OFFENCE OF LIBEL. (m)

Offence.

PRELIMINARY

NOTES UPON THE OFFENCE, MODES OF PROSECUTION, VENUE, INDICTMENT, EVIDENCE, VERDICT, JUDGMENT, AND PUNISHMENT.

Offence. In briefly considering the offence of Libel, we will enquire, 1st. by what mode of expression a libel may be conveyed; 2dly, of what kind of defamation it must consist; 3dly, how plainly it must be expressed; 4thly, what mode of publication is essential; 5thly, who are liable to be punished for a libel criminally, either as composer or publisher.

1. By what mode of expression a libel may be conveyed. The most simple idea of libel is where the defamatory matter is reduced into writing. But the exhibition of a picture, intimating that which in print would have been libellous, is equally criminal, 2 Campb. 512. 5 Co. 125. but see 3 Campb. $23. So the fixing a gallows at a man's door, the burning him in effigy, or the exhibiting him in any ignominious manner, is indictable as a libel, Hawk. b. 1. c. 73. s. 2. 11 East 227. But mere opprobrious words, unless they are spoken of a magistrate in his official capacity, or tend immediately to provoke a challenge, are not punishable or criminal in the temporal courts, 3 Salk. 190. 2 Camp. 142.

II. What kind of defamation a libel must contain. There is, perhaps, no branch of the law which it is so difficult to reduce to any exact principles, or to compress within a small compass as the requisites of libel. All publications denying the Christian religion to be true-all works casting gross ridicule on the church of England-all writings subversive of morality, and tending to inflame the passions by indecent language-are indictable at common law; and publications, the natural tendency of which is to excite sedition, to bring either the constitution of this country or government in general into contempt, are highly criminal. But it has been laid down that the imputation of mere error in judgment, even to the sovereign himself, if done "with perfect decency and

(m) As to this offence in general, see Hawk. b. 1. c. 73. Com. Dig. Libel. Bac. Abr. Libel. Holt

on Libels. George on Libel. Starkie on Slander. Burn J. Libel. Williams J. Libel. Dick. J. Libel.

respect, and without any imputation of bad motives," is not libellous, 2 Campb. 402. The question then with respect to publications on the king and his ministers, is whether bad motives are imputed to them by the writer, and whether they are couched in terms that are decent and respectful. From hence it will follow, that though the tendencies of measures may be discussed with temperance, they must never be imputed to corrupt design, that no member of the government must be charged with corruption, or with a wish to infringe on the liberties of the people: this, indeed, follows from the definition of libel itself, as applied to individuals. It is said to be "a malicious defamation tending to blacken the memory of one who is dead, or the reputation of one who is alive, and expose him to public hatred, contempt, or ridicule," Hawk. b. 1. c. 73. s. 1. And nothing can be clearer than that truth is no justification of defamatory writings, as far as respects criminal prosecutions, for this reason, that the criminal law subjects libellers to punishment, not as a mode of redress to the party libelled, but on account of such libel having a tendency to occasion a breach of the peace, Bul. N. P. 9. Selwyn, N. P. Libel, 2nd ed. 1047, note 6. and it has been argued, that as truth is more likely to provoke animosity than falsehood, it is in fact more libellous, 5 Co. 125. Hawk. b. 1. c. 73. s. 6. And, as the officers of state have at least the same privileges with other persons, it follows that to write truth though ever so notorious, respecting them, which tends to "blacken their reputation, and expose them to public hatred, contempt, or ridicule," is, in itself, a libel. It is true the term "malicious" is introduced into the definition by Hawkins; but in this case as in murder and many others, the quality is rather a legal inference from the crime than one of its constituent parts, Gilbert's Cases, L. and E. 190, 1, 2, &c.: indeed there is never any occasion to prove it; and, in the cases of printers and publishers, we find men repeatedly convicted where it is probable they were ignorant of the contents of the papers they were assisting to circulate, 5 Burr. 2686. 20 St. Tr. 803. Cobbett's ed. Whether or not the party acted maliciously makes, therefore, no difference in practice. The doctrine of libels is founded solely on a regard to public tranquillity: it puts the merits and the feelings of individuals out of the question; and this consideration may, in some degree, elucidate a subject which, in itself, appears so perplexing.

It is further to be collected that, in order to constitute a libel it is not necessary that any thing criminal should be imputed to the party injured; it is sufficient if the writer has exhibited him in a ludicrous point of view, has pointed him out as an object of ridi

cule or disgust, has, in short, done that which has a natural ten dency to excite him to revenge, 2 Wils. 403. Bac. Abr. Libel A. 2. 4 Taunt. 355. S Campb. 214. And, therefore, words in themselves not scandalous, become criminal if put in writing so that they tend in any degree to a man's discredit, Hardw. 470. Bac. Abr. Libel A. 2. It is also said that this applies still more strongly to persons employed in public capacities, id. ibid. So that to publish any thing which "tends in any degree to the discredit" of the ministry, or of public functionaries, whether true or false, is libellous. And this seems to be the true boundary of the freedom of discussion.

A greater latitude of observation has, however, been allowed on books, than on characters. When a work is sent into the world, the author subjects it to fair and impartial criticism. "That publication," said Lord Ellenborough, "I shall never consider as a libel, which has for its object not to injure the reputation of any individual, but to correct misrepresentations of fact, to refute sophistical reasonings, to expose a vicious taste in literature, or to censure what is hostile to morality," 1 Campb. 352.: for this purpose the critic may employ ridicule however poignant, 1 Campb. 357. and it is even allowed to attack the author himself, so far as he has mixed himself up with the composition he has thought fit to publish, but the moment the critic travels from the book to follow the writer into his private life, and leaves his works to attack his character, the criticism becomes libellous, I Campb. 355.

It is laid down generally by the older writers, that it is equally libellous to throw a shade over the memory of the dead as to detract from the reputation of the living, 5 Co. 125. Hawk. b. 1. c. 73. s. 1.; but on the principle which constitutes the criminality of libels, this can only be true when the writing has a tendency to create a breach of the peace, by inciting the friends and relatives of the deceased to avenge the insult offered to the family and it is therefore now holden to be necessary to aver in the proceedings and prove on the trial, that the publication was intended to create disturbance, to throw scandal ou the family or descendants of the party accused, or to induce some one to break the peace for the purpose of vindicating the deceased, 4 T. R. 126.

III. How plainly the scandal must be expressed. It seems to be deducible from the cases on this subject, that if the matter be understood as scandalous, and is calculated to excite ridicule or abhorrence against the party intended, it is libellous, however it' may be expressed, 5 East 463. 1 Price, 11. 17. 18. Irony may convey imputations more effectually than direct assertion; thus it has been holden, that where a man reckons up the acts of charity

of another, and then tauntingly adds, " You will not play the Jew nor the hypocrite," evidently insinuating that all his munificence arises from the love of ostentatious display, the publication will be libellous, Hob. 215. So where the writer pretends to hold up the characters of public men to imitation, by praising them for qualities they are charged with wanting, and which from their situations they would not be expected to possess; as if he sets forth an illiterate general as a great scholar, or a statesman accused of wanting active courage as a gallant soldier, he will be considered as imputing to them the want of those endowments as a disgrace, Hawk. b. 1. c. 73. s. 4. And the circumstance of initials being substituted for the name of the party libelled will form no excuse to the writer, if his meaning is sufficiently obvious to the reader, for it would be absurd if that which is sufficiently plain to work all the mischief of a malignant slander, and which all who read it understand, should be regarded as too obscure to be visited by justice, or understood by juries and judges; and therefore the declarations of spectators attending the exhibition of a libellous picture, may be adinitted as evidence to shew that the parties intended by the figures are known to common observers, 2 Campb. 512. 5 East 463. The supposed libel must however contain unequivocal expressions of bad cha

racter.

Formerly it was said no writing could be esteemed a libel except it reflected on some individual; and that mere obscene ribaldry, without reflection on any one, is not an indictable offence, though the party might be compelled to find sureties for his good behaviour, as being a person of ill fame, Hawk. b. 1. c. 73. s. 9. ; but it is quite clear that there is not the least ground for this distinction. Immoral publications are punishable-not perhaps so properly under the denomination of libels-because they tend to destroy the morality of public feeling, and to produce many of those crimes which require to be visited with more severe penalties, 2 Stra. 788. ante 46. And treatises against civil government, or hereditary right in general, are indictable upon the same principle with writings which affect individuals.

IV. What mode of publication will excuse matter otherwise libellous. It is certain that no allegation, however false or malicious, contained in articles of the peace, in answers to interrogatories, in affidavits duly made, or in any other proceedings in a regular course of justice, will render the party indictable as a libeller, though the offensive matter may be ordered to be struck out, with costs, 4 Co. 14. 2 Burr. 807. Hawk. b. 1. c. 73. s. 8. 1 Saund. 131. n. 1.; nor can any thing be charged as libellous, which is contained in a petition to either house of parliament, however it Crim. Law. VOL. III.

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may affect individuals, 1 Lev. 240. 1 Saund. 132.; and the reason of this is manifest, because the courts of justice and the great council of the state, are the constitutional tribunals to which grievances should be preferred, and to bring alleged wrongs under their notice, is to support and not to break the peace; since their discussion puts an end to the dispute. So no presentment of a grand jury can be libellous, Moor, 627. And it has been laid down by some of the older writers that no want of jurisdiction in the court before which a complaint is preferred, will take away this protection; because the mistake on this subject is not to be attributed to the error of the party himself, but of his legal adviser, see Hawk. b. 1. c. 73. s. 8. 1 Saund. 131. n. 1.: but it is contended by Hawkins that where it appears from the whole circumstances of the case, that the prosecution is commenced for the mere purpose of libelling, and without any intention to proceed in it, such an abuse and mockery of public justice should not become a shelter for the guilt which, in reality, they increased, id. ibid. and cases there cited.

If a person not only charge another with improper conduct in the course of a judicial proceeding, but afterwards publish it to the world, he will be as much guilty of a libel as if it had arisen directly from the invention of its author, 1 Saund. 183. Hawk. b. 1. c. 73. s. 12. Thus a peer or member of parliament, though privileged to speak his sentiments in the house, may be guilty of a libel by publishing it, however correctly, to the world, 1 Esp. Rep. 228. And if defamatory matter, in the form of a petition to parliament be delivered to any other person except members, the circulation will be criminal, 1 Saund. 131. 1 Sid. 414. Hawk. b. 1. c. 73. s. 12. Even the mere publication of the proceedings at a public office on the examination of a party accused of a crime is illegal, especially if accompanied with observations tending to prejudice the mind of the public against him, 2 Campb. 563. And an order made by a corporation and inserted in their books, that a person against whom a jury have given large damages on an action for a malicious prosecution, has been actuated by motives of public justice, is libellous, as tending to throw discredit on judicial proceedings, 2 T. R. 199. But the delivery of printed copies to all the members, and the necessary exposure of the manuscript to the compositors and other workmen concerned in printing it, are not indictable offences, 1 Lev. 240. 1 Saund. 133.

V. Who are liable to be punished criminally for a libel, either ·as composers or publishers. Without a publication of some kind, 'the offence of libel is not complete; but the sending a letter to the party himself, filled with abusive language, is indictable because it