PART IV.

of King's Bench in 1732, made absolute a rule for an inforCHAPTER V. mation against the publisher of a paper, entitled "A true and surprising revelation of a murder and cruelty that was committed by the Jews lately arrived from Portugal; showing how they burnt a woman and a newborn infant the latter end of February, because the infant was begotten by a Christian." (a)

Publication of false news.

It seems that the publication of false news producing detriment to the public is punishable by indictment; such as false rumours to raise the price of provisions or other necessaries of life. (b)

It appears from a case in the 43rd Edw. 3, (c) that the attempt by words to enhance the price of merchandise was punishable by law.

In 1814, one De Berenger, with seven other persons, were indicted for conspiring by false rumours to raise the price of the public government funds on a particular day, with intent to injure such of the subjects of the realm as should purchase on that day; (d) but the crime here lay in the act of conspiracy and combination to effect the illegal purpose.(e)

Protection of character.

Distinction

between oral and written defamation.

CHAPTER VI.

LIBELS ON INDIVIDUALS.

THE English law has been always and justly careful to preserve to every man that most valuable of all his possessions, his good character: and, as time rolls on, the need of legal intervention to secure this object becomes perhaps greater instead of less; for advancing civilization, whilst it produces increased refinement and sensitiveness to the aspersions of calumny, involves also a decay of those rude codes of honour which served a purpose that cannot be wholly ignored in an age of enlightenment.

Defamatory language, whether spoken or written, subjects the utterer to consequences, partly of a criminal and partly of a civil character. But, for a long time, there has

(a) Rex v. Osborne (Kel. 30; 2 Barn. K. B. 138,166). See also Reg. v. Gathercole (2 Lew. C. C. 237).

(b) 3 Inst. 196; Dig. L. L. 23; Rex v. Waddington (1 East, 143). (c) Lib. Ass. Pl. 38.

(d) Rex v. De Berenger (3 M. & S. 67). The false rumour was that Napoleon Buonaparte, with whom we were then at war, was dead. (e) lb. p. 72, 74, 75.

existed an important distinction between the two kinds of defamation. The law-proceeding on the ground that words uttered orally, possibly in the heat of passion, are less likely to be in themselves malicious or productive of injury to reputation than those which are deliberately committed to writing and published-has treated the former kind of defamation in a much more lenient manner than the latter. Many words which, if spoken, would not render the speaker liable to an action of slander, would, if written and published, lay him open to an action of libel; and, even where the words spoken do furnish a ground for a civil action, if written and published, they furthermore expose the writer to a criminal prosecution.

The soundness of the distinction which our law makes between oral and written defamation has been doubted by more than one authority entitled to respect; (a) and it is certainly not easy to see why the imputation of disgraceful conduct to another person should be punishable by action

(a) "I cannot, upon principle," said Mansfield, C.J., "make any difference between words written and words spoken as to the right which arises on them of bringing an action. For the plaintiff in error it has been truly urged, that in the old books and abridgments no distinction is taken between words written and spoken. But the distinction has been made between written and spoken slander as far back as Charles the Second's time, and the difference has been recognised by the courts for at least a century back. . . . . In the arguments both of the judges and counsel, in almost all the cases in which the question has been whether what is contained in a writing is the subject of an action or not, it has been considered whether the words, if spoken, would maintain an action. It is curious that they have also adverted to the question whether it tends to produce a breach of the peace: but that is wholly irrelevant, and is no ground for recovering damages. So it has been argued that writing shows more deliberate malignity; but the same answer suffices, that the action is not maintainable upon the ground of the malignity, but for the damage sustained. So it is argued that written scandal is more generally diffused than words spoken, and is therefore actionable; but an assertion made in a public place, as upon the Royal Exchange, concerning a merchant in London, may be much more extensively diffused than a few printed papers dispersed, or a private letter: it is true that a newspaper may be 'very generally read,' but that is all casual. These are the arguments which prevail on my mind to repudiate the distinction between written and spoken scandal; but that distinction has been established by some of the greatest names known to the law-Lord Hardwicke, Hale I believe, Holt, C.J., and others. ... If the matter were for the first time to be decided at this day, I should have no hesitation in saying that no action could be maintained for written scandal which could not be maintained for the words if they had been spoken:" (Thorley v. Lord Kerry, 4 Taunt. 364.) So Best, C.J.: "It is not easy to perceive why any distinction should be made between written and oral slander; but the case referred to (Lord Kerry v. Thorley) has established it too firmly to be shaken:" (Archbishop of Tuam v. Robison, 5 Bing. 21.)

PART IV.

CHAPTER VI.

PART IV.

CHAPTER VI,

Definition of libel.

Various kinds of libel.

if the imputation is contained in a letter addressed to a third party, though it be seen by nobody but the party to whom it is addressed, whilst the very same imputation may be made orally in the hearing of hundreds, and the slandered party have no remedy, in most cases, (a) unless he can prove that special damage has been thereby occasioned to him. The injury to reputation may be far greater in the latter case than in the former, and the tendency to produce a breach of the peace-the reason assigned for making written defamation punishable criminally—is indisputably greater in the case of a slanderous assertion made orally in the hearing of the slandered person, than in the case of a written or even a printed libel. But, whatever we may think of the soundness of the distinction, it is now well established. (b)

A libel of the kind we are now dealing with has been defined to be "a malicious defamation, expressed either in printing or writing, or by signs, pictures, &c., tending either to blacken the memory of one who is dead, or the reputation of one who is alive, and thereby exposing him to public hatred, contempt, or ridicule."(c) "But," Hawkins, in his "Pleas of the Crown," (d) "it is said that in a larger sense the notion of a libel may be applied to any defamation whatsoever, expressed either by signs or pictures, (e) as by fixing up a gallows against a man's door, or by painting him in a shameful and ignominious manner.”

says

It is obvious that a definition of this wide character must include writings of very various kinds; and accordingly we find it laid down (f) that libels on private persons embrace all those "which by accusing a man of a crime, bring him within the danger of the law;" or "which have a tendency to injure him in his office, profession, calling, or trade;" or "which by holding him up to scorn and ridicule, and still more to any stronger feeling of contempt or execration, impair him in the enjoyment of general society, and injure

(a) The exceptions are where, first, the commission of an indictable offence; or, secondly, the present possession of an infectious or contagious disorder is imputed; or thirdly, where the imputation is made on a person in respect of his office, profession, trade, or calling.

(b) See per Hale, C.B., King v. Lake (2 Vent. 28), Austen v. Culpepper (2 Show. 313; Skinner, 123); per Best, C.J. (Archbishop of Tuam v. Robison (5 Bing. 17); per Bayley, J., Clement v. Chivis (9 B. & C. 174).

(c) Bacon's Abridg. tit. Libel.

(d) 8th edit. 542.

(e) The civil law made a distinction between defamation by pictures and by writing, treating the former as a real and the latter only as a verbal injury: (Vide Heineccius, Antiq. Rom. lib. 4, tit. 4, § 5). (f) See Holt's Law of Libel, p. 75.

those imperfect rights of friendly intercourse and mutual PART IV. benevolence which man has with respect to man."(a)

CHAPTER VI.

libel is con

It matters not in what language the libel is written, Immaterial in whether in grammatical or ungrainmatical phraseology; what language whether the imputation be made directly or only insinuated, veyed. even by means of a question; (b) whether the language be ironical, (e) or figurative, or allegorical. (1) Whatever the character of the language, provided the publication tends to convey an imputation injurious to the reputation of the person attacked, it is equally a libel. (e)

taken in their

"The rule," says Lord Ellenborough, C.J., in dealing with Words to be a case of slander(f), "which at one time prevailed that popular sense words are to be understood in mitiori sensu (g) has been long ago superseded; and words are now construed by courts, as they always ought to have been, in the plain and popular sense in which the rest of the world naturally understand them." (h) The reason of the former rule and of the change was thus stated by the Court of Queen's Bench in Harrison v. Thornborough:(i) "In this kind of action for words, which are not of very great antiquity, the courts did at first, as much as they could, discountenance them, and that for a wise reason, because generally brought for contention and vexation; and, therefore, when the words were capable of two constructions, the court always took them mitiori sensu. But latterly these actions have been more discountenanced (? countenanced);

(a) The civil code of the State of New York (sect. 29) defines libel to be "a false and unprivileged publication by writing, printing, picture, effigy, or other fixed representation to the eye, which exposes any person to hatred, contempt, ridicule, or obloquy, or which causes him to be shunned or avoided, or which has a tendency to injure him in his occupation." The Penal Code (sect. 309) defines it to be any malicious publication, by writing, printing, picture, effigy, sign, or otherwise, which exposes any person, or the memory of any person deceased, to hatred, contempt, ridicule, or obloquy, or which causes any person to be shunned or avoided, or which has a tendency to injure any person or corporation or association of persons, in their occupation or business." (b) Gathercole's case (2 Lew. C. C. 255).

(e) Hob. 215; 11 Mod. 86; Boydell v. Jones (4 M. & W. 446).

(d) See Hoare v. Silverlock (12 Q. B. 624, 632), and Woodgate v. Rideout (4 F. & F. 202).

(e) See Fisher v. Clement (10 B. & C. 472).

(f) Roberts v. Camden (9 East. 96). Cf. Woolnoth v. Meadows (5 East. 463); and per Holt, C.J., Somers v. House (Holt's Rep. 39).

(9) See for examples, Cro. Jac. 204, Forster v. Browning (Cro. Jac. 688), Holland v. Stoner (Cro. Jac. 315), and King v. Bagg (Cro. Jac. 331).

(h) Cf. the language of Pratt, C.J., Eyre, and Fortescue, JJ., in Button v. Hayward (8 Mod. 24); of Lord Mansfield in Rex v. Horne (2 Cowp. 672); and of Buller, J., in Rex v. Watson (2 T. R. 206). (i) 10 Mod. 197.

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PART IV.

for men's tongues growing more virulent, and irreparable CHAPTER VI. damage arising from words, it has been by experience found, that unless men can get satisfaction by law, they will be apt to take it themselves. The rule, therefore, that has now prevailed is, that words are to be taken in that sense that is most natural and obvious, and in which those to whom they are spoken will be sure to understand them.”

Libel badly spelt.

Imputation only insinuated.

General language.

An indictment for libel was demurred to on the ground that, by reason of its bad spelling, it was unintelligible, and wanted a meaning. The libel as set out in the indictment was as follows: "Here is three cockels in this place (meaning cuckolds), we now (meaning know) them well, he (meaning Lambert) is a nave (meaning knave), he cheats and rongs (meaning wrongs) the county, and is the cur of a son of a whore." The indictment was held good, Raymond, C.J., saying: "The present libel is plain to all men and easily to be understood, and it would be hard that a court of justice must not understand it is badly spelt, when all the world besides make no scruple to find the signification of the words."(a)

In a case(b) where a great portion of the libel consisted of insinuations by means of questions, Alderson, B., directed the jury that" if a man insinuates a fact in asking a question, meaning thereby to assert it, it is the same thing as if he asserted it in terms." The libel in that case containing the following passage, "We should be glad to know how many popish priests enter the nunneries at Scorton and Darlington each week? and also how many infants are born in them every year, and what becomes of them? whether the holy fathers bring them up or not, or whether the innocents are murdered out of hand or not?" The learned judge told the jury that if they thought that the defendant, by asking the questions, "meant to insinuate and to state that infants are born in the nunnery at Scorton, and that holy fathers bring them up or murder the innocents," then it was a libel on those persons. (c)

However general the language of the defamatory publication may be, if its application to a particular individual can be generally perceived, it is a libel upon him.

"If a party," said Lord Cottenham, (d) can publish a libel so framed as to describe individuals, though not naming them, (a) Rex v. Edgar (2 Sess. Cas. 29; 5 Bac. Abr. tit. Libel, 199). (b) Gathercole's case (2 Lew. C. C. 255).

(c) Cf. Hunt v. Thimblethorpe (Moo. 418; 1 Vin. Ab. 429); Earl of Northampton's case (12 Rep. 134); Delany v. Jones (4 Esp. C. 191; Woolnoth v. Meadows (5 East. 463); Hemming v. Power (10 M, & W. 564). (d) Le Fanu v. Malcomson (1 H. L. Cas. 664).