*CHAPTER THE TWENTY-FOURTH.

OF LIBEL AND INDICTABLE SLANDER.

[*321

Ir appears to be well settled that publications blaspheming God, or turning the doctrines of the Christian religion into contempt and ridicule, may be made the subject of indictment; and it is now fully established, though some doubt seems formerly to have been entertained upon the subject, that such immodest and immoral publications as tend to corrupt the mind, and to destroy the love of decency, morality, and good order, are also offences at common law. (a) It is also a misdemeanor wantonly to defame or indecorously to calumniate that economy, order and constitution of things which make up the general system of the law and government of the country. (b) And it is especially criminal to degrade or calumniate the person and character of the sovereign, and the administration of his government by his officers and ministers of state, (c) or the administration of justice by his judges. (d) And the same policy which prohibits seditious comments on the King's conduct and government extends, on the same grounds, to similar reflections on the proceedings of the two houses of parliament.(e) Such publications also as tend to cause animosities between this country and any foreign state, by the personal abuse of the sovereign of such state, his ambassadors, or other public ministers, may be treated as libels. (f) With respect to libels upon individuals, they have been defined to be malicious defamations, expressed either in printing or writing, or by signs or pictures, tending either to blacken the memory of one who is dead, or the reputation of one who is alive, and thereby exposing him to public hatred, contempt, and ridicule.(g)1

Upon some of these subjects a publication by slander, or words spoken only, though not properly a libel, (h) may be the subject of criminal proceeding, as will be shown in the course of the chapter.

*A libel may be as well by descriptions and circumlocutions as in express [*322 terms, therefore scandal conveyed by way of allegory or irony amounts to a libel. As where a writing, in a taunting manner, reckoning up several acts of public charity done by a person, said, "You will not play the Jew, nor the hypocrite," and then proceeded, in a strain of ridicule, to insinuate that what the person did was owing to his vain glory. Or where a publication, pretending to recommend to a person the characters of several great men for his imitation, instead of taking notice of what great men are generally esteemed famous for, selected such qualities as their enemies accuse them of not possessing (as by proposing such a one to be imitated for his courage who was known to be a great statesman, but no soldier; and another to be imitated for his learning who was known to be a great

(a) See the cases collected in 2 Starkie on Libel 155.

(b) Holt on Libel 82.

(c) Rex v. Lambert and Perry, 2 Campb. 398.

(d) 2 Starkie on Libel 194.

(e) 2 Starkie on Libel 202.

(f) Rex v. Peltier, Holt on Libel 78; Rex. v. D'Eon, 1 Blac. R. 517.

(9) 1 Hawk. P. C. c. 73, ss. 1, 2, 3, 7; Bac. Abr. tit. Libel; and see as to libel by a picture, Du Bost v. Beresford, 2 Campb. 511.

(h) A libel is termed Libellus famosus seu infamatoria scriptura and has been usually treated of as a scandal, written or expressed by symbols; Lamb. Sax. Law, 64; Bract. lib. 3, c. 36; 3 Inst. 174; 5 Co. 125; 1 Lord Raym. 416; 2 Salk. 417, 418. Libel may be said to be a technical word, deriving its meaning rather from its use than its etymology. "There is no other name but that of libel applicable to the offence of libelling; and we know the offence specifically by that name, as we know the offences of horse-stealing, forgery, &c., by the names which the law has annexed to them." By Lord Camden in Rex v. Wilkes, 2 Wils. 121.

1 Comm. v. Clap, 4 Mass. 163; Comm. v. Kneeland, 20 Pick. 206; People v. Crosswell, 3 Johns. Cas. 337; 2 Wheel. C. C. 330; Sharff v. Comm., 2 Binn. 214; State v. Cooper, 2 Denio 293.

VOL. 1.-17

general, but no scholar); such a publication being as well understood to mean only to upbraid the parties with the want of these qualities as if it had done so directly and expressly.() And, upon the same ground, not only an allegory, but a publication in hieroglyphics, or a rebus or anagram, which are still more difficult to be understood, may be a libel; and a court, notwithstanding its obscurity and perplexity, shall be allowed to judge of its meaning, as well as other persons.(k) So a libel may be by asking questions; for if a man insinuates a fact in asking a question, meaning thereby to assert it, it is the same thing as if he asserted it in terms.(7) And it is now well established that slanderous words must be understood by the Court in the same sense as the rest of mankind would ordinarily understand them. (m) Formerly it was the practice to say that words were to be taken in the more lenient sense; but that doctrine is now exploded; they are not to be taken in the more lenient or more severe sense, but in the sense which fairly belongs to them, and which they were intended to convey.(n)

Upon the same principles it has been resolved that a defamatory writing, expressing only one or two letters of a name, in such a manner that from what goes before, and follows after, it must needs be understood to signify a particular person, in the plain, obvious, and natural construction of the whole, and would be nonsense if strained to any other meaning, is as properly a libel as if it had expressed the whole name at large; for it brings the utmost contempt upon the law to suffer its justice to be eluded by such trifling evasions; and it is a ridiculous absurdity to say that a writing which is understood by every one of the meanest capacity cannot possibly be understood by a judge or jury.(0)

*An indictment lies for general imputation on a body of men, though no *323] individuals be pointed out, because such writings have a tendency to inflame and disorder society, and are therefore within the cognizance of the law (p) And scandal published of three or four persons is punishable at the complaint of one or more, or all of them.(g)

It appears to have been considered that the remedies by action and indictment for libels are co-extensive, and may be regarded as upon the same footing.(r)

(i) 1 Hawk. P. C. c. 73, s. 4; Bac. Abr. tit. Libel (A) 3.

(k) Holt on Libel 235, 236.

(7) Gathercole's case, 2 Lewin 255, per Alderson, B.

(m) Woolnoth v. Meadows, 5 East 463. In this case the defendant had said of the plaintiff, that his character was infamous-that he would be disgraceful to any society-that delicacy forbade him from bringing a direct charge-but it was a male child who complained to him;" and these words were understood to mean a charge of unnatural practices.

(n) By Lord Ellenborough, C. J., in Rex v. Lambert and Perry, 2 Campb. 403. And in a case of libel, Rex v. Watson and others, 2 T. R. 206, Buller, J., said, "Upon occasions of this sort I have never adopted any other rule than that which has been frequently repeated by Lord Mansfield to juries, desiring them to read the paper stated to be a libel as men of common understanding, and say whether in their minds it conveys the idea imputed."

(0) 1 Hawk. P. C. c. 73, s. 5; Bac. Abr. tit. Libel (A) 3, where it is said in the marginal note that if an application is made for an information in a case of this kind, some friend to the party complaining should, by affidavit, state the having read the libel, and understanding and believing it to mean the party. In one case Lord Ellenborough, C. J., beld, upon argument, that the declarations of spectators, while they looked at a libellous picture in an exhibition room, were evidence to show that the figures portrayed were meant to represent the parties stated to be libelled: Du Bost v. Beresford, 2 Campb. 512. (p) Holt on Libel 237. See Le Fanu v. Malcomson, 1 H. L. C. 637. (g) Id. Ibid. In Rex v. Benfield, 2 Burr. 980, it was held that an information lay against two for singing a libellous song on A. and B., which first abused A. and then B. And it was said that if the defendants had sung separate stanzas, the one reflecting on A. and the other on B., the offence would still have been entire. A libel upon one of a body of persons, without naming him, is a libel upon the whole, and may be so described; and where a paper is published equally reflecting upon a number of people, it reflects upon all; and readers, according to their different opinions, may apply it so: Rex v. Jenour, 7

Mod. 400.

(r) Starkie on Libel 150, 165, 550, 1st edit.; Holt on Libel 215, 216; Bradley v. Methuen, 2 Ford's MS. 78. This must be understood, however, of cases where the libel, from its nature and subject, inflicts a private injury, and not of those cases in which the public only can be said to be affected by the libel.

Formerly, upon an indictment or criminal prosecution for a libel the party could not justify that its contents were true, or that the person upon whom it is made had a bad reputation. But the 6 & 7 Vict. c. 96, permits a defendant to plead to any indictment or information for a defamatory libel that the libellous matters are true, provided it was for the public benefit that such matters should be published.(s) The ground of the former rule, which still exists where no such plea is pleaded, is the public mischief, which libels are calculated to create in alienating the minds of the people from religion and good morals, rendering them hostile to the government and magistracy of the country; and, where particular individuals are attacked, in causing such irritation in their minds as may induce them to commit a breach of the public peace. The law, therefore, does not permit the defendant to give the truth of the libellous matter in justification; any attempt at which in the instances of libels against religion, morality, or the constitution, would be attended with consequences of the greatest absurdity; and, in the case of libels upon individuals, might be extremely unjust, and could never afford at substantial defence to the charge. A libel against an individual may consist in the exposure of some personal deformity, the actual existence of which would only show the greater malice in the defendant; and even if it contain charges of misconduct founded in fact, the publication will not be the less likely to produce a violation of the public tranquillity. It has been observed, that the greater the appearance of truth there may be in any malicious invective, it is so much the more provoking; and that, in a settled state of government, the party grieved ought to complain, for every injury done to him, in the ordinary course of law, and not [*324 *by any means to revenge himself by the odious proceeding of a libel.(t) If a libel contain matters imputing to another a crime capable of being tried, evidence of the truth of those imputations is not admissible under a plea of not guilty.(u) But in one case, where evidence of the falsehood of the libel was adduced by the prosecutor as necessary to support the charge, and no objection was made to it, Lord Tenterden, C. J., although not free from doubts in his own mind, yet adverting to the particular nature of the libel, which was little more than a narrative of certain facts supposed to have taken place in one of the West India Islands, did not think himself warranted in interposing under the very peculiar circumstances of that case; and, having received evidence of the falsehood, he would have received evidence of the truth, if any such had been offered, on the part of the defendant.(v)

A party will not be excused by showing that the libel with which he is charged was copied from some other work, even though he may have stated it to be merely a copy, and disclosed the name of the original author at the time of its publication.

(s) See the Act, post. p. 374.

(t) 1 Hawk. P. C. c. 73, s. 6; Bac. Abr. tit. Libel (A.) 5; 4 Blac. Com. 150, 151; 2 Starkie on Libel 251, et seq.; Holt on Libel 275, et seq. But whilst the truth was no justification in a criminal prosecution, yet in many instances it was considered as an extenuation of the offence; and the Court of King's Bench has laid down this general rule, that it will not grant an information for a libel unless the prosecutor who applies for it makes an affidavit asserting directly and pointedly that he is innocent of the charge imputed to him. This rule, however, may be dispensed with if the person libelled resides abroad, or if the imputations of the libel are general and indefinite, or if it is a charge against the prosecutor for language which he has held in Parliament: 4 Blac. Com. 151, note (6); Dougl. 271, 372. (u) Rex r. Burdett, 4 B. & Ald. 95 (6 E. C. L. R.). "In some cases, indeed, it is possible that the falsehood may be of the very essence of the libel. As for instance, suppose a paper were to state that A. was on a given day tried at a given place, and convicted of perjury; if that be true it may be no libel, but if false, it is from beginning to end calumnious, and may no doubt be the subject of a criminal prosecution. Possibly, therefore, in such a case, evidence of the truth of such a statement by the production of the record, might afford an answer to a prosecution for libel :" Ibid., per Bayley, J., p. 147.

(e) Case mentioned by Lord Tenterden, C. J., in Rex v. Burdett, 4 B. & Ald. 182 (6 E. C. L. R.); but see Rex v. Grant, post, 371.

1 Barthelemy et al. v. People, 2 Hill 248; State v. Lehre, 2 Brevard 446. In an indictment for a libel, charging that the prosecutor "was called a murderer and forsworn," it is not competent for the defendant to justify by proving that there was and long had been a general report to that effect: State v. White, 7 Ired. N. C. 180.

Thus, where to a declaration for a libel the defendant pleaded that he had the libellous statement from another person, and at the time of publishing the libel he stated that the libel had been published to him by such other person, it was held that the plea was bad; for wrong is not to be justified, or even excused, by wrong: if a man receives a letter with authority from the author to publish it, the person receiving it will not be justified, if it contains libellous matter, in inserting it in a newpaper; no authority from a third person will defend a man against an action brought by a person who has suffered from an unlawful act. If the receiver of a letter publish it without authority, he is, from his own motion, the wilful circulator of slander (w) So it is no defence to an action for oral slander for the defendant to show that he heard the slander from another, and named the person at the time, unless he also show that he believed it to be true, and uttered the slander on a justifiable occasion.(x)

*325] But there are some circumstances which will protect a *publication from being deemed libellous. A petition to the King to be relieved from doing what the King has directed the party to do, if bona fide and in respectful terms is no libel, though it call in question the legality of the King's direction. James II. published a declaration of liberty of conscience and worship to all his subjects, dispensing with the oaths and tests prescribed by statutes 25 & 30 Car. II., and directed that it should be read two days in every church and chapel in the realm, and that the bishops should distribute it in their dioceses that it might be so read. The Archbishop of Canterbury and six bishops presented a petition to the King, praying that he would not insist upon their distributing and reading it, principally because it was founded on such a dispensing power as had often been declared illegal in Parliament, and that they could not in prudence, honor, or conscience, so far make themselves parties to it as to distribute and publish it. This petition was treated as a libel: they were taken up and tried for it. The publication was proved; and Wright, C. J., and Allibone, J., thought it a libel; but Holloway and Powell, JJ., thought otherwise, there not being any ill-intention of sedition in the bishops, and the object of their petition being to free themselves from blame in not complying with the King's command. The jury found them not guilty.(y)

It has been resolved that no false or scandalous matter contained in a petition to a committee of Parliament, or in articles of the peace exhibited to justices of the peace, or in any other proceeding in a regular course of justice, will make the complaint amount to a libel; for it would be a great discouragement to suitors to subject them to public prosecution in respect of their applications to a court of justice.(2) Thus where the defendant, in a certain affidavit before the Court, had said that the plaintiff in a former affidavit against the defendant had sworn falsely, the Court held that this was not libellous; for in every dispute in a court of justice, where one by affidavit charges a thing and the other denies it, the charges must be contradictory, and there must be affirmation of falsehood. (a) No present

(w) De Drespigny v. Wellesley, 5 Bing. 392; 2 M. & P. 695. See Reg. v. Newman, post, p. 375.

(x) M'Pherson v. Daniels, 10 B. & C. 263 (21 E. C. L. R.).

(y) Case of the Seven Bishops, 12 St. Tri. 183; and see post, as to comunications made bona fide, and in the proper course of proceeding.

(2) 1 Hawk. P. C. c. 73, s. 8; Bac. Abr. tit. Libel (A.) 4. And see the judgment of Holroyd, J., in Hodgson v. Scarlett, 1 B. & A. 232. It is holden by some that no want of jurisdiction in the court to which the complaint shall be exhibited will make it a libel; because the mistake of the court is not imputable to the party, but to his counsel; but Hawkins says (1 Hawk. P. C. c. 73, s. 8), that if it manifestly appears that a prosecution is entirely false, malicious, and groundless, and commenced, not with a design to go through with it, but only to expose the defendant's character under the show of a legal proceeding, he cannot see any reason why such a mockery of public justice should not rather aggravate the offence than make it cease to be one. Upon this point Mr. Starkie, after referring to the several authorities, says, that it may be collected generally that no action can be maintained for anything said or otherwise published in the course of a judicial 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 proceeding: 1 Starkie on Libel 254, 2d edit.

(a) Astley v. Younge, 2 Burr. 817; Revis v. Smith, 18 C. B. 126 (86 E. C. L. R.) ;

[*326

ment of a grand jury can be a libel, not only because persons who are supposed to be returned without their own seeking, and are sworn to act impartially, shall be *presumed to have proper evidence for what they do, but also because it would be of the utmost ill consequence in any way to discourage them from making their inquiries with that freedom and readiness which the public good requires.(b) Where an action was brought against the president of a military court of inquiry for a libel contained in the minutes of such Court, which had been delivered by the defendant to the commander-in-chief and deposited in his office, it was held that these minutes were a privileged communication, and properly rejected when tendered at the trial in proof of the alleged libel; and also that a copy of them had been properly rejected. (c) And where a court-martial, after stating in their sentence the acquittal of an officer against whom a charge had been preferred, subjoined thereto a declaration of their opinion, that the charge was malicious and groundless, and that the conduct of the prosecutor in falsely calumniating the accused was highly injurious to the service, it was held that the president of the court-martial was not liable to an action for a libel for having delivered such sentence and declaration to the judge-advocate; and Mansfield, C. J., in delivering hist opinion, said: "If it appear that the charges are absolutely without foundation, is the president of the court-martial to remain perfectly silent on the conduct of the prosecutor, or can it be any offence for him to state that the charge is groundless and malicious?"(d)

The members of the two houses of Parliament, by reason of their privilege, are not answerable at law for any personal reflections on individuals contained in speeches in their respective houses; for policy requires that those who are by the constitution appointed to provide for the safety and welfare of the public should, in the execution of their high functions, be wholly uninfluenced by private considerations.(e)

Thus the actual proceedings in courts of justice and in Parliament are exempted from being deemed libellous; it becomes important to inquire in the next place how far the same privilege will be extended to communications of those proceedings to the public, made with impartiality and correctness.

It has always been held that a publication of the proceedings in a court of justice will not be protected unless it be a true and honest statement of those proceedings.(f) But provided it were of that character, the doctrine seems at one time to have been that it might be made to the full extent of stating what had actually taken place.(g) More recently, however, it has been said that it must not be taken for granted that the publication of every matter which passes in a court of justice, however truly represented, is under all circumstances and with whatever motive published, justifiable; and that such doctrine must be taken with *grains of [*327 allowance.(h) And Lord Ellenborough, C. J., said, "It often happens that circumstances necessary for the sake of public justice to be disclosed by a witness in a judicial inquiry are very distressing to the feelings of individuals on whom. they reflect and if such circumstances were afterwards wantonly published, I should hesitate to say that such unnecessary publication was not libellous merely because the matter had been given in evidence in a court of justice."(i) In a Henderson v. Broomhead, 4 H. & N. 569, cases of malicious and false affidavits. See Fitzjohn v. Mackinder, 9 C. B. (N. S.) 505 (99 E. C. L. R.); Doyle v. O'Doherty, C. & M.

418.

(b) 1 Hawk. P. C. c. 73, s. 8; Bac. Abr. tit. Libel (A.) 4.

(e) Horne v. Lord F. C. Bentick, 4 Moore 563.

(d) Jekyl v. Sir John Moore, 2 N. R. 341.

226.

(e) Holt on Libel 190; 1 Starkie on Libel 239; Rex v. Lord Abingdon, 1 Esp. Rep. By 4 Hen. 8, c. 3, members of Parliament are protected from all charges against them for anything said in either House; and this is further declared in the Bill of Rights, 1 Will. & M. st. 2, c. 2.

(ƒ) Waterfield v. The Bishop of Chichester, 2 Mod. 118; Rex v. Wright, 8 T. Rep. 297, 298, per Lawrence, J.; Stiles v. Nokes, 7 East 493.

(g) Curry v. Walter, 1 Bos. & Pull. 523, referred to by Lawrence, J., in Rex v. Wright, 8 T. R. 298.

(k) By Lord Ellenborough, C. J., and Grose, J., in Stiles v. Nokes, 7 East 503.

(i) Id. Ibid. And see Rex v. Salisbury, 1 Lord Raym. 341, that it is indictable to