PART I.-OF A CIVIL ACTION.

ART. 1.-Definition of libel and slander.

A defamatory statement is a false statement concerning any person which exposes him to hatred, ridicule, or contempt, or which causes him to be shunned or avoided, or which has a tendency to injure him in his office, profession, or trade. Such a statement, if in writing, printing, or other permanent form, is a libel; if in spoken words or significant gestures a slander (a).

NOTE 1.-The distinction between libel and slander carries with it, as will be hereafter seen, many important consequences. Thus, libel is both a civil wrong and a criminal offence: while slander is a civil wrong only, though the words may happen to come within the criminal law as being blasphemous, seditious, or

(a) Objection may be taken to the above definition, on the ground that it contains no reference to publication. But careful consideration has led me to think that it tends to accuracy of expression and clearness of thought to omit all such reference. Moreover, this course is justified by the language of the judges in the cases touching publication—

obscene (b), or as being a solicitation to commit a crime (c), or as being a contempt of court (d). Again, where a defamatory statement is written or printed, the law assumes that of necessity the person defamed has suffered damage, and, in the absence of legal justification or excuse, the publication of such a statement is wrongful (e). On the other hand, spoken words are actionable only when they produce, as a natural consequence, the loss of some definite temporal advantage, or, as it is called, special damage, or when they impute to the defamed person charges of a certain kind (ƒ).

It is sometimes said that libel can be distinguished from slander by the fact that the former is addressed to the eye, the latter to the ear. This is no doubt true as a general rule, but there

e. g., per Lord Coke, in John Lamb's case (1610), 9 Rep. fol. 60; Lord Erskine, in Burdett v. Abbot (1817), 5 Dow, H. L. 201; Best, C. J., in De Crespigny v. Wellesley (1829), 5 Bing. 402; Lord Campbell, C. J., in Whitfield v. S. E. Rail. Co. (1859), 27 L. J. Q. B. at p. 231; Montague Smith, J., in Parkes v. Prescott (1869), L. R. 4 Ex. at p. 176; Lord Esher, M. R., in Emmens v. Pottle (1885), 16 Q. B. D. at p. 357, and in Pullman v. Hill & Co. (1890), 1 Q. B. at p. 527-where such phrases as "the publication of a libel," "where any one publishes a libel," are of constant occurrence, showing clearly that the term libel is used in accordance with the meaning ascribed to it in the above definition.

(b) See p. 177, infra.

(c) R. v. Higgins (1801), 2 East, 5.

(d) Archbold's Criminal Evidence, 20th ed., p. 954.
(e) See p. 18, infra.

(f) See p. 19, infra.

appears to be at least one exception to it-the case of a defamatory statement communicated by significant gestures, e. g., the finger language of the deaf and dumb. Such a case, so far as can be discovered, has never arisen, but it is submitted that it would be governed by the same rules as spoken words, and would, therefore, come under the description of slander.

It is submitted that the real distinction is this -that, in the case of libel, the defamatory matter is in some permanent form; and usually, though not necessarily, in writing or printing. For instance, a statue (g), caricature (h), effigy (¿), chalk marks on a wall (j), "signs or pictures, as by fixing up a gallows against a man's door, or by painting him in a shameful or ignominious manner" (k) may constitute a libel. Slander, on the other hand, is in its nature transient, and is always in the form of spoken words or significant gestures.

In order

NOTE 2.-Concerning any person. to be defamatory the words complained of must concern the plaintiff himself. They must affect his character, or touch him in the way of his office, profession, or trade. If they are directed solely at the plaintiff's goods, or his title to property, though an action may lie therefor, it is

(g) Hawkins' Pleas of the Crown, 8th ed. vol. 1, 542. (h) Austin v. Culpepper (1684), 2 Show. 313; Skin. 123; Du Bost v. Beresford (1811), 2 Camp. 511.

(i) 5 Rep. 125.

(j) Tarpley v. Blabey (1836), 7 C. & P. 395.

(k) Eyre v. Garlick (1878), 42 J. P. 68.