THE LAW OF DEFAMATION. PART THE FIRST. Of the Wrong. CHAPTER I. OF LIBELS AFFECTING PARTICULAR PARTIES. DEFAMATION has been treated by our modern law as of two kinds; written and oral. Modern usage has also given to written defamation the title of libel, and to oral defamation that of slander. The use of the term slander in this restricted sense is not, indeed, etymologically correct, nor is it in accordance with ancient authorities; but the distinction itself is unknown in the old books and abridgments (a); and it is more convenient to give to written defamation and spoken defamation those arbitrary titles which usage has now fully established. Defamation, therefore, is divided into Libel and Slander. (a) Thorley v. Lord Kerry, 4 Taunton, 355. B Although all libels are punishable by indictment as public offences, yet those which concern individuals, and those which concern the public alone, differ so essentially, that it will be necessary to consider them as two separate classes. First, then, of libels affecting particular parties. A libel of this class may be defined to be any writing, picture, or other sign, tending, without lawful excuse, to injure the character of an individual. (b) According to the authority of Lord Coke, a scandalous libel in writing is, when an epigram, rhyme, or other writing is composed and published to the scandal or contumely of another, by which his fame or dignity may be prejudiced. (c) Holt, C.J., in Cropp v. Tilney (d), laid it down that scandalous matter is not necessary to make a libel; for it is enough if the defendant induced an ill opinion to be had of the plaintiff, or made him contemptible and ridiculous. In Macgregor v. Thwaites (e) it was held, per Bayley, J., that any writing is a libel, provided the tendency of it be to bring a man into hatred, contempt, or ridicule. By the rule thus laid down, every publication may be tried. Thus it has been held that the words rogue, rascal, swindler, villain, are libellous. (f) So it is to publish of a gunsmith that he shoots out of a leathern gun (g); of a person that he has insulted females in a barefaced manner (h), or that he stunk of brimstone (b) 1 Starkie on Slander and 748; Libel, 153. n. (c). (c) 5 Rep. 125. (d) 3 Salk. 226. (e) 3 B. & C. 33. 403; 331. Villers v. Mousley, 2 Wils. (h) Clement v. Chivis, 9 B. (f) J'Anson v. Stuart, 1 T. R. & C. 172; 4 M. & R. 127. and had the itch. (i) So it is libellous to publish of the plaintiff that, although he was aware of the death of a person occasioned by his improperly driving a carriage, he had attended a public ball in the evening of the same day. (k) To publish in a newspaper a story of an individual calculated to render him ludicrous is libellous, although he may have previously told the same story of himself. (1) It is libellous to publish of a protestant archbishop that he endeavours to convert Roman catholic priests by promises of money and preferment. (m) It is libellous also in one newspaper to publish of another newspaper that it is low in circulation, although it is not libellous to state of it that it is vulgar or scurrilous. (n) It has been held, however, not to be libellous to publish of a man that he has been engaged in a gambling fracas arising out of a dispute at play, without an averment that illegal play was intended (o); nor to publish a notice that "The reverend J. Robinson, the plaintiff, and Mr. J. R., inhabitants of this town, not being persons that the proprietors or annual subscribers think it proper to associate with, are excluded this room." (p) The ground of this decision seems to have been the absence of any averment that the meaning of the notice was that the parties named were unfit for general society. There was nothing to show what the objects and rules of this society were, and the exclusion of these parties might have proceeded from reasons not at all affecting their fame or dignity. It is not libellous to publish of a catholic priest that he has enjoined a degrading penance; in the absence of an averment in the declaration that such an imputation would be injurious to the character of the plaintiff, and expose him to the censure of his superiors. (9) As to the form of expression in which a libel may be conveyed we shall have occasion to speak more largely when we come to treat of the pleadings in an action. It may be stated here, however, that the language charged as libellous will receive the interpretation which an ordinary reader would put upon it,-that the most innocent words, if shown by the context to be used ironically,—such as "an honest lawyer,”—may be libellous ("); insinuations conveyed by questions may be libellous; and, generally, a publication is to be judged, not according to any mental reserved construction of the author, but according to the meaning intended by the author to be put upon his language by those who would read it. (s) Thus, when one newspaper copied a libellous paragraph from another, adding the word "fudge" at the end, it was held in an action brought by the party libelled that it was a question for the jury whether the object was to vindicate the character of the party and to ridicule the story by the addition of the word, or whether it was only introduced for the purpose of creating an argument in case proceedings should afterwards be taken. (t) And if in a libel asterisks be put instead of the name of the party libelled, it is sufficient (g) Hearne V. Stowell, 12 Adol. & E. 719. (r) Harvey v. French, 2 Tyr. 585; 1 C. & M. 11; 2 M. & Scott, 591; Boydell v. Jones, 7 D. P C. 210; 1 M. & W. 446. (s) Holt, R. 425; 9 East, 96; 10 Mod. 196. (t) Hunt v. Algar, 6 C. & P. Lyndhurst. 245. that the plaintiff should be so designated that those who know him may understand that he is the party meant. It is not necessary that all the world should understand this. (u) Pictures, effigies, inscriptions, and communications by signs fall under the same rule as writings, and are libellous whenever they tend to the scandal or contumely of another, by which his fame or dignity may be prejudiced. Thus it is libellous to suspend a lamp before a house in the daytime, thereby intimating that it is a brothel. (x) A picture of a man and his wife, with the inscription "Beauty and the Beast," is a libel. (y) Carrying a man about with horns fixed to his head, and setting him to bow against the plaintiff's door, is libellous. (z) "In case upon libel, it was held by "Holt, C. J., it is sufficient if the matter be reflecting; 66 as to paint a man in a disgraceful situation." (a) Blackstone observes, that "as to signs or pictures it "seems necessary always to show, by proper inuendoes "and averments of the defendant's meaning, the import "and application of the scandal, and that some special "damage has followed; otherwise it cannot appear that "such libel by pictures was understood to be levelled "at the plaintiff, or that it was attended with any ac❝tionable consequences." (b) But this opinion of the learned judge, as to the necessity of proving special damage, does not appear to have been in any instance followed by the courts, and has been combated by all his commentators. (u) Bourke v. Warren, 2 C. & P. 307. Abbott. (x) Spall v. Massey, 2 Stark. 559. (y) Du Bost v. Beresford, 2 Camp. 511. (z) Austin v. Culpepper, 1 Show. 314. (a) 11 Mod. 99. |