thus is usually a ground for some legal remedy. But it is not every injury to reputation which can be redressed, any more than every free speech which can be punished or visited with damages. There are bounds descried on both sides to the injury as well as to the redress. Free speech has a large arena to discourse in, and character may suffer much from the lighter attacks which no law can restrain or vindicate. The shafts of ridicule and wit, the silent sneer, the studied whisper, and the ready shrug may make havoc of reputations, and yet there may be no redress. Some things are too frivolous for the law to notice, too transitory to be transfixed, too subtle to be detected, too delicate for its coarse tests and processes. Nice distinctions must be drawn, so as neither to silence indignation, censure, or detraction where these are justifiable, nor tc extinguish reputation where there is no adequate advantage to be gained and no other person's interest or happiness is thereby enhanced. To comprehend all these occasions of collision considerable detail is now necessary.

Difficulties in defining personal libel or slander.— It has been already seen how difficult it was to define a blasphemous, immoral, or seditious libel. The difference between these and a defamatory libel or a libel on individuals is so great, that they can scarcely be classed together, and the characteristics of the one cannot be compared with those of the other, except that they both in some way qualify the primary right of free speech. The same difficulty has attended most of the attempts to define a defamatory libel, and numerous varieties of phrase have been resorted to, but without much success. Nearly the whole difficulty has arisen from two words which tend to mislead, and which are constantly used with little attention to precision or logical sequence; these are the words "malice" and "privileged occasion or privileged communication." The exception is often mistaken for the rule; as, for example, by starting with the assumption, that all libels are malicious and actionable, except a few which are called privileged. But this rather inverts the order of things, as a little consideration will show. The great primary right of each is to speak and write of all other persons, as his interest leads him. It is self-evident, that the vast majority of mankind go through the world without perpetrating either slander or

libel. They find a way of exercising their faculties to the fullest extent, and filling all the situations of life creditably, without committing either the one excess or the other. They can express "of and concerning" their neighbours everything useful or interesting to themselves and needful for their occasions without coming into collision with these neighbours, and for this reason, that most people instinctively confine themselves to their own immediate business without interfering with that of others; and the secret of acquiring this masterly evasion of all the points of collision is the same in this department of the law as in most others. It is only, after seeing that the reputation of third parties suffers from the exercise of this primary right of free speech that it becomes necessary to examine, whether at the moment of the alleged slander or libel the person uttering it was in the pursuit of such part of his own lawful business as the law protects. If he was so employed, then the law says, that this lawful business is to be allowed free course, regardless of the effect upon another's character, the latter result being in that case unavoidable, and therefore excusable. But if the libeller was not in the prosecution of any such lawful or rational interest of his own, then the reputation of the third person must be protected. It is properly presumed in that case, that the libel was a mere voluntary, reckless, studied attack, having for its object to cause pain, and mischief, and loss of influence to his neighbour, because by the law every man's property is to be protected against all officious interference. Hence all the law ranges round two great centres. One is to define, when it can be said, that the alleged libeller is in pursuit of this lawful business of his own, which is to be first of all protected, regardless of the effect on third parties. The other centre is to define, what is the kind of attack upon another's reputation which is to be punished or restrained at the expense of the attacking party. The former class of circum

stances are somewhat unaptly called "the privileged occasions," and the latter class of circumstances are called the characteristics of libel in its effects on a third party's reputation. As elsewhere stated, it would have been more methodical to call the former "excusable libels," and the latter the restrictions on the freedom of comment on our neighbours.

But it matters little which words

are used, if they are used with something approaching to precision.

1

The definition of libel and slander of individuals. -Slander is usually confined to words spoken, while libel is applied to words written or printed, or some picture or sign of a durable kind. A libel has been defined to be “a malicious defamation expressed either in printing or writing, or by signs, pictures, &c., 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." This is the definition usually employed, and particularly the last words, which describe the effects of the attack on reputation which the law will punish. But having regard to what has been already explained, a more orderly definition of defamation seems to be this," An attack made upon another's reputation by one who is not at the time engaged in any business of his own which the law protects." In order to comprehend this, it is only necessary to explain, what is meant by an attack on another's reputation and the medium by which it is done, and secondly, what is that lawful business of one's own, which the law protects. When these two phrases have been enlarged upon, the constituent elements of defamatory libel are known.2

Distinction between slander and libel.-But before proceeding further it is well to state more clearly the distinction between slander and libel, which both agree in this, that each involves a wrong, or an attack on the character and reputation of another. Although each wrong works its evil effect by producing in the minds of third parties a reduced estimate of the worth and value of the character assailed, yet different considerations at once arise according as the medium of attack is speech or writing; and writing is used to include printing. The Romans marked the distinction also, calling slander injuria verbalis, and libel

1 Dig. L. Lib. 1.

2 The following definitions may be added. "A libel is a contumely or reproach published to the defamation of a private person."Com. Dig. "A publication injurious to private character or credit of another."-Addison on Torts. Numerous miscellaneous definitions are collected in Townshend on Libel and Slander, and in Morgan's Laws of Literature.

libellus famosus, though as printing was then unknown, the distinction was far less notable and emphatic than it is with us. This distinction, more or less fundamental, is founded on the degree of publicity which the slander acquires, for the law naturally and properly attributes greater importance to it, according to the extent of the mischief which is presumably done. If a slander against A is uttered to A, and there is no bystander but one, the worst that can happen is that A's character will be gone or will suffer eclipse in the estimation of that one bystander. But if the same slander is uttered in presence of a hundred bystanders, or a thousand, or if it is put in writing, and then through the medium of a newspaper or pamphlet, thereby reach thousands of minds, one can see at a glance, how greatly the mischief is intensified in. the latter cases. This is a distinction which is real and not nominal, and requires different treatment to be dealt out to spoken and written slander, and different remedies and punishments assigned. And hence not a few writers have wondered, that this difference should exist, and especially that it should depend as they have thought only on the circumstance, that the defamation in one case is spoken, and in the other case is committed to writing. The real distinction does not turn on the mere act of speaking or writing, but on the circumstance whether the vehicle of slander is such as will naturally or probably carry the slander farther. Words, as Holt, Č. J., said, were transient, and vanished in the air as soon as spoken, and there can be no terror of them. It is because spoken slander is usually confined only to a few bystanders, and written slander reaches a wider and illimitable circle, that the law has drawn this well-settled distinction between spoken and written defamation, and which runs through a variety of details, as will be afterwards seen. The distinction is not in all cases sound and just, for a slander may be spoken to an audience of a thousand, and a written slander may reach only a select circle of two, or ten, or one hundred. This is only one of many illustrations of the law, for the sake of its more easy application, laying down and adhering to a rough and ready test rather than wasting time over

1 3 Salk. 225.

L

the minutiae of injustice, inasmuch as it is more easy to prove whether a matter is spoken or written than whether it reaches ten or ten thousand listeners. This is the sole reason why the distinction is, upon the whole, just and unassailable, and at all events more easily applied than any other distinction that can be suggested. And moreover, as a jury is always intrusted with the ultimate assessment of damages, the theoretical inequalities are easily adjusted by its own inherent power of adaptation to ever-varying details.

Practical effect of distinction between slander and libel. This distinction between spoken and written defamation has puzzled many and has even called forth censure from some who have overlooked both the source and the reason of the distinction. Mansfield, C. J., after prominently noticing the distinction and asserting that the spoken word was often more malignant and widespread in its effects than the written word, would gladly have abolished and repudiated any distinction between them, either in the remedy or the punishment, but, as Hale and Holt and Hardwicke had adopted and endorsed the distinction, it was too late for him to interfere.1 And he observed, that the tendency of the words to provoke a breach of the peace or the degree of malignity involved has nothing to do with the question. And other judges have from time to time reverted to it as an old and stubborn anomaly, but without tracing its origin with sufficient closeness.2 The chief distinctions that result from slander or spoken words, and libel or written and printed words, are, first, that spoken words will sometimes not be actionable, while the same words written or printed will be so; but if the same spoken words are followed by special damage,

1 Thorley v Kerry, 4 Taunt. 364.

2 Per Best, C. J., Tuam v Robeson, 5 Bing. 21. "Words are transient and fleeting as the wind, the poison they scatter is, at the worst, confined to the narrow circle of a few hearers. They are frequently the effect of a sudden transport, easily misunderstood, and often misreported."-Holt, C. J., 3 Salk. 225; Foster, Cr. L. In one case the plaintiff wrote of a peer, that he "under the cloak of religious reform hypocritically, and with the grossest impurity, dealt out malice and falsehoods." Though if spoken those words would not be actionable, yet when written they were held to be so. -Thorley Kerry, 4 Taunt. 364.