different from what they bear in the common acceptation and meaning of them." i

The medium of the libellous act.-The medium by which the libellous act is committed is not confined to any one description of writing, printing, painting, gesture, or pantomime; all depends on the effect produced by the instrument or medium used on the public or the bystanders. The language may be ironical or metaphorical; as, for example, to call one " an honest lawyer." Hence it is idle to set up as a defence that the words were misspelled; or were in the form of a question put to third parties; or that the defendants were only singing a song in front of a father's house (imputing dishonesty and immorality to two of his children); or that no individual was named, though a class was described (under which that individual was understood by everybody to be included), such as "some of the Irish factories "; or that the initial letter only was printed; or that it was only a fancy picture of "Beauty and the Beast" (though the figures resembled a well-known man of fashion and his wife). And the libellous act may consist in mere gestures or conduct; as fixing a gallows before a man's door or somewhere near, which Coke said was an example of libel by signs.10 Holt, C. J., held that painting a man playing at cudgels with his wife was a libel; and so was putting up and burning a certain lamp at another's door, like that commonly used before disorderly houses; 12

1 Peake v Oldham, Cowp. 275.

v

2 Hob. 215; 11 Mod. 86;

Hoare Silverlock, 12 Q. B 624; Fisher v Clement, 10 B. & C. 472. 3 Boydell v Jones, 4 M. & W. 446. 4 R. v Edgar, 2 Sess. C. 29. 5 Gathercole's Case, 2 Lew. C. C. 255. 6 R. Benfield, 2 Burr. 984. 7 Le Fanu v Malcolmson, 1 H. L. C. 664. 8 Read Huggonson, 2 Atk. 470.

9 Du Bost v Beresford, 2 Camp., 511. In one case Parson Prick in his sermon told a story out of Foxe's Martyrology, that one Greenwood, a justice and great persecutor, had great plagues inflicted on him and was killed by the hand of God. But it turned out that Greenwood was present listening to the sermon, and sued for damages. WRAY, C. J., however, told the jury, it was only delivered as a story with no intention to injure, and judgment was entered for defendant; and POPHAM said it was good law, and COKE also quoted the case as sound sense.- Cro. Jas., 91.

10 5 Rep. 125. 11 East, 226.

11 11 Mod. 99.

12 Jeffries v Duncombe,

also carrying a man about dressed with horns and bowing at plaintiff's door.1

Libelling classes of persons, corporations, and firms. -Holt, C. J., said that a libel that points at nobody is like a shot at random, that seldom does any mischief. A defamatory libel is necessarily personal, yet it may be aimed ostensibly at individuals united in partnership, or described under the more general name of a class of persons. It is true that some descriptions are too wide to amount to libel, as where "men of the gown" are abused.3 But it is libellous to describe persons spoken of, though no more definitely than as partners of a firm; or a society which manages a nunnery. A chairman of a life assurance company was held entitled to sue on behalf of the shareholders of the company for a libel importing that their policies were insecure. And a shareholder in a company is not so identified with his fellow-shareholders, that he may not be sued for libelling the company to which they both belong. And on the other hand the managers of a company or voluntary society may so act as to make the company or society liable for libels issued under their authority, as where a telegraph company publish a telegram that a bank has stopped payment. The court on one occasion granted a criminal information for a libel on "the clergy residing in and near the city of Durham," and the verdict of guilty was in the same terms; though the point was raised afterwards, but never decided, whether this was not too vague and general a description of the persons libelled. And in a case where the libel was on "the Portuguese Jews," accusing them of burning a bastard child, the court granted a rule for a criminal information.10 And in a

1 Bolton Deane, 2 Show., 314. But riding Skimmington, a mode of insinuating that a man's wife had beaten him, and though injuring the plaintiff (a hackney coachman) in his business, was held not actionable.-Mason Jennings, T. Raym., 401. It was said that the Greeks had no punishment for defamation by words and gestures, for it was pusillanimity not to resent it on the spot. -Hobbes' Leviath., c. 27. See Diog. Laert. Anach.

2 R. Tutchin 14 St. Tr. 1118.

3 Shower, 314; 3 Salk. 224. Haythorn v Lawson, 3 C. & P. 196; Le Fanu v Malcolmson, 1 H. L. C. 637. 5 R. v Gathercole, 2 Lewin, C. 237. Beaumont, 10 Bing. 260. 7 Metropolitan Co. v N. 87. 8 Whitfield S. E. R. Co., E. B. & E. 115. Speeches. 10 Osborne, 2 Barn. 138.

6 Williams v Hawkins, 4 H. & 9 Brougham's

case where the management of "some of the Irish factories" was attacked as "practising great cruelties," the owner of one of these was held entitled to sue as being included in those aimed at.' So where a newspaper article charged libellous acts specially against, but without naming "an aide-de-camp of the governor of a colony," and there were eight of them, it was held, that the libel affected each and all those eight.2

On the other hand, if the jury are satisfied, that the imputations were inpersonal, and were aimed rather at a general source of mischief, the plaintiff will fail; as where a person declared the tanks for supplying water to ships at St. Helena contained water unfit to drink, and an owner of a ship trading to that place was held to be not involved personally, and not entitled to sue. And where a newspaper writer, writing about an archæological meeting, cautioned all antiquaries against the figures sold as "pilgrim's signs," which were said to be of recent publication and a gross attempt at extortion-but not mentioning any names-the plaintiff, who dealt in such articles, was held not to be entitled to sue, for nothing was pointed at him specially.

Libels on the dead.-The injury to character or reputation contained in a defamatory libel, necessarily means an injury to the reputation of a living person, who is in a position to suffer and to vindicate his claim to redress by action or indictment; for if there is nobody to claim redress, then no injury can be done, and no rights and no wrongs can exist. History is said to swarm with libels on the dead and the living. Nevertheless, that expression is sometimes used in the law as if the same kind of injury were possible towards the dead as towards the living, and as if the former were not yet beyond the reach of detraction and could still cry aloud for redress. This was never more than a figure of speech indicating that sometimes the relatives of a person recently dead were treated as identified with their predecessor, and as if the inanimate clay could be deemed on such occasions to glow with anger, pride, or revenge.5 By the Roman law the heir was bound 2 R. v Hatchard,

1 Le Fanu v Malcolmson, 1 H. L. C. 637. 32 St. Tr. 752. 3 Solomon v Lawson, 8 Q. B. 823. 4 Eastwood v Holmes, 1 F. & F. 347.

5 The ancient Egyptians surpassed all nations in the liberal manner

to protect the good name of the deceased, and any insult offered to the dead body was deemed offered to himself, and a good cause of action.1 Hence, when a father's statue was struck with a stone, this was an injury to the son and heir, and could be redressed by action. Our law has never gone so far as to give damages, and yet there are traces of the same right and the same wrong. The ancient notion seemed to be, that such libels were so irritating to the surviving family, that they stirred them to a breach of the peace, and so there was a good ground for indictment at common law. Coke several times repeats it as if he had discovered an excellent reason for punishing libels on dead magistrates; this reason was, that these were "reflections on the Government, and the Government never dies." And he says, that the Star Chamber punished such an offence, as, for example, the case of the dead Archbishop Whitgift being slandered. In one case, in 1791, a newspaper writer published a notice of the recent death of Earl Cowper, adding that he had been addicted to unmanly vices and debaucheries; and though on trial of an indictment the jury found the defendant guilty, still judgment was arrested because it had not been alleged, that the libel tended to stir up the family of the deceased to a breach of the peace. As L. Kenyon, C. J., remarked, it was preposterous to hold, that at no time can the conduct of a dead man be canvassed, or the conduct of bad men contrasted with that of good men. Therefore, the tendency to provoke a breach

in which they disposed of this difficulty; for after the death of a person, a tribunal of forty judges sat in solemn inquest to try his character for good and evil, and cast up the balance. If upon the whole the accusations were not proved, then his body was allowed to be buried; but if the verdict was against him the corpse was refused burial, and was kept as a chattel, remaining in the house of his descendants till the judgment could be reversed.-Diod. i. 92; Herod. b. ii. ; 1 Kenrick's Egypt, 500; 2 Ibid. 59. Solon was thought to make a just law, that no man should be allowed to speak ill of the dead.-Plut. Sol.

1 Dig. 47, 10, 27; Gaius, Inst. iii. § 221. 2 Dig. 47, 10, 27. 3 Wraynham's Case, 2 St. Tr. 1076.

42 St. Tr. 1074. The Star Chamber's view of this matter was put thus: "As a scandal to him that is dead in the public service, it hath been adjudged, that words of imputation against a great judge after his death should not be examined, lest the public justice might receive prejudice when he is gone, that should make it appear to be

who shall be convicted ought to be a contriver of the libel, or a procurer of the contriving of it, or a malicious. publisher of it, knowing it to be a libel. If he writes a copy of it and does not publish it to others, or if he hears, or reads, or laughs, at it, this is said by Coke to be no publication of it. Holt, C. J., seemed to go the length of holding, that the mere committing of libellous words to writing was per se the offence, and hence he held, that if a jury found the fact of writing or even copying libellous words, this was equivalent to a verdict of guilty. Thus the judge said, "The mere having of such writings in his custody is highly criminal, for notwithstanding he might design to keep them private, they might after his death fall into such hands as might be injurious to Government." And hence the collecting and transcribing of libels for the purpose of publishing them was deemed criminal, though no publication should ever take place, since men ought not to have such evil instruments in their keeping. In one case it was proved, that the defendant, a clergyman, wrote down. a libel against King William and Mary, while a person unknown dictated the words to him, and so the clergyman acted only as penman. And the court decided, that this differed from the case of an amanuensis-that the real author did not make the libel, because he did not write it; and that unless this clergyman could be punished, then nobody could. So the clergyman was held guilty of writing and publishing.3 In 1792, when the judges' opinions were asked at the time of Fox's Bill being considered, ten judges treated the crime as practically consisting in the mechanical act of publication of the libel. And on the point being again solemnly argued in Sir F. Burdett's case in 1820, the court held an intermediate opinion, namely, that when a man puts his libellous letter into the post, this is equivalent to publication, for it is the first and irreversible step of the mechanical process.*

Mode of proving publication of libel.-While more

1 Lamb's case, 9 Co., 59 b. Hudson differs from Coke, and says the Star Chamber used to hold it settled, that to hear a libel sung or read, and to laugh at it and make merriment with it, was a publication in law.-Hudson's Star Ch., c. 11.

2 R. v Beare, 12 Mod. 221; 2 Salk. 419; 1 L. Raym. 414. Paine, Carth. 405. ✦ R. v Burdett, 4 B. & Ald, 95.

3 R. v