Cases. and others. Any publications reflecting upon, and calumniating, the administration of justice, are without doubt of a libellous nature; and where a libel was published in a newspaper, in the form of an advertisement, reflecting on the proceedings of a court of justice, it was characterized as a reproach to the justice of the nation, a Rex ». Watson thing insufferable, and a contempt of court. (c) So an order made by a corporation and entered in their books stating that A. (against whom a jury had found a verdict with large damages in an action for a malicious prosecution, and which verdict had been confirmed in the Court of Common Pleas,) was actuated by motives of public justice in preferring the indictment, was held to be a libel reflecting on the administration of justice, for which an information should be granted against the members who had made the order. Ashhurst, J. said, that the assertion that A. was actuated by motives of public justice carried with it an imputation on the public justice of the country; for if those were his only motives, then the verdict must be wrong. Buller, J. said, "Nothing can be of "greater importance to the welfare of the public than to put a 66 stop to the animadversions and censures which are so frequently "made on courts of justice in this country. They can be of no "service, and may be attended with the most mischievous consequences. Cases may happen in which the Judge and jury may "be mistaken: when they are, the law has afforded a remedy; "and the party injured is entitled to pursue every method which "the law allows to correct the mistake. But when a person has "recourse either by a writing like the present, by publications in "print, or by any other means, to calumniate the proceedings of "a court of justice, the obvious tendency of it is to weaken the "administration of justice, and in consequence to sap the very "foundation of the constitution itself." (d) Rex v. White and another. In a late case the same doctrine was acted upon: but it was at the same time clearly admitted that it would be lawful to discuss the merits of the verdict of a jury, or the decisions of a Judge, provided it be done with candour and decency. An information was filed against the defendants, the proprietors and printers of a Sunday newspaper, for a libel upon Le Blanc, J. and a jury, by whom a prisoner had been tried for murder and acquitted; and it was contended on the part of the defendants that they had only made a fair use of their right to canvass the proceedings of a court of justice. Grose, J. said, that "it certainly was lawful, with "decency and candour, to discuss the propriety of the verdict of "a jury, or the decisions of a Judge; and if the defendants should "be thought to have done no more in this instance, they would "be entitled to an acquittal: but, on the contrary, they had "transgressed the law, and ought to be convicted, if the extracts by writ of scandalum magnatum upon the statutes 3 Edw. 1. c. 34. 2 R. 2. st. 1. c. 5. 12 R. 2. c. 11. is of a civil, as well as of a criminal nature; and was formerly had recourse to in case of defamation of any of the great officers and nobles. But the civil proceeding is now almost obsolete, the nobility preferring to wave their pri vileges in any action of slander, and to stand upon the same footing, with respect to civil remedies, as their fellow subjects. (c) Vin. Abr. Contempt (A) 44. Pool v. Sacheverel, 1720. (d) Rex v. Watson and others, 2 T. R. 199. "from the newspaper, set out in the information, contained no 66 reasoning or discussion, but only declamation and invective, and were written not with a view to elucidate the truth, but to 65 injure the characters of individuals, and to bring into hatred and " contempt the administration of justice in the country." (e) It seems that no indictment will lie for contemptuous words spoken either of or to inferior magistrates, unless they are at the time in the actual execution of their duty, or at least unless the words, affect them directly in their office; though it may be good cause for binding the offender to his good behaviour. (f) This doctrine was recognized in a modern case, where the defendant was indicted for saying of a justice of the peace for the county of Middlesex, in his absence, that he was a scoundrel and a liar. (g) Lord Ellenborough, C. J. said, "the words not being spoken to "the justice, I think they are not indictable. This doctrine is "laid down by Lord Holt in a case in Salkeld; (h) and in Rex v. "Pocock in Strange, (i) the Court of King's Bench refused to grant an information for saying of a justice, in his absence, that "he was a forsworn rogue. However, I will not direct an ac"quittal upon this point, as it is upon the record, and may be "taken advantage of in arrest of judgment. It will be for the "jury now to say whether these words were spoken of the prose"cutor as a justice of the peace, and with intent to defame him "in that capacity; for if they were not, this indictment is not 66 supported; and it could not by possibility be a misdemeanor to "utter them, although the prosecutor's name may be in the com"mission of the peace for the county of Middlesex." (k) But it has been holden to be an indictable offence to say of a justice of the peace, when in the execution of his office, "you are a rogue " and a liar." () of words spoken of, or to, inferior magistrates. private indi VIII. As every person desires to appear agreeable in life, and of publicamust be highly provoked by such ridiculous representations of tions against him as tend to lessen him in the esteem of the world, and take viduals. away his reputation, which to some men is more dear than life itself; it has been held that not only charges of a flagrant nature, and which reflect a moral turpitude on the party, are libellous, but also such as set him in a scurrilous ignominious light, whether expressed in printing or writing, or by signs or pictures; for these equally create ill blood, and provoke the parties to acts of revenge and breaches of the peace. (m) (e) Rex v. White and another, 1808. 1 Campb. 359. The defendants were found guilty. And see a note of another proceeding by information against the same defendants for a libel on Lord Ellenborough, C. J. Holt on Lib. 170, 171. (f) Starkie on Lib. 533. 1 Hawk. P. C. c. 21. s. 13. (g) Rex v. Weltje, 2 Campb. 142. (h) Rex v. Wrightson, 2 Salk. 698. (i) 2 Str. 1157. And see Rex v. Penny, 1 Lord Raym. 153. (k) Rex v. Weltje, 2 Campb. 143. (1) Rex v. Revel, 1 Str. 420. though the words impute no punish"able crimes, they contain that sort "of imputation which is calculated to "vilify a man, and bring him, as the "books say, into hatred, contempt, "and ridicule; for all words of that description an indictment lies." And Words spoken are not indictable. Cases. But it should be observed, that there is an important distinction under this head between words spoken only, and words published 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. (q) 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. (1) 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 66 in Rex v. Cobbett, Holt on Lib. 114, or even exposed by types and figures, (n) Reg. v. Langley, 6 Mod. 125. Rex v. Bear, 2 Salk. 417. By Holt C. J. Villars v. Monsley, 2 Wils. 403. and see Starkie on Lib. 548. In Thorley v. Lord Kerry, 4 Taunt. 355. (in the Exchequer chamber) it was held, that an action may be maintained for words written for which an action could not be maintained if they were merely spoken. Mansfield, C. J. stated the arguments which would have prevailed in his mind to repudiate the distinction between written and spoken scandal, but that the distinction had been established by some of the greatest names known to the law, Lord Hardwicke, Hale, Holt, and others; and that Lord Hardwicke, C. J. had especially laid it down, that an action for a libel may be brought on words written when the words, if spoken, would not sustain it. (8) Rex v. Kinnersley, 1 Blac. R. 294. It was sworn, that the nobleman was a married man; and the court said, that under such circumstances the publication would have been a high offence even against a commoner, and that it was high time to stop such intermeddling in private families. (1) Rex v. Dr. Smollet, 1759. Holt on Lib. 224. (u) Rex v. Hil. T. 1812. Though it is not the object of this work to treat of the practice and modes of proceeding in criminal prosecutions, it may be proper shortly to observe, that the court of King's Bench always exercises a discretionary power in granting an information for a libel, and will, in many cases, leave the party to his ordinary remedy; as where the application is made after a great length of time, or where the matter complained of as a 66 66 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) 66 a man in respect of his trade. 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 far as others of a longer size, and that he was gunsmith to the 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 66 engage with any artist in town, nor ever did make such an experiment, 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. (x) 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 are 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. (z) 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 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) (b) Rex v. Osborne, Sess. Cas. 260. 2 Barnard. 138, 166. Kel. 230. pl. 183. (c) Rex v. Griffin and others, Holt on Lib. 239. (d) Rex v. Topham, 4 T. R. 126. (e) Carr v. Hood, 1 Campb. 355. And in an action for a libel upon the plaintiff in his business of a bookseller, accusing him of being in the habit of publishing immoral and foolish books, the defendant, under the plea of not guilty, may adduce evidence to shew that the supposed libel is a fair stricture upon the general run of the plaintiff's publications, Tabart v. Tipper, 1 Campb. 350. (f) Nightingale v. Stockdale, 49 Geo. 3. cor. Ellenborough, C. J. Selw. N. P. 1044. And it was held that though it is lawful to animadvert upon the conduct of a bookseller in publishing books of an improper tendency, it is actionable falsely to impute to him the publication of any immoral or absurd literary production. Tabart v. Tipper, 1 Camph. 354. And see in Herriott v. Stuart, 1 Esp. 437 and Stuart v. Lovell, 2 Stark. R. 93. that the editor of one public newspaper is not justified in attacks upon the private character of the writer of another public newspaper. (g) Dibdin v. Swan, 1 Esp. N. P. C. 28.; and see also Ashley v. Harrison, I Esp. N. P. C. 48. Peake, N. P. C. 194. |