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writing which is understood by every one of the meanest capacity cannot possibly be understood by a Judge or jury.(n)
An indictment lies for general imputations on a body of men, will die for a though no individuals be pointed out, because such writings have a libel on a body tendency to inflame and disorder society, and are therefore within of men. the cognizance of the law. (0) And scandal published of three or four persons is punishable at the complaint of one or more, or all of them. (P)
It appears to have been considered that the remedies by action Actions and and indictment for libels are co-extensive, and may be regarded indictments as upon
the same footing. (9) It is quite clear that upon an indictment or criminal prosecution The party canfor a libel the party cannot justify that its contents are true, or not justify that that the person upon whom it is made had a bad reputation.
The the contents of
a libel are true; ground of the criminal proceeding 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 a 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 shew 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 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 com
(n) i Hawk. P.C. c. 73. s. 5. 4 Bac. B., which first ahused A. and then B. Abr. Libel (A) 3. p. 453., where it is And it was said that if the defendants said in the marginal note that if an ap- had sung separate stanzas, the one replication is made for an information flecting on A. and the other on B., the in a case of this kind, some friend to offence would still have been entire. the party complaining should, by affi- A libel upon one of a body of persons, davit, state the having read the libel, without namiog him, is a libel upon and understanding and believing it to the whole, and may be so described ; mean the party. In a late case Lord and where a paper is published equally Ellenborough, C. J., held, upon argu- reflecting upon a number of people, it ment, that the declarations of specta- reflects upon all: and readers, accordtors, while they looked at a libellous ing to their different opinions, may picture in an exhibition room, were apply it so. Rex v. Jonour, 7 Mod. evidence to sbew that the figures pour: 400. trayed were meant to represent the par- (q) Starkie on Lib. 150, 165, 550, ties stated to be libelled. Du Bost v. Holt on Lib. 215, 216. Bradley v. MeBeresford, 2 Campb. 512.
thuen, 2 Ford's MS. 78. This must be (0) Holt on Libel, 237.
understood, however, of cases where (p) Id. ibid. In Rex v. Benfield the libel, from its nature and subject, and Sanders, 2 Burr. 980, it was held inflicts a private injury, and not of that an information lay against two those cases in which the public only for singing a libellous soug on A. and can be said to be affected by the libel.
plain, for every injury done to him, in the ordinary course of law, and not by any means to revenge himself by the odious proceed
ing of a libel. (r) Nor that it
It should seem that a party will not be excused by shewing that was copied
the libel with which he is charged was copied from some other other work. 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. Thus, where to a declaration for a libel published in a newspaper it was pleaded that the libel was originally published in the Hampshire newspaper by G. M., and that at the time of publication by the defendant it was stated in such publication that it was copied from that newspaper, and that pursuant to the statute 38 Geo. 3. c. 78. the said G. M. had made an affidavit that he was the publisher of the Hampshire newspaper, and still remained so at the time of publication of the libel; the Court held that the plea was bad, inasmuch as the publication by the defendant did not specify by name G. M. as the original publisher of the libel, but only named the journal : and it was intimated by some of the learned Judges (though not decided, as such a decision was not required by the case) that even if G. M. had been named by the defendant when the latter published the libel, such publication, being of written slander, could not have been justified.(s)
But there are some circumstances which will protect a publicaPetition to the tion from being deemed libellous. A petition to the King to be King.
relieved from doing what the King has directed the party to do, if bona fide and in repectful 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, honour, 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 for it; and, not choosing to give bail, were sent to the Tower, and tried. The publication was proved ; and Wright, c. J., and Allibone, J., thought it a libel : but Holloway and Powell, Js., thought other.
(r) I Hawk. P.C c. 73. s. 6. 4 Bac. davit asserting directly and pointedly Abr. Libel (A) 5. p. 455. 4 Bla. Com. that he is innocent of the charge im150, 151. Starkieon Libel, 556. et seq. puted to him. This rule, however, Holt on Libel, 275, et seq. But though may be dispensed with if the person the truth is no justification in a cri- libelled resides abroad, or if the imminal prosecution, yet in many in- putations of the libel are general and stances it is considered as an extenua- indefinite, or if it is a charge against tion of the offence; and the Court of the prosecutor for language which he King's Bench has laid down this gene- has held in parliament. 4 Bla Com. ral rule, that it will not grant an in- 151, note (6). Dougl. 271, 372. formation for a libel unless the prose- (8) Lewis v. Walter, 4 B. & A. 605., & cutor who applies for it makes an affi- see M Gregor v. Thwaites, 3 B. & C. 24.
wise, 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. (r)
It has been resolved that no false or scandalous matter con- Petitions to tained in a petition to a committee of parliament, or in articles of parliament, the peace exhibited to justices of peace, or in any other proceed- thorized proing in a regular course of justice, will make the complaint amount ceedings. 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.(s) Thus where a charge was, that 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.(t) It is also held that no presentment 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 enquiries with that freedom and readiness which the public good requires. (u) Where an action was brought against the president of a military court of enquiry 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. (v) 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
(r) Case of the Seven Bishops, 12 St. any reason why such a mockery of Tri. 183; and see post, as to commu- public justice should not rather agnications made bona fide, and in the gravate the offeuce than make it cease proper course of proceeding.
to be one. Upon this point Mr. Starkie, (3) 1 Hawk. P. C. c. 73. s. 8. 4 Bac. after referring to the several authoriAbr. Libel (A) 4. p. 454. And see the ties, says, that it may be collected gejudgment of Holroyd, J., in Hodgson nerally that po action can be mainv. Scarlett, 1 B. & A. 244. It is hoiden tained for any thing said or otherwise by some that no want of jurisdiction published in the course of a judicial in the court to which the complaint proceeding, whether criminal or civil; shall be exhibited will make it a libel; though for a malicious and groundless because the mistake of the court is not prosecution, an action, and perhaps imputable to the party, but to his an indictment, may be supported, counsel : but Hawkins says, (1 Hawk. founded on the whole proceeding. P. C. c. 73. s. 8.) that if it manifestly Starkie on Libel, 223. appears that a prosecution is entirely (t) Astley v. Younge, 2 Burr. 817, false, malicious, and groundless, and (u) I Hawk. P. C. c. 73. s. 8. 4 Bac. commenced, not with a design to go Abr. Libel (A) 4. p. 455. through with it, but only to expose the (v) Horne v. Lord F. C. Bentinck, 4 defendant's character under the shew Moore, 563. of a legal proceeding, he cannot see
tice is allowable.
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 his opinion, said, “If it appear that the charges are “absolutely without foundation,-is the president of the court-mar“ tial 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 ?”(w) And speeches
The members of the two houses of parliament, by reason of of members of their privilege, are not answerable at law for any personal reflecparliament are tions on individuals contained in speeches in their respective privileged.
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. (x)
Thus the actual proceedings in courts of justice and in parliament are exempted from being deemed libellous: it becomes important to enquire 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. How far the
It has always been held that a publication of the proceedings in publication of proceedings in a court of justice will not be protected unless it be a true and courts of jus- honest statement of those proceedings. (y) But provided it were
of that character, the doctrine seems at one time to have been
public justice to be disclosed by a witness in a judicial enquiry “ 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 publi“cation was not libellous merely because the matter had been given “ in evidence in a court of justice.”(b) In a subsequent case, not relating directly to this point but to the publication of proceedings in parliament, Bayley, J., said, “It has been argued that the “ proceedings of courts of justice are open to publication. Against
that, as an unqualified proposition, I enter my protest. Sup
(w) Jekyll v. Sir John Moore, 2 Stiles v. Nokes, 7 East. 493. N. R. 341.
(2) Curry v. Walter, i Bos. & Pull. (x) Holt on Libel, 190. Starkie on 523., referred to by Lawrence, J., in Libel, 211. Rex v. Lord Abingdon, Rex v. Wright, 8 T. R. 298. 1 Esp. Rep. 226. By 4 Hen. 8. c. 8. (a) By Lord Ellenborough, C. J. and members of parliament are protected Grose, J., in Stiles v. Nokes, 7 East. from all charges against them for any 503. thing said in either house; and this is (6) Id. ibid. And see Rex v. Salisfurther declared in the Bill of Rights, bury, i Ld. Raym. 341, that it is inI W. & M. st. 2. c. 2.
dictable to publish a scandalous peti(y) Waterfield v. the Bishop of Chi- tion to the House of Lords, or a scanchester, 2 Mod. 118. Rex v. Wright, dalous affidavit made in a court of 8 T. Rep. 297, 298. per Lawrence, J. justice.
pose an indictment for blasphemy, or a trial where indecent “ evidence was necessarily introduced ;-would every one be at “ liberty to poison the minds of the public, by circulating that “ which for the purposes of justice the court is bound to hear ? “ I should think not: and it is not true therefore that in all in“ stances the proceedings of a court of justice may be published. “ Again, it may be said that counsel have a right, in pursuance “ of their instructions, and whilst the cause is going on, to endea“ vour to produce an effect by making such observations on the “ credit and character of parties and their witnesses as sometimes, “ when the cause is over, perhaps they are sorry for. But have
they, therefore, or any person who hears them, a right after“ wards to publish those observations? I have no hesitation in
saying that when the occasion ceased, the right also would cease; “ and that it would be no justification to plead that such a publica“tion was a transcript of the counsel's speech.”(c) This doctrine was recognized and acted upon in a recent case. The defendant's husband had been convicted of publishing a blasphemous libel, after having in his defence at the trial used arguments and statements of a blasphemous and indecent description. His wife published the trial; and, upon shewing cause against a rule for a criminal information, it was urged that she had a right to publish what actually took place in a court of justice: but the Court were clear she had not, if that statement contained any thing defamatory, seditious, blasphemous, or indecent: and the rule was made absolute. (d) And where it is allowable to publish what passes in a court of justice, the party must publish the whole case, and not merely state the conclusion which he himself draws from the evidence. Thus, where the libel stated in the declaration purported to be a speech of counsel at a trial of the plaintiff on a criminal charge, and, after setting out the speech, said that a witness was called who proved all that had been stated by counsel, and that the defendant was immediately afterwards acquitted upon a defect in proving some matter of form; and the plea stated that in fact such a speech was made, and that the witness called proved all that had been so stated, but it did not set out the evidence or justify the truth of the charges made in the counsel's speech; it was holden that such plea was bad, inasmuch as a party could not be justified in publishing the result of evidence given in a court of justice, but must state the evidence itself. (e)
And the party making the publication will not be justified, unless he confines himself to what actually passed in court. In a case where an action was brought for a libel concerning the plaintiff in his profession as an attorney, and the libel, as stated in the declaration, began, “shameful conduct of an attorney,” and then proceeded to give an account of proceedings in a court of law which contained matter injurious to the plaintiff's professional character,
(c) Rex v. Creevy, 1 M. & S. 281. In “ must be understood with very great the same case Lord’Ellenborough, C.J. “limitations; and shall never fully assaid, “ As to Curry v. Walter, (ante, “sent to the unqualified terms attri“ pote (2), ) it is not necessary for the “buted in the report of that case to “present purpose to discuss that case : “Evre, C. J.” “whenever it becomes necessary,I shall (d) Rex v. Carlisle, 3 B. & A. 167. “say that the doctrine there laid down (e) Lewis v. Walter, 4 B, & A. 605.