That viscounts, and consequently marquisses, although these titles are of creation subsequent to the statute, are comprehended by it. (b)

That a baron of the exchequer, although not a justice of the one bench or of the other, is included. (c) That the statute is confined to males. (d)

That the dignity must have been held at the time the words were spoken. (e)

That peers of Scotland are within the statute. (ƒ)

By statute 12 R. 2. c. 11., reciting the statute of Westminster the first, and the statute made at Gloucester, "it is accorded and agreed, that when any "such is taken and imprisoned, and cannot find him by whom the speech be moved, that he be punished "by the advice of the council, notwithstanding the "said statutes."

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On these statutes it has been held, that " false news "or tales," "horrible and false lies," " false news, lies, "or other false things," apply to general expressions of contempt and dis-esteem, tending to degrade and vilify the characters of any noble or dignitary included under these acts.

Thus the words villain, villainous rogue, scrub, scoundrel, were held scandalum magnatum.(g) The expression, "The Earl of Pembroke is of so little esteem "in the country that no man of reputation hath any "esteem for him; he is a pitiful fellow, and no man "will take his word for two-pence; no man of repu"tation values him more than I do the dirt under my "feet" (h), was held to come within the statutes. So

also was the expression, "He is an unworthy man, and "acts against law and reason." This decision occurred in the case of Lord Townshend v. Dr. Hughes (i), which is the great case upon this subject, wherein all the previous authorities are cited; and North, C. J., and Scroggs and Wyndham, J. J., prevailed against the well-reasoned judgment of Mr. Justice Atkyns.

In construing these statutes judges have not only extended the operation of them from false and horrible lies to general expressions of contempt and dis-esteem, but they have also extended the remedy under them, from imprisonment, to a civil action at the instance of the object of the scandal.

This doctrine was established about a hundred years after the passing the statute 12 R. 2., and it is founded upon the general rule of law, that whenever a party is prejudiced by the doing of that which is prohibited by statute he is entitled to damages. (k)

It is singular, however, that in an action for scandalum magnatum a plaintiff, although he recovers the whole of the damages for himself, sues "tam pro "domino rege quam pro seipso." (1)

It would appear that slander, as applied to peers and the great officers named in the statutes, is nearly identical with libel; and that every expression derogatory to the fame or dignity of a peer or great officer of state is scandalum magnatum. They are not, however, precluded by these statutes from the remedies opened to all citizens by the general law. (m)

(i) 2 Mod. 150.

(k) Keil. 26. See also Ld. Townshend v. Dr. Hughes, 2 Mod. 162; and see also 10 Rep. 75.

(1) 6 Bac. Abr. 100; 1 P. W. 690.

(m) Freem. Rep. 49.

CHAPTER IV.

OF MALICE.

IT is essential to all defamation, whether written or spoken, that it should be malicious.

This malice is either malice in law or malice in fact; matter which contains neither of these is not defamatory.

Malice in law is that malice which is inferred by law from the defamatory matter itself.

It is an implication of law that all unauthorised defamation is malicious; for if the matter is injurious to another the defendant must be taken to have intended the consequence of his own act. (a)

There are cases, however, in which this inference of law does not arise, and where communications, which would otherwise be defamatory (b), are justified by the occasion upon which they are made. Here the law requires express proof of malice in fact in order to render the communication defamatory.

The legal presumption of malice in all unauthorised defamatory matter is a general principle of law applicable to defamation as to other wrongs. If we allowed recklessness, carelessness, or wantonness to be used to rebut the presumption of malice, we must, for the general security, annex to such carelessness, recklessness, and wantonness the penalties of malice.

(a) Haire v. Wilson, 4 M. & R. 605; 9 B. & C. 643; Rex v. Phillips, 6 East, 470; Browne v. Croome, Starkie's R. 297; Rex v. Crevy, 2 M. & S. 273; Rex v. Alman, 5 Burr. 2686.

(b) It is hardly necessary to observe, that in this as in all other instances in this treatise I use the word "defamation" as a word of the second intention, and as meaning illegal defamation.

There are indeed some early cases where the absence of malicious intention has been held to be a defence. Thus, where an action was brought by A. for saying of him that he heard he was hanged for horse-stealing, and the evidence showed that the words were spoken in grief and sorrow for the news, Hobart, J., nonsuited the plaintiff, because the words were not spoken mali. ciously; and all the court agreed that this was law. (c)

In the case of Brooke v. Sir Henry Montague, Coke cited a case where a clergyman in a sermon preached as a quotation out of Fox's martyrology, that one Greenwood, 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 present at the sermon. Greenwood thereupon brought his action; but Wray, C. J., directed the jury that this being delivered but as a story, and not with any malice or intention to slander any, the defendant was not guilty of the words maliciously. (d)

Mr. Starkie defends this ruling, upon the ground that there was a lawful occasion, which in the absence of actual malice supplied a sufficient justification. "For the story was delivered by a clergyman in the course of discharging the duties of his sacred "office." (e) Whether our law recognises any privilege in the clergy to cast personal imputations from the pulpit; and, still more, whether a public charge of perjury could in the present day be defended upon such a ground, is, it is submitted, extremely doubtful. (ƒ) In Prosser v. Bromage (g) the plaintiffs were bankers;

and the charge was, that in answer to a question put by one Lewis Watkins, whether he, the defendant, had said that the plaintiff's bank had stopped, the defendant's answer was, it was true he had been told so; that it was so reported at C―, and that no one would take their bills, and that he had come to town in consequence himself. It was proved that a third party had told the defendant that there was a run on the plaintiff's bank. In this case, after verdict for defendant, the court held that it was erroneously left to the jury to say whether the words were spoken maliciously.

It appears, therefore, to be now settled, that, proIvided the defamation be wilful and without lawful excuse, the intention of the party publishing it is of no effect whatever to rebut the legal intendment of malice.

Some alteration has, however, been effected in the legal intendment of malice by the recent statute 6 & 7 Vict. c. 94. By the second section of this act it is enacted, that in an action for a libel contained in any public newspaper or other periodical publication it shall be competent to the defendant to plead that such libel was inserted without actual malice, and without gross negligence; and that before the commencement of the action, or at the earliest opportunity afterwards, he inserted in such newspaper or other periodical publication a full apology for the said libel. But in addition to this plea the defendant must pay money into court by way of amends for the injury sustained. This enactment, it will be at once perceived, does not invalidate the principle which governs Prosser v. Bromage; on the contrary, it rather recognises and confirms it by restraining its operation under particular circumstances.