This clearly is rather a question for the jury than for the judge. And accordingly by the 32 Geo. III. c. 60 (Fox's Libel Act) it is expressly provided that in all criminal proceedings for libel the jury are to decide the question of libel or no libel subject to the direction of the judge. In civil proceedings for libel, the practice is, and always was, the same (Baylis v. Lawrence, 11 A. & E. 920; 3 Perry & D. 526; 4 Jur. 652), save that here, if the judge thinks that the words cannot possibly bear a defamatory meaning, he may shorten the proceedings by stopping the case. "It is only when the judge is satisfied that the publication cannot be a libel, and that, if it is found by the jury to be such, their verdict will be set aside, that he is justified in withdrawing the question from their cognizance." (Per Kelly, C.B., in Cox v. Lee, L. R. 4 Ex. at p. 288; and see Fray v. Fray, 17 C. B. N. S. 603; 34 L. J. C. P. 45; 10 Jur. N. S. 1153; Teacy v. McKenna, Ir. R. 4 C. L. 374; Hunt v. Goodlake, 43 L. J. C. P. 54; 29 L. T. 472; Hart and another v. Wall, 2 C. P. D. 146; 46 L. J. C. P. 227; 25 W. R. 373.) If, however, the judge considers that words are reasonably susceptible of a defamatory meaning as well as an innocent one, it will then be a question for the jury which meaning the words would convey to ordinary Englishmen who heard or read them without any previous knowledge of the circumstances to which they relate. (Fisher v. Clement, 10 B. & C. 472; 5 Man. & Ry. 730; Hankinson v. Bilby, 16 M. & W. 442; 2 C. & K. 440.) The judge is in no way bound to state to the jury his own opinion on the point; it would, in fact, be wrong for him to lay down as a matter of law that the publication complained of was, or was not, a libel. (Baylis v. Lawrence, 11 A. & E. 920.) The proper course is for the judge to define what is a libel in point of law, and to leave it to the jury to say whether the publication in question falls within that definition. (Parmiter v. Coupland and another, 6 M. & W. 105; 9 L. J. Ex. 202; 4 Jur. 701.) And this is a question preeminently for the jury; whichever way they find, the Court will rarely, if ever, disturb the verdict, if the question. was properly left to them. So, too, in cases of slander, the judge usually decides whether the words are, or are not, actionable per se, and whether the special damage assigned is, or is not, too remote. If the defendant's words cannot reasonably bear the meaning ascribed to them by the innuendo, and the judge is clearly of opinion that the words without that meaning are not actionable, he will stop the case. So, too, if the words even with the alleged meaning are not actionable (though pleaders seldom err on that side). But in all other cases, where there is any reasonable doubt as to the true construction of the words, the judge leaves the question to the jury. All circumstances which were apparent to the bystanders at the time the words were uttered should be put in evidence, so as to place the jury as much as possible in the position of such bystanders; and then it is for the jury to say what meaning such words would fairly have conveyed to their minds. And their finding is practically conclusive on the point; the Court will not set the verdict aside, unless it be such as no reasonable men could have properly found (see post, p. 653). Formerly, however, the practice was very different. After a verdict for the plaintiff, the defendant constantly moved in arrest of judgment, on the ground that a defamatory meaning was not shown on the record with sufficient precision, or, as it soon came to be, on the ground that it was just possible, in spite of the record, to give the words an innocent construction. For it was said to be a maxim that words were to be taken in mitiori sensu whenever there were two senses in which they could be taken. And in these early times the Courts thought it their duty to discourage actions of slander. They would, therefore, give an innocent meaning to the words complained of, if by any amount of legal ingenuity such a meaning could be put upon them; and would altogether disregard the plain and obvious signification which must have been conveyed to bystanders ignorant of legal technicalities. Thus where a married woman falsely said, "You have stolen my goods," and the jury found a verdict for the plaintiff, the Court entered judgment for the defendant, on the ground that a married woman could have no goods of her own, and that therefore the words conveyed no charge of felony. (Anon., Pasch. 11 Jac. I.; 1 Roll. Abr. 746; overruled by Stamp and wife v. White and wife, Cro. Jac. 600.) Again, where the words complained of were, "He hath delivered false evidence and untruths in his answer to a bill in Chancery," it was held that no action lay; for though every answer to a bill in Chancery was on oath, and was a judicial proceeding, still in most Chancery pleadings "some things are not material to what is in dispute between the parties," and "it is no perjury, although such things are not truly answered"! (Mitchell v. Brown, 3 Inst. 167; 1 Roll. Abr. 70.) For further instances of such refinements, see Peake v. Pollard, Cro. Eliz. 214; Cox v. Humphrey, ib. 889; Holland v. Stoner, Cro. Jac. 315; and Bury v. Wright,(1609) Yelv. 126. But in the days of Charles II. the Court of Common Pleas decided in a case of scandalum magnatum (Lord Townshend v. Dr. Hughes, (1676) 2 Mod. 159) that "words should not be construed either in a rigid or mild sense, but according to the general and natural meaning, and agreeable to the common understanding of all men." And this decision soon became law. In Naben v. Miecock, (1683) Skin. 183, Levinz, J., said he was "for taking words in their natural, genuine, and usual sense and common understanding, and not according to the witty construction of lawyers, but according to the apprehension of the bystanders." (And see Somers v. House, Holt, 39; Skin. 364; and Burgess v. Bracher, 8 Mod. 238.) In 1722, Fortescue, J., declared in Button v. Hayward et ux., 8 Mod. 24, "The maxim for expounding words in mitiori sensu has for a great while been exploded, near fifty or sixty years." In Peake v. Oldham, Cowp. 277, 278, Lord Mansfield commented severely on the constant practice of moving in arrest of judgment after verdict found: "What? After verdict, shall the Court be guessing and inventing a mode in which it might be barely possible for these words to have been spoken by the defendant without meaning 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 a party, the Court ought not to be industrious in putting a construction upon them different from what they bear in the common acceptation and meaning of them." And his Lordship quoted a dictum of Parker, C.J., in Ward v. Reynolds, Pasch. 12 Anne, B. R., to the same effect. So in Harrison v. Thornborough, 10 Mod. 197, the Court says: "The rule 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." (See also the remarks of De Grey, C.J., in R. v. Horne, 2 Cowp. 682-689; Buller, J., in R. v. Watson and others, 2 T. R. 206; and the judgments in Baker v. Pierce, 2 Ld. Raym. 959; Holt, 654; and Woolnoth v. Meadows, 5 East, 463; 2 Smith, 28.) And such is now the law. The Courts no longer strain to find an innocent meaning for words primâ facie defamatory, neither will they put a forced construction on words which may fairly be deemed harmless. "Formerly," says Lord Ellenborough in 2 Camp. 403, "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, again, in Roberts v. Camden, 9 East, 95, the same learned judge says: "The rule which once prevailed, that words are to be understood in mitiori sensu, has been long ago superseded; and words are now to be construed by Courts, as they always ought to have been, in the plain and popular sense in which the rest of the world naturally understand them." Now, therefore, the only question for the judge or the Court is whether the words are capable of the defamatory meaning attributed to them; if they are, then it is for the jury to decide what is in fact the true construction. So long as the defendant's words are not absolutely unintelligible, a jury will judge of the meaning as well as other readers or hearers. It matters not whether the defamatory words be in English or in any other language that is understood in England, whether they be spelt correctly or incorrectly, whether the phrase be grammatical or not, whether cant or slang terms be employed, or the most refined and elegant diction. (R. v. Edgar, 2 Sess. Cas. 29; 5 Bac. Abr. 199.) The insinuation may be indirect, and the allusion obscure; it may be put as a question or as an "on dit"; the language may be ironical, figurative, or allegorical; still, if there be a meaning in the words at all, the Court will find it out, even though it be disguised in a riddle or in hieroglyphics. In all cases of ambiguity it is purely a question for the jury to decide what meaning the words. would convey to persons of ordinary intelligence. (Grant v. Yates, (1886) 2 Times L. R. 368.) And before answering that question the jury should well weigh all the circumstances of the case, the occasion of speaking, the relationship between the parties, &c. Especially they should consider the words as a whole, not dwelling on isolated passages, but giving its proper weight to every part. (Per Tindal, C.J., in Shipley v. Todhunter, 7 C. & P. at p. 690). The sting of a libel may sometimes be contained in a word or sentence placed as a heading to it, which will often render the defendant liable where without it he would have had a perfect answer to the action. So, too, a word added at the end may altogether vary the sense of the preceding passage. "It is obvious that an adjective, or even an adverb, may carry with it such a sting as to be a statement of some one particular fact." (Per Pollock, B., in Borough of Sunderland Election Petition, (1896) 5 O'M. & H. at p. 62). The defendant is, therefore, entitled to have the whole of the alleged libel read as part of the plaintiff's case. (Cooke v. Hughes, R. & M. 112.) And for the purpose of showing that what he wrote is no libel, and will not bear the construction which the plaintiff seeks to put upon it, the defendant may give in evidence any other passages in the same. publication which plainly refer to the same matter, or which qualify or explain the passage sued on. (R. v. Lambert and Perry, 2 Camp. 400; 31 Howell St. Tr. 340; Darby v. Ouseley, 25 L. J. Ex. 229; 1 H. & N. 1; 2 Jur. N. S. 497; Bolton v. O'Brien, 16 L. R. Ir. 97.) So, too, with a slander; very often the words immediately preceding or following may much modify those relied on by the plaintiff. (Brittridge's Case, 4 Rep. 19; Thompson v. Bernard, 1 Camp. 48.) When the language sued on is ambiguous, and some extrinsic evidence is necessary to make the meaning clear, evidence may be given of other libels or slanders published by the defendant of the plaintiff which explain or qualify that sued on. When, however, such evidence is admitted, the jury should always be cautioned not to give any damages in respect of it as a separate cause of action. (Per Tindal, C.J., in Pearson v. Lemaitre, 5 M. & Gr. 720; 12 L. J. Q. B. 253; 7 Jur. 748; 6 Scott, N. R. 607.) Illustrations. The Observer gave a correct account of some proceedings in the Insolvent Debtors' Court, but headed it "Shameful Conduct of an Attorney." The rest of the report was held privileged; but the plaintiff recovered damages for the heading. Clement v. Lewis, 3 Br. & B. 297; 7 Moore, 200; 3 B. & Ald. 702. Bishop v. Latimer, 4 L. T. 775. Boydell v. Jones, 4 M. & W. 446; 7 Dowl. 210; 1 H. & H. 408. Harvey v. French, 1 Cr. & M. 11; 2 M. & Scott, 591; 2 Tyr. 585. |