at large. Some remarks on the policy of admitting such a justification on a criminal charge have been made in another place (/>). Whatever may have boon the ancient rule of law upon the sub- ject, on this occasion it may be sufficient to state what the law of England at present is on this point ; it has now. long been settled, that the truth of a libel on an 'individ- [ *252 J ual is no defence to a criminal information or indict- ment (7) [1]. (p) Sec Preliminary Discourse. it was ruled by Hobart, L. C. J. in the (q) According to the -1th resolution, in Star Chamber, that a libel cannot be justi- the case Be Libel! is Famous, 5 Co. 125, lie 1, though the contents be true. " It is not material whether the libel be In an anonymous case, 11 Mod. 00, an true or whether the party against whom action was brought for a libel; Holt, C.J. it is made be of good or ill fame, for in a said, a man may justify in an action on settled state of government the party the case for words for a libel; otherwise in grieved ought to complain for every injury an indictment. done him in an ordinary course of law, In the Kimj v. Bickerton, Str. 4G8, upon and not by any means to revenge himself a motion for a criminal information the either by the odious course of libelling or chief justice declared that though truth be otherwise; he who kills a man with hi s no justification for a libel, as it it for de- aword in a fight is a great offender, but he /amatory words, yet it will be sufficient is a greater otl'endir who poisons another; cause to prevent the extraordinary iuter- for in the one case he who is openly as- position of the court. s. uilted rany defend himself, and knows his Lord Coke gravely asserts that there are adversary, and may endeavor to prevent it; certain marks by which a libeller may be but poisoning may be done so si icily that known, " quia tria sequdntur defamatorem, none can defend himself against it, for famosnm; 1 PravUatu ineremenium, in- which cause the offence is more dangerous, oreose of lewdness; - Burut dtcrtmtntupi, because the offender cannot easily be decrease of money and beggary; 9 Con- known." itice delrimentum, shipwreck of con- The only authority cited by Lord Coke is science." that of Lake v. Hatton, Hobart 262, where [1] In JVeto-York, the law is otherwise. There the truth is n. defence to an indict- ment, provided it be made to appear that the matter charged as libellous was published with good motives and tor justifiable ends. A declaratory act was passed by the Leg- islature in lb05, whereby it is provided " thut in every prosecution for writing or pub- 252 CRIMINAL DIVISION. The law to this effect being clearly established, it would be su- perfluous to enquire, in this place, whether, on general principles lishingany libel, it shall be lawful for the defendant, upon the trial of the cause, to give in evidence, in his defence, the truth of the matter contained in the publication charged as libellous : Provided always that such evidence shall not be a justification, unless on the trial it shall be further made satisfactorily to appear, that the matter charged as libel- lous was published with good motives and for justifiable ends. Statutes of N. Y., 4th vol. Webster fy Shinner's ed. ch. 90, p. 232. This act was passed in consequence of the doctrines held on. the trial of the famous case of The People v. Croswell, in which the distinguished Alexander Hamilton appeared as the advocate of the liberty of the press. Croswell was indicted for a libel on Thomas Jefferson, then President of the United States and convicted by the verdict of the jury. He applied to the Supreme Court for a new trial, and the principal questions submitted by counsel and passed up- on by the court, were : I. On the trial of an indictment for a libel, can the defendant give the truth in evidence ? and II. Have the jury the right to decide both the law and the fact ? Justices Kent and Thompson held the affirmative upon both these questions, and Chief Justice Lewis and Livingston the negative. The case was argued in Feb- ruary, 1804. At the succeeding May term, the Chief Justice announced that the court were equally divided, in consequence of being temporarily composed of only four judges, and that the public prosecutor was entitled to move for judgment. No motion was however made, probably because on the last day of the session of the legislature in April 1804, a bill entitled " An act relative to libels,' 7 had been passed by both houses, and delivered to the Council of Revision, who retained it at the time of the decision of that case, and with whom it remained until the session of 1805, when it was sent back with objections. The principal objection was that it did not contain a restriction similar to that incorporated in the act as finally adopted, viz : that the truth should be no jus- tification unless it should be satisfactorily shewn that the matter charged as libellous was published with good- motives and for justifiable ends. The legislature acquiesced, and an act containing that provision was accordingly passed. The People v. Croswell, 3 Johns. Cas. 337 et seq. The principle of which was subsequently incorporated into the Bill of Rights, 1 Revised Statutes 94, § 21, and also into the amended Constitu- tion of 1821, Art. 7, § 8. In the amended Constitution of New-York adopted in 1846, the same provisions were inserted in nearly the same words, viz : " In all criminal pros- ecutions or indictments for libels, the truth may be given in evidence to the jury; and if it shall appear to the jury that the matter charged as lit ellous is true, and was published with good mothes and for justifiable ends, the party shall be acquittid; and the jury shall have the right to determine the law and the fact." See Laws of New- York of 1847, p. 386. Similar provisions in respect to the truth and the motives of publication are contained in the constitutions of Mississippi and Michigan. The language of the constitution of Pennsylvania in this respect is different. It authorizes the truth to be given in evidence, and empowers the jury to determine the law and the fact in prosecutions for the publi- cation of papers investigating the official conduct of officers or men in public stations, or where the matter published is proper for public information. The provision in the constitutions of Kentucky, Illinois, Delaware, Ohio, Indiana, and Arkansas, is the same as that of Pennsylvania, and so is the provision in the constitution of Maine, except that it extends to publications respecting candidates as well as to officers already in exist- ence. In the constitution of Connecticut, provision is made for giving the truth in evi- dence, and authorizing the jury to delermine both the law and the fact. In several of the States, there is only a general provision in favor of the liberty of the press, and in JUSTIFICATION. 252 of policy and convenience a different nil'- might not be adopted in order to avoid the mischief of suppressing the wholsome diffusion of truth, and such a knowledge of the habits and characters of indi- viduals as is essential to the interests of society. It may. however, be observed, in the first place, that Vithonl *253 ] ing the length of sanctioning the publication of truth, regardless either of motive, occasion or consequences, gr<- it Latitude is allowed in consideration of the convenience of Bociety, and that such communications seem to be privileged whenever they are fairly warranted by any reasonable occasion or exigency : that the penal restraint against publishing the truth does not extend to the creat- ing any civil liability, nor, in general, to oral communications, un- less they amount to the most direct and personal provocations to break the peace. Finally, it may be remarked that the admitting truth to be a justification against a criminal charge, would be attend- ed with one difficulty and mischief so great, as, without material alterations in our *criminal procedure, to be in [ *254 J effect insuperable. As any one may commence a prosecu- tion for a libel on any other party, if a justification of the truth were admissible, the character of an individual might be made the sub- ject of investigation without his authority, even without his knowl- edge, and without his having any opportunity to defend himself ; thus it would be in the power of any two malicious men most effec- tually to injure and calumniate any other individual under the pre- text of a judicial inquiry. 9ome the subject is not noticeil. Nothing is said respecting giving the truth in evidence in the constitution of South Carolina, but the Supreme Court of that State baa deol ured the law there to be, that in prosecution* for libels, the intention with which the pu : tion is ma If, as well as the fart of publication ami truth of the innuendoes are involved in the general issue; and the whole case, law as well as fact, is resolved by a general verdict. Stale v. Allen, 1 MoCord's It. 625. tn Massachusetts, the Supreme Court held, in 1808, in the case of The Commonwealth v. Clapp. 4 Mass. It. 168, whiota w m on an indictment for a libel, that the defendant may not justify himself for publishing a libel, merely by proving the truth of the publication, but that he m iy prove that the publioationlwns for a justifiable purpose, and not malicious, or with the intent t.. defame; and where the purpose is justifiable (the court say) there may be cases when the truth may be given in evidence. In 181'J the Legislature of New- York enacted " In an action for libel or sla.nl.-r. it shall not be necessary to state in the complaint any extrinsic (hots for the purpose of showing the application to the plaintiff of the defamatory matter, out of whioh the cause of action arose; but it shall lie Buffioientl f. that the s line was published or spoken concerning the plaintiff. An 1 if such allegation be OOntroTertad, the plaintiff shall be bound to establish on trial that it was so published or spoken." Code as amended, 1819, sec. 164. 254 CRIMINAL DIVISION. These reasons, which have been urged as the ground of rejecting evidence of the truth of a libellous charge as a complete defence to an indictment or information, apply to cases where the prosecutor is guilty of the criminal or immoral act imputed : in other instances, the same principles apply with a still superior force, strengthened by circumstances peculiar to themselves. Thus, where the libel consists in the holding up an individual to ridicule, by ex-posing some personal deformity, in a lampoon or print, the truth of the representation would certainly aggravate the ridicule and would by no means lessen the malice of the author (r). With respect to libels against religion, or morality, [ *255 ] the *permitting such a defence would be attended with consequences almost too absurd to mention. Suppose a person to publish, that no overruling Providence exists ; or that, to break a promise or an oath is a virtuous act — could the discussion of such questions be tolerated in a court, or brought to issue before a jury ? or would proof that indecent transactions have actually oc- curred, supply any excuse for the public exhibition of them in a print or a pamphlet ? Where, however, an indictment is expressly framed upon the stat- utes of Scandalum Magnatum, it may be doubted whether the truth would not supply a defence, since the words false and lies are used as descriptive of the offence (s). In the next place, there exists an important and numerous class of cases, in which the law, consulting the general convenience and the exigences of society, extends a qualified protection, dependent on the question whether the party has acted bona fide on [ *256 ] an occasion recognized by *the law, or has merely used the occasion as a color and pretext for doing mischief. This most important limitation seems, on principles of public policy already adverted to in discussing the grounds of civil liability, to extend to all publications made in the fair discharge of any public or private, or legal or moral duty, of which the ordinary exigences of society, or the party's own private interests, require the perform- ance. (r) Dig. L. L. 16. S Bac. Ab. 45. 4 quo minus animo injuriandi, id factum Bac. Ab. 51G. King v. Roberts, cor. Ld. presumatur, contrarii tamen probatiouem Hardwicke. Puta si alter poenam delicti hie admittendam. Vinn. in. In. Just, sui sustinuerit, aut in vitium naturale ob- lib. 4. jiciatur, claudus aliquis, luscus, aut gibbo- (s) See 12 Rep. 133. 2 Mod. 150. sus vocetur veritatem conviciinonexcusare INTENTION— OCCASION. This principle seems to comprehend all publications on subjects of general and public concern to which the author - an Interest in common with the rest of the community. Every one, as it seems; has a right to publish that which, in his opinion, will tend to enlighten, instruct, or even amuse mankind; he who attains his oi.jcct may justly be regarded a- a benefactor to society ; he who fails is not amenable as a criminal, how me- ous his views may be, unless it plainly appear that his real object was not to improve or benefit mankind, but to produce public mis- chief and disorder by alienating men's minds from their public or private duties, by base or unworthy means, by destroying their reli- gious faith, corrupting their morals, or instigating them to acts of sedition, tumult, and outrage, or to some other violation of peace. Upon such principles it is that no man is punishable in respect of the publication of his opinion on subjects in which man- kind possess a common interest, be they theological (/), [ *257 I moral (?<), political (aj), or critical (.//), provided his communications be sincere and honest and not used as a cloak of maliciousness. The same essential principle also governs communications affect- ing the characters of private individuals. No man is punishable as a criminal for a publication made on an occasion which the inter of others, or even his own, fairly required him to make, though its contents may convey an imputation on the character of another provided, such a publication was called for by the exigency of the occasion, and was made bona fide with a view to the occasion with- out malice. Many instances, particularly that of the King v. Bayley (z\ have already been cited in illustration of the operation of the .suae principle on the question of civil liability; it is, therefore, unne sary to repeat them, for the question of civil and criminal liability in the case of libels reflecting on individuals, seems in this class 'of cases to be identical, whenever the publication of Mich a libel is criminal, as concerns the public, it constitutes a [ »258 1 civil injury repairable in damages at the suit of the party calumniated (a). It is, however, important to observe, in respect of this class of (/) Supra, c. vi. (:) 3 Bac. Ab. Libel. A. 2, cited by (v) Supra, o.Tii. Best, J. 5 B. ft A. 647. Supra, vol. I. (i) Supra, c. viii. 315. (y) Supra, vol. I. p. 305. (a) Supra, vol. I. p. 268. Vol. II. 47 258 CRIMINAL DIVISION. cases, where the intention of the publisher is the test of civil or of penal liability, that with a view to exemption as well as civil re- sponsibility, the mere abstract intention of the party cannot protect him, in the absence of facts, which constitute an occasion recognized by the law. The law allows no man to defend himself by saying, " I did an act, in itself injurious, mischievous, and illegal, but I did it with an excellent intention." And it must also be remarked, that a publication not warranted by the nature and exigency of the occa- sion, cannot be justified in a criminal, any more than in a civil pro- ceeding; for if the occasion does not justify or excuse the act, neither, on the principle just adverted to, can mere abstract good intention supply a sufficient defence [1] . [1] Thus it will be seen that the common law secures the very right to obtain which it was supposed necessary to pass the act of 1805, referred to in page 252, supra, note [1] By that act a defendant prosecuted criminally for a libel is authorized in his defence to give in evidence the truth of the matter charged as libellous, but cannot do so unless it be made to appear that the matter charged as libellous was published with good motives and/or justifiable ends. At the common law, a defendant prosecuted criminally cannot give the truth in evidence in his defence; but he may show the occasion upon which the publication was "made, and if it be on a subject of general and public concern in frhich he has an interest in common with the rest of the community, or if the business tran- sactions of others, or even his own, require the making of the communication, he is not punishable, provided the communication be sincere and honest, and not used as a cloak of maliciousness. In one respect indeed, the statute is not as broad as the common law. The former authorizes the truth of the matter alleged to be libellous to be given in evi- dence in defence, provided the motive of the author be pure and the end of the publica- tion justifiable ; whereas the latter excuses the author on showing that the occasion was such as to justify the publication, without requiring, or even permitting the truth of the matter to be )> a libel is defined as a thing tending to a breach of the peace ; in Sir Baptist Bickes's ( c) case, it is called a provocation to a breach of the peace : and in the King (>/) v. Summers, it was held to be cognizable before justices, because it tended to a breach of the peace : and in Hawkin's Pleas of the Crown (e),and Sir William Blaokstone's Commentaries (/),alibcl (s) The Kingy. Clement, I B. ft A. (tt) 1 HI. Ola. 0. vide 4 Bl. Coram. 284. 218, supra (x) H or. P. C. 22, B. 1. 5 T. II. 3(32. [a a] In the case of The King v. Oil- (v) B. U. II. ham, 1 If-, ft M. 1G5, it was held thai ex- (x) 6 .Mod. 37. hibiting in an assize town inflammatory (a) 4 151. Comra. 288. publications concerning a prisoner about {!>) to be tried at the assizes for a crime, was (c) Bob. 224. not a contempt which the judge of assize (<0 E*T« 189. could interfere to prevent by commitment. (c) c. 73, s 2. (0 Haw. P. C. c. 22, 1. Barnard. K. (/ ) 4 Bl. C. 160. B. 6». 26T CRIMINAL DIVISION. in the criminal sense is also defined by its tendency. In [ *2G8 ] the case of The King v. Wilkes, *the court of common Pleas (g) gave a decided opinion to the same effect. And L. C. J. Pratt & observcd, " I cannot find that a libeller is bound to find surety of the peace in any book whatever, nor even was in any case but one, viz.— the case of the seven Bishops, where three Judges said, that surety of the peace was required in the case of liber: Judge Powell, the only honest man of the four judges, dis- sented ; 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 required in the case of libel, it could not exclude the privilege ui a rmnibar 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 proceeding against the seven Bish- ops, who were committed to the Tower for not entering into recog- nizances after having published an alleged libel, in their petition to the King, was strongly reprobated [1]. But it has been the prac- tice, from very early times, to require security for the [ *269 ] good behavior from persons publishing contumelious* and disrespectful words concerning ministers and officers of justice, and their proceedings. It appears from the 3d Institute (A), that in the reign of Edward the 3d, John de Northampton, an attorney of the King's Bench, was committed to the custody of the marshal, for having written a letter reflecting on the conduct of the Justice ; and that he after- wards found six mainpernors for his good behavior. And it seems that sureties for the good behavior may be required from any person (i) who applies contemptuous or disrespectful (g) 2 Wils. 150. C. c. 61, s. 2. 6 Mod. 124. Holt 654. St. (ft) 174. 420. (i) Cro. El. 78. Salk. 697. Haw. P. [1] In Respublica v. Duane, 1 Binney 98, C. J. Tilghman held that it was most agreeable to the spirit of the constitution of the State, and most conducive to the sup- pression of libels to adopt it as a general rule, not to demand surety for good behavior before conviction ; and in conformity to these views, discharged from custody William Duane, who had been committed by the Mayor of Philadelphia on his refusal to give sureties for good behavior in a complaint against him for publishing a libel concerning the Marquis de Casa Yrujo, the then ambassador of the King of Spain. BINDING TO GOOD BEHAVIOR. 209 language to any Judge, Justice of the Peace, Mayor, or other, civil Magistral i, though he be not in the actual execution of his duty (t), and though the wt>rdshave no relation t<> his of: Ami tint tin' rule extends to general \\ ment spoken of such magistrates in their absence (In ; but Lord Holt, 0. J. intimated, that this ought not to in- done by the offended justice, but by one of his bretheren (/). Ami the same learned Judge, in the Queenv. Langley (m) 'after ob- [ 270 ] serving that binding to the good behavior was sufficient to secure the authority of mayors, added, that it must be done instantly, according to Dr. Bonham's (in case. It Beems, however, from the general current of decisions upon this point, which are very perplexed and contradictory, that the words must either have been spoken in the presence of tin' magistrate ; or if in his absence, havo in some way affected him in his office. In other cases it might not be prudent 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 (o) ; and in case it should prove insufficient, he would be liable to an action for false imprisonment. But it seems to be perfectly clear, that for unmannerly ( />') ex- pressions, 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 (q) of his office, or abusing him whilst discharging his duty, the offender may be bound to his good behavior. With regard to mere rash, quarrelsome, uncivil *words [ *271 ] 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 arc entrusted by it with the administration of justice : or We utter- ed with intent to deter an officer from the execution of his duty < r I : 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 behavior may be required as if the words had been spoken. (*) See ante, note (i), P- 269. (o) Per Walmesly, i„ Dean's case, (k) Cro. El. 78. 1 Lev. 52, c. 2, s. 3. Cro. El. G89. 11 Mod. 117. Cro. Eliz. G8D. contni. (;>) 1 LeT. 1"7. 1 8 (0 12 Mod. 514. ('/) Haw. P. C. c. Gl. s. 2. 3. (m) G Mod. 124. (O Haw. P. C. c. Gl, B. •".. Cro. Car- (n) Stiles, 251. 408,4'J9. Cro. EL 286. PaL126. 271 CRIMINAL DIVISION. 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 (s). By the stat. 60 G. III. and 1 Geo. IV. s. 16, it is declared and enacted that, any of his Majesty's courts, or any justice of the peace, before whom any person charged with having printed or published any blasphemous or seditious libel, shall be brought for the purpose of giving bail upon such charge, shall make it a part of the condition of the recognizance, that the person so charged shall be of good behavior during the continuance of such recog- nizance. (s) 4 Burn's Jus. 303. CHAPTER XIV. Proceeding by Information'. •With the exception of those cases where a defendant [ *27J J has been guilty of a contempt, no punishment; can be in- flicted upon him for any malicious publication, unless he shall have been previously convicted of the fact upon the oath of twelve Jur- ors. There are two modes, by either of which the matter may be subjected to their verdict ; — by an information, exhibited in the name of the King, or by the finding of a bill by a Grand Jury [1]. Informations are of two descriptions ; they are either filed by the Attorney-General as the immediate officer of the crown, or by the master of the Crown Office upon the complaint [ '273 ] of a private individual. The objects of those informa- tions which arc filed by the Attorney-General, are such offences as 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 A'ote by the author. As to the great an- since in the first place, informations are, in tiquity and acknowledged legality of the point of law, no more connected with the proceeding by information, see the argu- Bubject of libel than they are with any mentof Sir Bartholomew Shower, 1 Show, other misdemeanor; and in the Beoon 1, do Rep. 106; 4 BL Comm. 805, whence it ap- doubt can possibly rest upon the l< pears to have been as ancient as the law it- °* a practice which has prevailed for oentu- self. To introduce any discussion upon ««, and been sanctioned by at least two the subject of informations would be in- «*S of the legislature. 4 and 6 W. aud consistent with the object of this treatise; M - c - ls - 43 G - 1IL ° [1] By the 6th article of the amendments of the Constitution of the United States, H is provided that " no person shall be held to answer for a capital or otherwise infa- mous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia when in actual service in time of war, or public danger." The same provision is contained substantially in the constitu- tions of the several States of New- York, Ohio, Tennessee, Indiana, Maine, Mkhigan, Arkansas, Alabama, North-Carolina; and in the constitutions of the States of Pennsyl- vania, Kentucky, Mississippi, Iirmois, Delaware and Missouri, the proceeding by in formation in criminal prosecutions is expressly prohibited. 273 CRIMINAL DIVISION. matter resting 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 immediate 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 tu- mult and outrage ; but it has not been usual for the Attorney-Gene- ral to interfere where the libel has affected a private individual only. With respect to informations granted by the Court of King's Bench. These were formerly filed at the suggestion of the applicant by the master of the Crown Office, and at the discretion of f *274 1 that officer, without any *direct application to the court ; but the practice was put an end to by st. 4 and 5 W. and M. c. 18, which enacts, that the clerk of the crown shall not file any information without an express direction from the Court of King's Bench. It may be proper to adduce a few instances, to show the general principles by which the judges of the Court of King's Bench have been cruided in the exercise of this branch of their jurisdiction, and to refer to the regulations which they have thought fit to make. The court, it seems, will grant a criminal information in respect of any publication which manifestly and directly tends to produce any public mischief or inconvenience. As, for publishing general reflections on the clergy of a particular diocese (b). For offences tending to obstruct or prevent the ordi- nary course of justice, as by publishing invectives against a judge and jury, by whom a defendant has been found guilty, with a view to brino- into suspicion and contempt the administration of justice (c). So where a defendant on a criminal information filed against him, published hand-bills in the assize town shortly before the [ *2Y5 ] *trial was to have taken place, vindicating his own char- acter and reflecting on that of the prosecutor ( for sendin S to a nobleman a li- (A-) R. v. Lee, 12 Mod. 514. cense to kee P a P ublic house - ™W or of (Z) Trin. 32 G. II. The King v. Dr. Northampton's case, 1 Str. 422. So for „ ,. ,, representing a bishop as a bankrupt. Hil. ^m) The King v. Philip Thicknesse, T. 1812. Russel 228. Esq. Hil. 3 G. III. D. L. L. 86. (?) Doug. 387. R. v. Sate. («) Tr. T. 1 G. III. Dig. L. L. 83. (9) Bac. Ab. tit. Lib. 494. (o) Doug. 387. So against the mayor (r) E. T. 2 G. III. D. L. L. 84. PROCEEDING BY INFORMATION. -7'' supposed to have haunted a house in Cock Lane, West Smith- field, for many nights past," tending to traduce and vilify the repu- tation of one William Eent,and to represent and cause it to be be- lieved, that the Baid William Cent had, by artful meana and cir- cumstances, obtained and procured the Last will and testament of the said Frances Lynes, Bpinster, Bince deceased, to be made, and unjustly to cause the validity of the Baid will to be called in qn and also to raise groundless suspicions concerning the death of the said Frances Lynes ; and also to cause a false and Bcandaloufl report raised and propagated by means of public newspapers, that 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 [ *280 ] Bell, at the Old Bailey, on which occasion his innocence appeared to be so clear, that the jury interfered before the learned judge, who presided, had begun to sum up the evidence. An in- formation was afterwards granted (s) against Thomas Holland for writing a libel on Sutton, in a phamphlet, entitled "A most circum- stantial account of that unfortunate young lady, Miss Bell, otherwise Sharpe." It is not necessary, as a foundation for an information, that the libel should charge a criminal act; such an information has been granted, where the object of the libel was to hold the applicant up to ridicule (£). But it seems that, in general, the imputation must be of a personal nature to induce the court to interfere, and that it is not sufficient that it tends to lessen a man ( u ) in his trade. In the case of the King v. Roberts, an information was refused against the defendant (x) for having published, in a newspaper, that Ward's {tills and drops had done great [ *281 ] mischief in twelve different cases, and that they were a oomdound of poison and antimony. When a motion ( // ) was made for an information against the de- fendant for publishing reflections upon the African Company in one of the newspapers, by charging them with having supported their trade by treachery and fraud, the court refused to in jon- (s) Dig. L. L. 82. East. T. 1 G. III. (u) An lr. 229. - Butnud. K. 13. 183 R.V.Holland. Dig. L. I.. 90, i Baa A ■ 192. (0 R. v. Benfidd, 2 Burr. 98.'). As for (x) Dig. L. L. 90. 1! ic. Ab. tit. Lib. singing songs in the streets, reflecting on 492. the prosecutor's children, with intent to (y) The King v. Roberts. Dig. L. L. destroy her domestic happiness. lb. 89. 2 G. II. 17 281 CRIMINAL DIVISION. sidcring the matter nothing more than a dispute upon a matter of trade ; but the court granted a rule to show cause why an infor- mation should not be granted for a libel against the New-York Build- ings' Company, charging them with raising the value of their stock by getting £100,000 under (2) the credit of their seal. In general where there is reason to suppose, from the circumstan- ces under which the party published, that the act did not proceed from a mere, malicious intention, the court will not interfere by granting an information. The defendant (a) advertised, that one Maddox, an apothecary, had personated Dr. Crow, a physician, and taken his [ *282 ] fees, and an information *was refused, the apothecary not pretending to deny the charge. When a man adver- tised 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 (6) the husband could take to secure himself. It was advertised, in one of the newspapers (c), that Lady Mor- dington kept an assembly in Moorfields, upon which Lord Mording- ton advertised, that the person calling herself Lady Mordington was an impostrix, and that there was no such person, except 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 assuming the title without any right. So where the imputation is contained in a petition drawn up for the purpose of obtaining redress for an injury, and not with an in- tention to asperse the prosecutor, the court will not grant an infor- mation, though the publication impute fraud to the prosecutor, since it is no more than is alleged in every bill in chancery. [ *283 ] *The defendant (d) 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 government, under the pretence of procuring payment for him, 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. (z) 2 Barnard. K. B. 114. R.v.Nutt, (c) R. v. Jenneur, Easter 8 G. II. Bac. D . L. L. 78. Ab. tit. Lib. 492. (a) R. v. Sickerton, Str. 498. R. v. ( d ) R - v - BayUg, su P ra > 257 > and vol. I Webster, 3 T. R. 388. Dougl. 270, 371. 315 - Andr - 229 - 3 Bac - Ab " tit - Lib - 492 " (6) R. v. Enes, Andr. 229. D. L. L. 89. PROCEEDING BY INFORMATION. 283 Miss Mary Jerome (c), a Quaker, residing at Nottingham, hav- ing acted in disobedience to the rules prescribed by the sect of which Bhe was a member, by frequenting places ofpubiio diversion, going into mourning for the death of a relation, and by other trans- gressions of a similar nature, the society, after many fruitless re- monstrances and other useless attempts to reclaim her, proceeded at last in the customary way to pronounce the sentence of expul- sion, which, having I n approved of at monthly meeting, was afterwards read by the defendant, Francis Hart, as clerk of their meeting. The sentence, after charging Miss Jerome with having imhihed erroneous notions, contrary to Scripture doc- trine and 'having acted in various parts of her conduct [ *284 ] very inconsistently with a life of self-denial, and of hav- ing neglected to attend the meetings for divine worship, and recit- ing the 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 acquainted 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 applica- tion to the court for an information against the defendant, they re- fused even a rule to show cause. Next, as to 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 defendant derives from this mode of proceeding ; for, if convicted under an indictment, the prosecutor would still be at lib- erty to bring his action to recover damages. Where, however, the court, on hearing the whole matter, are of opinion] that it is a proper subject for an 'action, they will give the [ *285 ] party leave to bring (§■) it. The court (//) will not grant an information, unless the applica- tion be made recently after the cause of complaint shall have arisen (i). (e) 2 Burn's Ecclesiastical Law, 779. (/i) Bac. Ab. tit. Libel, 4'.' - _'. Di». L. L. 39. (<) Pridtaux v. Arthur, I.oflt r 393. An (/) R. v. Sparrow, 2 T. It. 198. The application for a criminal in formation prosecutor may be put to his election beforo against a magistrate must be made so early information granted, after that time it is in the MOOod term after the offenoe, as to of course to stay proceedings in an action enable him to ihon OMM in that term. R. for the same libel. lb. t. Marshall, 18 List, 182. R. v. Taylor, (a) 2 T. R. 198. 48* 285 CRIMINAL DIVISION. Where 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 specified, since the conviction on 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 (&). The application must be accompanied with affidavits, clearly and specifically stating the circumstances of the case (7) ; these ought not .to be entitled, and if they are, cannot be read: those *286 ] *produced, on showing cause, may (m) or may not be en- titled ; but all affidavits, after the rule is made absolute, must be entitled («). 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 indictable for perjury, though it should be false (o). 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, distributed hand-bills in the assize town, vindicating his own conduct, and reflecting upon the prosecutor's. This matter being dis- closed to the judge at Nisi Prius, was held to be 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 affidavit taken at Nisi Prius' being considered as taken under the authority of the court above. The affidavit should set forth the libel ((/), its .application, and the fact of *287 " '^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 information, saying, that they re- quired a seeming and apparent application to be made (r). 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 evidence to be insufficient to warrant them in granting a rule nisi for a criminal information against C. (j). Nolan. 204. And it seems that such an (o) 11 Mod. 141. application would not be allowed in the 2d (p) 4 T. R. 285. term, where an assize had intervened. R. (q) It is sufficient to set forth a copy of v. Herries, 13 East. 270, and see R. v. the libel , without annexing the libel itself. Bishop, 5 B. and A. 512. JR. v. Chappel, Burr. 402. (7c) R. v. Griffin, R. T. Hardw. 39. (r) Fitzgibb. 57, pi. 7. D. L. L. 97. (1) Prideaux v. Arthur, Lofft. 393. Bac. Ab. tit. Lib. 493. (m) 1 Str. 704. Andr. 313. (s) R. v. Willet, 6 T. R. 294. (ti) 6 T. R. 642. PROCEEDING BY INFORMATION. 287 It has frequently (/) been decided, that it is necessary for the party praying an information to produoe an exculpatory affidavit, denying the truth of the charge, since though the truth be no -round of justification on an indictment for a libel, yet it is a sufficient rea- son why the court should not interfere in an extraordinary way. But though the court, in general, require that the affidavit shall di- rectly (it) and pointedly aver the prosecutor's innoc< of the charge, the rule admits of Bome exceptions: *288 ] where the party charged is abroad, and then the pel making the application in his behalf is cxp.'.-t.-d go as far in his affi- davit as the nature of the case admits of, by Bwearing to letters or other intelligence within his reach (a;). So where the charge is general (y), no exculpatory affidavit is required, since it would be absurd to require a man to -wear that he was not a traitor or a thief: neither is it i. where the party is accused of having \i>(^\ criminal language in parliament, since by the express provision of the Bill of Rights, what passes there can- not be questioned elsewhere (z ). Where a libel stated that the Duke of Athol was held in such general abhorrence in the Isle of Man, if he should obtain an act, then depending in parliament, it would occasion (a) a revolt, the court held, that no affidavit from the duke was necessary. Where the libel reflects on a public body of men, an information will be granted, without any exculpatory affidavit, on an affidavit, stating the *purchase of the newspaper contain- [ *289 ] ing the libel, and that the defendant was the publisher or proprietor of the paper (/>)• After the rule to show cause has been gran ted upon the prosecu- tor's affidavits, it seems that affidavits in confirmation may be pro- duced ; but that a supplementary affidavit, if introductory of new (0 Str. 4^8. Andr. 229. 8 Bao. Ab. (*) 1 W. and M.mm. 2, o. 2,art. 9. tit. Lib. 492. Barnard. K. B. 13. R. v. (a) Doug. 387, in the note. Miles, Doug, 184. R.y. Wright, 2 Chitty (6) R v. William*, 6 B. and A. 595, 1G2. So an information was refused to the fbr a libel on'thc clergy of the diccese of first sender of a challenge. R. v. llunkcy, Durham. So also in the case of R. v. Je- 1 Burr. 31G. " 0I "". 1:I (; - n i /l> - v - -iWertoii, 28 G II. 00 R. v. Miles, Doug. 288. It is R. v. Holloway ami Jllcn 16 G.,111. for usual to negative the charge in the words publishing a libel on the justices of the of the charge. R. v. Wright, 2 Chitty's peace for the county <*f Middlesex, in a Rep 1G2. pamfhlet oalled the Wit Trap, charging (x) R. v. Bate, Dou"\ 387. tlh -'" 1 witn igBO**no« aiul corruption in the (y) R. v. Bate, Doug. 387. R. v. Has- execution of their office. well, ib. 289 . CRIMINAL DIVISION. matter, is not admissible ; but if the new affidavit be partly con- firmatory and partly consist of new matter, the court will not wholly reject it, but distinguish between (e) what is new and what is con- firmatory. Though the affidavits of the prosecutor should be contra- dicted by those of the defendant, in some circumstances, the court will nevertheless grant the information, if strong probable ground be laid (d~). The defendant (e)' showed for cause against a rule for an informa- tion, that the charge of perjury on which the motion was [ *290 ] founded was true ; but *Sir J. Pratt, C. J. said, " In all cases, informations for libels go, unless you can show the court some probable cause for them to believe you did not pub- lish it. Now, if you had denied it, it would have signified nothing ; for then affidavit stands against affidavit ; therefore, the, information shall go, that the fact may be tried." And Fortescue, J. said, " It would be a strange thing, if a man should be allowed to justify when an information is prayed against him, and should not be al- lowed to justify in the information itself when it is gone." But in the case of the King- v. Bickerton, the chief justice de- clared, that, though truth be no justification for a libel, as it is for defamatory words, yet it will be sufficient cause to prevent the ex- traordinary interposition of the court, and induce them to leave it to the ordinary course of justice before a grand jury (/). And with this doctrine the modern practice has conformed. The prosecutor (g-) founded his application upon an affidavit, sta- ting, 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 confession, yet, since the fact of publication was not denied, the information was granted. [ *291 ] *By a rule E. T. 5 G. II. where a person has obtained a rule nisi for a criminal information, and upon showing cause the rule is discharged, the party who (A) made the motion shall pay the costs. But this has been held to be discretionary. (c) The King v. Kinaslon, 2 Kel. 178. (g) R. v. Sharp, Andr. 384. Dig. L. L. 55. (h) See 2 Kel. 61. pi. 8. Dig. L. L. 97. (d) The King v. Haswetl and Bate, Where a complaint for an information Doug. 372. against a justice of the peace proved to bo (e) The King v. Dormer, Barnard. K. frivolous, the attorney, as well as the com- B. 13. Dig. L. L. 77. JR. v. Draper, 3 plainant, was ordered to pay the costs. Smith 391. -Rex v. Fielding, 2 Burr. 654. 2 Ld. (/) R. v. Bickerton, Str. 498. Kenyon 386. PROCEEDING BY INFORMATION. 291 A joint informatio \i several cannot be founded on distinct rules for informations againsl each 1 1). When ;m information ia filed by leave of the court, it is provided by st. I and 5 W. and M. c. L8, s. 2, that, where the defendant acquitted, the court shall be authorized to award costs to the defend- ant, unless the ju 11, at the trial, certify that there was rea- sonable cause. But it has been held to be compulsory on the court to grant co>inmons parliament, it has been decided, that priv- in the said resolution, it i long ilege does not lie in the ease of a seditious debate, resorted in the a ffirm a ti ve: In the libel. Journal of the Lords, Die Martis, Abbott, 14 East 1. 5 ^embris i, Dow. 165. I Taunt 401, which was an The 8rd resolution of the House of Com- aotion againi the House of mons was read—" Resolved, by the Coin- Commons br I imprison- mons in Parliament assembled, that privi- ment, it was held that the speaker of th e 292 CRIMINAL DIVISION. [ *293 ] of the House of Commons, was discharged without bail. In the above case (o) the court considered the warrant of a secretary of state to be 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 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 [ *294 ] 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 the case of Butt v. Conant (jo), the authority of a justice of the peace to issue his warrant against the publisher of a libel, and to commit, in default of sureties, was much discussed, and after a con- sideration of all the previous precedents, it was decided that justices of the peace have such authority, as well in the case of libel as of all other offences, over which, as justices, they have jurisdiction. In the above case, the libel reflected on the characters of two noblemen, the Late Lord Ellenborough, C. J. and Lord Castlereagh. But it seems to be clear that the general doctrine there laid down would apply to all cases of libels, whether they were illegal, as re- flecting on the characters of individuals, or for any other mischiev- ous tendency, affecting the public (#). [ *295 ] *In Leach's case (r) 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 messen- gers), taking a constable to your assistance, to make a strict and diligent search for the authors, printers, and publishers of a seditious House of Commons might lawfully commit diately taken up and held to bail. It is a member of that house, in pursuance of not necessary to stand by and see the mis- an order of the house to that effect, upon chief spreading without attempting to in- a resolution of the house, that the plaintiff terrupt its progress; it would be a reproach had been guilty of a breach of privilege, to the laws of the country if it were so; in pvinting a libellous and scandalous pa- and if the magistrates might not arrest the per, reflecting on the just rights and torch in the incendiary's hand, and before privileges of that house. it had set fire to the building. Per Leyces- (o) See Dig. L. L. 51. ter, J. in his charge to the jury, Carnarvon (p) 1 B. and B 548. Summer Ass. 1819. (q) The publishers and distributors of (r) 11 St. Tr. 307. impious and seditious libels may be imme- PROCEEDING BY INFORMATION. 295 and treasonable paper, entitled 'The North Briton,' No. 45, and them, or any of them, having found, to apprehend and sieze, to- gether with their papers, and bring in safe custody before me, to be examined concerning the premises, and farther dealt with according to law." The messengers, nnder this warrant, seized Mr. Leach and imprisoned him for some time ; but on its being fonnd that he was neither author, printer,nor publisher,he was di I 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 sin- gle point decided was that the defendants could not justify, inasmuch as they had not acted in obedience to the war- rant (s). •It is enacted by the 43 0. III. c. 58, s. 1.— "That [ i whenever any person is charged with any offence for which lie may be prosecuted by indictment or information 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 certifi- cate of the indictment or information being tiled 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 ap- prehended and brought before him or some other judge of the sam< court, or before some one justice of the peace, in order to his being bound, with two sureties, as the said warrant shall express, with con- dition to appear in the said court, at the time mentioned 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 respectfully commit him to the common gaol of the county, city, or place, where the offence shall have been committed, or where he shall have been apprehended, there to remain until he shall become bound a- aforesaid, or be dis- charged 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 [ *2Q1 ] have been acquitted of such offence, or in case of convic- tion, shall have received judgmc.it for the same, unless sooner de- clared by the said court to be discharged." And the same act fur- (s) By a resolution of the House of Journ. Comm. 23 Ap 1766. And such Commons it was declared, that general were, by a subsequent resolution, declared warrants in the case of libel are illegal, to be illegal in all cases. lb. 25 Ap. 17CG. 297 CRIMINAL DIVISION. ther provides, " Thqt in case any defendant be committed, either by virtue of such warrant, or by virtue of any writ of capias ad respon- dendum, for want of bail, a copy of the indictment or information shall be delivered to him or to his. gaoler, with notice that unless he shall within eight days enter an appearance^ plea, or demurrer, to such indictment or information, an appearance and the plea of not guilty will be entered in his name ; and that if such defendant shall neglect eight .days to enter an appearance, and to plead or demur, the prosecutor may, on affidavit 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 acquital, the judge before whom the trial is had (though not a judge of the King's Bench) may order such defendant to be discharged out of custody as to his aforesaid commitment." With respect to the seizure of papers, it is said to have been re- solved, by all the judges, that where persons write, print, or sell any pamphlet, scandalizing the public or private persons, such *298 ] *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 Coke himself furnishes an instance ; whose papers were seized and carried to the secretary's office, with some valuable securities, which were, never returned to him (w). Insignificant however is a loss of such a nature when compared with the more serious evils incident to such a procedure, the grievous invasion of domestic peace and security, and the facility 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 warrant (x) was issued in the name of the Duke of Newcastle, one of the secretaries of state, directed to two of the King's mes- sengers, requiring them, taking a constable, to make a diligent search in the house of Dr. Earbury, the author of a treasonable paper entitled " The Royal Oak Journal," for all papers of [ *299 ] whatsoever *kind in his custody, and to bring the said papers before him ; the messengers, without taking a con- stable to their assistance, entered the defendant's house, seized (t) 4 Read. St. Law 154. (x) 2 Barnard. K. B. 346. Dig. L. L. (h) Dig. L. L. 83. 33. PB0CBS&-8KIZURE OF PAPERS. 299 his papers, and brought them before Mr. De La Faye, who was the duke's secretary and a justice of the pe 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 nol legally grant a warrant to seize a person's papers. Lord C. J. Hardwicke Baid, that as to Beizing 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 lor their determination. J5ut in the great case (y) of the seizure of papers, it was decid- ed that a secretary's warrant to search lor papers was illegal ; and Ld. Camden, C. J. observed, *• 11' this point should be determined in l'avor ol* the jurisdiction, tin- secret cabinets and bureaus of every subject in the kingdom will be thrown open to the seareh and in- spection of a messenger, whenever the secretary of slate *shall think lit to charge or even suspect a person to [ *300 j be the author, printer, or publisher of a seditious libel. This power so assumed by a secretary of state, is an execution upon all the parties' papers in the first instance ; 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 competent juris- diction, and before he is convieted either of writing, publishing, or being concerned in the paper. This power of the secretary is not supported by one single citation from any law book extant — it is claimed by no magistrate in the kingdom 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 in- spection ; and though the eye cannot, by the law of England, be guilty of a trespass, yet where private papers are removed and car- ried away, the secret nature of the goods will be an aggravation of the trespass, and demand more considerable damages in that re- spect. "Where is the written law that gives any magistrate such a power ? I can safely say there is none ; and therefore it is too much for us, without such authority, to pronounce a praetice to be legal, which would be subversive of all the comforts of so- ciety." " There is no authority to show that libels 'might bo [ *301 ] 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 (y) Entick v. Carrington and others, 11 St. Tr. 317. 19 Howell's St. Tr. 1029. Vol. H. 49 301 CRIMINAL DIVISION. could legally expose to the public anything that concerned the af- fairs of the public, without license from ihe King. This was quot- ed by C. J. Scroggs, on the trial of Harris for a libel, who extend- ed the doctrine to the seizure of all books, pamphlets, and writing, on matters of public concern." And again, " It is urged as an argument of utility, that such a search is a means of detecting offenders 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, rob- bery, and housebreaking, 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 proceedeth from the gentleness of the law, or from the consideration that such a power would be more pernicious 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 [ *302 ] but suspicion, — it is not*proof: weaker evidence is a ground of suspicion ; though in a 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 {z) 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 bill (a) 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 (6). "With respect to the technical mode of framing an information or indictment, little remains to be added to the observations already made on the subject of the declaration (c). All who are in any way concerned in the composition, writing, or printing of the libel, with a view to publication, may be joined in (z) Jour. Comm. 25th April, 1766. (b) Haw. c. 8. s. 88. jR. t. Summers, (a) 4 Read. St. Law 155. 8 Mod. 328. 1 Lev. 193. Dig. L. L. 97 infra, tit. Evidence. (c) Supra vol. I. INDICTMENT. 302 the information *or indictment, and charged as princi- [ *303 ] pals (d). It is not necessary to allege that the matter published is Ealee : such an allegation need not bo proved, though it be made on the record (e) ; but the illegality of the publication musl be averred by means of the word maliciously, or by si.nn; equivalent term ( /' >. In an indictment, as well as to a declaration, the averment of extrinsic facts is unnecessary, where the criminal quality of the pub- lication may be collected from the contend; such averments are essential where the terms of the libel are independently of particu- lar extrinsic facts, innocent or unmeaning, but are in reality noxious and illegal, in connection with the facts to which they relate. The mode of averring such extrinsic circumstances, an. I explaining the sense of the libel in its connection with those facts by means of the ordinary technical links, has already been so far remark- ed upon that further comment *is perhaps unnecessary. [ *304 ] Where an information alleged that a libel was published of and concerning the government, and the libel was written in such terras, that an ordinary person, on reading it, would understand that it was written of the government of the country, it was held, that any extrinsic allegation, for the purpose of explaining the meaning, was unnecessary (g-). And where the information alleged that the defendant, with intent to insinuate and cause it to be believed, that divers liege subjects of the King, had been inhumanly cut down. maimed, and killed, by certain troops of our lord King, unlawfully and maliciously published a libel of and concerning the government of this realm, and of and concerning the said troops, and the only innuendo was applied to the word dragoons in the libel, meaning the said troops of our said lord .the King, and meaning thereby, that divers liege subjects of our lord the King had been inhumanly cut down and killed by the said troops of our said lord the King; it was held, on motion in arrest of judgment, that this was Miniciently certain, without specifying what particular troops were meant (//). {d) R. v. Benfield, 2 Burr. 983, pi. 3, (/ ) Sty. 3'J'J, per Roll. C.J. 1 Vin. it was held, that a joint information lay Ab. 533. against two, for singing a libellous song on (?) R- v. Burdett, 5 B. and A. 314. A. and B., which abused first A., and then (h) lb.; and see R. v. Horne, Cowp B.; and it was hell, that if each had sung CS'J, supra, vol. I. p. 891. To the illus- scparate stanzas, the one reflecting on A.; trations already adduced, vol. I. p. 407, to the other on B; the otfence would still show the naturo and use of prefatory aver- have been joint. ments and innuendoes, may be added the (e) R. v. Burke, 7 T. ft. 4. following — Goldstein v. Foss, B. and C. 304 CRIMINAL DIVISION. [ *305 ] "Unless a libellous and criminal meaning be either ap- [ *306 ] parent on the face of the alleged libel, or *can be col- lected from the terms of the libel, as connected with ex- trinsic circumstances, no innuendo will either make the publication criminal, or subject the publisher to a civil action (i). An indictment, that the defendant scripsit, fecit, et publicavit, sen scribi fecit, et publican causavit, has been held to be too un- certain (&).. When some special intention is essential to the *offence, such in- tention must be described according to the truth and the [ *307 ] nature of the offence. Where the libel has been publish- 152. In the introductory part of the de- claration, it was alleged, that the plaintiff was the secretary of a society called " The Society of Guardians, for the protection of Trade against Swindlers and Sharpers," and the nature and object of the society was also averred ; the declaration then al- leged the publishing of the libel, as a printed report, by the secretary, contain- ing, (inter alia,) that the plaintiffs were reported to the society as improper to be proposed to be balloted for as members thereof, with an innuendo, thereby then and there meaning that the plaintiff was a swindler and sharper, and an improper person to be a member of the said society. And it was held, on a motion in arrest of judgment, that the libel was not suffici- ently connected with the introductory mat- ter, and that without such matter the words were not in themselves actionable. In the case of Stocklcy v. Clement, 4 Bingh. 162, the first count alleged, that the plaintiff was lawfully possessed of a bill of exchange, accepted by Frances Page Turner, widow; that such acceptance was a true and genuine acceptance , and that the defendant, intending to charge the plaintiff with having forged and feloniously uttered the said bill of exchange, published of and concerning the said -plaintiff and the said bill of exchange, the following libel:— 11 To bill-brokers and others — caution — reward — Whereas information has been given to me, that attempts have been made to obtain the discount of a bill of exchange bearing date, London, May 26th, 1825 and purporting to be drawn by one John Stockley, upon and to be accepted by the Dowager Lady P. Turner, for £6000, with interest, payable twelve months after date, to the order of the said J. Stockley. — I do hereby give notice, on behalf of the Dow- ager Lady P. Turner, that she has not ac- cepted such bill, and that if her name should appear on any such instrument* the same has been forged ; or her hand- writing to the said acceptance of the said bill, if genuine, has been obtained by fraud, in total ignorance on her part, of the intended effect of the signature. Any person who will give positive information to me of the party in possession of the said instrument, shall be handsomely re- warded. Thomas Binns." After a verdict for the defendant, the court held, that, at all events, the action could not be supported without an innu- endo, in stating the alleged libel, applying the charge to the plaintiff. The court also intimated a strong opinion that, even with an innuendo, the action could not have been supported, as the al- leged libel merely stated that a bill had been drawn, but threw no imputation on the drawer. (i) Supra, vol. I. p. 393. And see i?- v. Alderton, Sayer, 280. R. v. Burdett, 4 B. and A. 314. R. v. Home, Cowp 682. Stockley v. Clement, 4 Bing. 162 , supra. Goldstein v. Foss, 6 B. and C< 152, and supra, 305. (ft) 8 Mod. 328, and see vol. I. p. 358. INDICTMENT. 30T ed to the prosecutor only, though its tendency be to vilify and degrade him in his professional character, it should be alleged to have been published with intent to provoke a breach of the peace (/). So where the indictment is founded on a libel written to degrade the memory of one deceased, it should be alleged to have been published with a design to bring contempt on the family of the deceased, and to excite his relations to a breach of the peace (m). The most usual plea in an indictment or information, is the gene- ral one of not gui/ty, by which the defendant puts himself generally upon the country for his deliverance, and is entitled to take ad- vantage 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, admitting the publication, to show from the contest (»), or other circumstances, either that the matter published was not criminal in its nature ; or, if criminal, that it was published inadvertently (o), and without "any guilty knowledge (yy) ; or that it was published un- der circumstances which the law recognizes as constitut- [ *308 ] ing either an absolute justification or excuse, independ- ently of the question of intention, or a qualified justification de- pendent on the actual intention and motive of the defendant (?). (1) R. v. Wegener, 2 Stirkie, C. 245. the defendant could have shown that he (m.) R. v. Topham, 4 T. R. 126. bad published the paper in question with- (n) R. v. Lambert and Perry, 2 Camp, out knowing its contents, as that he could C. 398. not read, and was not informed of its ten- Co) R. v. Lord Abingdon, 1 Esp. 22G. dency till afterwards, that argument might ip) In the case of The King v. Holt, 6 have been pressed upon the jury. T. R. 444, Lord Kenyon, 0. J. observed, if (3) Supra, 210. 49' CHAPTER XV. Evidence. [ *309 ] *With respect to the nature of the evidence to be adduced in support of a criminal charge, little need be added to the analogous proofs already mentioned as applicable to civil proceedings ; the materials of evidence, and the rules which govern their application are for the most part common to both. Such evidence in the criminal proceeding relates to the introduc- tory averments, and the act of publication by the defendant of the noxious matter charged (a), in the sense imputed by the averments, and with the intention alleged. Whether the introductory aver- ments be proved, is usually matter of fact for the determination of the jury, subject of course to any question of variance from the record. [ *310 ] *A Gazette is evidence to prove an averment that certain addresses have been presented to the King (&). So the King's Proclamation for the discovery of certain offenders, reciting that outrages have been committed in certain districts, is evidence to satisfy an introductory averment in an information for a libel, that such outrages had been committed (6). An allegation that the defendant was duly elected treasurer of a particular parish, is proved by an entry in the vestry-book, stating, that he was elected to that office at a vestry held after notice (c). In criminal as welLas civil proceedings in case of libel, it is unne- (a) The court, under the late statute, 9 (£) R. v. Holt, 5 T. R. 436. G IV c 15, has a discretionary power to (b) R. v. Sutton, 4 M, and S. 646.J amend variances between the record and (0 R. v. Martin, 2 Camp. 100. Cor. any matter in writing or print produced i n Macdonald , C. B. evidence. EVIDENCE— PUBLICATION. 310 cessary to give further proof of facts which the alleged libel assumes to be truth (21 ] prosecutor, is rendered doubtful and ambiguous, by the defendant having left blanks for names, or from his having given merely the initials, or introduced fictitious names, it is always a question for the opinion and judgment of the jury, whether the pro- secutor was the party really aimed at (r). For this purpose the judgment and opinions of witnesses, who, from their knowledge of the parties and the circumstances, are liable to form a conclusion as to the defendant's intention and application of the libel, is evidence for the information of the jury (s). *Any further observations on the subject of evidence | '322 ] to prove general malice seem to be unnecessary. The rule of law on this subject in criminal, is analogous to that in civil proceedings. If the publication, considered either abstractedly or in connection with the extrinsic facts alleged, be calumnious, injuri- ous, and criminal, cither because it conveys some offensive and nox- ious imputation, or exposes an individual to the hatred and contempt, or even to the ridicule of others, and no circumstances appear which, in legal consideration, supply either an absolute or even qualified (p) R. v. Carlisle, 1 Chitty 451. to charge the plaintiff with frau'l on the (q) Supra, vol. I. — . In the case of people of Chili than on the people of F.ng- Yrissari v. Clement, 8 Bing. 482, the al- land; and on this ground, after a verdict leged libel contained (inter alia) the fol- fcr the plaintiff with 6400 damages, the lowing passage. — "He lost no time in court granted a new trial, transferring himself with Cl!00,000 of John (r) Sec the observations and opinions Of Bull's money to Paris, where he now out- the judges, supra vol. I, p. 54, et sequent. tops princes in his style of living, (mean- (•) Supra 62. Lord Fllenborough held, ing and intending thereby, that the said that the declarations of spectators, while plaintiff had fraudulently obtained £200,- they looked at a libellous picture, publicly 000 sterling of the money of the English exhibited in an exhibition room, was evi- snhjeots of our sovereign lord the King, donee to show that the figures portrayed and had fled from the country with the were meant to represent the parties alleged Same.) It appeared, from the context, to have been libelled. Du Bost v. Beres- *hat the intention of the writer was rather ford, 2 Camp. G. 512. 322 CRIMINAL DIVISION. defence, malice, if material, is yet but a mere inference of law, which the jury are bound to find, according to the direction of [ *323 ] of the court (7)- *If ? on the other hand, there be cir- cumstances which supply a justification or excuse, provid- ed the defendant acted honestly, with a view to the occasion, and was not actuated by express collateral malice, then it lies on the prosecutor to prove such express malice, or malice in fact. Where a -publication, with a specific intention is alleged, such intention must be proved accordingly. *Where a letter is alleged to have been written and sent with intent to provoke the party to whom it has been sent to [ *324 ] commit a breach of the peace, such intent must be proved as laid. So where the publication is averred to have been made with intent to defame particular magistrates, or to bring the administration of justice into contempt. But allegations of in- tent are usually divisible, and where two distinct intents are charged, (0 Supra 240, and see vol. I. p. 209. 292. In the case of Levi v. Milne, 4 Bingh. 195, the defendant published some doggerel verses on the plaintiff, (a bailiff,) describing an inefficacious attempt on his part to arrest a party of whom he was in search. The publication was headed by a wood-cut, styling the plaintiff Levy the bum. The jury inquired, whether one shilling would carry costs, and being an- swered in the affirmative, found a verdict for the defendant. The court under the circumstances, granted a new trial, on the ground that the jury had taken upon them- selves to judge of the law of the case; and Best, C. J. said, it had been urged that, in cases of libel, the juries are judges of the law as well as of fact; but I beg to say that juries are not judges of the law, or> at any rate, not in civil actions. The au- thority on which that position is grounded, is the 32 G. III. c. 60, which was the fa- mous bill brought in by Mr. Fox, or, more properly, by Lord Erskine; but whoever reads that act, will see that it does not ap- ply to civil actions; it applies only to crim_ inal cases. There is nothing in it that in any way touches civil actions, and the jury, with respect to them, stand in the same situation as they have ever done. I mean* however, to protest against juries, even in criminal cases, becoming judges of the law; the act only says, that they may give a general verdict." And see 4 B. and A # 131. In the case of Blackburn v. Black- burn, 4 Bing. 395, the learned judge left it to the jury to say, whether supposing the alleged libel was a privileged communi- cation, they found express malice. The jury negatived express malice, and found a verdict for the plaintiff, with £50 damages. The court were of opinion, on a motion for a new trial, that the communication was not a privileged one, and that the plaintiff was entitled to retain his verdict. The plaintiff having the defendant's bond, ad- vertised it for sale; the defendant published a statement of the circumstances under which the bond had been given, with this conclusion: — "His object either is to ex- tract money from the pocket of an unwary purchaser, or, what is more likely, to ex- tort money from me." And it was held, that the publication was clearly libellous, and that no proof of express malice was necessary. Robinson v. M' Dougall, 4 Bing. 670. EVIDENCE— INTENTION. 324 either of which would have supported the indictment, it is sufficient to prove either of them (u). Where the indictment alleged a publication of a libel with intent to disparage and injure the prosecutor in his profession of an attor- ney, it was held, that the mere proof of a publication to the prose- cutor only did not support the indictment, and that the publication ought to have been averred to have been made with intent to pro- voke and excite the prosecutor to a breach of the peace ■ Where the name of the party calumniated is left in blank, general evidence by those who know him is sufficient for the pur; pose of proving that he was the person meant : but 'such | "■'•-'> ] evidence is insufficient, if it turn out, upon inquiry, that the witness derives his conclusion, merely from the terms of ano- ther libel, with the publication of which the defendant had no con- cern (if). In general, it is competent to the defendant to adduce any evi- dence in contradiction of that which has been adduced on the part of the prosecution. He may show that his delivery of the libel was not a wilful or blamable one, and that he acted under an honest ignorance of the contents or quality of the libel, without knowing or having reason to apprehend that the act was illegal. And though, as has been already seen, a strong presumption of criminal know- ledge or culpable connivance is usually and necessarily entertained against booksellers, where libels are sold by their agents, yet, as a man cannot offend criminally, unless some degree of blame or negli- gence be imputable to him, it seems to be clear that this presump- tion is not conclusive in its nature, but may be repelled by proof of fraud or surprise, or such other circumstances as are calculated to overcome that reasonable degree of vigilance and supervision which a cautious man ought to exercise in so responsible a vocation. He may, also, under the plea of not guilty, give in evidence any collateral facts which raise either an absolute justifica- tion, independently of the question of actual intention, | '326 ] or a qualified justification or excuse dependent on the question of good or evil intention ; and also, in the latter case, may adduce such evidence as tends to show that he acted bonajide for a legal object, and not for any evil or vexatious purpose. It is not competent to the defendant to show that others have pub- (u) R. v. Evans, supra vol. I, p. 439. (x) R. v. Wegener, 1 Starkic's C. 543. See also vol. I, p. 408. Cor. Abbott, C. J. (y) Bourke v. Warren, 2 C. & P. 807. 326 CRIMINAL DIVISION. lished similar papers, without having been prosecuted (V), for such persons have no opportunity given to defend themselves, and one defendant cannot excuse himself by showing that others have also been criminal. Matters available in mitigation of punishment are usually reserved till after the trial, and are exhibited to the court upon affidavits. In some instances, however, such evidence is received at the trial. Thus, evidence has been received to show that the defendant, when proceedings were instituted, stopped the sale of the obnoxious work (a). (z) R. v. Holt, 5 T. R. 436. (a) R. v. Hone, Manning's Iud. 198. CHAPTER XVI . Of the Trial and Verdict. *The verdict in this, as in other criminal proceedings, [ '327 ] is cither a general verdict of condemnation or acquittal ; or a special verdict, by which the jury find the facts, and refer the questions of law to the court. The offence consists of the act of publishing the matter Bet forth on the record, in the sense attributed by the innuendos, with the intention alleged, maliciously without any legal justification or ex- cuse. The fact of publishing the illegal matter, and of its being published in the particular sense alleged, are ordinarily questions of fact for the jury, subject, of course, to the opinion and judgment of the court, whether the facts proposed to be proved would be, when proved, sufficient in point of law, to constitute a publication and to support the innuendos. Whether the defendant published the alleged libel wilfully and designedly, and whether he did so with the particular in- tention specified in the "information or indictment, are [ *328 ] also questions of fact for the determination of the jury. Till these facts are determined by the jury, the court cannot other- wise then hypothetically form any judgment on the question of guilt or innocence. On the other hand, the quality of the alleged libel, as it stands on the record, either simply or as explained by aver- ments and innuendos, is purely a question of law for the considers. tion of the court. This position required little support from observation or comment; it rests not only on precedent, bul legal analogies, and no obvious grounds of reason and convenience. Upon a demurrer, motion in arrest of judgment, or writ of error, this question is necessarily one of mere law, and the court is called on to pronounce, whether, as- suming the alleged libel to have been published in the sense pointed out by the averments, and with the intention averred, it amounts. Vol. II. 50 328 CRIMINAL DIVISION. in point of law, to a libel. The court, in such cases, must neces- sarily decide the question of libel, or no libel, as a question of law ; it cannot, therefore, be a question of fact ; it is obvious that the opinion and judgment of the jury on the subject must be immaterial, when it is considered that the defendant may wholly withdraw the question from their consideration by a demurrer, or that, *329 ] even after their decision, the question is still open *on the record, and must be decided by the court, independently of the opinion of the jury, before they can pronounce any penal sentence. The question remains, whether the publication of the libel alleged was a malicious or wrongful publication ; for, though the fact of publishing, and the illegal and noxious quality of the thing publish- ed be beyond dispute, yet the act of publication may be perfectly innocent ; so far from being illegal, it may have been an act meri- toriously done, for the very purposes of justice. And, therefore, as not merely a publication, but a malicious or wrongful publication must be averred, so must such a malicious and wrongful publication be found by the jury, either by means of a general verdict of guilty, which comprehends the whole of the charge, or by a special finding of a malicious and wrongful publication, or at least, by negativing the existence of any legal justification or excuse. Where the circumstances and occasion of publishing are such as amount to a legal justification or excuse, independently of the question of intention, the existence of those facts is, of course, for the consideration and decision of the jury ; but whether, when as- certained, they amount to a legal justification or excuse is obviously a mere question of law for the opinion and judgment of [ *330 ] the court. It is, for instance, a question of mere *fact, whether the alleged libel was published by way of peti- tion to parliament, and whether it was made according to the course and order of such like proceedings in parliament, but whether the occasion justifies a publication so made, is a question of law. So, again, it is a question of law, whether the occasion and cir- cumstances of the publication furnish a qualified justification or ex- cuse dependent on the actual intention of the defendant ; but when that is the case, and the guilt or innocence of the defendant turns upon the question, whether he acted with an evil and mischievous intention, or bona fide, and with a view to some legal object, the question of malicious intention is a conclusion of fact to be drawn by a jury, on a consideration of the terms of the alleged libel, and TRIAL AND VERDICT. 330 all the circumstances of the case. If the matter charged to be li- bellous were contained in a letter, sent by the defendant to the prosecutor, and the defence were, that the charges it contained were not with the intent to provoke or exasperate, but were written for the purpose of honest remonstrance and admonition, it would be for the jury to decide, under all the circumstances, considering the situation of the parties, the conduct of the defendant, and the language used, whether the act in reality originated in a sincere and honest intention, or in an evil and sinister motive which warranted a conviction. •Again, where there is no evidence of such facts and [ *331 ] circumstances as would, if found by the jury, raise cither an absolute justification, independently of the question of intention, or a qualified justification or excuse, dependent on actual intention, then if the question of malice is to be regarded as a question of fact for the jury, it is undoubtedly one which they ought, in that predic- ament, to draw from the commission of a noxious act. It is a plain and obvious principle, in morals as well as law, that every one must be taken to contemplate and intend the natural and immediate con- sequences of the act which he does, and the means whicli he uses. The question of malice may, it seems, in every such case, be mere properly regarded as a mere legal inference, arising from the doing of an unlawful act, without legal excuse, than as a question of fact; malice in such case, meaning nothing more than the entire absence of legal excuse. Be this as it may, in this case, as well as others, it is clear, for the reasons already adverted to, that in order to war- rant a legal judgment of condemnation, the jury must, by their ver- dict, find that the act was done maliciously or wrongfully, or in such othar manner as is sufficient to negative the question of any legal jus tification or excuse ; till then, the presumption of innocence is not excluded, still less is the criminality of the act established. *Thc common law doctrine, as to trials for libel, on these points seems to remain still the same notwithstand- [ *332 ] ing the statute 32 G. III. c. 60, by whicli such trials on informations and indictments are regulated ; the effect of this statute seems to be simply to remove some doubts whicli hud exist- ed, and some peculiarities whicli had prevailed in practice with re- spect to trials for libel, and restore the ordinary course and order of the common law, The practice which, after much legal discussion, at last occasioned the passing of the Libel Bill, was this, — the court, on criminal 332 CRIMINAL DIVISION. trials for libel, and where there were no facts or circumstances which raised any justification or excuse in point of law, directed the jury to find the defendant guilty, if they were satisfied as to the fact of publication and the truth of the innuendos. To this it was object- ed, that in the case of libel, as well as in all others, it was for the court to pronounce an opinion on the legal quality of the act, for the guidance of the jury, and that the fact of criminal intention was pe- culiarly for tb.e jury,' who were to give their verdict on the whole of the case. A minute attention to the history of this question, would probably show that, if the jury in such cases did not violate their duty, in taking on themselves to decide matters of law, this appar- ent deviation from the ordinary practice was wholly im- [ *333 ] material, *as to the final result; that, on the one hand, the course adopted by the courts was occasioned by their anxiety to prevent juries from exceeding their authority, in cases where strong prejudices were likely to operate ; and that, on the other hand defendants probably expected to derive benefit from the operation of such causes, where' it was possible that juries might be willing to warp the law according to their feelings and prejudices, and shelter themselves under a general verdict. In ordinary prac- tice, it is, no doubt, for the court to direct the jury, as to the crim- inal quality of the acts which the evidence tends to prove. Upon a charge of forgery, where evidence is given that the prisoner altered a genuine instrument, the court informs the jury whether that alter- ation amounts, under the circumstances, if the facts be proved, to the offence of forgery : in larceny, whether the particular act of which evidence is given, amounts to an asportation sufficient to warrant a charge of felony ; and this is obviously necessary in all cases where the charge is stated, by the aid of any general terms, on the face of the record, and the question arises, whether the particular facts proved are sufficient, in point of law, to support that charge ; in all such cases, the jury would not be warranted in pronouncing a gene- ral verdict of guilty, except upon information, in point of [ *334 ] law, that the facts were sufficient in point *of law, to sat- isfy the allegation on the record ; and it is no doubt the duty of the court to supply this information. The case of libel is peculiar, for there the libel itself is set out on the record, and though the court, at the trial, should not give an opinion on the criminal quality of libel, yet if the matter published were not in law a libel, no penal judgment could afterwards be pronounced. Assuming, therefore, that the alleged libel was, in point of law, no libel, the only INCIDENTS TO THE TRIAL. 334 difference would be, that, according to the ordinary practice, the de- fendant would he entitled to his acquittal upon the trial by the jury, whilst according to the former practice, in case of libel, the defend- ant might he convicted at the trial, but would he entitled to arrest of judgment, by reason of the defect on the record. With respect to the latter objection, viz : that the question of in- tention ought to be left to the jury, as a question of fact, it is to be observed, that the practice of advising the jury to find the defendant guilty, on proof of the fact of publication and of the proof of the innuendos, was confined to those cases where no legal justification or excuse, either of an absolute or qualified nature as dependent on actual malice, arose out of the circumstances ; and, consequently, where the only question was, whether malice was not a mere legal inference from the very act of publishing illegal matter ; in such cases, therefore, that is, where the matter published was 'libellous, and there was a total absence of any legal jus- [ *335 ] tification or excuse, there was no real question of inten- tion to be left to the jury. Having made these remarks, for the purpose of showing to what extent the practice which occasioned the Libel Bill differed from the ordinary course, and that the deviation, though anomalous and unnecessary, and to that extent at least objectionable, was more apparent than real, it will be proper to advert to the different cases which have occurred in relation to this question. After the abolition of the Star Chamber, which in cases of libel exercised an unbounded control over both law and fact, the cogniz- ance of such offences reverted to the court of King's Bench, to be exercised in the constitutional mode by the intervention of a jury ; and till sometime 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 libel, as well as in any other criminal proceeding. In the year 1670 (a), two Quakers, Penn and Mead, indicted for seditiously preaching to a multitude tumultuously assembled in Gracechureh Street, were tried I 'lore 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 *thc matter or intention of their preaching was seditious, rj*386 ] were questions of law but not of fact, which they were to keep to at their peril. The jury first found Penn guilty of spcak- (o) Bushcll't cate, Vaughan Rep. 135. 50* 336 CRIMINAL DIVISION. ing to the people in Graccchurcli Street. This verdict having been refused by the Recorder, the jury again retired, and afterwards 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 jurors, refused to pay the fine, and being impri- soned in consequence of his refusal, sued out his writ of habeas cor- pus, which was returned, together with the cause of his commit- ment, " his acquittal of Penn and Mead against the law of England, against the evidence, and against the direction of the court on mat- ter 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 piano, 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 color of words? [ *337 ] *which make a show of being something, and in truth are nothing. " If the meaning of these words, finding against the di- rection 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 defendant, and you are under the pain of fine and imprisonment 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 abolished 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 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 (6)." (b) Bushell's case, Vaughan Rep. 135. INCIDENTS TO THE TRIAL. 337 Upon the trial of Nathaniel Thoinsom (c) and 'others [ *'■ for composing and publishing Libellous remarks upon the administration of justice, the chief justice (d) concluded his obser- vations to the jury, by Baying — " Gentlemen, I do Leave it to jrou, whether upon this evidence you do not believe them all to be guilty oT thi of traducing the justice of the nation." Jn the case of the Seven (c) Bishops, who were indicted for having offered a petition to the King, which was alleged to be a Libel, the judges, who seemed no ways inclined to favor the defendants, would not accede to the doctrine of the counsel for the crown, who contended that the malic;; and sedition, wherewith the prelates v. 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 Middles The defendants had given in evidence several parliamentary doc- uments, to prove that the dispensing power claimed by the king, and against the exercise of which the petition of the Bishops was direct- ed, was illegal. The then Attorney-General, after some slight re- marks upon this evidence, was about to conclude with a somewhat flippant expression of regret, that the *dcfen- [ *339 ] dants' 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 di- minished the King's authority." The Attorney-General then con- tended, that malice or sedition arises by construction of law out of the fact ; and that if the thing be illegal, the law says it is seditions and a man shall come and say he meant no harm by it. And afterwards, whilst the Solicitor General was speaking the chief justice interrupted him by requesting him to come to the business before them, and to Bhow that the alleged libel was in di- minution of the King's prerogative, or that he ever had such a pi rogativc. Upon summing up to the jury, the chief justice, 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 justice then proceeded (c) 3 St. Tr. 37. The object of the (d) Sir Francis Pemberton. publication was to prove that (ireen, Berry (e) St. Tr. •], J. 2. an I Hill, had been improperly convicted of the murder of Sir Edmund Godfrey. 339 CRIMINAL DIVISION. to intimate his opinion, that the publication in question was a libel, but as it was a point of law, invited his bretheren to give their opinions. This the other judges proceeded to do. [ *340 ] Justice Holloway concluded by saying, " I *cannot think it is a libel ; it is left to you, gentlemen, but that is my opinion." Powell, J., also delivered his opinion to the same effect, leaving the issue to the conscience of the jury. And afterwards, when the jury retired to determine upon their verdict, they were permitted to take with them the alleged libel- Upon the trial of John Tutchin (/), upon an information 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 administration of the govern- ment." The learned judge, it is true, concluded his address as was afterwards observed by Lord Mansfield, C. J., by saying, "If you are satisfied that he is guilty of composing and publishing these pa- pers in London, you are to find him guilty." But these words have immediate reference to the ground of defence upon which Mr. Tut- chin's counsel meant to reply : namely, that the offence had not been proved to have been committed in London, and cannot [ *341 ] be considered as used for the purpose of *withdrawing the attention of the jury from the quality of the publica- tion, 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 that appears where the court directed the jury to find the defendant guilty, if they were satisfied with the evidence of publication, appears to be that of the King v. Clerk (g-), for publishing 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 concerned in a criminal act. It was objected by Serjeant Hawkins, that the course of a malicious aid traitorous design was not sup- ported by the evidence from which it appeared that the defendant acted ignorantly and in obedience to his master's directions. But (/ ) 4 St. Tr. 659. (?) 2 G. II. 1729. Barnard. K.B. 304. INCIDENTS TO THE TRIAL. 11 it was answered, that since the defendant was merely charged with the publishing a - >ditious libel, the malice was immaterial ; and Lord Raymond, 0. J. informed the jury, that the fact of printing and publishing only was in i-sue. *And the same learned judge, upon the trial of an in- [ 342 ] formation (// ), directed the jury, t; thatthere were three points for consid 'ration : the fact of publication, the meani (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 (J) and Lord Chief Justice Ryder followed his example in the case of the King v. Null (ifc). 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. Shcbbeare ; and though the same learned judge repeated the same directions in a number of similar cases, all disquisition upon the province of the jury on these points seems to have slept, till the verdict given in the case of the King- v. Wood/all (»t). That was the case of an information filed by the Attorney-General for publish- ing a seditious libel signed Junius ; the jury found him guilty of the printing and publishing only. Upon motion to arrest the judgment, it was insisted upon for the defendant, that a criminal intention is the | *343 ] 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: that the printing and .publishing were all the jury had to impure about, and that the intention might be collected 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 publica- tion may be justified, or be excused as lawful or innocent: for no fact which is not criminal, in case the paper be a libel, 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 1 directed (/O 9 St. Tr. 21 (ft) Per Lord Mansfield, 3 T. R. ICO, in (i) 10 St. Tr. App. 169. 25 G. II. K. B. the notes. MSS. Dig. L. L. 67. (m) 5 Burr. 2661. (I) lb. 343 CRIMINAL DIVISION. the jury to consider whether all the innuendos, and all the applica- tions to matters and persons, made by the information, were in their judgments the true meaning of the paper ; if they thought otherwise, they should acquit the defendant, but if they agreed with the infor- mation, and believed the evidence as to the publication, 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 paper [ *344 ] *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 intent, becomes criminal, there the intent must be proved and found ; but where the act is in itself unlawful, the proof of justification lies upon the defendant, 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 fro"m the introduction of the ambiguous and unusual word only into the verdict, there should be a venire de novo (n). The legality of the doctrines laid down by Lord Mansfield in WoodfaWs case, appears to have been expressly decided upon by the Court of King's Bench, for the first time, in the case [ *345 ] of the King; against (o) Wm. Davies Shipley, Dean *of St. Asaph. The defendant was tried before Mr. J. Bul- ler, at Shrewsbury (/>), upon an indictment, charging him with hav- ing published a malicious, seditious, and scandalous libel, entitled " The Principles of Government, in a Dialogue between a Gentle- man and a farmer," with intent to incite the King's subjects to at- tempt, by force and violence, to make alterations in the government, state, and constitution of the kingdom. 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 King of Great Britain. (n) WoodfaWs case, 5 Burr. 2661. (P) Au S- 6th > 1784 ' (o) 3 T. R. 428, in the notes. See also Ridgway's Speeches of the Hon. Thomas Erskine, vol. I. INCIDENTS TO THE TRIAL. 345 One witness for the defendant 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 tiling 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 (jj) when he had read it, he gave his opinion that it teas not so bad. The learned judge, on summing up to the jury, *de- [ *346 ] clared, that it was not for him to say whether the pam- phlet was or was not a libel ; and concluded his address to them in these words : — "If you are satisfied that the defendant did publish this pamphlet, and are satislicd 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 publishing 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 direction, Mr. Erskine (the defendant's counsel) said, " I beg to ask your lordship this ques- tion, whether, if the jury find him guilty of publishing, leaving 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 the fol- lowing points — *1. That in every criminal case, upon a plea of not *347 guilty, the jury are charged generally with the defend- ant'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 jurisdic- tion of the court and jury distinct, by a separation of the law from the fact ; but that in criminal cases, no such boundary was ever at- tempted ; — that, on the contrary, it had been the custom, from the time of the Norman conquest, for the defendant to throw himself (q) Ridgway's Speeches of the Hod. Thoma9 Erskine. 347 CRIMINAL DIVISON. upon his country for deliverance, upon the general issue of not guilty, and to receive from the verdict of the jury a complete, gene- ral and conclusive deliverance. In support of this doctrine, the opinions of Sir Win. Blackstone, Sir M. Hale, Sir Mich. Foster (V), and Lord Raymond, were (s) 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 jndge to direct them upon the law ; and that having omitted so to direct them, and having informed the jury, that neither the illegality of the paper, nor the intention of [ *848 ] the defendant, were within *thcir jurisdiction, the defend- ant 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 establishment of the fact being nothing more than evidence 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 to direct a jury to 'find generally against a defendant, must leave to their consideration everything which goes to the constitution of that general verdict, and to direct them how to form that general con- clusion of guilty, which is compounded of both law and fact. That the verdict must be taken to be either general or special ; if general, it had been found without 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 ob- tained from the jury without permitting them to exercise [ *349 ] their judgment on the defendant's *evidence — if formal, no judgment could be founded on it. 3dly. That the circumstance of the libel's appearing upon the record did not distinguish it from other criminal cases. For first, the whole charge does not always appear upon record ; since a part of a publication may be indicted, and may, when separated from the context, bear a criminal construction ; and since the court is circumscribed by what appears upon the record, the defendant could (r) Foster, 256. (s) 2 Ld. Ray. 1492. INCIDENTS TO THE neither demur to the indictment nor arresl the judgment afters verdict of guilty. That the defendant is equally shut out (by the doctrine insisted on) from deriving any aid from context, in Iris defence before a jury, for though ho should read the exphu. context in evidence, he can derive no advantage from readinj tin- jury mv bound to liud him guilt\ of publishing the matter con- tain^! in the indictment, however its innocence may be established by a view of the whole work; that the only operation of the con- ia to show the matter upon record Dot 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 correct judgment of the part indict- ed, is a palpable admission of their right to judge the merits of the paper and the 'intention of its author; »350 ] 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 I, 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 1 That it is equally absurd to contend that the intention 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 consequences of such a doc- trine would be most dangerous, 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 inferred from pub- lishing a paper charged to be an overt act of treason. dthly. 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 circumscribed in forming their judgment, and can de- rive ho assistance from extrinsic circumstances ; since, if they were to- break through their legal fetters, their judgment would be found- ed in facts, not in evidence; but that such objec- tions *would vanish if the seditious tendency be consid- [ *351 J ercd as a question of fact, sine • the jury can examine, by evidence, all those circumstances, which establish the seditious ten- dency of the paper,' from which the court are shut out. 5thly. That in all caseswhen the mischievous intention, which is the essence of the crime, cannot be collected by simple inference from the fact charged, because the defendant goes into evidence to Vol. II. 51 351 CRIMINAL DIVISION. rebut such inference, the intention becomes a pure unmixed ques- tion of fact for the consideration of the jury. That " the publica- tion (/) of that which is unlawful is but evidence of a criminal in- tent ;" but that, in the principal case, evidence had been offered in favor of the defendant, though, by the learned judge's directions to the jury, the whole of it had been removed from their considera- tion. That in Lamb's (u) 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 consciousness [ *352 ] 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 of the court, observed, " Four objections have been made ; the first is peculiar to this case, namely, that evidence of a lawful excuse or justifica- tion 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 alleged (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 follow his direction ; though by means of a general verdict they are entrusted with the power of confounding the law and fact, and of following the prejudices 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 ag- gravating his conduct 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 seditious or criminal. The third, that the judge told the jury that they ought to leave the question upon the rc- [ *353 ] cord 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 ques- tion of law, whether such a writing of such a meaning, published without a lawful excuse, be criminal, and that they cannot decide it (i) Lord Mansfield's doctrine in the case (u) 9 Co. 59. of Wood/all and Jllmon, 5 Burr. 2661, 2686. INCIDENTS OF TIIE TRIAL. 353 against the defendant, because, after a verdict, it remains open upon the record. That this La peculiar to the form of a prosecution for libel, that the question of law remains open for the court on the record, and that tin-jury cannot decide il against the defendant; so that a general verdict that the defendant is guilty L8 -univalent 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 record to the court. That a criminal intent, 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 fundamental definition of trials by jury, depends upon an uni- versal maxim without an exception, Ad quaestionem facti respondent juratores, ad qucestionem juris respondent judices; that where the questions can, by the form of pleading be separated, the distinction is preserved upon the face of the record ; but that when by the form of pleading the two questions are blended together, and cannot be separated *upon the face of the record, [ *354 ] the distinction is preserved 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 (a;). Lord Kenyon, C. J. adopted Lord Mansfield's doctrine in sum- ming up to the jury in the case of the King- v. Withers (jf). After this brief review of the principal decisions upon this inter- esting topic, little remains, but to quote the terras used by the legis- lature, when parliament deemed it proper to interfere and remove all doubt from this important subject. In the statute 32 George III. c. GO, it is recited that doubts had arisen, whether on the trial of .an indictment or information for the making or publishing any libel, when an issue or issues arc joined between the King and the defendant or defendants, on the plea of not guilty pleaded, it be competent to the jury impanneled 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 '-worn to try the issue may give a general ver- [ *355 ] diet of guilty or not guilty upon the whole matter put in issue upon such indictment or information, and shall not be required (.r) Mr. Erskine afterwards moved in (y) 8T. R. 428. arrest of judgment, and judgment wus arrested, the court considering the indict- ment to be defective. 354 CRIMINAL DIVISION. or directed by the court or judge, before "whom such indictment or information shall be tried, to find the defendants guilty, merely on the proof of the publication by such defendant 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 in" dictment or information shall be tried, shall, according to their or his discretion, give their or his opinion and direction to the jury on the matter in issue between the King and the defendant or defend- ants, in like manner as in other criminal cases." By the third sec- tion 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 discretion, as in other criminal cases." And by the fourth section, " in case the jury shall find the defendant or de- endants guilty, it shall and may be lawful for the said defendant or defendants to move in arrest of judgment, on such ground and in such manner as by law he or they might have done be- [ *856 ] fore the passing of this act, any *thing herein contained to the contrary notwithstanding." [1] It is observable, that the first clause in this statute is, so far as regards the giving a general verdict, merely declaratory, placing in- formations and indictments for libels on the same footing with those for any other offences. The latter branch is, in its terms, purely negative and restrictive, and, except that it amounts to a legislative disapproval of the directions which had been given to juries in par- ticular instances, is rendered unimportant by the subsequent clause,, which directs, affirmatively, what the court or judge shall do on such trials. This (the second) section provides, that the court or judge shall, according to their or his discretion, give their or his opinion [1] In 1805 a similar act was passed by the Legislature of the State of New-York, see Statutes of JVew- York, 4th vol. Webster § Skinner's ed. ch. 90, p 222. The act of 1805, however, is broader in its terms than that of 32 Geo. III., as it not only like that act declares the right of the jury to find a general verdict and for bids a direction to find the defendant guilty, merely on the proof of the publication of the matter charged to be libellous, and of the sense ascribed to it in the indictment, but declares and en- acts that on every indictment for a libel, the jury v:ho shall try the same, shull hare a right to determine the law and the fact tinder the direction of the court, in like manner as in other criminal cases; which principle was subsequently incorporated in the Bill of Rights and in the Amended Constitution of the State. Const. Art. 7, section 9, and 1 R. S. 94, sec. 21. The act of 1805, like that of 82 Geo. makes provision for a motion in arrest on the part of the defendant, notwithstanding that the jurors are au- thorized to pass upon the law as well as the/). The defendant cannot (c) move for anew 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 mero molu, interfere after that period and grant a new trial. The vice of one or more counts is no ground for ar- [ *361 ] resting *the judgment (d), 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 the court cannot apportion the dama- ges, 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 observa- tions concerning them relate either to their contents or to the order in which they are read. Where a defendant has been convicted, the prosecutor may read affidavits in aggravation, though made by witnesses who were ex- amined at the trial ; in which case the defendant will (e) be at liberty to answer them. (a) 2 East. 361. R. v. Cator. {d) R. v. Benfteld and Sanders, Burr. (6) R. v. Wadinglon, 1 East. 143. 980. (c) 5 T. R. 436. 1 East. 145. (e) R. v. Sharpness, 1 T. R. 228. JUDGMENT. 361 And, where a defendant had(/) Buffered judgment by default, the prosecutor was allowed to read affidavits in aggravation, con- taining expressions made use of by the defendant, confirming and ting his guilt, which had been uttered by him in the hearing of two persons, and by them afterwards related to the persons making the affidavit, the prosecutor having first made •affidavits that an application had been made to both [ "302 ] those persons to coinc forward with their testimony, which they had refused, and it appearing to the court that they were under control. 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 was Qr) under the control of the defendant. To show the malice of the defendant, it is usual for the prosecu- tor to state upon his affidavit similar libels published since the con- viction (//). After judgment by default in a criminal prosecution, when the defendant is brought up for judgment, each parly should come pre- pared with affidavits, 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 opportunity of answeriug it on a future day (i). *The defendant is, in general, at liberty to introduce [ *3G8 ] any affidavit tending to show that his act did not result from pure malice, but proceeded from some motive less reprehensi- ble ; how far he should proceed in his statement is, of course, a matter of prudence and discretion to be exercised upon the particu- lar circumstances of the case. . Any reflections upon the prosecutor beyond those conveyed by a bare Btatement 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 Btands before the court as a supplicant for its indulgence, and not in the character of an accuser. It seems to lie settled that a defendant is not at liberty to show- (/) Ii. v. Archer, '1 T. R. 204. way of aggravating or mitigating Uiepun- ( libel against Mr. Swinton, of Wadham col- p. 232, 3. lege, Oxon, charging him with criminal In the case of the King v. Draper, practices, Lee, C. J. refused to let the de- bited by Best, J. in the case pf the King fendant give evidence of his reasons for Y.Burdelt,4 B. and A. 321,) the court doing it, viz. that the supposed criminal received affidavits of the truth of the accomplice told him so; for, he said, the charge; but that was done by the consent only question was, whether the defendant of the prosecutor. For other observations was guilty of printing or publishing the on this subject, see the Preliminary Dis- libel, and that, though it were offered by course. way of mitigation only, yet, in fact, it JUDGMENT. 305 General evidence of good character, ie always proper to be intro- duce! into affidavits in mitigation. It is not usual to give the defendant an opportunity of answering at a i'u t urc day the affidavits produced by the prosecutor, where they do not extend beyond the allegations contained in the 'indictment, though judgment should have been"suf- | fered by default (n). Jhit 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 an- swering them, since it cannot be supposed that be comes prepared to answer (o) 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 judgment after cou- viction 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 | or'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 arc heard, and then the coun- sel for (ry) the defendant. Where there are no affidavits, the defendant's counsel always be- gin ; where judgment is by default, and there arc affida- vits for the defendant, *but none for the prosecution, the [ defendant's counsel begin (/). Of the punishment. No offence seems to have. been visited with punishment 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 cou- sequenci -. and of the different conceptions which, in different com- munities, have been entertained of their magnitude. The history n countries exhibits the penalties for this crime in every gradation, from the infliction ( 5 ) of death to the amounts to a justification; and it Iris at- port, receive any evidence of matter which ways been holden, that the matter of a li- did m>t appear at the trial. bet cannot be given in evidei of (u) R. v. fYihon, I T. B justification, because, if the rged (c) II). and R. v. Archer, - T. It. 2 with any crime be guilty, he ought to be (/<) R. Mich. 29 G. III. proceeds 1 against in a legal way, and not 4th edit, and R. v. Bunts, 2 T. B reflected on in this manner. Ami after- (g) R. Mich. 29 G. IIL Tidd'i ward?, (Tr. 18 and 14 G. II.) the I 2 C. It. C83. d not permit an afiid.i- (r) Ji. v. Finiierty, llil. T. 1811. ■vitof this matter to be read in mitigation (s) Although the author of the Libellna of the fine, as they would not, on the re" Famosus was puuishable capitally, qu. 367 CRIMINAL DIVISION. bleeding of the offending (/) organ : even in this it has been pun- ished with very different degrees of severity, and the history of the Star Chamber records sentences upon libellers whose rigor can scarcely be exceeded : thus Wrennura, for traducing and scandaliz- ing t.he Lord Chancellor Bacon, in a book delivered to [ *368 ] the king, was sentenced by that *court to be perpetually imprisoned, to pay a fine of £1000, 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, and to be imprisoned in the Fleet during- life (w). One of the earliest instances in which a libeller was sentenced to the pillory at common law, appears 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, sentenced to impris- onment, pillory, and to find security for his good (x) behavior. Since' that period, this mode of punishment at common law lias not been unusual, but has seldom been inflicted in modern 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 or obscene libels. And now by the provisions of the late statute 56 G. III. c. 138, this [ *369 ] mode of punishment, in the case of libel, is *wholly ex- cluded. 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, tend- ing either to extenuate or aggravate the guilt of the offender. In addition to this, it is frequently deemed proper to impose upon the defendant the condition of finding security for his good behavior, for a limited term, by which expedient the court are enabled to ex- tend an humane indulgence to the offender, in respect of the dura- tion of his imprisonment, without compromising their first and great duty to the public, the providing for its future security. whether the offence was generally so pun- um " was to be punished by the cutting ishable by the law of tbe Twelve Tables, out of the tongue, subject to redemption, SeeTrel. dis. juxta capitis testimationeru. Wilk. Leg. (0 According to Sir E. Coke, tbe Lydi- Ad. Sax. 41. ans bled the slanderer in the tongue, and (u) 6 C. 1. 1631. See also the cases of the listener in the ear, 12 R. 35. By the Prynne, Burton, Bustwick, &c. laws of Alfred, the «' Publicum mendaci- (x) 3 Ins. 220. JUDGMENT. 369 By the st. CO G. HI. and 1 O. IV. c. 8, intitlued, An Act for the more effectual prevention of Blasphemous and Seditions Libels, provision is made for enabling the judge or court, after verdict o* judgment by default, to order all copies of such libel in the p i sion of the defendant to be seized (#). By sec. 2. such (c) copies arc 'to be restored, in case the judgment bear- [ rested or reversed. The fourth section (a) subjects ade- (y) "Whereas it is expedient to make more effectual provision for the punishment of blasphemous and seditious libi i that, from and after the passing of this act, in every case in which any verdict or judgment by default shall be had against any person for composing, print- ing, or publishing any blasphemous libel or any seditious libel tending to bring into hatred or contempt the person of his Majesty, his heirs, or successors, or the Regent, or the government and constitu- tion of the United Kingdom as by law es- tablished, or either House of Parliament, or to excite his Majesty's subjects to at- tempt the alteration of any matter in church or state as by law established, oth- erwise than by lawful means; it shall be lawful for the judge or the court, before whom or in which such verdict shall have been given, or the court in which such nt by default shall be had, to make an order for the seizure and carrying away, and detaining in safe custody, in such man- ner as shall be directed in such order, till copies of the libel which Bhall be in the possession of the person against whi verdict or judgment Bhall have been had, or in th mimed in the order for his use; evidence upon oath having been previously to the satisfaction of such court or judge, that a copy or copies of the said libel is or are in the possession of such other person for the use of the person against whom such verdict or judgment shall have been had as aforesaid ; ami, in every such caso it shall be lawful for any justice of the peace, or for any constable or other peace officer, acting under any such order; or for any person or persons acting with or in aid of any such justice of the peace, con- Vol. II. 52 stable, or other peace officer, to search for any copies of such libel in any house, iing, or other place whatsoever, be- longing to the person agaii any such verdict or judgment shall have been had, or of any other person so named, in whose possession any copies of such libel, belonging to the linst whom any such verdict or judgment shall have been had, shall be, and in case admission shall be refused or not obtained, within a rea- sonable time after it shall have been first *demanded, to enter [ *GT 1 ] by force, by day, into any such house, building, or place whatsoever, and to carry aw ay all copies of the libel there found, and to detain the same in safe cus- tody until the same shall be restored under the provisions of this act, or disposed of according to any further order relating thereto." (;) Sect. 2. " That if, in any such case as aforesaid, judgment shall be arrested, or if, after judgment shall have been en- t red, the same shall be reversed upon any writ of error; all copies SO seized s'lall be forthwith returned to the person or per- sons, from whom the same shall have been ken as aforesaid, free from all charge and expense, and without the payment of any fees whatever; and in every case in which final judgment shall be entered upon the verdict so found against the person or persons charged with having oomj - i. printed, or published such libel; then all copies so seized shall be disposed of «s the court in which such judgment shall be given, shall order and direct." ■ t. 1. •■ An I be it further enacted, that if any person shall, after the pissing of this act, be le I having composed, printed, or published any bias- 371 CRIMINAL DIVISION. fendant, in respect of a second conviction to such punishment as may be inflicted for high misdemeanors, or to banishment from the King's dominions. phemous libel, or any such seditious libel as aforesaid, and shall after being so con- victed offend a second time, and be thereof legally convicted before any commission of Oyer and Terminer, or gaol delivery, or in his Majesty's Court of King's Bench, such person may, on such second conviction, be adjudged, at the discretion of the court, either to suffer such punishment as may now by law be inflicted in cases of high misdemeanor, or to be banished from the United Kingdom, and all other parts of his Majesty's dominions for such term of years as the court in which such convic- tion shall take place shall order." Sect. 5. " And be it further enacted, that in case any person so sentenced and ordered to be banished as aforesaid, shall not depart from this United Kingdom within 30 days" after the pronouncing of such sentence and order as afore- [ *37'2 ] said, for the *purpose of going into such banishment as afore- said, it shall and may be lawful to and for his Majesty to convey such person to such parts out of the dominions of his said Majesty, as his Majesty by and with the advice of his privy council shall di- rect." Sect. 6. " And be it further enacted, that if any offender who shall be so ordered by any such court as aforesaid, to be banished in the manner aforesaid, shall, after the end of forty days from the time such sentence or order hath been pro- nounced, be at large within any part of the United Kingdom, or any other part of his Majesty's dominions, without some lawful cause, before the expiration of the term for which such offender shall be so ordered to be banished as aforesaid, every such offender being so at large as afore- said, being thereof lawfully convicted, shall be transported to such place as shall be appointed by his Majesty for any term not exceeding fourteen years; and such offender may be tried before any Justice of Assize, Oyer and Terminer, Great Sessions, or Gaol Delivery, for the county, city, lib- erty, borough, or place, where such offen- der shall be apprehended and taken, or where he or she was sentenced to banish- ment; and the clerk of assize, clerk of the peace, or other clerk or officer of the court, having the custody of the records where such order of banishment shall have been made, shall, when thereunto required on his Majesty's behalf, make out and give a certificate in writing, signed by him, con- taining the effect and substance, omitting the formal part of every indictment and conviction of such offender, and of the or- der for his or her banishment to the Jus- tices of Assize, Oyer and Terminer, Great Sessions, or Gaol Delivery, where such of- fender shall be indicted ; for which certifi- cate six shillings and eight pence and no more shall be paid, and which certificate shall be sufficient proof of conviction and order for banishment of any such offend- er." By the 7th section, the certificate of the clerk of the peace, clerk of assize, or other officer of the court, having the custody of the records, &c. shall be sufficient proof of the conviction of such offender. •PRECEDENTS 1. Declaration by Bill in the Kings Bench Jar Words of Felony. Middlesex (a) to wit. A. B. the plaintiff(ft) in this suit, complains of C. D. (c) the defendant in this suit, being in the custody of the marshal of the Marshalsea of our [ *37:» ] Lord the now King before the King himself of a plea of trespass on the case, cl are actionable, they arc ((/) This genera] inducement of good usually introduced immediately before this character where the Blander involves an averment Sec the next precedent — As to imputation on character, is usual but on- the necessity for such averments, see voL 1. necessary, for the law presumes against p. 891. misconduct until the contrary he duly As to such averments great caution and proved; and see 1 Lev. 197. Styles 218. discretion are requisite; to introduce ex- Starkie on Evidence, tit. Presumptii a. trinsk hots unnecessarily may be prejudi- (c) This exculpatory averment though cial cither in imposing the burthen of un- usual, does not seem to be essential, es- necessary proof on the plaintiff, or in re- peoially as the charge is afterwards alleged lievingthe defendant from the allegation to have been falsely made : if it were truly and proof of th:it which is essentia] to his made it lies on the defendant to allege and defeuce. This is not all : it is often matter 374 APPENDIX. triving and maliciously intending (g") to injure the said plaintiff in his good name, fame, and credit, and to bring him into public scan- dal, infamy, and disgrace, and to cause it to be suspected and be- lieved that he was guilty of the felonies (or misdemeanors as the case may be} and offences hereinafter mentioned to have been im- puted to him by the said defendant, and to subject him to the pains and penalties by law provided against persons guilty thereof, and to vex, harass, oppress, and ruin him, the said plaintiff, heretofore, to wit, on, &c. at, &c.(A) in a certain discourse which he the said de- fendant, then and there had in the presence and hearing of divers good and worthy subjects (i) of the realm, of and concerning the said plaintiff (&) in the presence and hearing of the said [ *375 ] *last-mentioned subjects falsely and maliciously spoke and published (/) of and concerning the said plaintiff (m) the several false, scandalous, malicious, and defamatory words (w) following, that is to say. He (o) (meaning the said plaintiff) is a thief. He (meaning the said plaintiff) stole a horse. I can prove him (meaning the said plaintiff) to be a thief; he (meaning the said plaintiff) ought to have been hanged many years ago (/?)• 2nd Count — For Words spoken to the Plaintiff. And for that whereas also the said defendant contriving and maliciously intending as aforesaid, afterwards, to wit, on, &c. at, &c. in a certain discourse which he the said defendant then and there had with the said plaintiff, in the presence and hearing of divers other good and worthy subjects of this realm, of and concern- ing the said plaintiff, falsely and maliciously' spoke and published of and concerning the said plaintiff (cf) in the presence and hear- of policy, independent of the immediate (/c) As to the necessity for a colloquium object of the pleader, to set forth a good and its office, see vol. I. 363. cause of action, to introduce allegations (/) As to the necessity for this allega- with the collateral view of allowing the tion, see vol. I. 438, et seq. plaintiff to go into evidence from which he (m) As to this allegation, see vol. 1. 383, would otherwise be excluded. It some- 384, where the words were spoken of a times happens that extrinsic facts of little third person, this allegation is said to be importance to the mere legal cause of ac- necessary though a colloquium be laid, but tion are of great importance with a view where the words were spoken to the plain- to the introduction of such evidence as is tiff himself, and there is an innuendo of the likely to influence a jury; care should, plaintiff, the omission of this allegation however, be taken to introduce other counts would not be material. — lb. strictly confined to the legal and technical (n) As to the necessity for stating the cause of action. words correctly and the consequences of (g) As to the necessity for an averment variance, see vol. 1. 369, et seq. of malice, see vol. I. 433, and the authori- (oj As to the nature and office of an in- ties there cited. nuendo, see vol. I. 418. (A) The precise day or place is not ma- (p) Where the words themselves mani- terial. festly import a charge of a specific crime, (t) As to these allegations see vol. I. p. it is unnecessary to introduce any innuendo 360. It seems to be sufficient to allege as to their meaning, see vol. I. 428, 9. that the words were spoken in the presence Peake v. Oldham, Cowp. 275. But such of divers persons without alleging that an innuendo that the defendant thereby those persons heard or understood the meant to charge the specific offence of words, for that will be presumed till the murder or larceny, would not vitiate the contrary be shown, vol. I. 360. Secus, it declaration where such an intention could seems, where the words were spoken in a be collected from the words. — lb. foreign language. lb. 361. (?) Supra note (i) and vol. I. p. 360. PRECEDENTS— DECLARATIONS. 7 ingofthc said last-mentioned subjects, the several false, scandal- ous, malicious, and defamatory words following, that is to Bay, You (meaning the said plaintiff) are a thief (r). You (meaning the said plaintiff) stole a horse l (mean- [ ' " ing the said plaintiff) ought to be hanged. I can i>rove you (meaning the said plaintiff) a thief, and it is in my power to hang you ( meaning the said plaintiff ). Whereby the said plaintiff hath ' n and is greatly injured in his aforesaid good name, fame, and credit, and brought into public scandal, infamy, and disgrace, with and amongst all his neighbors and other good and worthy subjects of the realm, insomuch thai divers of those neighbors and subjects have on occasion of the committing of the Baid grie^ from thence hitherto Buspected and believed, and -till do suspect and believe the said plaintiff to be guilty of the felonies (or mis- demeanors as the case maybe) and offences hereinbefore mentioned to have been imputed to the said plaintiff, and have from thence hitherto by reason thereof wholly refused and still do refuse to have any dealing or communication with him the said plaintiff; and the said plaintiff hath been and is, by reason of the premises, greatly injured and damn i lied (s), to wit, at, <£c. 2. Declaration against C. D. for charging A. B. with Perjury in giving Evidence on the Trial of a Cause. Slate the general inducement of good character as in Precedent 1, from {A) to ( C) and then proceed as follows : And whereas a certain issue (or certain issues according to the fact) joined between E. F. and G. H. in a plea of in the court of our said Lord the King before the King himself, to wit, at West- minster, was (or were) duly tried at the assizes held in and for the county of at in the said county of on, Ac by a cer- tain jury of that county, in that behalf, before the Justices of our -aid Lord the King assigned to take the assizes in the said county of (*). And the said A. B. at the [ *377 1 said trial was then and there duly sworn before the said Justices at the said assizes, and was then and there examined and gave his evidence as a witness upon the said trial (/>. yel the said C. D. well knowing the premises, luit contriving and maliciously in- tending to injure the said A. 15. in his said good name, fume and character, and to bring him into public scandal, infamy, and disgr Where the words were spoken lo the plain- concisely that at the assises held on, &c. tiff himself, a colloquium and innuendo are at, &o. in and for the oounty of , ■ sufficient without this further averment. certain cause oame on to be trii (r) As to the aotionable meaning of the jury in that behalf duly t iken, wherein one terms, see vol. 1. p. 99. M N. wis the plaintiff, and one 0. P. the (s) Where the plaintiff has suffered anj defendant. special damage, SO. in respect of which he (/) See in general as to the necessity t'^r olaims compensation, it ought to leof alleging extrinsic foots. voL L ly alleged, see vol. I. 489, p. 891. (s) It would be sufficieut to aver more 52* 377 APPENDIX. and to cause it to be suspected and believed that he was guilty of perjury, and to subject him to the pains and penalties by law pro- vided against persons guilty thereof, and to vex, harass, oppress, and ruin him the said plaintiff, heretofore to wit, on, &c. at, &c. in a certain discourse which he the said defendant then and there had in the presence and hearing of divers good and worthy subjects of the realm, of and concerning the said A. B., and of and concerning (u) the trial of the said issue (or issues), and the said evidence so as aforesaid given by the said A. B. at and upon the said trial, he the said CD. then and there in the presence and hearing of the said last-mentioned subjects, falsely and maliciously spoke and published of and concerning the said A. B., and the said trial, and the said evidence so given by the said A. B. on the said trial, the several false, scandalous, malicious, and defamatory words following, that is to say, He (meaning the said A. B.) forswore himself at the trial of that cause (meaning the said trial above mentioned). 2nd Count.. — And for that the said C. D. contriving and intend- ing as aforesaid, afterwards to wit, on, &c. at, &c. in a certain other discourse which he the said C. D. then and there had in the presence and hearing of divers other good and worthy subjects of this realm, of and concerning the said A. B., and of [ *378 ] and concerning the said trial, falsely and *maliciously spoke and published, in the presence and hearing of the said last mentioned subjects, the several other false, scandalous, malicious, and defamatory words following, of and concerning the said A. B., and of and concerning the said trial, and of and con- cerning the said evidence, so as aforesaid, given by the said A. B. on the said trial, that is to say, He (meaning the said A. B.) for- swore himself at (meaning at the said trial of the said issue). Conclude as in Precedent 1. 3. For Words imputing Dishonesty to a Tradesman (x). (General inducement of good character as in Precedent 1, from (ii) to (B) and then as follows : ) And whereas also the said plaintiff before and at the time of the committing of the said grievances, and from thence hitherto, hath used and exercised and still uses and exercises the business of a tailor (#),and hath always conducted himself and still continues to conduct himself with honesty and integrity in his said trade or busi- ness, to wit, at, &c, and hath never been guilty nor until the com- mitting of the said grievances been suspected to have been guilty of any cheating, fraud or dishonesty in his said trade or business, or (u) As to the necessity for this aver- (y) Supra, vol. I. p. 117; and in general ment, see vol. I. p. 412. as to the mode of alleging the plaintiff 'a (x) See in gGneral as to words actiona- special character, see vol. I. p. 400. tie in respect of special character, vol. I. p. 117. PRECEDENTS— DECLARATIONS. 378 otherwise. By means whereof the Baid plaintiff, before the commit- ting of the Baid grievances, had not only deservedly obtained the good opinion, confidence, and credit of all his aeighbors, and other good and worthy Bnbjects of the realm to whom h ay wise known, but had acquired and was still continuing to acquire in his said trade or business divers great profit and emoluments, for his maintenance and support, to wit, at, &c. Yei the said iilant, well knowing the premises, but contriving *and [ *379 ] lly and maliciously intending to injure the plaintiff in his Baid good name, fame, and credit, and in his said trade or business, and to bring him into public scandal, infamy, and disgrace, and to cause it to be suspected and believed that he the said plain- tiff v Ity of fraud and dishonesty, and of cheating and impos- ing on his customers in his said trade or business, and to oppress and ruin him the Baid plaintiff, heretofore, to wit, ■ fee, in a certain discourse which he the said defendant then and there had of and concerning the said trade or business ( : ), in the presence and hearing of divers good and worthy subjects of the realm, false- ly and maliciously spoke and published of and concern] lid plaintiff, in his said trade or business, in the presence and hearing of the last mentioned subjects, the several false, scandalous, malicious, and defamatory words following, that is to say, Be (meaning the 5 aid plaintiff) (set out the words with innuendoes (a).) By means whereof he the said plaintiff hath been and is greatly injured in his aforesaid good name and credit, and brought into public scandal, infamy, ami disgrace, with and amongst all his neighbors and other good and worthy subjects of this realm, insomuch that divers of those neighbors and subjects have by reason of the committing of the said grievances from thence hitherto suspected and believed, and still do suspect and believe the said plaintiff to be guilty of fraud and dishonesty in his said trade or business, and have by reason thereof wholly refused to have any further dealings or transactions with the said plaintiff in the way' of his said trade or business or otherwise; and the said plaintiff hath been and is greatly injured and damnified in his said trade and business and otherwise, and in particular by rea on of thepremises A. I'...*', lb, and E3. P., who before the committing of the -aid grievances had been and \. customers and employers of the said plaintiff in his said trade or business, not knowing the innocence of tin 1 said plaintiff in the premises, have by reason of the committing of the said grievanc I the said plaintiff *to have been [ *380 ] guilty of fraud and dishonesty in his said trade or busi- ness, and have wholly refused further fo retain or employ the plaintiff or to have any further dealing with him in his said trade or businesses but for the committing of the Baid grievances they other- wise would have done (a), to wit, at, ) and then as follows:) And for that whereas also the Baid A. B. for a long time before the composing and publishing of the false, scandalous, malicious, and defamatory libel, by tl C. D. hereinafter mentioned, had been, and was, and still is an attorney (c) of the court of our said Lord the 'King before the King himself, and also [ '382 ] a solicitor of the high court of Chancery, and had used, exercised, and carried on the profession and business of an attorney and solicitor, with groat credit, and reputation, and had acquired and was still continuing to acquire divers Large gains and profits in his said profession and business, to wit, at etc. and whereas also the said A. B. and one E. P. another of the attorneys of the court of our said Lord the King before the King himself, and also a solicitor of the said high court of Chancery, had, as such attorneys and soli- citors, been concerned in the prosecution of a certain commission of bankruptcy against the said C. D., and in divers proceedings and disputes concerning his estate and effects, and had always behaved and conducted themselves therein with skill, care, judgment, and integrity, to wit at, &c. aforesaid. Yet the said C. I)., well know- ing the premises, but contriving, and falsely and fraudulently intend- ing, to injure the said A. B. in his credit and reputation aforesaid, and also in his said profession and business of attorney and solicitor as aforesaid, and to cause it to be suspected and believed that he the said A. B. had conducted himself dishonestly, injudiciously, and improperly, in relation to the said commission of bankruptcy, pro- lings and disputes, and to vex. harass, oppress, impoverish, and wholly ruin him the Baid A. I}., heretofore, to wit, on, &C, at. &C, wrongfully, maliciously, and injuriously composed, wrote, and pub- lished, and caused to be composed, written, and published (d), a certain false, scandalous, malicious, and defamatory libel, of and concerning the said A. B. and E. P., in the way of, and in respect to their profession and business of attorneys and solicitors, and of and concerning their prosecution of the Baid commission as such at- torneys and solicitors, and their conduct as such attorneys and Boli- citors in such proceedings and disputes in which they were bo con- cerned as aforesaid, under the said commission of bankruptcy, in the form of, and as q letter addressed to, Ac in which Baid letter was and is contained, amongsl others thine-, the false, scanda- lous, 'defamatory, and libellous words and matters fol- [ '383 J lowing, of and concerning the said A. lb and E2. F. in (c) As to the allegation of special char- (. vide supra vol. I. p. 358. 383 APPENDIX. the way of and in respect to their profession and business of attor neys and solicitors, and of and concerning their prosecution of the said commission as such attorneys and solicitors, and their conduct as such attorneys and solicitors, in such proceedings and disputes in which they were so concerned as aforesaid, under the said commis sion of bankruptcy. {Here set out the letter verbatim, with ap- propriate innuendos). By means of the composing, writing, and publishing of which said false, scandalous, malicious, and defama- tory libel by the said C. D. as aforesaid, the said A. B. hath been, and is greatly prejudiced in his credit and reputation aforesaid, and brought into public scandal, infamy, and disgrace, and hath been and is suspected to have acted dishonestly and unskilfully in the way of his said business and profession of an attorney and solicitor and to have conducted himself dishonestly, injudiciously, and impro- perly, in relation to the said commission of bankruptcy, proceedings and disputes, and has been greatly vexed, harassed, oppressed, and impoverished, and has also lost and been deprived of divers great gains and profits which would otherwise have arisen and accrued to him in his said profession and business, and hath been, and is other- wise much injured and damnified therein, to wit, at, &c, to the damage, &c. 6. For Words imputing' Ignorance and, Unskilful Treatment of a Patient to an Apothecary. {General Inducement of good character as in Precedent l,from (J.) to (5) and then as folloivs :) And whereas the said plaintiff before and at the time of the com- mitting of the grievances hereinafter mentioned, practised and exer- cised, and still continues to practice and exercise the art or business of an apothecary (e), and hath always conducted him- [ *384 ] self, and still *continues to conduct himself in the prac- tice of his said art or business with great skill, care, and humanity, in preparing, administering, and applying wholesome and proper medicines for healing and curing divers subjects of this realm of many diseases and disorders under which they respectively labor- ed, by mcans« whereof the said plaintiff, before the committing of the said grievances, had deservedly obtained and acquired the good opinion, esteem, and confidence of all his neighbors, and other good and worthy subjects of the realm to whom he was in any wise known, and had acquired, and was still continuing to acquire divers great gains and profits by the practice of his said art or business, to wit, at, &c. And whereas also (/) the said plaintiff whilst he so practiced and exercised his said art or business and before the committing of the said grievances, to wit, on, &c, at &c, was sent for as such apothecary to attend and visit in the way of his said art (c) See vol. I. p. 400. for and mode of alleging extrinsic facts, (/) See in general as to the necessity toI. I. p. 391. PRECEDENTS— DECLARATIONS. 384 or business the child of one E. F., which was then sick, and which before the committing of the said grievances died, and daring his attendance on the said child, he the Baid plaintiff prepared and administered to the said child wholesome and proper medicines, according to the nature of the disorder of the said child, to wit, at, &c. Nevertheless the said defendant, well knowing the premis , but contriving and maliciously intending to prejudice and injure the said plaintiff in his good name, fame, credit, and esteem, in his aforesaid art or business, and to cause the said plaintiff to be brought into public scandal, infamy, and disgrace, and reputed to be a person ignorant in his said art or business, on, Ac. at, &c, in a certain dis- course which the said defendant then and there had with diver- BUD- jeets of this realm, of and concerning the said plaint ill', in his afore- said art or business, and his attendance on the said child, and of and concerning the medicines and remedies which the said plaintiff had prepared for, and administered to the said child, the said defendant falsely and maliciously in the 'presence [ *385 ] and hearing of those subjects, spoke, proclaimed, and published, of and concerning the said plaintiff in his said art or business, and of and concerning his said attendance on the said child, the several false, scandalous, malicious, and defamatory words following, that is to say, Be ( meaning the said plaintiff) has a great deal to answer for; but for his (meaning the said plaintiff's) ignor- ance, (meaning ignorance in his said art or business) that child (meaning the said child whom the said plaintiff as such apothecary had attended, and to whom he had administered as aforesaid) would still have been living. His (meaning the said plaintiff's) medicines did the business. 2nd Count. — For (he Words, — the medicine which he sent, (mean- ing the medicine administered by the said plaintiff, as such apothe- cary, to the said child of the said E. P.) was no better than poison. By means whereof the said plaintiff is much prejudiced, injured, and degraded in his good name, fame, credit, and reputation, and is fallen into public -vandal and disgrace, and reputed to be a person ignorant in his said art or business of an apothecary, and divers of his friends and neighbors and other good and worthy subjects of the realm, have by reason of the committing of the said grievances, refused, and still do refuse to employ the said plaintiff in his afore- said art or business of an apothecary as before they were used to do, and otherwise would have done, to the damage, Arc. 7. For Written Slander in giving- the Character of a Servant. (General inducements as in Precedent l,from (A) to (J5) and then as follows : ) And for that whereas the said A. B. before the committing of the grievances hereinafter mentioned, had been retained and em- ployed by and in the service of the said C. D. as his butler and ser- 385 APPENDIX. vant, and in that capacity bad behaved with due integrity [ *386 ] *good temper, activity, and civility, and never was, or un- til the time of the committing of such grievances, suspected to have been, or to be bad tempered, lazy, or impertinent, by means of which said several premises he the said A. B. before the com- mitting of the said several grievances had not only deservedly ob- tained the good opinion of all his neighbors, and divers other good and worthy subjects of this realm, but had also supported himself, and would thereafter have supported himself by his hon- est, faithful; diligent, and attentive exertions in the service of his masters and employers, had not such grievances been committed as hereinafter mentioned, to wit, at, &c. And whereas the said A. B. before and at the time of the committing of such grievances, had quitted and left the service of the said CD., and had been recom- mended to, and was likely to be retained and employed by and in the service of one E. F., as footman, for certain wages to be there- for paid to him the said A. B., to wit, at, &c. Yet the said 0. D., well knowing the premises, but contriving and maliciously in- tending to injure the said A. B. in his said character, and to bring him into public scandal, infamy, and disgrace, with and amongst all his neighbors, and other good and worthy subjects of this realm, and particularly with the said E. F., and to cause it to be suspect- ed and believed that the said A. B. was not fit to be employed as a servant, and that he was bad tempered, and a lazy and imperti- nent fellow, and thereby to prevent the said E. F. from retaining and employing him the said A. B. in his service as he otherwise might and would have done, and to vex, and harass, oppress, im- poverish, and wholly ruin him the said A. B., and to deprive him of the means of supporting himself by honesty and industrious means heretofore, to wit, on, &c., at, &c, aforesaid, wrongfully and unjustly did compose and publish a certain false, scandalous, malicious, and defamatory libel, of and concerning the said A. B. as such servant, containing, amongst other things, the several false, scandalous, malicious, and defamatory words and matters following, of and concerning the said A. B., as such servant, that [ *387 ] is to say, He (meaning the said *A. B. ) is a bad tem- pered, lazy, impertinent fellow, (thereby then and there meaning that the said A. B., was not a person fit to be retained and employed in the capacity of a servant). 2nd Count. — And the said A. B. further says that the said C. D. further contriving and intending to injure and damnify the said A. B. as aforesaid, afterwards, to wit, on, &c, at, &c. falsely, wickedly, maleciously, wrongfully, and unjustly, did publish, and cause and procure to be published, a certain other false, scandalous, malicious, and defamatory libel, of and concerning the said A. B. as such servant as aforesaid, containing the several false, scan- dalous, malicious, and defamatory words and matters following, of and concerning the said A. B., as such servant as aforesaid, that is to say, He (meaning the said A. B. ) is a bad tempered, lazy, PRECEDENTS— DECLARATIONS. 387 and impertinent fellow, by means of the committing of which said grievam id A. B. hath been and is greatly injured in his said good character, and broughl into public scandal, infamy, and >, with and amongsl all bis neighbors and other good and worthy subjects of the realm to whom be was in any wise known. insomuch that divers Of those neighbors and subjects, and in , ticnlar tho Baid E. P., to whom the good temper, fidelity, actii and civility of the Baid A. B. in the capacity of a Bervant or oth- erwise wore unknown, have on occasion of the committing of the said grievances, from thence hitherto, suspected and believed, the said E. P. still doth suspect and believe the said A. 15. tota ,, ;,,,,[ to be a bad tempered, lazy, and impertinent person, and unfit to be retained or employed in the capacity of a - and also by reason thereof, the said B. F. afterwards, to wit. on. Arc. aforesaid, at, &c. aforesaid, refused and declined to retain and em- p] iy th ■ said A. B. in his service as a footman or otherwise, as he otherwise might and would have done,and by reason thereof, he the Baid A. B. hath not only ' ieen deprived of the support, -■nance, wages, gains, and emoluments which might and would otherwise have arisen and accrued to him from and >n of his : so retained and employed as last a . but hath "from thence hitherto remained and continued, and [ *388 ] still is out of employ, deprived of the opportunity of sup- porting himself by honest and industrious means, and hath been and is, by means of the said several premises, otherwise greatly injured and "damnified, to wit, at, &c. aforesaid, to the damage, Are. 8. Declaration for Words spoken of a Magistrate in his Office (s). (General averment of good character as in Precedent 1, from (A) to (£). And whereas also the said plaintiff before and at the time of the committingof the said grievances by the said defendant was. and from thence hitherto hath been, and still is one of the Justii our Lord the King assigned to keep the peace of our said Lord the Kin-, in and lor the county of and also to hear and de- ne divers felonies and other misdemeanors committed in the ty, and during all that time governed and conducted him- self in his said office with justice, uprightness, and integrity, to wit, at. &c. Set the said defendant well knowing tho premises, bul con- triving and wrongfully and maliciously intending to injure, prejudice, and aggrieve him the said plaintiff, so being such justice as afore- said, and to cause it to be suspected and believed thai he the said plaintiff, had acted unjustly and corruptly in his said office of justice of the peace, heretofore, to wit, on, Ac, at, &c, in a certain dis- course which he the said defendant then and there had in the pre- (s) As to the right to maintain tlii- BOtion, sec vol. I. 117. Vol. II. 53 388 APPENDIX. sence and hearing of divers good and unworthy subjects of the realm, of and concerning him the said plaintiff in his said office of justice, falsely and maliciously spoke and published of and concern- ing the said plaintiff in his said office, the several false, scandal- ous, malicious, and defamatory words following, that is to say, He (set out the ivords ivith proper innuendoes.') *By means whereof the said plaintiff hath been and is greatly in- jured, prejudiced, and aggrieved in his said office, and in *889 ] his good name, fame, and reputation, and divers of the good and worthy subjects of the realm have suspected and believed, and still do suspect and believe that the said plaintiff hath behaved and demeaned himself dishonestly and corruptly in his said office, and the said plaintiff hath been and is brought into pub- lic contempt, infamy, and disgrace, and hath been and is otherwise greatly injured and damnified, to wit, at, &c. 9. For Words imputing Incontinence to an unmarried Woman, which occasioned special damage (t). (General inducement of good character as in Precedent l,from (A) to (B). And for that whereas also the said plaintiff hath always been a virtuous, modest, and chaste subject, and until the committing of the grievances hereinafter mentioned had always been esteemed to be of unblemished reputation, and that before and at the time of the com- mitting of the said grievances, she the said plaintiff enjoyed the so- ciety and conversation, friendship and countenance of many worthy and estimable subjects of this realm, to wit, of A. B., C. D., &c. (naming them) and divers others, and lived associated with them on terms of mutual respect, confidence, and intimacy, and was by divers of those persons (naming them) received and entertained in their respective houses, and found and provided by them respectively with meat and drink gratuitously, and without any price or sum of money whatsoever, by her paid or payable for the same, to the great reduc- tion of her necessary expenses, of living and maintaining herself, and the great increase of her riches, to wit at, &c. Yet that the said defendant, well knowing the premises, and envying [ *390 ] the happiness of the said plaintiff, and maliciously con- triving and intending to injure and ruin her in her char- acter, and to deprive her of the good will, society, conversation, friendship, and commerce of all her friends, relations, and acquaint- ances, and to impoverish her, and deprive her of all the benefits and advantages of her fortune and pecuniary circumstanses, so by her (0 See the case of More v. Meagher, in was good, and the plaintiff below had judg- error. Supra vol. I. 202. 1 Taunt. 39, ment [1]. where it was held that such a declaration [1] See note [1] p. 202 vol. I. PRECEDENTS— DECLARATIONS. 390 received and receivable as aforesaid heretofore, to wit, on, &c, at, &c, in a certain discourse which he the said defendant then and there had in the presence and hearing of divers good and worthy subjects of this realm, of and concerning the said plaintiff, in the presence and hearing of the said Lasl mentioned subjects, falsely ami malicioudy spoke and published, of and concerning the said plaintiff, the several false, scandalous, malicious, and defamatory words fol- lowing, that is to say. ( set out the works imputing incontinence /<> the plaintiff, villi innuendoes.') By means of the Bpeaking of which several false, scandalous, and defamatory words, the said plaintiff hath been, and is greatly injured in her credit and reputation, and brought into public scandal, infamy, and disgrace with and amongst all her neighbors and other good and worthy subjects of the realm, insomuch that the said last mentioned neighbors, subjects, and friends, especially the several persons hereinbefore in that behalf named, to wit, the said A. B., C. D., &c. (it), have, by reason of the committing of the said grievances, refused to hold or permit any intercourse or society with her, or to receive, or to admit her into their respective houses or company, or to find or provide for her, meat, drink, or any other benefits and advantages, in any manner whatsoever, as they before that time had done, and otherwise would have continued to do, whereby the plaintiff hath lost all those valu- able benefits and advantages, being to her theretofore of great value, to wit, of the value of 1007., and hath been and is greatly reduced and prejudiced in her fortunes and pecuniary circumstances, and obliged to incur a much greater expense in her necessary living, *and supporting herself, to wit, the annual amount [ *391 ] of 100/., than she theretofore had done, and otherwise would have continued to do, and hath been, and is by means of the premises, greatly damnified and impoverished, to wit, at, &c. 10. Declaration for composing-, printing-, and publishing a libel. For that whereas the said plaintiff is a good, true, honest, just and faithful subject of this realm, and as such hath always behaved, and conducted himself, and until the committing of the grievances by the said defendant as hereinafter mentioned, was always reputed, esteemed, and accepted by and amongst all his neighbors and other good and worthy subjects of this realm, to whom he was in any wise known, to be a person of good name, fame, and credit, to wit, at, &c. Ami whereas he the said plaintiff hath never been guilty, nor until the time of the committing of the said grievances, as herein- after mentioned, been suspected to have been guilty of the olTences and misconduct hereinafter mentioned to have been imputed to him, or of any such olTences or misconduct. By means of which said (>i) As to the necessity of stating the name3,SM vol. I. p. 111. 442. B. N. P. 7 Hartley v. Herring, 8 T. R. 140. 391 APPENDIX. several premises, he the said plaintiff, before the committing of the said grievances hereinafter mentioned, had deservedly obtained the good opinion and credit of all his neighbors and other good and worthy subjects of this realm, to whom he was known, to wit, at, &c. (x). Yet the said defendant, well knowing the premises, but contriving, and wickedly and maliciously intending to injure him in his said good name, fame, and credit, and to bring him into public scandal, infamy and disgrace, with and amongst all his neighbors and other good and worthy subjects of this realm, and to [ *392 ] cause it to be suspected and believed by *those neigh- bors and subjects that he the said plaintiff had been and was guilty of the offences and misconduct hereinafter mentioned to have been charged upon and imputed to him, and to vex, harass, and oppress him the said plaintiff, on, &c. at, &c. aforesaid, falsely, wickedly, and maliciously did compose (y), print, (;:), and publish, and cause (a) and procure to be printed and published, of and con- cerning the said A. B., a certain false, scandalous, malicious, and defamatory libel, containing amongst other things (if part only be set out) in one part thereof, the false, scandalous, malicious, and defamatory words and matters following (b), of and concerning (c) the said plaintiff, that is to say, (setting- out the libellous passage with apt innuendoes,') and also containing in another part thereof, the several-other false, scandalous, malicious, and defamatory words and matters following, of and concerning the said plaintiff, that is to say, (setting- out another libellous passage with apt innuendoes) and also containing in another part thereof the several other false, scandalous, malicious, and defamatory words, and matters following, of and concerning the said plaintiff, that is to say, (setting out ano- ther libellous passage with apt innuendoes). [ *393 ] Where there is any doubt as to the meaning or ap- plication of the libellous matter, it is usual to add other counts, with suitable variances as to such allegations. (x) It is usual to introduce in this part usual to allege as follows — did compose, of the declaration, by way of further in- write, and publish, and cuvse anil procure ducement, such extrinsic facts, the aver- to be written and published, of and con- meat of which is essential to the cause of cerning, S>-c, a false, scandalous, malici- action. As to such averments, see vol. I. ous, and defamatory libel, $c, and some- 391, et seq. times it is added, in the form of a letter to (y) The plaintiff on such a count may the plaintiff, &c, but it does not appear to have a verdict for the publishing, though be necessary that the particular mode or no proof be given of the composing, writ- form of writing or publishing should be set ing. or printing, see vol. II. p. 50, and cut. Starkie on Evidence, tit. Libel. Variance. This allegation, and cause, 6,-c. though (=) If the libel has been published in a usual, is wholly superfluous; for in legal public newspaper, it is usual to aver that consideration a man does that which he the defendant did compose', print, and causes to be done; an allegation in the dis- pvblishin a certain public nexvspaper, $c, junctive would render the declaration de- and not unfrequently the title of the news- murrable. — Supra vol. I. 3G1. paper is set out; it seems, however, to be (b) As to the statement of the libel, see sufficient to allege a printing and publish- vol. I. 366, &c. ing simply, and danger of variance may (c) As to the necessity of this allegation, be°incurred in setting forth the title of the in order to connect the libel with the plain- newspaper, tiff, and such extrinsic facts as are previ- (a) Where the libel is in writing, it is ously stated, see vol. I. 412, et seq. PRECEDENTS— DECLARATIONS. 393 By means of the committing of which Baid Beveral grievances the said plaintiff bath been and is greatly injured in his good name, fame, and credit, and bronghl into public scandal, infamy, and dis- grace with and amongsl all his neighbors and other good and worthy Subjects of this realm to whom he was in any wise known, insomuch that divers of those neighbors and subjects, to whom the innocence of the said plaintiff was unknown, have, on occasion of the commit- ting of the said - iveral grievances by the said defendant, from thence hitherto suspected and believed, and -till do suspeel and believe the said A. B. to have I n guilty of the offences and improper conduct imputed to him as aforesaid, and have- by reason of the committing of the said several grievances by the said 0. D., from thence hith- erto refused, and still do refuse to have any acquaintance, inter- course, or discourse with the said plaintiff, and the said plaintiff hath been, and is by means of the premises, otherwise greatly injured and damnified, to wit, at, &c, to the damage, should then and there be found a true bill by the -aid jurors, which said bill the said jurors of the said Grand Inquest did then and there return into the said court of the said ses- -ion- BO holden as aforesaid, not found (m), 'whereupon [ *39T ] the said plaintiff was then and there discharged from and out of custody, and the said prosecution and complaint against him the said plaintiff then and there became and were abandoned by the said defendant, and wholly ended and determined. 2nd Count. — And the said defendant, further contriving and in- tending as aforesaid, at the aforesaid general quarter sessions of the peace, holden in and for the county of , at, Ac. on, &c, be- fore, &c. and others their fellows Justices of our said Lord the King, assigned to keep the peace, etc., and also to hear and deter- mine divers felonies, trespasses, and other misdemeanors in the said county committed, falsely and maliciously, and without any reason- able or probable cause whatever, preferred and prosecuted, and caus- ed to be preferred and presented to the jurors of the Grand Inquest then and there, to wit, at the said sessions, -worn and charged to impure for our said \invd the King and the body of the said county, (/i) It seems to be now settled that a de- allege that the defendant " indicted, and feo( in the jurisdiction of the court, or in caused and procured to be indioted, the the indictment, w; ude the pla laintiff." See 2 Burr. till' from maintaining h and (/) As 1 rth cumulative charg- then ( as I i the [. 446. It is i iffioient to oy of the court is necessary. Supra vol. I. that any one of the • . the bill of I!''.. 2 W'ils. 102. ('"in I » i lt . Action on indictment was maliciously preferred, see the case for a conspii wy, o. I. K.>1. Ab. vol. 1. 146. H i Tayl r, I Taunt J Action Sur Case, 60. ' '. T. R. '-'IT. - Sir. The charge Bhould be set out in Bubstanoa 691. 1 Silk. 15. only, vol. 1. H7. A- to the degree of j>ar- (i) As to setting out the style of court, and accuracy with which this see vol. I. -1 16. Bhould be I. I. 117. (/.) Until a bill is found by the Grand (»«] The declaration must show that the Jury, it is a bill and not an indictment, prosecution was determined, supra vol. I. ml ought in Btrictness to 149, 160. The allegation that the Grand vide Buprn vol. I. H"'. Com. Dig. Ind. r>. Jury threw out sufficiently 6 Taunt, 187 I Salk. 876. Bui it i- nol to show a determination.— 2 T. K. unusual, where a bill has been found, to Supra vol. I. 161. 397 APPENDIX. a certain other bill of indictment against the said plaintiff, by the name, &c, of, &c, charging, accusing, and purporting, that the said plaintiff, on the aforesaid day, &c, feloniously stole, (se/ out the particulars*) of the said defendant, which last mentioned bill of indictment the jurors of the said Grand Inquest did then and there return into the- said court of the said sessions so holdenas aforesaid, not found (n). 3rd Count. — And for that whereas the said defendant further contriving and intending as aforesaid, &c., at, &c, falsely and maliciously, and without any reasonable or probable cause what- soever, imposed the crime of felony (o) on him the said plaintiff, by means of which said several premises, the said plaintiff is greatly hurt, injured, and prejudiced in his said good name, fame, and cre- dit, and is brought into great scandal, ignominy, and disgrace amongst all his neighbors and other good and worthy subjects of [ *398 ] the realm, and hath been taken, and suspected to *be a felon and a thief, and he the said plaintiff was also im- prisoned, and kept and detained in prison, in manner and for the time hereinbefore mentioned, and suffered and underwent many and great troubles and labors, both of body and mind, and during all which time he was hindered and prevented from managing, conduct- ing, and transacting his necessary affairs and business, and was forced and obliged to lay out and expend a large sum of money in and about the obtaining his release from and out of custody as aforesaid, and in and about the defence of himself and the manifestation of his in- nocence in the premises so alleged and objected against him as afore- said, and he the said plaintiff also was, hath been, and is, on occa- sion of the several premises aforesaid, otherwise greatly injured and damnified, to wit, &c. 12. General Form of Declaration for a malicious Prosecution by indictment at the Assizes or Sessions, where the Plaintiff was ac- quainted. For that the said defendant maliciously and wickedly intending to oppress and injure him the said plaintiff, on &c., at, &c, maliciously, and without any reasonable or probable cause whatsoever, charged the said plaintiff with the crime of felony, and caused and procured the said plaintiff to be arrested and committed to the common gaol for the county of , and there to be imprisoned, by reason of that charge, for a long space of time, to wit, for the space of ■ — , and afterwards, to wit, on &c, at the session of our Lord the King, of oyer and terminer, &c. (o), holden at, &c.,in and for the (n) Supra note (m). county of , on &c, at, &c, before A. (o) As to the sufficiency of this general B., C. D. and others, their fellows, Justices count, see vol. I. 448. Davis v. JVoak, 1 of our said Lord the King, assigned to keep Starkie's C. 377. Blizard v. Kelly, 2 B. the peace in the county of and also and C. 285. to hear and determine divers felonies, tres- (o) Or if the prosecution were at the passes, and other misdemeanors committed sessions, thus, at the General Quarter Ses- in that county. This statement ought of sions of the peace, holden (by adjournment, course to accord with the caption of the in- if that be a fact,), w. and for the said dictment and record of acquittal. PRECEDENTS— DECLARATIONS. 398 said county of , before, &o., maliciously, 'and [ *399 ] without any reasonable or probable cause indicted and 1 and procured to be iudict.nl thesaid plaintiff, for that he the said plaintiff (j»), on, &c, at, Ac, (set forth the substance of the charge,*) and that the said defendant falsely and maliciously, and without any reasonable or probable cause whatsoever, prosecuted and caused and procured to be pr I the Baid indictment id plaintiff, to wit, at, &c, until the said plaintiff, at terwards, to wit. al the ( 7 > delivery of the gaol of our Baid Lord the King, of hie said cdunty of , of the prisoners therein holden, on Ac. at &c, before, a .. rned to deliver the gaol of id county of the prisoners therein being, was duly, by a jury of the Baid county, and by the judgment of the Baid court of gaol delivery (r), duly acquitted of the premises in the said indictment charged, and the said charge and prosecution then and there became and were wholly ended and determined. Adda general count for imposing the crime. of felony, as in Prea dent 11. By means whereof he the said plaintiff hath been and is greatly injured and aggrieved in his good name, fame, and credit, and hath suffered and undergone great trouble and labor of his body, and anxiety of mind, and been put to great expense of his money-, to wit, to the amount of . in the manifesting his innocence and procuring his acquittal, and hath also been wholly hindered and prevented from transacting his necessary business and affairs, and hath been, and is otherwise greatly injured, prejudiced, and aggriev- ed, to wit, at, &c. *13. Plea of the General Issue (s). A\i> the Baid defendant, by ES. F. his attorney, comes and defends the wrong and injury, when, &C. and saith [ *400 ] that he is not guilty of the premises above laid to his charge in manner and form as the said plaintiff hath above complain- ed against him, and of this he the said defendant puts himself upon the country, &c. 14. Plea of Justification of words of Felony. And for a further plea in this behalf (s), the Baid defendant, (n) See vol. t. p. 146. («) Aa to the Buffioienoy of this plea to (q) Or if the acquittal were at the quar- enable .the defendant togointoevid ter sessions, thu9— '• General Quarter Sea- his tee w>l. 1- 468. Wh< sionsof the peace of our Baid Lord the Bpeoial justifioa ion is pleaded a is fire- ting, holden (by adjournment, if wch bt quently inexpedient to pli oeraj the fart) .hi, &o., :it, &o., before, the effect i- to give the phiutiff The Statement should agree with the record the opening end reply. aittal. U to the policy of pleading the gtn- (r) Or Quarter Sessions, according to eral iasue with this plea, see the lasi pre- thc fact. cediug note. 400 APPENDIX. by leave of the court here for this purpose first had and obtained, according to the form of the statute in such case made and provided, saith that the said plaintiff ought not to have or maintain his afore- said action thereof against him the said defendant, because he saith that the said plaintiff before the speaking and publishing of the words in the said declaration mentioned, to wit, on, &c, at, &c. (£) feloniously did steal, take, and carry away, {describing- the goods^ (u), of the goods and chattels of him the said defendant. Where- fore ho the said defendant at the said several times in the r *401 ] said declaration mentioned, did speak and publish of and concerning *the said plaintiff the said several words in the said declaration mentioned (x~), as he lawfully might for the cause aforesaid, and this he the said defendant is ready to verify. Wherefore he prays judgment if the said plaintiff ought to have or maintain his aforesaid action thereof against him, &c. 15. Plea of Justification of Words of Perjury. Because, he says, that before the speaking and publishing of the said words, of and concerning the said plaintiff, in the said counts mentioned, to wit, on, &c. at, aid French Republic, to wit, at the parish of St. Anne, with- in the liberty of Westminster, in the county of Middlesex : and that Jean Peltier, late of Westminster, in the county of Middlesex, gen- tleman, well knowing the premises aforesaid, but 1 icing a malicious and ill disposed person, and unlawfully and maliciously devising and intending to traduce, defame, and vilify the said Napoleon Bonaparte. and to bring him into ureal hatred and contempt, a- well among the liege subjects of our said Lord the King, as among the citizens of the said Repnblic, and to excite and provoke the citizens of the said Re- public, by force of arms to deprive the said Napoleon Bonaparte of his consular office and magistracy in the said Republic, and to kill and destroy the said Napoleon Bonaparte, and also unlawfully and maliciously devising as much as in him, the said Jean Peltier, lay, to interrupt, disturb, and destroy the friendship and peace subsisting between our said Lord the King and his subjects, and the said Napoleon 'Bonaparte, the French Republic, and [ *406 ] the citizen*, of the same Republic, and to excite animosi- ty, jealousy, and hatred in the -aid Napoleon Bonaparte against our said Lord the King and hi- subjects, on the 10th day of August, in the forty-second year of the reign of our Sovereign Lord George the Third, by the grace of God, of the [Jnited Kingdom of Great Bri- tain and Ireland, King, Defender of the Faith: at the parish of St. Anne, within the liberty of Westminster, in the county of .Middlesex, unlawfully and maliciously did print and publish, and cause and pro- cure to be printed and published, a most scandalous and malicious li- bel, in the French language, of and concerning the said Napoleon Bonaparte, that is to Bay, one part thereof to the tenor following, that is to say, " Le IS Brumaire, An viii. Ode attribute a Cheuier. " Quelles temprtcs effroyables " Grondent BUT les dots dechaincs," . and C. on the account of Dr. F. the sum of fifty pounds, and that I (again meaning himself the said I. H.) will write to Dr. F. requesting him to apply the same to the relief of the widows, orphans, and aged parents of our beloved American fellow-subjects, who. faithful to the character of Englishmen, preferring death to slavery, were, for that reason only, inhumanly murdered by the king's (meaning his said Majesty's) troops, at or near Lexington and Concord, in the province of Massachusetts, (meaning the said province, colony, or plantation of the Massachusetts Bay, in New- England, in America,) on the nineteenth of last April. I. H." (Again meaning himself the said 1. H.) — (Conclusion as before) (/). 21. Indictment for Writing- and Delivering a Challenge at the instance of a third Person. That A. B., late of, .. Esquire, at B. (meaning the said C. D.) by the desire of Mr. E2. !■'. (mean- ing the said E. P.) 1 (meaning himself the said A. B.) wait on you (meaning tin; said C. D.) to inform you (meaning the said C. D.) that he (meaning the said E. F. ) expects such satisfaction as one gentleman should require from another, foran insult bestowed (0 The original, see Cowp 688, contains papers, and also the publishing of both on other counts stating the printing ami pub- different days, lishing of the latter libel in ditferent news- 54* 412 APPENDIX. on him; your (meaning- the said C. D.'s) conduct merits every treatment a scoundrel deserves. Manner, time, and place left to you (meaning the said C. D.) A. D. Dec. 2." (Meaning and in- tending by the said paper writing a challenge to the said C. D. to fight a duel with and against the said E. F.) which said paper- writing (meaning and intending the same as such challenge as afore- said,) he the said A. B. afterwards, to wit, on the same day and year aforesaid, at B. aforesaid, in the county aforesaid, unlawfully, wickedly, and maliciously did deliver, and cause to be delivered, to the said C. D. against the peace, &c. Second Count— for delivering a written Challenge as from, and on the part, and by the desire of E. F. That the said A. B. being such evil-disposed person and disturb- er of the peace of our said Lord the King, as aforesaid, and intend- ing to procure great bodily harm and mischief to be done to the said C. D. and to incite and provoke him the said C. D. unlawfully to fight a duel with and against the said E. F., afterwards, to wit, on the same day and year aforesaid, with force and arms, at B., aforesaid, in the county aforesaid, did unlawfully, wickedly, and maliciously deliver, and cause to be delivered, a certain written challenge, as from, and on the part, and by the desire of the said E. F., to the said C. D. unlawfully to fight a duel with and against the said E. F., which said last mentioned challenge is [ *413 ] as* follows, that is to say, (set out the challenge,') against the peace of our said Lord the King, his crown and dignity. Third Count— for provoking and inciting the Prosecutor to Fight. That the said A. B. being such evil-disposed person, and distur- ber of the peace of our said Lord the King, as aforesaid, and in- tending to procure great bodily harm and mischief to be done to the said C. D. and to incite and provoke him the said C. D. unlawfully to fight a duel with and against the said E. F. afterwards, to wit, on the same day and year aforesaid, with force and arms, at B., afore- said, in the county aforesaid, did unlawfully, wickedly, and malici- ously provoke and incite the said C. D. (in the peace of God and our said Lord the King then and there being,) unlawfully to fight a duel with and against the said E. F., against the peace, &c. 22. Information for Challenging and Posting. That A. B., late of, &c. Esquire, being a person of a turbulent, wicked and malicious 'disposition, and not having the fear of God before his eyes, but being moved and seduced by the instigation of the devil, and wickedly and maliciously intending, as much, as in him lay, not only to terrify and affright one C. a good and peaceable subject of our said Lord the King, but also to kill and murder him, heretofore, to wit, on, &c. with force and arms, at, &c. unlawfully PRECEDENTS— IXPK T.M BNTS. 413 and wickedly did provoke and challenge the said C. to fight a duel against him the Baid A. 15. with sword and pistol-; and the said of our said Lord the King, giveth the Court here further to understand and be informed, that the said 0. having then and there refused to fight with the said A. I!, in pursuance of such kicked and unlawful challenge last aforesaid, In- the said A. 15. for the 'completing his aforesaid evil and wicked purpose | *414 ] and design, and further to provoke ami incite the said C. to fighl a duel against him the said A. B. in the manner aforesaid, afterward-, to wit. on the same day ami year aforesaid, at (\ afore- said, in the county aforesaid, did wickedly and maliciously place, stick up, ami upon, and caused to be placed, stuck up. ami exp to public view, to wit, on the market-house in C. aforesaid, a cer- tain paper writing, with the name of him the said A. B. thereunto subscribed, containing certain scurrilous and abusive matter against the said C. of the tenor following, that is to say, " Having receiv- ed (meaning thereby that the said A. B. had received,) a most ungentlemanlike affront from C. H. esquire, meaning the said C.) I (meaning himself the said A. B.) distinguish him (moaning the said C.) thus, that none may doubt the individual man of , in the county of M. he (again meaning the said C.) having in the most cowardly manner refused to give me (meaning himself the said A. B.) the satisfaction due to a gentleman, I, (meaning himself the said A. 15.) here in the sight and for the information of his countryman, post him, (meaning the said C.) and declare him (again meaning the said C.) to be a dirty, cowardly, insolent fool, as such, I (mean- ing himself the said A. B. ) will ever treat him, (meaning the said C.) A. B. of B. in the county of M," to the great damage and terror of him, the said C. IT, and against the peace of our said Lord the King, his crown and dignity. 23. Indictment for Drawing in Effigy the Collectors of the Assessed Taxes, in pursuance of a Conspiracy. That A. B. late of . xciii. penal, limits of, ib. must be limited by tendency, ib. of the press, evil resulting from, ib. xcviii. weakening of mutual confidence between the government and the people, ib. c. ROGUE : words charging the being one, i. 97. ROMAN LAW : wide limits of the action for contumelious and iusulting words. Prel. Dis. xxxi. xxxii. any defamation actionable, ib. singular mode of defamation practised at Rome, ib. action maintainable in respect of insult to other members of the family, ib. by the heir, in respect of insult to the memory of the deceased, ib. gave the action in respect of insult and contumely, ib. xxix. xxxi. the law of England does not, ib. RUMORS, FALSE : to raise price of hops, ii. 221. an offence at common law, ii. 220. to raise price of provisions, ii. 120. diminish price of staple commodity, ii. 221. S. SCANDALUM MAGNATUM : provisions of, Prel. Dis. xli. truth of charge, a defence against proceeding for, ii. 255. statutes of, i. 175. 3 E. 1, c. 24, i. 175. 2 R. 2, st. 1, c. 5, ib. 12 R. 2, c. 11. ib. whether an action lay at common law, i. 178. who entitled to maintain the action, i. 179, none brought for a century after the statutes, i. 179. for what words, i. 181. words must be false, i. T85. general rule, i. 188. SCHOOLMASTER: words of, i. 126. SCOTLAND: law of, in respect of defamation, indefinite, Prel. Dis. xxxiii. instances, ib. law of, as to the intention of the defendant, ib. lxxxvi. see Intentiox. law of, as to the Veritas convicii, ib. lxiv. no general rule yet established, ib. lxv. law of, allows four different objects to be attained in the same proceeding, ib. lxxxviii. statutes of, as to slander, ib. xlii. law of, how differing from the civil, as to defamation, ib. xliii. rule of, as to the Veritas convicii, ib. Vol. II. 57 446 INDEX. SENSE : in which words or libels to be understood, ii. 107. after verdict, court will not, listen to trivial exceptions, ii, 108. will construe doubtful words in a sense which will support the verdict, ii. 108. to be collected from the whole of the words or libel, ii. 85. by evidence of document referred to, ii. 86. of words, proof of, on whom incumbent, ii. 84, 85. SERVANT: proof in action by, against master, ii. 58. words of.'i. 129. action by, giving character, where defence, i. 293. SEVEN BISHOPS: case of, ii. 38, 39. proofs against, ii. 20. SREBBEARE: trial of, ii. 104. SHEEPSTEALER : action for imputation of being, i. 86. SCIMMINGTON: riding of, i. 173. SLANDER : repetition of, when actionable, i. 329. doctrine laid down in Ld. Northampton's case, i. 330. SLANDER. OF TITLE: when actionable, i. 191. special damage, essential, ib. SOCIETY: state of, one of mutual confidence, Prel. Dis. xlviii. knowledge of character therefore necessary, ib. xlix. SOCIETY, CIVIL: a system of mutual trust, Prel. Dis. xvi. SOLICITATION: to commit a breach of the peace, ii. 209. SOLON : law of, Prel. Dis. xxiv. xxxiv. SOLVENCY: presumption of, in case of purchase on credit, a tacit condition, Prel. Dis. lvii. SPECIAL CHARACTER: mode of averring, see declaration, i. 408. words of person in. i. 117. churchwarden, i. 124. escheator, ib. master of mint, i. 125. clerk to public company, ib. steward of court, ib. member of parliament, ib. attorney, i. 126. barrister, ib. physician, ib. clergyman, ib. schoolmaster, ib. INDEX. 447 SPECIAL CHARACTER: merchant, i. 127. tradesman, ib. cornfactor, ib. servant, i. 129. jobber in public funds, ib. certainty of the words, i. 130. imputation of want of integrity, ib. of a judge, ib. justice of the peace, ib. 131. bishops, i. 131. attorney or clerk of K. B. i. 132. attorney, ib. tradesman, i. 134. carpenter, i. 135. imputation of want of ability, ib. of a barrister, i. 136. physician, ib. apothecary, ib. midwife, i. 137. watchmaker, ib. imputation of insolvency, i. 138. on merchants, i. 138. traders, ib. words actionable, though they do not impute bankruptcy, ib. words actionable, which impute want of credit, i. 139. of a tailor, ib. dyer, ib. trader, ib. stock-broker, ib. pawnbroker, ib. milliner, i. 140. upholsterer, ib. carpenter, ib. husbandman, i. 141. trader, ib. bookseller, ib. SPECIAL DAMAGE: what amounts to actionable damage, i. 190. preventing of plaintiff from selling of lands, i. 191. preventing plaintiff from acquiring a benefit, i. 194. from succeeding to a living, i. 94, 195. from getting a place, i. 195. loss of marriage, ib. what constitutes, i. 203. mere apprehension of ill consequence, ib. how special damage must be connected with the slander, ib. must be the natural consequence of the words, i. 204. - where too remote, i. 207. SPIRITUAL COURT: see Prohibition, ii. 116. STAMP: unstamped copy of newspaper, cvideucc, ii. 49. 448 INDEX. STAR CHAMBER : Delomle's observations on, Prel. Dis. xciii. STEALING: imputation of, i. 91, 92, 93. actionable quality of term, depends on subject matter to which it is ap- plied, 1. 93. STOCK BROKER : words of, i. 139. STOCKDALE : prosecution of, ii. 204. SURETIES :• of the peace, when requirable, ii. 267. for the good behavior, ii. 269. when requirable, ib. John de Northampton's case, ib. for contempts of judges or magistrates, ib. of magistrates, ib. to what contempts the rule extends, ib. whether they must be spoken in the presence of magistrate, ii: 270. in case of unmannerly words in general, ib: recognizance to keep the peace, how forfeited, ii; 271, may be required in case of blasphemous or seditious libels, ib. st. 60 G. 8, and 1 G. 4, c, 16. ib. T. TAILOR : words of, i. 130. TENDENCY: illegal, sufficient to constitute a libel, Prel. Dis. cxiv. THIEF: action for imputation of being, i. 86. charge of being, i. 92, 99. evidence of not being used in felonious sense, ii. 85. TIBERIUS: his pardoning a Roman knight who had libelled him, Prel. Dis. cv. TIMBER: imputation of stealing, i. 91. TITLE : slander of, malice essential to, when, i. 317. slander of, i. 287. words impeaching, not actionable without special damage, i. 145. TITLE TO LAND: words impeaching, not actionable without special damage, i. 146. TOPHAM : case of, ii. 213. TOULOUSE : parliament of, decision by, Prel. Dis. lix. TRADER: words imputing insolvency, i. 138, 139. TRADESMAN: words of , i. 127 . INDEX. 141 TRAITOR : action for imputation of being, 86. TREASON: mere words do not constitute overt act of, 166, 167. same as to words written or printed, ii. 169. TREATISE: general object of this. Prcl. Dis. v. TREBATIUS: dialogue with Horace, Prel. Dis. xxxvii. TRIAL : incidents to, ii. 327. province of jury on criminal trials, ii. 332. effect of the libel act , 32 G. 3, c. 60, ib. occasion of passing that act, ib. TRUTH : whether the publication of the truth ought to be punishable, Prel. Dis. cxxii. may be made an instrument of offence, ib. ordinary objection that truth cannot be a libel, ib. communication of, may often be highly immoral, ib. cxxiii. may be used as an indirect solicitation to break the peace, ib. consideration of the question on grounds of public policy, ib. deliberate charges ought not to be made but in the ordinary course of law, ib. exxv. to admit the truth as a defence in all cases, would be to extend the criminal code indefinitely, ib. would be attended with injustice to the party defamed, ib. exxvii. whether it ought to be admitted in mitigation of provocation for libel, ib. exxxi. whether it ought to be admitted as evidence of the intention where the question turns on malice in part, ib. cxliii. justification of, must be specially pleaded, i. 466. notice of proof where justification is pleaded, ii. 100. where the plea is general, ii. 101. must be precise, ib. circumstances of exaggeration, when necessary to be proved, ib. of words given in evidence to prove malice admissible, ii. 102. acquittal of plaintiff, does not exclude evidence of his guilt, ib. evidence of good character admissible, to what presumption of guilt, ib. amounts to an absolute justification independent of intention, i. 230, &c. in case of Scan. Mag. i. 234. may be proved notwithstanding an acquittal, i. 235. must be pleaded in justification, i. 236. suspicion insufficient, i. 237. an insufficient bar after pardon, unless after conviction, ib., loss of advantage which could only be acquired by concealment of truth, no ground of action, Frel. Dis. lv. of a defamatory charge, how far a defence by the Roman law, ib. XXXV. proof of, when admissible under plea of general issue, ii. 103. in action for malicious prosecution, ib. 450 INDEX. TRUTH: case for slander of title, ii. 104. of libel, no defence in case of indictment, ii. 251. reasons for the distinction, 252, &c. same in case of Scan. Mag. ii. 255. evidence of, not admissible under general issue, ii. 87. of words given in evidence to prove malice admissible, ii. 57, 58. TUTCHIN: conviction of, ii. 163, 187, TWELVE TABLES: law of, Prel. Dis. xxiv. the position that they punished satirists capitally, observed upon, ib. cxlix. VARIANCE : See Declaration, i. 361. VENUE : i. 341. VERITAS CONVICII: doctrine of the civil law as to, Prel Dis. xxxv. of the law of England, ib. doubts of Roman jurists as to the plea of, ib. xli. of Scotch jurists, ib. Mr Borthwicke's observations on the subject, ib. xlii. law of Scotland as to, ib. lvii. rule of Scotch law as to, ib. xlii. " of the law of England, ib. xliv. general principle on which falsity is essential, ib. VICTORINUS: rescript to inquiry by, ib. xxxvi. W. WARRANTS: general, illegality of, ii. 295, 298, 299. Lord Coke's case, ii. 298. general, for seizure of papers, illegality of, ib. 298, 299. See Process. WHOREDOM: words of, ii. 124. WIFE: joinder of, i. 348. WILKES, JOHN: conviction of, ii. 174. WITCHCRAFT: words of, i. 86. WITNESS: evidence by, not actionable, i. 242. member of parliament , to what examinable, ii. 92. barrister not compellable to give evidence, when. ii. 83. when he may refer to paper to refresh his memory, ii. 63. not bound to criminate himself, ii. 50. INDEX. 451 WOMEN : imputations on general reputation not actionable without special damage, i. 198 WORDS: have constituted acts of treason, ii. 166. the contrary since held, ib. 160, 1G7. reason for this, ii. 167. secus where words are coupled with an act, ii. 168. written or printed, ii. 169. uttered in passion, during intoxication, &c. are actionable accord- ing to the law of England, Prel. Dis. lxii. WRITING OF LIBEL: whether indictable without subsequent publication, ii. 229. whether in itself criminal, ii. 230. THE END. r «r LAW LIBRARY UNIVERSITY OF CALIFORNIA LOS ANGELES UC SOUTHERN REGIONAL LIBRARY FACILITY l II II III II I II I I AA 000 798 405 UNIVERSITY OF CALIFORNIA LIBRARY Los Angeles This book b DUE on the last date stamped below. MAR 2 2 IWft ill- no. 315 11