to make some very severe observations on that body, a criminal information was granted. (y) A malicious defamation of one who is dead, if published with a Libel upon a malevolent purpose, to vilify the memory of the deceased, and with person dea view to injure his posterity, will be libellous: but it has been ceased. 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. (2) But there are some exceptions to the general rules and doctrine Exceptions to concerning libels, in the case of comments upon literary productions, the general and also in the case of communications considered as confidential, or rules. 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 Comments follies and errors, and holding up the author to ridicule, will not be upon literary deemed a libel, provided such comment does not exceed the limits productions. 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. (a) 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. (b) A fair and candid comment on a place of public entertainment, in a newspaper, is not a libel. (c) tions. Confidential communications are in some cases privileged: as Confidential where it was holden that a letter written confidentially to persons communicawho employed A. as their solicitor, conveying charges injurious to his professional character in the management of certain concerns which they had entrusted to him, and in which B., the writer of the letter, was likewise interested, was not a libel. (d) And if a person, in a private letter to the party, should expostulate with him about some vices, of which he apprehends him to be guilty, and desire him to refrain from them; or if a person should send such a letter to a father, in relation to some faults of his children; these, it seems, would not be considered as libellous, but as acts of friendship, not (y) Rex v. Williams, 5 B. & A. 597; and this upon on affidavit merely stating the purchase of the paper, and that the defendant was the proprietor or publisher of it, without any affidavit of the charge being untrue. (z) Rex Topham, 4 T. R. 126. (a) 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. (b) Nightingale v. Stockdale, 49 Geo. 3. cor. Ellenborough, C. J. Selw. N. P. 1044. And it was held that though it is (c) Dibdin ". Swan, 1 Esp. N. P. C. 28; (d) M'Dougall v. Claridge, 1 Campb. 261. Wright v. Woodgate, 1 T. & G. 12. Communicatias made bona fide, or with a view of investigating a fact. Or made in the proper course of a proceeding. designed for defamation but reformation. (e) But this doctrine must be applied with some caution; since the sending an abusive letter filled with provoking language to another, is an offence of a public nature, and punishable as such, inasmuch as it tends to create ill blood, and cause a disturbance of the public peace; (f) and the reason assigned by Lord Bacon, why such private letter should be punishable, seems to be a very sufficient one, namely, that it enforces the party to whom the letter is directed to publish it to his friends, and thus induces a compulsory publication. (g) And though a letter written by a master, in giving a character of a servant, will not be libellous, unless its contents be not only false but malicious; (h) yet in such a case malice may be inferred from the circumstances. (i) Where a writer is acting on any duty, legal or moral, towards the person to whom he writes, or where he has by his situation to protect the interests of another, that which he writes under such circumstances is a privileged communication, if he write it bona fide. If, therefore, a tenant be desired by his landlord to make communications to him in respect of any neglect of duty in his gamekeepers, any communication made by him in respect of any such neglect of duty is privileged, if written bond fide, and on the supposition that he was doing his duty to his landlord. (j) If a man bond fide writes a letter in his own defence, and for the defence of his rights and interests, and is not actuated by any malice, that letter is privileged, although it may impute dishonesty to another. (k) Although that which is written may be injurious to the character of another, yet if done bona fide, or with a view of investigating a fact, in which the party making it is interested, it is not libellous. Thus where an advertisement was published by the defendant at the instigation of A., the plaintiff's wife, for the purpose of ascertaining whether the plaintiff had another wife living when he married A., it was holden that although the advertisement might impute bigamy to the plaintiff, yet having been published under such authority, and with such a view, it was not libellous. (1) A communication 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, is a privileged communication. (m) And if the communication be made in the regular and proper course of a proceeding, it will not be libellous. As where a writing, containing the defendant's case, and stating that some money, due to him from the government for furnishing the guard at Whitehall with fire and candle, had been (e) Peacock v. Sir George Reynell, 2 Brownl. 151, 152. Bac. Abr. tit. Libel (A) 2, in the notes. (ƒ) Bac. Abr. tit. Libel (B) 2. Rex v. Cator, 2 East, R. 361. Thorley v. Lord Kerry, 4 Taunt. 355. In the last case the letter was unsealed, and opened and read by the bearer. (g) Poph. 189, cited in Holt on Lib. 222. (h) Weatherstone v Hawkins, 1 T. R. 110. Edmondson v. Stephenson, Bull. N. P. 8. Child v. Affleck. 9 B. & C. 103. 4 M. & R. 338. (i) Rogers v. Sir G. Clifton, 3 Bos. & Pul. 587. Pattison v. Jones, 8 B. & C. (k) Coward v. Wellington, 7 C. & P. 531. Littledale, J. (1) Delaney v. Jones, 4 Esp. 191. Lay v. Lawson, 4 A. & E. 795. (m) Toogood v. Spyring, 4 Tyrw. 582. 1 C., M. & R. 181. See Spencer v. Amerton, 1 M. & Rob. 470. Warren v. Warren, 4 Tyrw. 850. 1 C., M. & R. 150. Wright v. Woodgate, 2 C., M. & R. 573. 1 T. & G. 12. improperly obtained by a captain C., was directed to a general officer, and the four principal officers of the guards, to be presented to his Majesty for redress, an information was refused, on the ground that the writing was no libel, but a representation of an injury drawn up in a proper way for redress, without any intention to asperse the prosecutor; and that though there was a suggestion of fraud, yet that is no more than is contained in every bill in Chancery, which is never held libellous if relative to the subject matter. (n) So a petition addressed by a creditor of an officer in the army to the secretary at war, bona fide, and with the view of obtaining, through his interference, the payment of a debt due, and containing a statement of facts which, though derogatory to the officer's character, the creditor believed to be true, is not a malicious libel for which an action is maintainable. (o) A letter written to the postmaster-general, or to the secretary to the general post-office, complaining of misconduct in a postmaster, or guard of a mail, is not a libel, if it was written as a bona fide complaint to obtain redress for a grievance that the party really believed he had suffered. (p) And where the defendant, being deputy-governor of Greenwich Hospital, wrote a large volume, containing an account of the abuses of the hospital, and treating the characters of many of the officers of the hospital, (who were public officers,) and Lord Sandwich in particular, who was first lord of the Admiralty, with much asperity, and printed several copies of it, which he distributed to the governors of the hospital only, and not to any other person; the rule for an information was discharged. Lord Mansfield said, that this distribution of the copies to the persons only who were from their situations called on to redress these grievances, and had, from their situations, competent power to do it, was not a publication sufficient to make the writing a libel. (q) And where the publication is an admonition, or in the course of the discipline of a religious sect, as the sentence of expulsion from a society of Quakers, it is not libellous. (r) So a letter written by a son-in-law to his mother-in-law, containing imputations on the character of a person whom she was about to marry, and desiring a diligent and attentive inquiry into his character, if written bona fide, is a privileged communication. (s) And it has been decided, that an action will not lie for words innocently read as a story out of a book, however false and defamatory they may be. Thus where a clergyman in a sermon recited a story out of Fox's Martyrology, that one G., being a perjured person, and a great persecutor, had great plagues inflicted upon him, and was killed by the hand of God; whereas in truth he never was so plagued, and was himself actually present at the discourse; the words being delivered only as matter of history, and not with any intention to slander, it was adjudged for the defendant. (t) (n) Rex v. Bayley, Andr. 229, Bac. Abr. tit. Libel (A) 2. As to the privilege of proceedings in courts of justice, see ante, p. 225. (0) Fairman v. Ives, 5 B. & A. 642; and if an action be brought for such publi. cation, the writer may, even upon the general issue, give evidence to shew that he believed the fact stated in the petition to be true. (p) Woodward v. Lander, 6 C. & P. 548, Alderson, B. Blake v. Pilford, 1 M. & Rob. 198, Taunton, J (q) Rex v. Baillie, 30 Geo. 3. Holt on Lib. 173. 1 Ridgway's Collection of Erskine's Speeches, p. 1. Lord Mansfield seemed to think that whether the paper were in manuscript or printed, under these circumstances, made no difference. (r) Rex v. Hart, 2 Burn's Ecc. L. 779. (s) Todd v. Hawkins, 8 C. & P. 88, Alderson, B. (t) Bac. Abr. tit. Libel (A) 2. Proper mean ing of a privileged communication. Of publications against foreigners of distinction. The proper meaning of a privileged communication is this: that the occasion on which the communication was made, rebuts the inference, prima facie, arising from a statement prejudicial to the character of the plaintiff, and puts it upon him to prove that there was malice in fact; that the defendant was actuated by motives of personal spite or ill will, independent of the occasion on which the communication was made. This may be made out either from the language of the letter itself, or by extrinsic evidence, or by proof of the conduct or expressions of the defendant, shewing that he was actuated by a motive of personal ill-will. (u) But where the publication is prima facie privileged, juries ought not to look too strictly at the particular expressions used, but ought clearly to see that the letter was written with a malicious intent before they find it to be a libel. (v) IX. Upon the ground that malicious and scurrilous reflections upon those who are possessed of rank and influence in foreign states may tend to involve this country in disputes and warfare, it has been held that publications tending to degrade and defame persons in considerable situations of power and dignity in foreign countries may be treated as libels. Thus an information was filed, by the command of the crown, for a libel on a French ambassador, then residing at the British court, consisting principally of some angry reflections on his public conduct, and charging him with ignorance in his official capacity, and with having used stratagem to supplant and depreciate the defendant at the court of Versailles. (w) And Lord George Gordon was found guilty upon an information for having published some severe reflections upon the Queen of France, in which she was represented as the leader of a faction: upon which occasion Ashhurst, J., observed, in passing sentence, that the object of the publication being to rekindle animosities between England and France by the personal abuse of the sovereign of one of them, it was highly necessary to repress an offence of so dangerous a nature: and that such libels might be supposed to have been made with the connivance of the state where they were published, unless the authors were subjected to punishment. (x) So a defendant was found guilty upon an information charging him with having published the following libel: "The Emperor of Russia is rendering himself obnoxious to his subjects by various acts of tyranny, and ridiculous in the eyes of Europe by this inconsistency. He has lately passed an edict to prohibit the exportation of deals and other naval stores. In consequence of this ill-judged law, a hundred sail of vessels are likely to return to this country without freight." (y) And in a case which occurred shortly afterwards, where the defendant was charged by an information with a libel upon Napoleon Buonaparte, Lord Ellenborough, C. J., in his address to the jury, said, "I lay it down as law, that any publication which tends to degrade, revile, and defame, persons in considerable situations of power and dignity in foreign countries, may be taken to be, and treated as (u) Wright v. Woodgate, 2 C., M. & R. 573. 1 T. & Gr. 12. See Blake v. Pilfold, 1 M. & Rob. 198, Taunton, J. (v) Woodward v. Lander, 6 C. & P. 548. Alderson, B. Todd v. Hawkins, 8 C. & P. 88. (w) Rex v. D'Eon, 1 Blac. Rep. 510. The defendant was convicted. (x) Rex v. Lord George Gordon, 1787. (y) Rex v. Vint, 1801. a libel; and particularly when it has a tendency to interrupt the pacific relations between the two countries." (z) Having stated the different sorts of publications for which a party of the indictmay be found guilty of libel, we may mention some of the points ment and evirelating to the indictment and evidence on a prosecution for this dence on a offence. prosecution for a libel. An indictment for a libel must import to whom the libellous mat- Indictment. ter referred: and stating that the libel was published to defame and vilify J. S., and to bring him into disgrace, and concluding that it was against the peace, and to the great scandal and disgrace of J. S,, is not sufficient to shew that the libellous matter referred to J. S. An indictment stated that the defendant intended to vilify W. S., Mayor of Colchester, and a justice; and in order to cause it to be believed that W. S., as such mayor, had been guilty of great abuse in granting an ale-license to J. L., and in order to bring him into great disgrace, published a certain scandalous libel, in which said libel was contained, &c., and the libel stated a speech supposed to have been made before the borough magistrates by a fictitious character, called Excise, who was supposed to lay before them a case of gross corruption, sanctioned by the mayor, (innuendo the said W. S.) to the great scandal, injury, and disgrace, of the said W. S. The usual allegation, that the libellous matter was of and concerning W. S. was omitted; and, on account of this omission, a rule was obtained for arresting the judgment; and, upon cause shewn, the Court held the objection fatal. (a) Where a libel is charged to be of and concerning the government Innuendo of the kingdom, though it do not in express terms impute to the government any of the facts which it mentions, the Court is to judge from its whole tenor and import (understanding it as other men would understand it) whether it does not mean to cast that imputation. And as an imputation upon some part of a body of men may be a libel, though it does not define what part it means, an allegation that the defendant published of and concerning the said persons, and an innuendo that he meant the said will be understood persons, to apply to that undefined part. An information stated, that the defendant, intending to excite hatred against the government of the realm, and to cause it to be believed that divers subjects had been inhumanly killed by certain troops of the King, published a libel of and concerning the government of this realm, and of and concerning the said troops, which libel stated, that the defendant saw with abhorrence, in the newspapers, the accounts of a transaction at Manchester, and alleged, that unarmed and unresisting men had been inhumanly cut down by the dragoons, (meaning the said troops), and then commented strongly upon this being the use of a standing army, and called upon the people to demand justice, &c. ; but it did not, in terms, say, that the dragoons acted under the authority or orders of the government. After conviction, a motion was made in arrest of judgment, on the ground that it did not sufficiently appear (2) Rex v. Peltier, 43 Geo. 3. Holt on Lib. 78, et seq. 2 Starkie on Lib. 218. The defendant was convicted, but never was called upon to receive the judgment of the court. Shortly after the trial, war broke out between Great Britain and France. (a) Rex v. Marsden, 4 M. & S. 164. Lord Ellenborough said, that if by inevitable construction no other person could have been intended but W. S., he should have been inclined to support the indictment; but that did not appear. Clement v. Fisher, 7 B. & C. 459, 1 M. & R. 281. S. P. |