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Words spoken But it should be observed, that there is an important distincare not indict- tion under
. tion under this head between words spoken only, and words pubable.
lished by writing or printing. Words spoken, however scurrilous, even though spoken personally to an individual, are not the subject of indictment, unless they directly tend to a breach of the peace, as if they convey a challenge to fight. (n) But words, though not scandalous in themselves, if published in writing, and tending in any degree to the discredit of a man, have been held to be libellous. (0)
Upon these principles it has been held to be libellous to write of a man that he had the itch, and stunk of brimstone. (P) And an information was granted against the mayor of a town for sending to a nobleman a licence to keep a public house. (9) An information also was granted for a publication reflecting upon a person who had been unsuccessful in a lawsuit; (r) and against the printer of a newspaper for publishing a ludicrous paragraph, giving an account of the marriage of a nobleman with an actress, and of his appearing with her in the boxes with jewels, &c. (s) A defendant was convicted for publishing a libel in a review, tending to traduce, vilify, and ridicule, an officer of high rank in the navy; and to insinuate that he wanted courage and veracity; and to cause it to be believed that he was of a conceited, obstinate, and incendiary disposition. (t) And an information was lately granted against a printer of a newspaper, for publishing a paragraph containing a libel on the bishop of Derry, by representing him as a bankrupt. (u) But in an action on the case for
in Rex v. Cobbett, Holt on Lib. 114, (0) 4 Bac. Abr. Libel, (A) 2. pl. 450.
294. It was sworn, that the noble-
Hil. T. 1812. the arguments which would have pre. Though it is not the object of this vailed in his mind to repudiate the work to treat of the practice and distinction between written and spoken modes of proceeding in criminal proscandal, but that the distinction had secutions, it may be proper shortly to been established by some of the great observe, that the court of King's est names known to the law, Lord Bench always exercises a discretionHardwicke, Hale, Holt, and others; ary power ia granting an information and that Lord Hardwicke, C. J. had for a libel, and will, in many cases, especially laid it down, that an action leave the party to his ordinary refor a libel may be brought on words medy; as where the application is written when the words, if spoken, made after a great length of time, or would not sustain it.
where the matter complained of as a publishing a libel by posting it on a paper in the Casino room at Southwold, containing these words, “The Rev. John Robinson “ and Mr. James Robinson, inhabitants of this town, not being “ persons that the proprietors and annual subscribers think it “ proper to associate with, are excluded this room ;" the court of Exchequer held, that the publication was not a libel, as it did not affect the moral character of the plaintiffs, nor state that they were not proper persons for general society; that the paper might import no more than that the plaintiff was not a social and agreeable character in the intercourse of common life. (W)
A publication reflecting upon a man in respect of his trade may Publication also be libellous; as where A., a gunsmith, published in an adver- reflecting upon tisement that he had invented a short kind of gun, that shot as an
spect of his far as others of a longer size, and that he was gunsmith to the trade. prince of Wales; and B., another gunsmith, counter-advertised, “ That whereas, &c. (reciting the former advertisement) he desired “ all gentlemen to be cautious, for that the said A. durst not “ engage with any artist in town, nor ever did make such an ex“periment, except out of a leather gun, as any gentleman might “ be satisfied at the Cross Guns in Long Acre, the said B.'s “ house.” The court held, that though B., or any other of the trade, might counter-advertise what was published by A., yet it should have been done without any general reflections on him in the way of his business: that the advice to “ all gentlemen to be “ cautious,'' was a reflection upon his honesty; and the allegation that he would not engage with an artist was setting him below the rest of his trade, and calling him a bungler in general terms; and that the expression “ except out of a leather gun” was charging him with a lie, the word gun being vulgarly used for a lie, and gunner for a liar, and that therefore these words were libellous. (2)
General imputations upon a body of men are indictable, though General imno individuals may be pointed out. (y) An information was putations prayed against the defendant for publishing a paper containing an of men at
upon a body account of a murder committed upon a Jewish woman and her indictable. child, by certain Jews lately arrived from Portugal, and living near Broad Street, because the child was begotten by a Christian. (2) It was objected that no information should be granted in this case, because it did not appear who in particular the persons reflected on were. (a) But the court said, that admitting that an information for a libel might be improper, yet the publication of this paper was deservedly punishable in an information for a misdemeanor, and that of the highest kind; such sort of advertisements necessarily tending to raise tumults and disorders
libel happens to be true. See 4 Bac. veral persons therein mentioned, who Abr. Libel, 2. p. 451. and Starkie on were recently arrived from Portugal, Lib. 390. et sequ.
and lived in Broad-street, were at· (w) Robinson v. Jermyn and others, tacked by multitudes in several parts I Price R. 11.
of the city, barbarously treated, and (*) Harman v. Delany, Barnard. threatened with death, in case they K. B. 289. Fitzgib. 121. 2 Str. 898. were found abroad any more. S.C.
(a) Rex v. Orme, 3 Salk. 224. pl. 5. (y) Ante, p.211.
I Lord Raym. 486. was ciled. (z) The affidavit set forth that se.
Libel upon a person deceased.
Exceptions to the general rules.
Comments upon literary productions.
amongst the people, and inflame them with an universal spirit of barbarity against a whole body of men, as if guilty of crimes scarcely practicable, and wholly incredible. (b) And if some of the individuals affected by the libel are specified, it will be sufficient; as where it was objected that the names of certain trustees, who were part of the body prosecuting, were not mentioned, Lord Hardwicke observed, that though there were authorities where, in cases of libel upon persons in their private capacities, it had been holden necessary that some particular person should be named, this was never carried so far as to make it necessary that every person injured by such libel should be specified. (c)
A malicious defamation of one who is dead, if published with a malevolent purpose, to vilify the memory of the deceased, and with a view to injure his posterity, will be libellous: but it has been holden that an indictment for a libel, reflecting on the memory of a deceased person, cannot be supported, unless it state that it was done with a design to bring contempt on his family, or to stir up the hatred of the king's subjects against his relations, and to induce them to break the peace in vindicating the honour of the family. (d)
But there are some exceptions to the general rules and doctrine concerning libels, in the case of comments upon literary productions, and also in the case of communications considered as confidential, or made bona fide with a view of investigating a fact, or in the regular and proper course of a proceeding.
A publication commenting upon a literary work, exposing its follies and errors, and holding up the author to ridicule, will not be deemed a libel, provided such comment does not exceed the limits of fair and candid criticism, by attacking the character of the writer, unconnected with his publication; and every one has a right to publish a comment of this description. (e) But if a person, under the pretence of criticising a literary work, defames the private character of the author, and, instead of writing in the spirit and for the purpose of fair and candid discussion, travels into collateral matter, and introduces facts not stated in the work, accompanied with injurious comments upon them, such person is a libeller. (f) A fair and candid comment on a place of public entertainment, in a newspaper, is not a libel. (g)
(0) Rex v. Osborne, Sess. Cas. 260. N. P. 1044. And it was held that 2 Barnard. 138, 166. Kel. 230. pl. 183. though it is lawful to animadvert
(c) Rex v. Griffin and others, Holt upon the conduct of a bookseller in on Lib. 239.
publishing books of an improper tend(d) Rex v. Topham, 4 T.R. 126. ency, it is actionable falsely to ime
(e) Carr r'. Hood, I Campb. 355. pute to him the publication of any And in an action for a libel upon the immoral or absurd literary producplaintiff in his business of a book tion. Tabart v. Tipper, I Campb. 354. seller, accusing him of being in the And see in Herriott v. Stuart, 1 Esp. habit of publishing immoral and fool. 437. and Stuart v. Loveil, 2 Stark. ish books, the defendant, under the R. 93. that the editor of one public plea of not guilty, may adduce evi- newspaper is not justified in attacks dence to shew that the supposed libel upon the private character of the is a fair stricture upon the general writer of another public newspaper. run of the plaintiff's publications. (8) Dibdin v. Swan, 1 Esp. N. P. C. Tabart v. Tipper, i Campb. 350. 28.; and see also Ashley v. Harrison, I
(f) Nightingale v. Stockdale, 49 Esp. N. P. C. 48. Peake, N. P. C. 194. Geo. 3. cor. Ellenborough, C. J. Selw.
Confidential communications are in some cases privileged. As Confidential
com inunicawhere it was holden that a letter written confidentially to persons
tions. who employed A. as their solicitor, conveying charges injurious to his professional character in the management of certain concerns which they had entrusted to him, and in which B. the writer of the letter was likewise interested, was not a libel. (h) And if a person, in a private letter to the party, should expostulate with him about some vices, of which he apprehends him to be guilty, and desire him to refrain from them; or if a person should send such a letter to a father, in relation to some faults of his children; these it seems would not be considered as libellous, but as acts of friendship, not designed for defamnation but reformation. (i) But this doctrine must be applied with some caution ; since the sending an abusive letter filled with provoking language to another, is an offence of a public nature, and punishable as such, inasmuch as it tends to create ill blood, and cause a disturbance of the public peace; (k) and the reason assigned by Lord Bacon, why such private letter should be punishable, seems to be a very sufficient one, namely, that it enforces the party to whom the letter is directed to publish it to his friends, and thus induces a compulsory publication. (1) And though a letter written by a master, in giving a character of a servant, will not be libellous, unless its contents be not only false but malicious; (m) yet in such a case malice may be inferred from the circumstances. (n)
Although that which is written may be injurious to the charac- Communicater of another; yet if done bona fide, or with a view of investigating
8 bona fide, or a fact, in which the party making it is interested, it is not libellous. with a view of Thus where an advertisement was published by the defendant at investigating a the instigation of A., the plaintiff's wife, for the purpose of ascertaining whether the plaintiff had another wife living when he married A.; it was holden that although the advertisement might impute bigamy to the plaintiff, yet having been published under such authority, and with such a view, it was not libellous. (0) And if the communication be made in the regular and proper Or made in course of a proceeding, it will not be libeilous. As where a writing, the proper
course of a containing the defendant's case, and stating that some money, due os
proceedings to him from the government for furnishing the guard at Whitehall with fire and candle, had been improperly obtained by a captain C. was directed to a general officer, and the four principal officers of the guards, to be presented to his Majesty for redress; an information was refused, on the ground that the writing was no libel, but a representation of an injury drawn up in a proper way for redress, without any intention to asperse the prosecutor ; and that though there was a suggestion of fraud, yet that is no more than is contained in every bill in chancery, which is never held
(h) M.Dougall v. Claridge, 1 Campb. opened and read by the bearer. 267.
(1) Poph. 189, cited in Holt on Lib. (0) Peacock v. Sir George Reynell, 222. 2 Brown). 151, 152. 4 Bac. Abr. Libel (m) Weatherstone v. Hawkins, I T. (A) 2. in the notes, p. 452.
R. 110. Edmonson v. Stephenson, (k) 4 Bac. Abr. Libel (B) 2. p. 459. Bull. N. P. 8. Rex v. Cator, 2 East. R. 361. Thorley (n) Rogers v. Sir G. Clifton, 3 Bos. v. Lord Kecry, 4 Taunt. 355. In the & Pul. 587. last case the letter was unsealed, and (0) Delancy v. Joncs, 4 Esp. 191.
libellous if relative to the subject matter. (p) So a petition addressed by a creditor of an officer in the army to the Secretary at War, bona fide, and with the view of obtaining, through his interference, the payment of a debt due, and containing a statement of facts which, though derogatory to the officer's character, the creditor believed to be true, is not a malicious libel, for which an action is maintainable. (a) And where the defendant, being deputygovernor of Greenwich hospital, wrote a large volume, containing an account of the abuses of the hospital, and treating the characters of many of the officers of the hospital, (who were public officers), and Lord Sandwich in particular, who was first lord of the Admiralty, with much asperity; and printed several copies of it, which he distributed to the governors of the hospital only, and not to any other person; the rule for an information was discharged. Lord Mansfield said, that this distribution of the copies to the persons only who were from their situations called on to redress these grievances, and had, from their situations, competent power to do it, was not a publication sufficient to make the writing a libel. 19). And where the publication is an admonition, or in the course of the discipline of a religious sect, as the sentence of expulsion from a society of Quakers, it is not libellous. (r) And it has been decided that an action will not lie for words innocently read as a story out of a book, however false and defamatory they may be. Thus where a clergyman in a sermon recited a story out of Fox's Martyrology, that one G., being a perjured person, and a great persecutor, had great plagues inflicted upon him, and was killed by the hand of God; whereas in truth he never was so plagued, and was himself actually present at the discourse; the words being delivered only as matter of history, and not with any intention to slander, it was adjudged for the defendant. (s)
IX. Upon the ground that malicious and scurrilous reflections upon those who are possessed of rank and influence in foreign states may tend to involve this country in disputes and warfare, it has been held that publications tending to degrade and defame persons in considerable situations of power and dignity in foreign countries may be treated as libels. Thus an information was filed, by the command of the crown, for a libel on a French ambassador, then residing at the British court, consisting principally of some angry reflections on his public conduct, and charging him with ignorance in his official capacity, and with having used stratagem to supplant and depreciate the defendant at the court of Versailles. (t) And Lord George Gordon was found guilty upon an information for having published some severe reflections upon the Queen
Of publications against foreigners of distinction.
(p) Rex v. Bayley, Andr. 229. 4 on Lib. 173. 1 Ridgway's Collection Bac. Abr. Libel (A) 2. p. 452. As to the of Erskine's Speeches, p. 1. Lord privilege of proceedings in courts of Mansfield seemed to think that whejustice, see anle, p. 214.
ther the paper were in manuscript or (a) Fairnian v. Ives, 5 B. & A. 642.; priuted, under these circumstances, and if an action be brought for such made no difference. publication, the writer may, even upon (r) Rex v. Hart, 2 Burn's Ecc. L. the general issue, give evidence to 779. shew that he believed the fact stated (s) 4 Bac. Abr. Libel A. 2. p. 452. in the petition to be true.
(1) Rex v. D'Eon, 1 Blac. Rep. 510. (9) Rex v. Baillie, 30 Geo. 3. Holt The defendant was convicted.