1

4

given being, that the king was concerned, that is to say, it was a public offence. The courts seem to have applied the rules of the common law to the enforcement of this remedy somewhat more liberally than modern notions would allow. Lord Dorchester, in 1660, got a verdict against the defendant for saying of him "He is no more to be valued than the black dog which lies there." 2 Lord Pembroke was held entitled to sue a man for saying, "He was a pitiful fellow, and no man would take his word for twopence It was also held actionable to say, that the Lord Chief Baron was deaf of one ear, as this was apparently assumed to have a deep symbolical meaning. Lord Townsend, in 1676, brought an action against Dr. Hughes for saying, "He was an unworthy man, and acted against law and reason." The jury gave a verdict for 4,000l., and the court held this was no ground for a new trial, as they could not set a value on the plaintiff's honour.5 All these cases were, however, thrown into the shade a few years later. The Duke of York, in 1682, obtained a verdict of 100,000l. against Pilkington for saying in the Guildhall, at a meeting of aldermen of the city of London, that "the Duke had burned the city and was now come to cut the citizens' throats." The defendant chose to have the trial in Hertfordshire, and the jury, who were all gentlemen of quality, in a quarter of an hour found their verdict. A verdict for the same amount was returned in another action by the Duke against Colt; and even against Titus Oates, who, however, made no defence, they were equally liberal. The Earl of Macclesfield, in 1686, sued Starkey for saying, that the Earl was a seditious addresser, and obtained a verdict of 10,000l. And the same in an action of Duke of Ormond v Hatherington. During the last two centuries peers and great men have usually contented themselves with ordinary remedies, and especially with the remedy of criminal information.

8

Liability for repeating a slander or libel.-Great looseness long prevailed in our law as to the position and responsibility of one who repeated a slander or libel and

1 2 Mod. 166. 2 1 Sid. 233. 3 Freem. 49. 4 Hetley, 167. 5 Townsend v Hughes, 2 Mod. 166. 6 Bulstr. Mem. 321; 9 St. 7 10 St. Tr. 126. 8 Ibid. 127. 9 10 St. Tr. 1334.

Tr. 299.

5

gave circulation to it; and the misconception no doubt arose out of the vague manner in which the early statutes about false news, as we have seen, were framed. Such statutes seemed to imply, that if those who repeated a slander only gave up the author's name, they would escape all liability.1 Lord Ellenborough, C. J., so late as 1804, said the rule laid down in Coke's time, which was confirmed in a later case," was, that, in order to enable a defendant to justify slanderous words upon hearsay, he must disclose at the time of uttering the slander the name of the person from whom he heard it; and it was not sufficient to name him for the first time by his plea. The object of this rule was said to be to give the plaintiff his action in the first instance against the original author of the slander. And yet the same judge held, that repeating a libel was no defence whatever in a criminal proceeding. And another judge added, that it was a very good rule, that if a party will repeat slanderous words which he hears another say, he ought to do so in such a manner as will give the person injured an opportunity of bringing his action against somebody. A little later, however, it was said to be no defence in general to an action, that the name of the author of the libel has been given up, though it might be a good defence in particular circumstances. And the rule to the contrary, once said to be adopted in the time of Coke, was not applicable at least to written words.8 But neither the old rule nor the above modification of it has stood the test of examination, either as regards a written or a spoken calumny. If it were held any defence, that one merely repeated the slander of another, the slandered person would in many cases have no remedy whatever, for the original utterer may be a pauper, or a prisoner, or a man of straw.10 The result, therefore, now is, that he, who repeats a slander, is equally liable with the originator, and cannot get quit of liability by naming the first utterer; nor though he stated it not as 2 Northampton's Case' + Woolnoth v

1 See those statutes, ante, p. 53. 12 Rep. 133. 3 Davis v Lewis, 7 T. R. 17. Meadows, 5 East, 469. 5 R. v Drakard, 30 St. Tr. 1025. Lawrence, J., Woolnoth Meadows, 5 East, 472.

6 Per

7 Per Tindal,

C. J., Ward v Weeks, 7 Bing. 216; 145 Parl. Deb. (3) 74. 8 Tidman v Ainslie, 10 Exch. 66.

9 Crespigny v Wellesley

5 Bing. 404. 10 Macpherson v Danels, 10 B. &. C. 263; Watkin v Hall, 9 B. & S. 279; L. R., 3 Q. B. 396.

a volunteer, but in answer to a question.' If, indeed, the repetition does not purport to be a statement of a fact, but rather to be for inquiry, no liability may be incurred. But the repetition of a slander is not even deemed the natural and immediate consequence of first uttering it unless in very special circumstances. And the same remedy lies against the one who repeats, as against him who invents a slander or libel.

Excusable libels on privileged occasions.-Such being the nature of the attacks upon reputation which the law punishes, it is now necessary to consider what are excusable libels, or libels which the law will not punish. The rights of free speech are so constantly in exercise, and directed to subjects so widely diversified, that libels are all but inevitable not only from the recklessness, passion, and malignity of many, but also from certain urgent occasions besetting others, and which may involve no blame, but rather may do much good. Some libels are excused for this reason, that they are committed in the course of some lawful occupation, which ranks higher in the general estimation by being a benefit to great numbers, than the injury done, which is usually confined to one person only. When the two rights are incompatible, the law must make a distinction and prefer one to the other; and many examples will be found of this necessity. It is better that one person should suffer than that all should go without some necessary protection in the course of their own lawful and urgent business affairs.*

Meaning of the words "privileged occasion, privileged communication."-Though it has become an inveterate habit to use the words "privileged occasion," and "privileged communication," to denote certain circumstances under which something that would be actionable per se ceases to be so when the occasion is taken into account, it is a misapprehension of the meaning of words to call it a privilege. What is really meant is in no sense a privilege, but is a right, namely, the right to carry on one's business or to take advantage of one's situation and 1 Griffiths v Lewis, 7 Q. B. 64. 2 Crawford v Middleton, 1 Lev. 82. Vicars v Wilcocks, 8 East, 3; Knight v Gibbs, 1 A. & E. 46; Parkins v Scott, 1 H. & C. 153. 4 See also ante, chap. i.

circumstances, and this last is only another way of saying, that each is entitled to manage his own affairs for his own advantage. The carrying on of business often inevitably involves the necessity of slandering or libelling some third party. The slander or libel in such circumstances is, however, only an incident to the lawful business so carried on, and being not invented or used for the purpose of libel or slander or injury, is in precisely the same position as a blow or even a homicide committed in self-defence or under some proper justification. Thus the giving of a servant's character between master and master is part of the legitimate business of life, and unless the truth were spoken on such an occasion society could scarcely go on. Therefore, whenever in the exchange of this kind of information something is said which would be a slander or libel of the servant if no such occasion existed, it can be no cause of action. For the law deems it more important that characters should be given truly than that any one servant should suffer inconvenience from such a practice. The former ranks higher in the eye of the law, and the latter, being an inevitable incident, is deemed damnum absque injuria. Thus the use of the word "privileged communication" is due to some confusion of thought, for masters have no more a privilege to libel a servant than any person who has to defend his life has a privilege to slay the attacking party. The same expression of privilege is often used as an occasion of negativing malice, and this again is only a short expression to indicate that the person suspected of the malice was not doing the act or uttering the slander or libel in course of any lawful business of his own which the law protects. The more correct description of libels on these privileged occasions, as already stated, is to call them excusable libels, and with this explanation the two expressions are used as convertible. Most of these excusable libels or privileged occasions have been. reduced to a few well-known general heads, which require to be noticed as exceptions to the general rule governing libel and slander.1 Whenever a person not in the exercise of any lawful business of his own which the law protects, or not requiring so to act in self-defence, or for any reasonable 1 Wright Woodgate, 2 C. M. R. 573; Per Erle, J., Gilpin v Fowler, 9 Exch. 615.

object, goes out of his way to attack another's character and social reputation, and thereby does injury either actual or reasonably probable, then it is that a defamatory act is committed-the degree and the occasion and subject matter furnishing the characteristic test. When one oversteps the limits of this kind of lawful business and of just comment on his neighbour's character, then it is that the wrong will be committed. The difficulty always lies in detecting, when this line has been transgressed-when lawful business ends and unlawful attack begins.

Whenever, therefore, a person is exercising those rights of free speech mentioned in the previous chapters, such as the right of comment on all public matters, the publishing of debates of Parliament and reports of courts of justice, he is in the pursuit of his own lawful business, for the public business to that extent is his private business, and the law will protect him at all hazards. And over and above those occasions, whenever the alleged slanderer or libeller had some interest of his own in the nature of business or friendship, or urgent moral duty, and acts honestly in the promotion of such interest or duty, and not with the sole view of injuring a third party, in these circumstances also the law will protect him in his right of free speech at all hazards.1

Excuse of libel in giving servants' characters.—One

1 Toogood v Spyring, 1 C. M. & R. 193. "In general an action lies for the malicious publication of statements which are false in fact and injurious to the character of another (within the well-known limits as to verbal slander). And the law considers such publication as malicious, unless it is fairly made by a person in the discharge of some public or private duty, whether legal or moral, or in the conduct of his own affairs in matters where his interest is concerned. In such cases the occasion prevents the inference of malice, which the law draws from unauthorised communications, and affords a qualified defence, depending upon the absence of actual malice. If fairly warranted by any reasonable occasion or exigency, and honestly made, such communications are protected for the common conve nience and welfare of society, and the law has not restricted the right to make them within any narrow limits."-Parke B., Toogood e Spyring, 1 C. M. R. 181.

"Though the word 'privilege' is used loosely in several cases as applied to the right which every person has to comment on publie matters, the real question is whether the alleged libel is a fair conment such as every person might make upon a public matter, and if not there is no privilege."-Campbell v Spottiswoode, 3 B. & S. 779.