Production Note Cornell University Library produced this volume to replace the irreparably deteriorated original. It was scanned using Xerox software and equipment at 600 dots per inch resolution and compressed prior to storage using CCITT Group 4 compression. The digital data were used to create Cornell1s replacement volume on paper that meets the ANSI Standard Z39.48-1984. The production of this volume was supported in part by the New York State Program for the Conservation and Préservation of Library Research Materials and the Xerox Corporation. Digital file copyright by Cornell University Library 1994.U*'*» J{ KF W" v?4} t£nnu'U Catu *rluuil ÎCilirartjA TREATISE ON THE LAW OF SLANDER, LIBEL, SCANDALUM MAGNATUM, AND F A L S E- RU M 0;U RS, \ i INCLUDING THE RUEES • WHICH REGULATE INTELLECTUAL COMMUNICATIONS, AFFECTING THE CHARACTËRS OF INDIVIDU ALS AND THE INTERESTS OF THÉ PUBLIC. With a Description of the Practice and Pleadings in personal Actions, Informations, Indictments, Attackments for Contempts, âpc. connected with the Subject. BY THOMAS JTARKIE, ESQ. OP LINCOLN’S-INiTTTB'ïïlRISTER at LaW* “ Our Law in this and many other respects corresponds rather with the middle âge of Roman Jurisprudence, when Liberty, Learning, and Human- ity, were in their full vigour, than with the cruel Edicts that were established in the dark and tyrannical âges of the ancient Decemviri or the later Empe- rors.”—Blackstone9s Comm. vol. iv.p. 151. “ The Pleadings of the parties are in this Action much to be heeded, foi' the Plaintiff or Défendant either of them in this may, by his Omission or Commission very quickly advantage or préjudice himself, and, therefore, they must be very careful herein—Sheppard, Actions for Slander, p. 260. WITH NOTES, AND REFERENCES TO AMERICAN DECISIONS. BY THOMAS HUNTINGTON, COUNSELLOR AT LAW. NEW YORK: PUBLISHED BY COLLINS AND H ANN A Y, 1832.K ?/33f Entered accordingto the Act of Congress, in the year 1832, by Collins andHannat, in the Office of the Clerk of the Southern District of New York,” E. Merriam & Co. Printers, _______Brookfield Mass,iv DEDICA.TION» In hopes that your Lordship will long enjoy the high honours with which your professional career has been crowned, in the full possession of those faculties in which the nation daims so large an interest, I beg leave most respectfully, to subscribe myself, Your Lordship’s most obedient, And very humble Servant, THOMAS STARKIE, 9 Searle- Street, Lincoln?s-Inn»N AMES OP CASES REFERRED TO IN THE ENGLISH EDITION. *** The Figures refer to the original pages as numbered at the bottom. Abergavenny, Lord, v. Cart- wright . . . 153 Abergavenny’s, Lord, case 152 Algernon Sidney’s case . 459 Argyle v. Hunt . . 430 Arne v. Johnson . . 119 Arundel v. Short . . 116 Asaph’s, Dean of St., case . • . 561 Ashby v. White . .188 Astley v. Young . . 189 Austin, Sir J. v. <3ol. Cul- pepper . . 133, 332 Avarillo v, Rogers . . 271 Ê. Baal v. Baggerly . . 48 Baker v. Pierce , 49, 79 Baldwin v. Elphinstone . 353, 171, 264 Baldwin and wife v. Flower . . . 165 Balmerino, Lord, his case 473 Banister v. Banister . 123 Barbaud v. Hookam • 175 Barham’s case . 294,296 Barnabas v. Traunter . 24 Barnes v. Bruddell . 166 Barrons v. Bail . . 282 Barron v. Gibson . , 166 Bam>w v, Llewellyn . 511 Beauchamp, Lord v. Sir R. Croft . 193 Beaumond, Sir Thos. v. Sir H. Hastings . 315 Beavor v. Hides 66, 418 Beere’s case 269,278, 325, 512 Bell v. Byrne . 589 Bellingham v. Mynors . 339 Bendish v. Lindsey . 35, 318 Bill v. Neal . 104 Bishops’, seven, case î 351, 555, 371, 541 Bliss v. Stafford . 124 Blisset v. Johnson . . 271 Belton, Sir Wm. v. Dean 140 Bonham’s, Dr., case . 526 Boston v. Tatham . 19 Boulton v. Clapham . 191 Bradley v. Methwyn . 133 Bridge’s case . 46 Briggs’s case . 93 Brook v. Sir Hen. Montague 206 Brookbard v. Woodley . 360 Brown v. St. John . 74 Brownlow’s, Dr. . 311 Buchanan’s case . 359 Buckingham’s, Duke of, case 151,153 Buckley v. Wood. . . 192 Burges v. Boucher 50 Burgis’s case . 277 Burnet v. Codrnan . 287 « — v. Wells 292, 417 Bushel’s case . 417VI NAMES OF CASES CITED. Button v. Heyward 16, 51, 281 Byron v. Eraes . . 163 C. Carr, Sir John, v. Hood 232,593 C arpenter v. Tarrant 18 Carslake v. Mapledoram 98 Cary v. Pitt . . 361 Castlemaine’s, Lord, case 590 Ceely v. Hoskins . . 47 Chapman v. Lamphire i . 119 Clark v. Price . 426 Clarks’s, John, case 305, 475 Cleaver v. Sarraude . 210 Clerk v. James . 250 Clissold v. Clissold . 582 Cobbett’s case . 472 Cockaine, Lady, her case 32, 91, 92 Collins v. Malin . 314 Cook v. Bachelor . * 251 - v. Field 179, 592, Cookson v. Castline . 256 Cooper v. Hawkswell . 67 Cooper v. Smith . 282 Cox v. Humphreys . 37 Coxeter v. Parsons . 426 Craft v. Boite 249, 298 Crawford v. Middleton . 214 Croft, Sir Harbert, v. Brown 15, 88 Croft’s, Sir Harbert, case 90, 91 Cromwell’s, Lord, case 151,179 Cropp v. Tilney . 134 Crosby’s case 359, 590 Crownfield’s case . . 520 Cuddington v. Wilkins 180, 349, 586 Curry v. Walter . 412 Cutler v. Dixon . 191 D. Da Costa v. Pym . . 362 Davis v. Gardiner . . 161 Davis v. Lewis . 118,215 Davis’s, Ann, case 161, 164,165 Dawes v. Bolton . . 37 Deacon’s case . . 250 Dean’s case . . ♦ 527 Delamore v. Hoskins . 289 Delany v. Jones . . 62 Dibdin v. Swan and Bostock 120, 239 Dix v. Brooks . . 259 Dobson v. Thornistone ... 120 Dood v. Robinson . 313 DorchesterV Marquis of, case 151, 155, 243, 246 Dorrell v. Grove . . 65 Drake’s Dr., case . . 267 Drake v. Corderoy . 290 Du Bost v. Beresford . 153 Dunman v. Bigg . . 210 E. Earbury’s, Dr., case . 546 Eaton v. Allen . 21,33, 34 Edmonson v. Stephenson 223 Edward’s case . . 18 Edwards, Dr., v. Dr. Wooton 131 Elborough v. Allen . 159 England v. Bourke . 179 Entick v. Carringlon and others . . . 546 Evans v. Brown . . 427 F. Falkland, Lord, v. Phipps 150, , 156 Feise v. Linder . . 586 Finnerty v. Tipper 593, 594 Fleetwood, Sir Miles, v. Curl 95, 305 Flower’s case . . 116 Flowerv. Pedly . . 275 Ford v. Bennet , . 269NAMES OF CASES CITEP. vii Lord v. Brooke . . 248 Helly v. Hinder . . 292 Foster y. Browning . 45, 284 Heriot v. Stewart . 120, 239 Franklin’s, Richard, case 472 Heusey’s, Dr., case . 359 Freeman v. Norris 245,246 Hext v. Yeomàn . „ 59 Fish v. Thorowgood . 344 Hicks’s, Sir Baptist, case 132, 509, 524, 588 G. Hilsden v. Mercer . 343 Hinds v. Thomson . 430 Gainford v. Turke . 19 Holland v. Stoner . 45 Garrels v. Alexander • Gérard v. Dickenson 159 Gérard, Sir C., his bailifP case Girdwood’s case . Gobbet’s case Gordon’s, Lord George, case . . Goulston v. Wood . Greaves v. Blanchett Greenfield’s case . Gremare v. Le Clerc Bois Yalere Grove v. Hart Gurnett v. Derry . Guy v. Livesey H. Halford v. Smith . . 423 Hall v. Warner . 139, 420 Hammond v. Kingsmill . 104 Harding v. Bulman . 185 Hare v. Meller . .194 Harman v. Delany . 177 Hargrave v. Le Breton . 211 Harper, Sir J., v. Francis Beaumond . .111 Harrison v. Thornborough 51, 63,119,290 Hart’s case . . . 280 Hartley v. Herring 165, 325 Harvey v. Chamberlayne 288 , Harwood v. Sir J. Astley 326,586 Hawkes v. Hawkey 291, 296 îïayward v. Naylor . 61 366 Hollis, Sir John, v. Briscow 104 220, Holt v. Scoldfield 40, 77, 295, 203 297, 416, 418 Hooker v. Tucker . 318 334 Horne v. Powell . , 66 404 Howe v. Prinn 102, 104 427 Hoskins v. Ridgeway . 245 Humphreys v. Stanfield 122, 483 125 415 Hunt v. Thimblethorpe . 61 164 107 I. &J. 393 Jacob v. Mills . . 71 251 J‘Anston v. Stuart 96, 134, 178 78 Jerome, Miss, her case . 537 252 Johns v. Gittens . . 338 Johnson, W., v. Bewick . 430 ------v. Evans . . 230 Jones v. Herne . . 23 Ireland v. Blockwell . 325 K, Kerle, Sir J., v. Osgood 105 Kerry, Lord, v. Thorley 587 King v. Lake 134, 187, 345 Kinnersley v. Cooper 336 Knightley, Sir John, v. Marrow 94 Knobell v. Fuller 405 L. Lake v. Hatton 178 Lamb’s case 264,353, 511 Lancaster v. French 114 Lawrence v. Woodward 94Vlll N AMES OP CASÉS CITED. Layer’s case 359 Leach’s case 542 Legate v. Wright Le Merchant, Attorney- 429 General v. 365,383 Lewknor v. Cruchley 22, 34 Leicester’s, Earl of, case : 152, 407 Lincoln’s Earl of, case 150 Lowry v. Aikenhead M. 229 Macclesfield’s, Earl of, case 243 Macdougall v. Claridge 209 Maitland v. Goldney 250 Manning v. Avery 159 Mason v. Jennings 134 Masonv. Thomson 49 Matthews v. Cross 161 Mayne v. Digle 38 Meade v. Daubigny 398 Medhurst v. Balaam . 165 Metcalf v. MarkHam . 246 Middleton’s, Dr., casé . 521 Moises, Dr., v. Dr. Thornton 384 Monke v. Butler . 394, 395 Moore, Sir George, v. Foster 35 Moore v. Meagher . 165 Mordant, Lord, v. Bridges 153 Mordington’s, Lord, case 212 Morris v. Langdale 117,342 Morrison, Dame, her case 301, 318 Mors v. Thacker . 267 Mulletv. Hulton . 352, 404 Muney’s case . . 89 N. Nelson v. Smith . . 291 Nelson v. Hawkins, Dean of Chiehester = . 426 Neve v. Cross . . 93 Newman v. Smith « 258, 259 ———- v. Baily . 324 Newton v. Stubbs . 269 Norfolk, Duke of, v. Aider- ton . . . 246 Northampton’s Earl of, case 61, 179,213,215 Northampton, John çle, his case . • 513, 525 O. O’Connor’s case . 359 Ogden v. Turner 15, 39, 165 Onslow v* Horne 40, 103, 106 P. Paine’s, Samuel, case 518 Peake v. Oldham 50, 60, 82, 158, 167, 283, 300, 321 Peachum, his case . 459 Peard v. Jones . . 115 Pellier, Jean, his case 484 Pembroke, Earl of, v. Stan- iel . . 155 Penfold v. Westcote . 408 Phillips v. Jansen ■ . 112 Pickering, Lewis, his case 509 Pickford v. Gutch . . 386 Pickney v. Collins . 245 Plunkett v. Cobjbett 127, 130 Portman, Sir H. v. Stowell 39 Powel v. Plunkett 180, 232, 591 Power v. Shaw . x. ■■ 430 Preston’s, Lord, case . 359 Prynne, Wm., his case . 578 Purdy v. Stacey . . 36 Pyne’s, Hugh, case . 266 R. Radcliffe, Lady, v. Shubly 271 Rain v. Langley .. . 192 Ray’s, Lord, case . . 360 Redman v. Pyne . .134 Revett v. Braham . . 360 Rex vel Regin a v. Lord Abing- don 183, 197, 240, 209, 323 ——« v. Aider ton e . 295NAMES OF CASES CITED. IX Rex v. Almon -----v. Archer ----v. Bagg —— v. Bailey ----v. Bail . ----v. Bâte . 240, 369 574, 575 . 46 . 212 . 593 . 540 - v. Beare, or Beere 269, 276, 325 v. Bedford . . 454 v. Beech . . 143 v. Beere. See R. v. . 509 . 271 177, 536 . 265 . 516 368, 612 . 491 Beare . ---v. Berry —- v. Bickerton -— v. Brereton — v. Carter — v. Cator — v. Chrichley • v. D’Eon • v. Derby • v. Dodd • v. Donner • v. Dr. Drake ■ v. Enes ■ y. Fisher . ■ v. Franklin v. Fuiler . v. Girdwood Rex v. Hon. Robt. Johnson 370, 371,372, 373 ----v. Jolliffe * . 539 —— v. Kendal * * 596 ---- v. Kinaston . 541 — v. Knell . . 515 —— y. Sir Edward Lake 149 —- v. Lambert and Perry 550, 572 — v/Langley 491, 526 — v. Lawrence . 470 —— v. Lofield . . 198 —-— v. Matthews • 306 ----v. Mayei andDowling521 v. Clark 305, 470, 558 ■ v. Clendon . . 438 « v. Cobbett . . 472 • v. Coombs . . 395 v. Crownfield . 520 v. Sir T. Culpepper 358 482 . 540 . 368 . 539 270, 277, 280 536 199 472 270 401 ----v. Dr. Middleton ----v. Miles ----v. Nun ----v. Nutt :----v. Ormd •----v. Osborne -----v. Owen ----v. Paine —— v. Peacham ----v. Pearce . ---- v. Jean Peltier 521 * 540 594 369 . 593 495 503 511, 572 459 383 484 v. Perry and another 465 -----v. Philips -----v. Pinkerton -----v. Pocock . ----v. Rayner . -----v. Roberts . -----v. Salisbury -----v. Sharpe . —— v. Sharpness 491 574 . 532 535 177, 534 592 531, 542 574 v. Shipley, Dean of St. v. Lord George Gordon Asaph 583 483 —— v. Smith . . . 594 v. Griffin . 596, 147 v. Dr. Smollet . 532 v. Hall é 438,572 v. Southerton . . 491 v. Higgins . . 491 — v. Staples . 531 v. Holland • 534 v. Stockdale . . 480 v. Holt . . 572 — v. Summers 524, 548 v. Horne 51, 315, 319, ■ '—? v. Taylor . 637 327 v. Thicknesse . . 532 v. Jenneaur or Jenour 212, v. Thomson . . 555 536,596 — v. Tophaht 376,493X NAMES OF CASES CITED. Rexv. Vint . * . 483 -—- v. Waddington . 487 ---v. Walden . . 595 ----- v. Walter . . 594 ----v. Waring and wife 325,407 ——• v. Watson . . 372 -----v. Watson and others 532 ----v. Webster . . 536 ----v. White and Hart . 534 Skutt v. Hawkins Smale v. Hammon Sméad v. Badley Smith v. Croker ----v. Flynt . ----v. Hixon ----v. Hodgkins v. Richardson —— v. Spooner v. Taylor . 286 15, 142 124, 323 . 251 . 30 . 254 . 232 . 329 53, 206 126, 392, 396, v. Willet . 540 397 v. Wilkes . 544 v. Ward . 285 v. Williams 194, 582 — v. Wisdome . 59 v. Wilsun 441,442 Snagg v. Gee . 70, 309 —— v. Withers 578, 441 Snell v. Webling . 94 v. Woolston . 361 Snowde, Sir R. v. . . 284 v. oodfall241. , 543, 562 Soniers v. House . 26 v. Wright . 194 Speed v. Parry . 65 v. Wrightson 595 Stamp v. White . 69 —— v. Young . 272 Stanhope v. Blith . 14 Rich v. Holt 417 Stanton v. Smith . 293 Roberts v. Campden 19, 54, 67, Stirley v. Hill . 62 299 Stone v. Smallcombe 32 Rogers v. Sir Gervase Clifton Strachey’s case 264 225 Stranger v. Searle 361 Rogers v. Gravat 38 Styles v. Nokes 215 Ross v. Lawrence 310 Subley v. Mott 262 Russel v. Corne . 256, 257 Sutton v. Johnstone 319 Russe!, Sir Wm. v. Ligon 36 Russel v. Macquister 398, 402 S. Swithin and wife v. Vincent and wife . . 262 Sydenham’s, Sir John, case 57, 292,294 Salter v. Brown . . 25 Sandwell v. Sandwell . 351 Savage v. Robery . 306, 314 Saville v. Jardine . 114,119 Saville v. Roberts .160 Scoble v. Lee . 39 Seaman v. Bigg . .108 Searle v. Williams . . 253 Seizure of papers, case . 358 Shaftesbury’s, Lord, case . 246 Shalmer v. Foster . . 290 --------- v. Foster and wife 298 Shaw v. Thomson . .78 Sidney’s case . . . 359 T. Tabart v. Tipper 120, 238, 328 Talbot’s v. Case . 71 Tassati v. Rogers . 120 Tate v. Humphreys . 593 Terry v, Hooper . 109 Thompson’s case ,. 552 Tibbott v. Havnes . 32 Tindall v. Moore . . 299 Todd v. Redford . . 258 Townsend, Lord, v. Dr. Hughes . . 7, 157, 414 Turner v. Sterling . 124NAMES OP CASES CITED. xi Tutchin's case 306, 470, 557 Waterfield v. Bishop of Chi- Tuthili v. Milton . 313,814 chester . . . 197 Tutty v. Alewin . . 116 Weatherstone v. Hawkins 223, 399 U. & V. Webb v. Poor , 71 Weller v. Baker . 250 Underwood v. Parkes 330, 332 Weston v. Dobniet . 201 410, 412 Wetherell v. Clerkson 323 Upsheer v. Betts . . 343 Wick’s case . • 34 Upton v. Pinfold . . 60 Wilkes’s case . . 461 Vaughan v. Ellis . 123 Wilner v. Hold . 283, 295 ---------v. Leigh . 123 Winchesters, Lord, case 152 Viears v. Wilcocks . 167 Wiseman v. Wiseraan 94, 221 Villers v. Monsley • 135 Woolnoth v. Me-idows 54, 61, Vint, John, his case . 483 67, 214, 216,301,337 Wyld v. Cookman . 340 W. Y. Waddington’s case . 487 Walden, Sir Lionel, v. Mitch- Yeoman Hext v. . 59 ell 38 Young v. Piidd . 253 Walmesley v. Russell . 16 Walter v. Beaver .81 Z. Ward v. Reynolds . 51 Warwick, Earl of, his case 589 Zenobio v. Axtell 267, 319, 346MST OF CASES CITED AND DIGESTED IN THE EDITOR’S NOTES. [The Letter foîïows the name of ihe Plaintif.] A. Àbbey, Càldwell v. Hardin, 529 Addison, Marshall v. 4 Har. & M’Hen. 537 Page. 13, 33, 50, 209, 217 50, 79 Àilsbury, Elliott v. 2 Bibb, 473 - 8, 16 Alderman v. French 1 Pick. 1 130, 242, 244, 296 Allen v. Crofoot 2 Wend. 515 ^ - - 137 Aime & Nott, Regina v. 3 Salk. 224 - - 359 Andres v. Koppenheafer 3 Serg. & R. 255. 8, 17, 22, 25, 40 v. Wells 7 J. R. 260 - - 270 Andrews v. Vanduzer 11 J. R. 38 - - 129, 242 Ashbell v. Witt 2 Nott & M’Cord, 364 - - 11,12 Àshley, Yearly v. 4 Har. & J. 314 - 38 Atkinson v. Hartley 1 M’Cordr 203 B. Backus v. Richardson 5 J. R. 476 - 11,203,205 - 79, 303 Baily v. Hide 3 Conn. Rep. 463 - 242, 295 Baker, Moody v. 5 Cowen, 351 - 16, 301 Barber, Dickerson v. 9 Mass. Rep. 225 123 Barclay, Morris v. 1 Litt. 64 16 Barnum, Norton v. 20 J. R. 337 177 Barrett, Shute v. 7 Pick. 82 302 Bayard v. Malcomb 2 J. R. 573 303 Bear, Findley v. 8 Serg. & R. 571 - - 54 Beardsley v. Maynard 4 Wend. 336 418 Beedle, Hopkins v. 1 Cains, 347 - 8, 10, 30, 52, 303 Beers v. Strong Kirby, 12 ■ 8, 22, 33 Bell v. Bugg 4 Munf. 260 198 Bemiss, Brooks v. 8 J. R. 356 130 Benson v. Swift 2 Mass. Rep. 53 - - 303 Biggs, Sheely v. 2 Har. & J. 363 8,11,216 Binney, Clark v. 2 Pick. 116 - 97, 99, 302 Binns v. M’Corkle 2 Browne, 79 - 123, 155, 275XIV NAMES OF THE CASES CITED. Binns, M’Corkle 0. Birch, M’Millan 0. 5 Binn. 340 - 15, 97, 99, 268, 275 1 Binn. 178. 15, 77, 78, 82, 114, 134, 138, 229, 230, 238 -------, Swearingen v. 4 Yeates, 322 Blair, M’Guire v. 2 Car. Law Rep. 443 Blake, Gidney v. 11 J. R. 54 Blanchard v. Fisk 2 N. H. Rep. 398 ------—, Thorn v. 5 J. R. 508 Blanding, Commonwealth v. 3 Pick. 304 Bloom v. Bloom 5 Serg. & R. 393 Bloss i). Tobey 2 Pick. 320 - Bodwell ü. Osgood 3 Pick. 379 -—---- 0. Swan 3 Pick. 376 Boling 0. Luther 2 Tayl. 202 Borden 0. Fitch 15 J. R. 121 Bornman 0. Boyer 3 Binn. 515 Boyd 0. Brent 1 Const. Rep. 101 ----, Thompson 0. 1 Rep. Con. Ct. 80 Boyer, Bornman 0. 3 Binn. 515 ------, Stanfield 0. 6 Har. & J. 248 Brent, Boyd 0. 1 Const. Ct. Rep. 101 - Briggs, Chaddock 0. 13 Mass. Rep. 248 Brooker 0. Cofîîn 5 J. R. 188 - - Brooks 0. Bemiss 8 J. R. 356 ——, Edie 0. Whart. Perin. Dig. 565 ------, Harding 0. 5 Pick. 244 Brown 0. Dula 2 Murph. 574 ------, Foot 0. 8 J. R. 50 ------0. Lamberton 2 Binn. 34 ------0. Mims 2 Rep. Con. Ct. 235 Browning, Treat 0. 4 Conn. Rep. 408 Buel, Sumner 0. 12 J. R. 475 Bufîinton, Larned 0. 3 Mass. Rep. 546 Buford 0. M’Luny 1 Nott & M’Cord, 268 - Bugg, Bell 0. 4 Munf. 260 - - Bunton 0. Worley 4 Bibb, 38 - Burlingame 0. Burlingame 8 Cowen, 141 Burnsides, Milom 0. 1 Nott & M’Cord, 426. n Burtch 0. Niekerson 17 J. R. 217 Buy s 0. Gillespie 2 J. R. 115 - - C. 137 11 64, 210, 212 12 11, 135, 141 144, 242, 271 - 304 10, 54, 209, 216 291, 302 - 290 - - 11 - 304 38, 216 16 - 413 38,216 16, 205, 257 16 33, 66, 76, 77 8,16,25 - - 130 - 12, 54 - 77 - - Il 79 17, 37,54, 209 229, 286 155, 199, 205 359 - 248, 293, 299 130, 296, 299 - 198 - - 137 - 137 141 79 16 Caldwell 0. Abbey Hardin, 529 13, 33, 50, 209, 217 -------, Eastland 0. 2 Bibb, 24 - 193 Calhoun 0. M’Means 1 Nott & M’Cord, 422 - - 199 Calkins, Ostrom 0. 5 Wend. 263 - - - 82, 83NAMES OF THE CASES CITED. XV Calloway v. Middleton 2 Marsh. 372 Catlin, Sewall v. 3 Wend. 291 - Cave v. Shelor 2 Munf. 193 - - Chaddock v. Briggs 13 Mass. Rep. 248 Chaplin v. Cruickshanks 2 Har. & J. 247 Chapman v. Gillett 2 Conn. Rep. 61 —-----— v. Smith 13 J. R. 78 Charles v. Holmes 1 Browne, 297 Cheatvvood v. Mayo 5 Munf. 16 - Cheetham v. Tillotson 5 J. R. 430 ---------, Tillotson v. 2 J. R. 63. 3 J. R. Clap, Commonwealth v. 4 Mass. Rep. 168 Clark v. Binney 2 Piek. 116 —-—, Ward v. 2 J. R. 10 Clason v. Gould 2 Caines 47 ------—, Lyle v. 1 Caines, 581 - Clinton v. Croswell 2 Caines, 245 Cobbett, Commonwealth v. 3 Dali. 467 Coffey, State v. 2 Tayl. 272 Coffin, Brooker v. 5 J. R. 188 ------v. Coffin 4 Mass. Rep. 1 Coïe v. Perry 8 Cowen, 214 - - Coleman v, Southwick 9 J. R. 45 Commonwealth v. Blanding 3 Pick. 304 ------:------« v. Clap 4 Mass. Rep. 168 ------—------v. Cobbett , 3 Dali. 467 -------------v, Davies 1 Binn. 97 -------------v, Duane 1 Binn.' 98 n. -------------, SharfT v. 2 Binn. 517 ---------;—- Sharpless 2 Serg. & R. 91 ------—:-----v. Taylor 5 Binn. 281 Comstock, Nott v. 7 Cowen, 654 Convers, Stow v. 3 Conn. Rep. 325 Cramer, Wormouth v. 3 Wend. 394 Crofoot, Allen v. 2 Wend. 515 Crookshank v. Gray 20 J. R. 344 Croskeys v. O’Driscoll 1 Bay, 481 Croswell, Clinton v. 2 Caines, 245 ---------, People v. 3 J. Cas. 354 Crosswell, Thomas v. 7 J. R. 264 Cruikshanks, Chaplin v. 2 Har. & J. 247 Cummin v, Smith 2 Serg. & R. 440 Cumstock, Hardin v. 2 Marsh. 481 - 130 82, 153, 238 - 209 33, 66, 76, 77 12 8, 13, 25, 52 11, 52 - 178 130, 296 303, 304 56 205, 301 - 99, 114, 356 - 97, 99, 302 - 10, 30, 52 177 92, 259, 303, 366 - - - - 179 3 Yeates, 93 379, 381 - • - - 205 - - 8, 16, 25 132, 133, 299, 302 301 155, 193, 301 144, 242, 271 99, 114, 356 - 379, 381 - 379 - 379 99, 357 328 357 - - 216 4 Conn. Rep. 17 8, 97, 99, 129, 216 226, 242, 295 137 - - 10, 12 13 179 - 99, 356 144, 217, 291 12 283 137 Davies, Commonwealth v. D. 1 Binn. 97 379XVI NAMES OF THE CASES CITED. Davies, Respubliea v. 3 Yeates, 128 - - 270,275 Davis v. Davis 1 Nott & M’Cord, 290 ; 2 Nott & M’Cord, 81 77, 78, 81, 82, 83, 214, 302 ------, Mathews v. 4 Bibb, 173 - - - - 16 Demarest v. Haring 6 Cowen, 76 - - - 8,33 Dennie, Respublica v. 4 Yeates, 267 - - 340 Denniston, Riggs v. 3 J. Cas. 198, 202 - — 97, 242 Dent, Hamilton v. 1 Hayw. 116 - - - 33, 53 Dèwey, Gibbs v. 5 Cowen, 503 - - - 8,33,303 Dexter v. Spear 4 Mason, 115 - - - - 99 —-----v. Taber 12 J. R. 239 - - - - 36,54 Diekenson v. Barber 9 Mass. Rep. 225 - - 123 Dodds v. Henry 9 Mass. Rep. 262 - - 8, 74 Dole v. Lyon 10 J. R. 449 - - - 97, 155 ------, Yan Renssellaer v. 1 J. tias. 279 - 12, 36, 54 ------ü. Van Renssellaer 1 J. Cas. 330 - - - 77 Douglas v Tousey 2 Wend. 352 - - - - 129 Drury, Hix v. 5 Pick. 296 - 242, 291 Duane, Commonwealth v. 1 Binn, 98 n. - 379 ------, Hollingsworth t;. Wallace, 77 - - 376 ------, Morris v. 1 Binn. 90, 92 n. 130, 155, 244, 296 Dula, BroWn v. 2 Murph. 574 - - - - 11 Duvall v» Griffith 2 Har. & Gill, 30 - * - 291 E. E asti and v. Caldwell 2 Bibb 24 Ebersoll v. Krug 3 Binn. 555 Eden v. Legare 1 Bay 171 Edie v. Brooks Whart. Penn. Dig. 565 Eifert, Sawyer v. 2 Nott & M’Cord 511 Elliot v. Ailsbury 2 Bibb 473 - Emerson, Neilson v. 2 Bay 439 Emigh, Ruthbun v. 6 Wend. 407 England, Penters, v. 1 M’Cord 114 - F. Farrington, Oakley v. 1 J. Cas. 129 Few, Lewis v. 5 J. R. 1 - Findley v. Bear 8 Serg. & R. 571 Fisher o. Rotereau 2 M’Cord, 189 - Fisk, Blanchard v. 2 N. H. Rep. 398 Fitch, Borden v, 15 J. R. 121 - - Folk v. Solis 1 Martin’s La. Rep. 64 - Foot v. Brown 8 J. R. 50 ------v. Tracy 1 J. R 46 193 183, 190 11 - 12, 53 - 33, 40, 129 8, 16 303 79 191 - 11,77,214 135, 199, 205 - - 54 - 8 - 12 304 178 79 299NAMES OP THE CASES CITED. XVÜ Fowïe v. Robbins 12 Mass. Rep. 498 Fowler, Frisbie v. 2 Conn. Rep. 707 Fox v. Yanderbeck 5 Cowen, 513 Frederitz v. Odenwalder 2 Yeates, 243 Freer, People v. 1 Caines, 485, 518 - French, Alderman v. 1 Piek. 1 - Frisbie v. Fowler 2 Conn. Rep* 707 G. Gibbs v. Dewey, 5 Cowen, 503 ■------- ù. Tucker 2 Marsh. 220 Gidney v. Blake 11 J. R. 54 - Gillespie, Buys v. 2 J. R. 115 Gillett, Chapman v. 2 Conn. Rep. 61 Goodrich v. Wolcott 3 Cowen, 231 Gould, Clason v. 2 Caines, 47 Grant v.Hover 6 Munf. 13 - Gray, Crookshank v. 20 J. R. 344 -------v. Pentland 2 Serg. & R, 23 Green v. Long 2 Caines, 91 - -------, Stafford v, 1 J. R. 505 Gregory, Kennedy v. 1 Binn. 85 Griffith, Duvall v. 2 Har. & Gill, 30 Grubbs v. Kyzer 2 M’Cord, 305 - Gurney, Patten v, 17 Mass. Rep. 186 30, 33,51 8, 17 8,195, 199, 205 129 876, 377 130, 242,244,296 8, 17 8,33,303 - 11 - 64,210,212 - 16 8,13,25,52 - 8,33,216,303 - 177 - 242 10, 12 - 135,141 - 8,30,51 - - 10,52 - 155, 158, 244 - 291 - 193, 199 190 H. Hall, Wolcott v. 6 Mass. Rep. 514 Hamilton v. Dent 1 Hayw. 116 ---------, Yan Ness v. 19 J. R. 349, 367 Hampton, Watson v. 2 Bibb. 319 Hardin v. Cumstock 2 Marsh. 481 - Harding v. Brooks 5 Pick. 244 Haring, Demarest v. 6 Cowen, 76 Harkins, Stuart v. 3 Binn. 321 - ---------, Tracy v. 1 Binn. 395 Harris, M’Alexander v. 6 Munf. 465 - Harrison, Nettles v. 2 M’Cord, 230 - ------v. Thornborough, 10 Mod. 196 Hartley, Atkinson v. 1 M’Cord, 203 Hatheway, Jarvis v. 3 J. R. 180 Havens, Yaughan v. 8 J. R. 84 Hawley v. Lewis, 2 Day, 495 Hayden, Stevenson v. 2 Mass. Rép. 406 Henry, Dodds v. 9 Mass. Rep. 262 Herrick v, Lapham, 10 J. R. 281 - G 296, 299 33, 53 97, 250 11 137 77 - 8,33 307 8 8, 130, 291, 296 - 8, 22,302 - 33 11,203, 205 11,138 11 83 13, 50, 303 - 8, 74 237NAMES OF THE CASES CITED. xviii Hersh v. Ringwalt, 3 Yeates, 508 - 155,199,237 Highland T. P. Co. u. M’Kean, 10 J. R. 154 ; 11 J. R. 98 283, 303 Hix v. Drewry, 5 Pick. 296 - - - 242,291 Hogg v, Wilson, 1 Nott & M’Cord, 290 - - - 303 Hollingsworth v. Duane Wallace 77 - - - 376 Holmes, Charles v. 1 Browne, 297 - - 178 Hopkins v. Beedle, 1 Caines, 347 - - 8, 10, 30, 52, 303 --------, Tracy v, 1 Binn. 395 - - - - 8, 200 --------, Yan Vechten v. 5 J. R. 211 ; 2 J. R. 293 - 36, 177,209, 216 Horner v. Marshall, 5 Munf. 466 - - - - 123 Hotchkiss v. Lothrop, 1 J. R. 286 - - * - 413 House v. House, 5 Har. & J. 125 - - - 8 Hover, Grant v. 6 Munf. 13 - - - - - 242 Howard v. Stevenson, 2 Rep. Const. Ct. 408 - - 8 Hoyle v. Young, 1 Wash. 150 - - - - 33, 83 Hudson & Goodwin, United States v. 7 Cranch, 32 - 329 Huffman v. Shumate 4 Bibb, 515 - - - - 200 Hume v. Arrasmith, 1 Bibb 165 - 33 Hyde, Bailey v* 3 Conn. Rep. 463 - 242, 295 J. Jackson v. Stetson, 15 Mass. Rep. 48 Jarvis v. Hatheway, 3 J. R. 180 Johnson v* Tait, 6 Binn. 121 24a, 291 11, 138 21, 200, 205 K. Kean v. M’Laughlin, 2 Serg. & R. 469 - 53, 137, 138, 290 Kennedy v. Gregory 1 Binn. 85 - - 155, 158, 244 --------v. Lowry 1 Binn. 393 - 195, 197, 199 Kerr, Miller v. 2 M’Cord, 285 - - - 155,158 King v. Root 4Wendw. 113 - - - 291 --------—, Root v. 7 Cowen, 620 ; 4 Cowen, 403 99, 179, 242, 291, 296, 301 ---------, Wood v. 1 Nott & M’Cord, 184 - - 11 Kintzer, Shaffer v. 1 Binn. 542 - 8, 1J, 209, 216, 303 Knowles v. State 3 Day, 103 - - - - 328 Koppenheafer Andres v. 3 Serg. & R. 255 8, 17, 22, 25, 40 Krug, Ebersoll v. 3 Binn. 555 - - - 183, 190 Kyzer, Grubbs v. 2 M’Cord, 305 - 193,199 L. Lamberton, Brown v. 2 Binn. 34 Lapham, Herrick v. 10 J. R. 281 17, 33, 54, 209 237NAMES OF THE CASES CITED. xix Lapham, Ross v. 14 Mass. Rep. 279 Larned v, Buffington 3 Mass. Rep. 54(5 Law v. Scott 5 Har. & J. 438 Legare, Eden v. 1 Bay, 171 Lehre, State v. 2 Const. Rep. 809, 819 Lewis v. Few 5 J. R. 1 ---------, Hawley v. 2 Day, 495 ---------, Neal v. 2 Bay, 204 Lindsey v. Smith 7 J. R. 359 Logan v. Steele, 1 Bibb, 593 Long, Green v. 2 Gaines, 91 - Loomis v. Swick 3 Wend. 205 Lothrop, Hotchkiss v. 1 J. R. 286 - —------, Nicholson v. 3 J. R. 138 Lowry, Kennedy v. 1 Binn. 393 - Luther, Boling v. 2 Tayl. 202 - - Lyle v. Clason 1 Caines, 581 Lyman v. Wetmore 2 Conn. Rep. 42 n. Lyon, Dole v, 10 J. R. 449 * - - 299 248, 293, 299 11,114, 135 11 144 135,199, 205 83 - 13, 302, 303 - 22, 77, 209 - 33, 39 8, 30, 51 257 413 179 - 195, 199 - 11 92, 259, 303, 366 - 52 - 97, 155 M. M1 Alexander v. Harris 6 Munf. 465 - 8, 130, 291, 296 M’Cawley v. Smith 4 Yeates, 193 . - 178 M’Chesney, Shock v. 4 Yeates, 507 - - 187 M’Claughry v. Wetmore 6 J. R. 82 - 53, 209,217 M’Clurg v. Ross 5 Binn. 221 4, 8,13, 33, 69, 89, 97,99, 209 M’Connell v. M’Coy 7 Serg. & R. 223 M’Corkle v. Binns 5 Binn. 340 —------, Binns v. 2 Browne, 79 M’Coy, M’Connell v. 7 Serg. & R. 223 M’Craw, Shipp v. 2 Murph. 463 M’Dowell, Shecutt v. 1 Const. Rep. 35 M’Guire v. Blair 2 Car. Law Rep. 443 M’Kean, Highland T. P. Co. v. 10 J. R. 200 15, 97, 99, 268, 275 . 123,155, 275 200 8 12 ... 11 154 ; 11 J. R. 98 283, 303 M’Kinly v. Rob 20 J. R. 351 - »• - - 36 M’Laughlin, Kean v. 2 Serg. <& R. 469 53, 137, 138, 290 M’Luny, Bufordv. 1 Nott & M’Cord, 268 130,296,299 M’Means, Calhoun v. 1 Nott & M’Cord, 422 - 199 M’Millan v. Birch, 1 Binn. 178 15, 77, 78, 82, 114,134, 138,229,230,238 2J.R. 573 - - - . 303 4 Har. & M’Hen. 537 - 50, 79 5 Munf. 466 - - 123 Bibb, 99 . . . . 11 Ï3J.R. 275 . . . 8,22 Malcomb, Bayard v. Marshall v. Addison ---------, Horner v. Martin v. Melton 4 ——-—v. Stilwell,NAMES OF THE CASES CITED. XX Mâtthews v. Davis - 4 Bibb, 173 . Maynard, Bèardsley v. 4 Wend, 336 Mayo, Cheatwood v. 5 Mnnf. 16 Mease, Wallis v. 3 Binn. 646 Melton, Martin v, 4 Bibb, 99 Merrill, Shephard v. 13 J. R. 475 Metcalf v, Williams 3 Litt. 389 Middleton, Galloway v. 2 Marsh. 372 Miles v. Oldfield 4 Yeates, 423 Miller v. Kerr 2 M’Cord, 285 ---— v. Miller 8 J. R. 58, 60 *------, Olmsted v. 1 Wend. 506 ■—— ■■■ v. Parish 8 Pick. 384 -------, Power v. 2 M’Cord, 220 Milom v. Burnsides 1 Nott & M’Cord, 426 n Mims, Brown v. 2 Rep. Con. Ct. 235 Minor, Smith v. 1 Coxe’s N. J. Rep. 16 Mitchell, Rue v. 2 Dali. 60 Moody v. Baker 5 Côwen, 351 Morris v. Barclay 1 Litt. 64 ------v. Duane 1 Binn. 90, 92 n. Munn, Niven v. 13 J, R. 48 . Myrant v. Richardson 1 Nott & M’Cord, 347 N. 39, 130, 16 413 130, 296 290 11 , 242 199 130 8 155,158 199, 200, 207 119, 199, 205 219, 227 11 141 229, 286 17 . 4, 33 . 16, 301 16 155, 244, 296 . 52 14,114 Neal v. Lewis 2 Bay, 204 Neilson v. Emerson 2 Bay, 439 . Nettles v. Harrison 2 M’Cord, 230 Nicholson v. Lothrop 3 J. R. 138 Nickerson, Burtch v. 17 J. R. 217 Niven u, Munn 13 J. R. 48 Norton v. Barnum 20 J. R. 337 - Nott v. Comstock 7 Cowen, 654 Nugent, Bailey v. 1 Marsh. 431 Nye v. Qtis 8 Mass. Rep, 122 - * * O, Oakley v. Farrington 1 J. Cas. 129 - Odenwalder, Frederitz v. 2 Yeates, 243 O’Driscoll, Crosskeys v. 1 Bay, 481 - Oldfield, Miles v, 4 Yeates, 423 Olmsted v. Miller, 1 Wend. 506 Osgood, Bodwell v. 3 Pick. 379 Ostrom v, Calkins 5 Wend. 263 Qswald, Respublica v. 1 Dali. 319 13, 302, 303 303 - 8, 22, 302 179 “ ’ ï™ 52 177 - - 216 - - 302 39, 197, 199, 207 * 11,77,214 - - 129 13 - - 8 119, 199, 205 - 291 82,83 - 376NAMES OF THE CASES CITED. XXÎ Otis, Nye v. 8 Mass. Rep. 122 - Oyer, Widrig v. 13 J. R. 124 P. 39* 197, 199, 207 Pearson v. Pickett Petton v, Ward 3 Pentersv. England Pentland, Gray v, People v. Croswell hacker v. Spangler 2 Binn. 60 - - - Palmer, Yigours v. 1 Browne, 40 Parish, Miller v. 8 Pick. 384 Passmore, Respublica v. 3 Yeates, 441 Patten v. Gurney 17 Mass. Rep. 186 “1 M’Cord 473 Caines, 73 - ï M’Cord, 114 2 Serg. & R. 23 3 J. Cas. 354 -------— v. Freer 1 Caines, 485, 518 - —------v. Ruggles 8 J. R. 225 - Perry, Cole v. 8 Cowen, 214 Pickett, Pearson v. 1 M’Cord, 473 Platner, Yan Renssellaer v. 2 J. Cas. 18 Powell, Respublica v. 1 Dali 47. Power v. Miller 2 M’Cord, 220 Powers, Skinner v. 1 Wend. 451 129,130, Pynes, Ross v. 3 Call, 568 R. Rathbun v. Emigh 6 Wend. 407 Regina v. Aime & Nott 3 Salk. 224 - Respublica v. Cobbett, 3 Yeates 93 -------v. Davies 3 Yeates 128 —" v. Dennie 4 Yeates 267 - — -----v. Oswald 1 Dali 319 -—-----v. Passmore 3 Yeates, 441 — v. Powell 1 Dali 47 Richardson, Backus v. 5 J. R. 476 •———, Myrant v. 1 Nott & M’Cord, 347 Riggs v. Denniston 3 J. Cas. 198, 202 Riley v. Nugent 1 Marsh. 431 - Ring v, Wheeler 7 Cowen 725 - Ringwalt, Hersh v. 3 Yeates 508 Rob, M’Kinly v, 20 J. R. 351 Robbins, Fowle v. 12 Mass. Rep. 498 Rodifer, Wolf v. 1 Har. & J. 409 Root v. King 7 Cowen, 620 ; 4 Cowen, 403 -, King v. 4 Wend. 113 8 11, 12 - 137 219, 227 - 376 190 - 178 53 - 191 135, 141 99, 356 376, 377 - 319 - 301 178 303, 304 50 11 , 155, 242, 295 150 79 - - 359 - - 381 - 270, 275 - - 340 370 - - 370 - 50 - 79, 303 - 14, 114 - 97,242 - - 302 - 137, 150 155, 199, 237 - 36 - - 30, 33 , . 200 179, : 242, 291, 296, 301 , . 129XXII NAMES OF THE CASES CITED. Ross v. Lapham 14 Mass. Rep. 279 . ------, M’Clurg v. 5 Binn. 221 4, 8, 13, 33, ------v. Pynes 3 Call, 568 Rotereau, Fisher v. 2 M’Cord 189 Rue v. Mitchell 2 Dali. 60 . Ruggles, People v. 8 J. R. 225 . Rumsey, Thomas v. 6. J. R. 26 . . 299 69, 89, 07, 99, 209, 217 . 150 . . 8 . 4, 33 . 319 . 179,190 S. Sawyer v. Eifert 2 Nott & M’Cord, 511 Scott, Law v. 5 Har. & J. 438 . Sewall v. Catlin 3 Wend. 291 Shaffer v. Kintzer 1 Binn. 542 SharfF v. Commonwealth 2 Binn. 517 Sharpless v.----■—— 2 Serg. & R. 91 Shecutt v. M’Dowell 1 Const. Rep. 35 Sheely v. Biggs 2 Har. & J. 363 33, 40, 129 * 11,114,135 82, 153, 238 8, 11, 209, 216, 303 99, 357 Shelor, Cave v. 2 Munf. 193 Shepard v. Merrills 13 J. R. 475 Ship v. M’Craw 2 Murph. 463 Shock v. M’Chesney 4 Yeates 507 Shumate,*Huffman v. 4 Bibb. 515 Shute v. Barrett 7 Pick. 82 Singleton, Wàlton v. 7 Serg. & R. 451 Skinner v. Powers Smith, Chapman v, -----, Cummin v. -—■—, Lindsey v. -----, M’Cawley v. 1 Wend. 451 13 J. R. 78 2 Serg. & R. 440 7 J. R. 359 4 Yeates, 193 - v. Minor 1 Coxe’s N. J. Rep, Solis, Folk v. 1 Martin’s La. Rep. 64 Southwick, Coleman v. 9 J. R. 45 ---------, Steele v. 9 J. R. 215 ——, v. Stevens 10 J. R. 443 Spangler, Packer v. 2 Binn. 60 Spear, Dexter v. 4 Mason 115 Stafford v. Green 1 J. R. 505 - Stanfield v. Boyer 6 Har. & J. 248 State v. Coffey 2 Tayl. 272 -----, Knowles v. 3 Day 103 ——, v. Lehre 2 Const. Rep. 809 -----v. Walsh 2 M’Cord 248 - Steele, Logan v. 1 Bibb. 593 ——■, v* Southwick 9 J. R. 215 Stetson, Jackson v. 15 Mass. Rep. 48 328 12 8, 11, 216 . 209 . 242 8 . 137 . 200 302 33, 46 129, 130, 155,242, 295 - 11, 52 283 22, 77, 209 178 16 - - - 17 178 155, 193, 301 97, 99, 356 99, 205, 275, 283, 301 - 11,12 99 - 10,52 16, 205, 257 205 328 144 195, 205, 206 33, 39 97, 99, 356 248, 291NAMES OF THE CASES CITED. xxiii Stephens, Southwickt>. 10 J. R. 443 99, 205, 275, 283, 301 Stevenson v. Hayden 2 Mass. Rep. 406 - 13, 50, 303 --------, Howard v. 2 Rep. Const. Ct. 408 • - 8 Stillwell,, Martin v. 13 J. R. 275 - - - - 8,22 Stokes v, Stuckey 1 M’Cord 562 - 54 Stow v. Converse 3 Conn. Rep. 325 ; 4 Conn. Rep. 1, 8, 977, 99, 129, 216 Strong, Beers v. Kirby 12 8, 22, 33 Stuart v. Harkins 3 Binn. 321 - - - - 307 Stuckey, Stokes v. 1 M’Cord 562 - - - 54 Sturgineger, Taylor v. 2 Const. Ct. Rep. 367 - - 303 Sumner v. Buel 12 J. R. 475 - - - - - 359 -------v. Utley 7 Conn. Rep. 257 - 69, 81 Sumvalt, Winter v. 3 Har. of the lOth of August, 1799, they will give notice, &c., and receive the reward.”* And it was left by Lord Ellenborough C. J. to the jury to say, whether the advertisement imputed a charge of bigamy to the plaintiff. (*)So where the words are spoken by way of exclamation : as, “ That perjured villain !” j* From disjunctivë words. It bas been said that, where two charges are made disjunctively, one of which is actionable, and the other not, no action lies ; as where the défendant said, “ Thou hast stolen my mare, or didst consent to the stealing of her.”j: It was held, that the action was not maintainable, on account of the latter words. And so where a charge was imputed in the alternative ; as where the de- fendant said, cc Sparkham did steal a mare, or else Godwin is forsworn !” Although it was averred that Godwin never did swear any such matter, the charge was held too indirect to bear an action. In the case of Stirley v. Hill,§ the words were, “ Thy brother was whipped about Taunton Cross, for stealing sheep ; or burned in the hand or shoulder.” And the court, after verdict for the plaintiff, were of opinion that the words did not import any certain slander. These decisions, however, can scarcely be considered as precedents at this day, since it is clear that a charge of fel- ony may be completely conveyed by such disjunctivë impu- tations ; and were they not actionable, the legal conséquences of slandering might in every case bé easily avoided. The same objection once prevailed, where the person and not the act was stated in the disjunctivë. The défendant said, “ She had a child, and either she or somebody else made way with it !”|| (*)And three justices against the opinion of Bridgman C. J. adjudged, that the words were not actionable. But in a subséquent case this decision was overruled ;^\ and upon the same principle, no * Delany v. Jones, 4 Esp. R. 191. f Roll. Ab. 76. J Cro. Eliz. 780. § Cro. Car. 283. || Cart. 55, 56. U Harrison v. Thornborough, 10 Mod. 196. 6 (*62) (*63)42 doubt, it would now be held, that words imputing a criminal act in the disjunctive, are also actionable. From adjective words> Where the words impute inclina- tion only, they are not actionable ; as to say “ J. S. is a murderous villain !”* But where the participle is used, it is otherwise ; as to say, “ J. S. is a murthering villain !”f The words in the former case importing an inclination only, in the latter an act done. So the words, “ Dr. Sybthrop is robbing the church,”| were held actionable ; and to say such a personis robbing such a man, or ravishing such a woman, is actionable. So, “ Where is that long shag-haired, murthering rogüe V? was held actionable. § For the words, “ Traitorous knave,” an action has been held maintainable, though not for the words, “ Rebellions knave ;” and perhaps this distinction may now be consider- ed as good law, although many of the nice subtleties which were formerly in fashion are now disregarded ; since, though traitorous be a mere adjective, not implying any act, y et the circumstance of the offence frequently consisting in inten- tion only, may well constitute this case an exception to the general rule.|| It is laid clown by Sir Edward Coke,^[ that sometimes adjective words will maintain an action, and sometimes not. They are actionable. (*)1. When the adjective présumés an act cômmitted. 2. When they scandalize a person in his office, or fonc- tion, or trade, by which he gets his living. As if a man says, " That one is a perjured knave !” there must be an act done, for otherwise he cannot be perjured. The words, “ sedi- tious and thievish knave,”** hâve been held not actionable. And the distinction has been frequently taken, that “ thieving rogue,” imports an act; “ thievish rogue,”tt an inclination only. So for the words, “ You are no thief !”j:| an action lies, if they be spoken ironically. * Ld. Ray. 236. f Cro. Car. 318. J Roi. Ab. 76. § Cro. Car. 318. Jo. 326. || Cro. Eliz. 171. Lev. 90. «iï 4 Co. 19. ** 4Rep. 19. Cro. J. 65, 66. 2 Bulst. 138. Ld. Ray. 236. tf Dorrel v. Grove, Freem. 279. îf. 1 Vin. Ab. 430. pl. 8, (*64)43 And next, the imputation of an act may be inferred from a statement, which virtually ineludes or assumes the com- mission of the principal act, or a strong suspicion of it. The défendant said, “ I could prove J. S. perjured, if I would !”* and the words were held actionable ; since, if true, J. S. must hâve committed an act of perjury. So where the défendant said, “ Thou art a rogue, a run- away rogue, and didst run away from Oxford ; and thou art a rogue of record.The words were held actionable ; for if true, the plaintiff must hâve been convicted of record. The défendant said to thé plaintiff, “ In:}: Blackbull Yard you could procure broad money for gold, (*)and clip it when you had so done.” It was objected thàt the words were not actionable, since they mérely imputed a power, and not an act. But the court held, that the limitation to place im- plied an act ; for that, if a power alone had been meant to be imputed, the limitation to place would hâve been unne- cessary— a power to do being the same at ail places. So in Horn v. Powelh^: The défendant said, “ You may well spend money at law, for you can coin money out of halfpence andfarthings !” It was held, that the words were actionable, as implying an act ; for by a mere power, the plaintiff could ne ver be able to spend money at law. The défendant said of the plaintiff, “ He was put in the round-house, for stealing ducks at Crowland and judg- rnent was given for the plaintiff. For though the court were at first of opinion, that they were bound by former authoiities, and that if judgment were to be given for the plaintiff, niany actions would arise at every assizes in the kingdom, where the common topic of conversation is, thflt such a man was sent to jail for such a crime ; ye% afterward, they changed their opinion, and held, that the jury having found the words falsely spoken, they clearly imported that the plaintiff had been guilty of a crime : that the objection was, that the words did not expressly allège that the plaintiff had stolen the dücks, but that words must be taken according to common parlance. And so in a number of other cases, the asserting the plaintiff to hâve been confined or punished|| * 1 Vin. Ab. 406. pi. 2. % Salk. 697. Speed v. Parry. j| Beavor v. Hides, 2 Wils. S00. f Sty. 220. 1 Vin. Ab. 415. § Salk 697. IT Cro. J. 247. (*65)44 for a certain offence, (*)has been held actionable, since the imputation, at ail e\ents, throws strong suspicion upon him. So where the défendant said, “ He is under a charge of prosecution for perjury ; G. W. had the Attorney GeneraPs instructions to prosecute.”* It was held, that the words were actionable, as being calculated to convey the imputa- tion of perjury. So where the défendant said of the plaintiff, “His cha- racter is infamous : he would be disgraeeful to any society. Whoever proposed him must hâve inténded it as an insult ; I will pursue him and hunt him from ail society. If his name is enrolled in the royal academy, I will cause it to be erased, and will not leave a stone unturned to publish his shame and infamy. Delicacy forbids me from bringing a direct charge ; but it was a male child of nine years old who complained to me.”f So where the défendant said, “ I dealt not so unkindly with you, when you stole my stack of corn.33:}: The défendant said to a husband in London, “You are a cuckoldy old rogue !”§ and the words were held actionable, since they imply, that the wife is a whore, for which, by the custom of the city, she is liable to temporal punishment. Words imputing intention only to commit crime, are not actionable of themselves, unless in the case where the inten- tion is of a treasonable nature. || As, if one says to another, “ Thou wouldest hâve killed me,”^[ no action lies. (*)So for the words, “ She would hâve eut her husband’s throat, anddid attempt it,”** an action lies ; becausê anat- tempt, that is-an act, is charged ; but in the same case it was held, that for the first words, “ she would hâve eut her hus- bancPs throat,” no action could be maintained. 2dly. Where the act charged is, in legal strietness, impos- sible. Where a criminal charge is conveyed by the defendanfs * Roberts v. Campden, 9 East, 93. f Woolnoth v. Meadows, 5 East, 463. % Cooper v. Hawkswell, 2 Mod. 58. § 1 Str. 471. H Cro. J. 407. IT Dr. Poe’s case, cited by Coke and Haughtonj 2 Buis. 206. 1 Vin. Ab. 440. ** Lane, 98. 1 Vin. Ab. 440. pl. 9. (*66) (*67)45 expressions, the liability to make réparation cannot be affect- ed by any impropriety in the terms of the communication, whether legal or grammatical ; since the loss of character, and its probable conséquences, constitute the ground of ac- tion, without reference to the means employed. The con- trary doctrine, indeed, at one time prevailed. 11 bas been holden, that if a married woman say, “ You hâve stolen my goods,”* the words are not actionable, the words being répugnant; for since a married woman cannot hâve goods of her own, she cannot be robbed of any. But in Charnel’s case,f which was earlier than the preced- ing, the wife said, “My turkeys are stolen, and Charnel hath stolen them and the same objection being made in arrest of judgment, the court said, “ The wife did charge the plaintifF with stealing her turkeys ; and if a person who had no horse were to publish these words, 6 J. S. hath sto- len my horse,5 the discrédit would be as great to J. S. as if the publisher had had a horse ; for everÿ person who hear- eththe words may not know whèther he (*)had a horse or no.” And in the subséquent case of Stamp v. White,:}: the défendantes wife said, “ Thou art a thievish rogue, for thou hast stolen my fagots !” Although it was objected that the words were without meaning ; since a married woman could not hâve property of her own, y et it was held, that the words were actionable ; and it was to be understood according to common intendment, that the défendant charg- ed the plaintifF with stealing her husbcmd’s fagots. So where the défendant said, “ These guineas are Mr. Bendish’s (the plaintifF’s) and were given me to vote for him.”§ It was urged, on motion in arrest of judgment, that the words are insensible ; for that when the plaintifF has given money to the défendant, it cannot be the plaintifF’s money ; but judgment was given for the plaintifF. The older cases, indeed, carried the doctrine of repug- nancy to a very unreasonable extent ; and thé courts ar- rest ed judgments, not only on the ground that an actual ift- consistency appeared on the face ôf the record, but even where no inconsistency appeared, because such might by possibility exist. * 1 Roll. Ab. 74. 6 Bac. Ab. 238. X Cro. Jac. 600. t Cro. Eliz. 279. § 11 Mod. 174. (*68)46 The rule, however, seems to be now established, that no inconsistency, orwant of grammatical propriety, will prevent the words fiom being actionable, where the intention to charge the plaintiff with the commission of a crime plainly appears.(24) IL The criminal quauty of the matter charged must appear with certainty. (*)This may appear, lst. From the use of general terms of known legal import. % 2dly. From circumstahces explaining the mêaning of terms otherwise doubtful, or innocent. Sdly. From the mere description of the circumstaiices constitutîng the olfence. lst. From the use of terms of known legal import. It seems once to hâve been understood, that no charge was actionable, when conveyed in terms, which did not particu- larize the circumstances of the offence. So that to say a man was “ a traitor,* or a thief,” did not atford him a ground of action, unless he had sustained spécial damage from the words. And to such an extent was the nicety car- ried, that even in cases wThere the words did state some of the circumstances, it was held to be incumbent upon the plaintiff to prove that facts connected with the charge were partialiy true, in order to render it the inore probable that he migbt hâve been placed in jeopardy by the accusation. And this affords reason to suppose that, originally, the bnly ground of allowing such an action, without proof of spécial damage, was, the danger to which the party was exposed of a criminal prosecution, to which he could scarcely hâve been subjected by a bare general charge, unsupported by any facts or circumstances Avhich might give it colour. Thus, in the case of Jacob v. Mills.f It was held, that for the words, “ He hath poisoned'J. S. and it shall cost me 100Z. but I will hang him,” no (*)action was maintainable, b^ause the plaintiff did not aver (and of course prove) that J. S. was dead at the time the words were spoken. * Bro. Action sur le cas. 27 H. 8. 11. f Cro. J. 331. 343. 1 Vent. 117. (24) See Walton v. Singleton, 7 Serg. & R. 451. (*69) (*70)47 The défendant said, “ Sir Thomas Holt struek his cook on the head with a cleaver, and cleaved his head ; the one part lay on the one shoulder, and another part lay on the other.” After verdict for the plaintiff, judgment was arrest- ed, upon the ground that it did not appear that the cook was killed. But in other cases, both prior and subséquent to the for- mer, the same objection was overruled. In the case of Webb v. Poôr,* the words were, “ I will call him in question for poisoning my aunt, and I make no doubt to prove it.” It was moved, in arrest of judgment, that the plaintiff had not averred that his aunt was poisoned ; but the court would not allow the objection, saying, that the plaintiff’s crédit was im- peached, whether she was poisoned or not. And the same point was ruled in Talbot v. Case,f where it was said, that the death of the person alleged to hâve been murdered would be intended, unless the contrary appeared. Still, how- ever, it was held, that if it appeared that the person said to hâve been murdered was in fact living, no action could be maintained. The plaintiffj: showed in his déclaration, that the défendant had a wife.yet living ; and that he said of the plaintiff, “ Thou hast killed my wife ; thou art a traitor!” and it was held that no action lay ; and a distinction was taken be- tween the case where the person stated to hâve been murdered was still alive, and where he was dead ; that, the (*)wife being alive, no action lies, although the défendant says that the plaintiff has murdered her; since itappears that no murder of her can hâve been committed, nor the plaintiff in any jeopardy : and so the words are vain, and no scandai or damage to the plaintiff. To require the plaintiff to prove, that the party, with whose murder he is charged, is actually dead, would be highly un- reasonable and inexpedient ; since the slanderer might se- cure impunity by fixing either upon a fictitious person as the supposed victim, of the murder, or upon some real person whose death the plaintiff might not be able to prove. In the case of Snagg v. Gee (cited by Sir E, Coke,§ in his fourth report,) it appeared upon the record, that the wife, alleged to hâve been murdered, was still alive ; and fCro.Eliz. 823. § 4 Rep. 16.9. (*71) * Cro. Eliz. 569. J Snagg v. Gee, 4 Rep. 16. 9 Cro. Car. 489.48 the action was held not to be maintainable, because the piaintiff was not put in jeopardy by the words. It cannot, however, fairly be inferred from this, that the piaintiff is in ail cases precluded from recovering, although the person alleged to hâve been murdered should bê still alive ; since the piaintiff’s life may hâve been placed in jeopardy in conséquence of the injurious report, though, in fact, at the time of pleading, or upon the trial, the défen- dant may be able to prove the person alleged to hâve been murdered to be still living. The words, if actionable with- out spécial damage, must be so immediately when spoken ; and their actionable quality must then dépend upon the fact, whether the heàrers were aware that the person alleged to be murdered (*)was really alive ; if they did not know the fact, then ail the conséquences (the probability of which ren- ders a charge of murder in any case actionable) may follow ; since, unfortunately, several melancholy instances may be cited where an accused person has suffered for the supposed murder of one who survived him. Should it, however, precisely appear, upon the plaintiff’s own statement, that the person charged to hâve been mur- dered was alive when the words were spoken, perhaps it would be presumed that the hearers knew that fact. The piaintiff* declared that the défendant said of him, “ He is a base gentleman, and had three or four çhildren by A. S. his maid-servànt ; and after killed them or caùsed them to be killed ; and then averred, that he never was guilty of any incontinency with A. S. nor any other, nor of any such felony or murder.” After verdict for the piaintiff, it was ob- jected, in arrest of judgment, that inasmuch as he had aver- red that he never was guilty of any incontinency with A. S. it was ail one as if he had averred thàt he never had any child by A. S. and that if he had so averred, no action would lie ; for then it would appear to the court, that there was no such thing in rerum naturel as is supposed to hâve been killed. But it was adjudged for the piaintiff ; because it was not specijîcally averrecl that he had no child by A. S. but only generally, that he was not incontinent with her. And the like degree of particularity has been required in other cases where felony has been charged. * 1 Vin. Ab. 407. pl. 4. Poph.187. Jo. 141. Lat.159. Cart.55. Comb. 132. (*72)49 (*)Thus, for the words,‘ “ Thon hast committed burglary in breaking bis house, and taking his goods.”* It was held, that no action was maintainable ; it being uncertain, as no person was najtned, whose house and goods were meant. And, upon the saine principle, a general charge of forgeryf was held not to be actionable, without reference to some particuîar cîeed, instrument, or other suhject matter. So it was held, that a general charge of subornation^: of perjury was not actionable, unless it appeared that the per- jury had been committed.(25) These doctrines hâve, however, been long exploded ; and the rule seems to be perfectly established, that an action is maintainable for a general imputation conveyed in apt ternis. The establishment of this rule necessarily defeated ano- ther nicety, which bas been alluded to as formerly counte- nànced by the courts, namely, that when the charge describ- ed any circumstances of the offence, it was incumbent upon the plaintiff to show the existence of such particulars as might serve to give colour to the defendant’s imputation, since it would be absurd to allow a remedy against general charges where no colour could be shown, and to deny it where the imputation was equally préjudiciai, because it contained particulars, which particulars the plaintiff might be equally unable to prove. (*)As for instance, if for the words, “ you committed a murder,” the plaintiff be entitled to recover, it would be highly unreasonable in an action for the words, “ You mur- dered J. S.” torequire him to prove that such a person as J. S. had existed, but was dead at the time the words were spoken. It may next be proper to refer to a few cases where gen- eral words hâve been held actionable. (26) An action has been held maintainable for the words trai- tor^ murderer,|| thief,^ sheepstealer.** * Brown v. St. John, 1 Roi. Ab. 71. t 3 Leon. 231. j|6Mod.200. § Dal. 17. Bro. Ac. sur le cas. pl. 2. 27 H. 8. 14. || Mo. 29. IT Ow. 43- 2 Buis. 134. ** 3 Buis. 303* (25) See ante, note (3). (26) See ante} note (2). 7 (*73) (*74)50 For charging another with felony,* perjury,f subornation of perjury,:j: forgery,§ robbery.|| It was once held, that to call another a pick-pocket,^ did not amount to a charge of felony ; this decision has, however, been overruled.** Whilst the statutes against witchcraft remained in force, it seems that the term witch was not actionable, unless coupled with some act of witchcraft ; the cases, however, relâting to this offence, are so inconsistent with each other, and with any settled (*)principle, as to appear incapable of affording any illustration of the subject of this treatise. To charge one with having cozened another, has in a great number of cases been held too indefinite to support an action. For instance, the défendant said, “ Thou art a cozening knave, and hast cozened me out of 500Z.”ft and it was held that no action lay. So to accuse another of cheating is too general to sup- port an action. $*(27) So to say, he is a rogue, varlet, or the like, is not ac- tionable. §§—So to say, “ Thou art a common filcher, a companion of cut-throats,” &c.||||(27) So to say, “ He is a bloodsucker, and not fit to live in the commonwealth ; and his child, not born, is bound to curse 2dly. The criminal quality oî the act imputed may appear from circumstances explaining the meaning of words other- wise doubtful or innocent. * Jo. 32. Cro. Car. 276. Poph. 210. Sty. 235. - f Ow. 62. Noy, 61. 1 Vin. Ab. 405. J Cro.Eliz. 308. Cro. J. 158. 1 Roi., Ab. 41. | Jones v. Herne, 2 Wils. 87. || Cro. J. 247. ir 3 Salk. 325. ** 11 Mod.255. tf Hutt. IS. 1 Fin. Ab. 427. pi. 9. 3 Lev. 171. Cro. Eliz. 95. Ow. 47. Buis. 172. Show. 181. God.284. Cro J. 427. U 2 Salk. 694. §§ 4 Rep. 15. b.Ld. Ray. 1417. || || Cro. Eliz. 554. 1HTNoy,64. (27) See Stevenson v. Hayden, 2 Mass. Rep. 406, 408. Respublica v. Pow- ell, 1 Dali. 47. Marshall v. Jlddison, 4 Har. & M’Hen. 537. Cadwell v. Ab- bey, Hardin, 429, 430. See also, antey note (3). (*75)51 In considération of law, that is certain which can be ren- dered so : it is, therefore, of no importance whether the terms used be doubtful, or apparently innocent, provided it can be shown that they could (*)and did convey the offen- sive meaning which forms the ground of complaint. An imputation of being forsworn is the most common instance of cases falling under this division, and has given rise to a numerous class of decisions. It has been held, that to accuse another of having for- sworn himself, generally, is actionable but it seems now perfectly settled, that the term is not actionable, unless it appear from the accompanying circumstances to hâve been meant and understood of such a forswearing as would con- stitute the offence of perjury.f(28) Thus, to say,^: “ A. B. being forsworn, compounded the prosecution,” is actionable, since an indictable forswearing must hâve been intended. So the term “ forsworn” is actionable when reference is made to a court in which false swearing would amount to perjury.§ The défendant said, “ Arther Colome is a forsworn man, and hath taken a false oath in his déposition at Tivertoïi, where he waged his law against me and the plaintiff had judgment, thé forswearing appearing by the description to hâve an^tounted to perjury.|| (*)Toi say, ÉC Thou wert forsworn at such a trial,(with reference to a trial where the offence of perjury might hâve been committed) is actionable. Where reference is made to a particular court, the impu- tation is actionable, if perjury could hâve been committed there. In such case, however, it is incumbent on the plain- tiff to show that the perjury could hâve been committed (29). * 2 Bals. 40. f 4 Rep. 15. 2 Buis. 150. Holt v. Scholefield, 6 T. R. 691. t Cro. Eliz. 609. 2 Roi. Rep. 410. § Cro. Eliz. 720. 1 Vin. Ab. 406. pl. b. 7. j| Cro. J. 204. IT Cro. Car. 378. Lut. 1292. (28) See ante, note (3). Green v. Long, 1 Caines, 91. (29) These words, “you swore false at the trial of j'our brother John,” without a colloquium, held to be actionable, after verdict. Foiqle v. Robbins, (*76) (*77)52 The défendant said, “ Thou wert forsworn at Whitchurch court,”* and the words weie held not to be actionable, be- cause it did not appear that Whitchurch court was a court of record. So it was held, that no action lay for saying, “ He has forsworn himself in Leake court, f without showing it to be a court which could compel the taking of an oath. It is not necessary that the forswearing should be shown to hâve been intended of a perjury within the statute of Elizabeth, since perjury is an offence punishable at Common Law.| So, although Ecclesiastical Courts are not mentioned in the statute of Elizabeth against perjury, yet an action lies for imputing a forswearing in an Ecclesiastical Court.—The défendant said, “ Thou art a forsworn knave, and I will prove thee to be forsworn in the Spiritual Court ;”§ and it was held that the action well lay ; for the Ecclesiastical Court is a judicial court, and well known.(SO) (*)To say, “ Thou wast forsworn before my Lord Chief Justice, in evidence,”|| is actionable. So to say that another is forsworn before a Justice of the Peace is actionable or before such aperson, naming him, provided it can be shown with certainty, that fhe person so named was a Justice of the Peace. (31) *,Cro. Car. 378. f I Roi. Ab. 39. pl. 7. 6 Bac. Ab. 207. J 1 Roi. Ab. 49, § Shaw v. Thompson, Cro. Eliz. 609. J| 1 Leon. Rep. 127. IT Gurneth v. Derry, 3 Lev. 166. 4 Co. 17. 12 Mass. Rep. 498. See Niven v Munn, 13 J. R. 48. Chapman v. Smith, 13 J. R. 78, 80. It seems, that to charge a man with the commission of perjury before arbitrators, is actionable. Lyman v. Wetmore, 2 Conn. Rep. 42, n, (30) It has been decided in Connecticut, that words charging a person with having given false evidence under an oath administered by a justice of the peace, before a church convened for the purpose of administering discipline among its members, are in themselves, actionable. Chapman v. Gillet, 2 Conn. Rep. 40. (31) The words, ee Hamilton v. Dent, 1 Hayw. 120. Per Williams, J. (33) If one man say of another, “ You swore to a lie, for which you now stand indicted,” it is actionable. Peltonv, Ward, 3 Caines, 73. So, tosay to a witness, while he is giving his testimony in a cause in court, to a point material to the issue, “ That is false,” is actionable; for when spoken ma- liciously, the words are équivalent to a charge of perjury. M’Claughry v. Wetmore, 6 J. R. 82. So, where the défendant in a suit before a justice of the peace, turned towards a witness, who had just finished his testimony, and said, “ You hâve sworn to a manifest lie,” the words were held to be ac- tionable, Kean v. M’Laughlin, 2 Serg. & R. 469. (*79)54 “ Arbor dum crescit, lignum dum crescere nescit.”* Holt C. J. said, “ The opinions of later times hâve been in many instances different from those of former days in relation to words ; for formerly there has been a différence taken between saying, “ Thou art a thief, and hast stolen my wood and, “ Thou art a thief, for thou hast stolen my wood.” And judgments hâve gone both ways ; but later opinions make no différence if the words be spoken at the same time, and these are scrambling things that (*)have gone backward and forwards, and the idle people in the country, that privately eut and carry away coppice wood, are in common parlance called woodstealers.” And he said, that, “ Stealing, and feloniously stealing, are not the same ; for in common parlance, stealing does not always import c felony as, to eut and carry away furze is a stealing, but not a felonious stealing.” (34) But Powel J. said, he always took it, that stealing, ex vi termini, did import felony. And afterward, by the opinion ofthe whole court, the plaintiff had judgment on the ground, as stated in the report, of ail the later author- ities.f * lRoll.Ab.70.pl. 47. t6Mod.23. (34) Where words otherwise actionable in themselves, are explained by extrinsic circumstances, or by reference to a particular transaction known at the time, they are to be construed accordingly ; and being so explained as not to import a charge of felony, they will not sustain an action. Thus, where the words charged were, “ You are a thief,” “ you are a [damned thief;” and the words proved were. “You are a thief, you stole hoop pôles and saw logs from ofF Delancey’s and Judge Myer's land The Judge, on the trial, left it to the jury to décidé, whether by the words proved, the défen- dant meant to charge the plaintiff with taking timber or hoop pôles already eut down, which would import a charge of felony ; or whether they were meant only to charge the cutting down and carrying away timber to make hoop pôles, &c. in which case, it could amount only to a simple trespass ; and thereforû, the action could not be sustained ; and the jury having found a verdict for the the défendant, the court, Spencer, J. dissentiente, refused to set it aside. Descter v. Tàber, 12 J. R. 239. See Van Rensselaer y. Dole, 1 J. Cas. 279. See further in Stokes v. Stuckey, 1 M’Cord, 562. Findley v. Bear, 8 Serg.&. R. 571.-------F die v. Brooks, Whart-Penn. Dig- 566. Brown v. Lamberton2 Binn. 34. Bloss v. Tobey, 2 Pick. 320. (*80)55 From this, and the latef decisions upon this subject, it seems, that the term stealing takes its complexion from the subject matter to which it is applied, and will be considered as intended of a felonious stealing, if a felony could hâve been committed of such subject matter. In modem construction and practice little doubt can arise upon these niceties, which appear in former times, to hâve afforded abundant occupation to (*)the courts. If* from the plaintiff’s declaratory statement of his case, it appear, that the charge of stealing could not, from its application, hâve been meant to impute a felonious stealing : as if, for example, the défendant had said, “ You stole an acre of my land the statement would be held bad upon demurrer ; if it appeared upon the trial that the term had been applied in a sense not felonious, the plaintiff would be nonsüited ; and, finally, if after verdict for the plaintiff it appeared that the ter m as used was capable of a felonious sense, the verdict would be supported. This doctrine is applicable to every other case where doubtful words, or even those apparently innocent, dérivé a criminal quality, either from context or collateral circum- stances. The défendant said, 66 Thou art a clipper and shalt be hanged for it and the court, after a verdict for the plain- tiff, said, that the words should not be taken to mean a clip- ping of clothes, but a clipping of money, for which the plaintiff might he hanged. So for the words, “ Thou art a clipper and thy neck shall pay for it,”f an action was held maintainable ; for by the subséquent words it could not be intended of any other clipping than of money. So when the statutes against witchcraft were in (*)force, the défendant said, “ Thou art a witch, and I will make thee suffer for a witch.”:}: After verdict for the plaintiff it was contended, that the words were not actionable ; that it had been many times adjudged, that witch alone is not ac- tionable ; and that, “ I will make the suffer for a, witch” are not ; for it is not said suffer death ; that it might be in- * Walter v, Beaver, 3 Lev. 166. 2 Jo. 235. Cro. J. 255, 276. 1 Lev. 155. t 3Lev. 166. | 3 Lev. 394. (*81) (*8*)56 tended ôf a citation in the Spiritual Court, which was the usual way before the statute ; or it might be by ducking in the water as the coramoa people used to try those suspected of witchcraft. But it was answered by Rokesby and Ne- ville Justices, that the words shall be taken as they are usualiy understood among neighbours in the country ; to suffer is intended to suffer death ; as they usualiy say, How many sufFer at this Assizes ! which is intended suffer death. And thereto Treby C. J. after it had been twice moved, in- clined. And atlast judgment was given for the plaintiff by Treby C. J., and Rokesby and Neville Js. ; Powell J. being of a contrary opinion, because words shall be taken in miti- ori sensu, and the word suffer is wholly uncertain what man- ner of sufFering was intended. The défendant,* speaking of the death of one Daniel Dolly, said to the plaintiff, “ You are a bad man, and I am thoroughly convinced that you are guilty ; and rather than you should want a hangman, I would be your executioner.” _ After verdict and judgment for the plaintiff, the défendant brought a writ of error in the court of King’s Bench, as- signing, as to grounds of error— (*)lst. That the words were not in themselves scandalous. 2dly. That they did not become so by reference to the death of D. D. Lord Mansfield in affirming the judgment, observed* “ It is argued that there are many innocent ways by which one man may occasion the death of another ; therefore, the words, c guilty of the death,5 do not in themselves necessa- rily import a charge of murder ; and consequently, as no particular act is charged (which in itself amounts to an im- putation of a crime) the words are defectively laid. ^That ! when the défendant tells the plaintiff that he has been guilty of the death of a person, is not that a charge and imputation of a very foui and heinous kind ? Saying that such a one is the cause of another’s death, as in the case in 2 Buis. 10, 11. is very different ; because a physician may be the cause of a man5s death, and very innocently : but the Word guilty implies a malicious intent, andcan be applied only to some- thing which is universally allowed to be a crime. But the * Peake v. Oldham, Cowp. 275, (*8S)57 défendant does not rest here : on the contrary* in order to explain his meaning, he goes on and says, c and rather than you should be without a hangman, I will hangyou.5 These words plainly show what species of death the défendant meant, and therefore in themselves manifestly import a charge of murder.55 Where the words merely charge the plaintiff with being deserving of punishment, great doubt seems to hâve been en- tertained whether they are actionable, and there are many authorities both ways. It has been held, that an action lies for saying, (*)“ If you had your deserts, you had been hanged before now.55* For the court said, it should be intended to convêy an imputa- tion of an offence for which the penalty of death was due. So the words, “ He hath deserved to hâve his ears nailed to the pillory,55f were adjudged actionable. But for the words, “ Thou art a scurvy bad fellow, and hast done that for which thou deservest to be hanged,it was held, that no action could be maintained. So the words, “ thou shouldst hâve sate on the pillory, if thou hadstthy deserts,”§ hâve been held not actionable, because too general. Since a greater degree of précision has been required in modem times than formerly, the cases last cited may, per- haps, be considered as the better authorities. If, however, the words import a conviction for s orne of- fence, it seems they are actionable. The défendant said, “ You are a branded rogue, and hâve held up your hand at the bar.55|| It was held, that , the words were actionable, since they^ imply that the plaintiff was branded according to the statute.^jj So words or signs apparently innocent, or unintelligible, may, by explanatory' circumstances, become actionable. The défendant said of the plaintiff, “ He is a healer of fé- lons and the words having been spoken in one of the western counties, wherein “ a healer of félons55 signifies a concealer (*)of félons, were, thus explained, considered ac- tionable. * Cro. Eliz. 62. f Cro. Eliz. 384. f 1 Vin. Ab. 415. pi. 5. § 1 Vin. Ab. 415. pl. 10. Mo. 243. ' H Ail. 35. 1T 1 Ja. c. 7. **'Hob. 126. Cro. Eliz. 250. Cart. 214. 8 (*84) (*85)58 So the words, “ He îs mamsworn,”* were held action* able, as published in a part of the kingdom where they were understood to convey a charge of perjury. So, generally, in regard to words spoken in a foreign lan- guage, the only question is, whether they were understood by the hearers in an actionable sense ?—If so understood, the mischief is effected, and the cause of action complété.f Where the words are spoken in the Welch language, but in an English county, it must appear that the hearers ùnder- stood Welch ; for otherwise the court will not intend that any there understood the Welch tongue ; and then it was not any slander any more than if any one spoke slanderous words in French or Italian, in which case no action will lie, unless it be averred, that some one there understood those languages4 And as doubtful or apparently innocent words may, by circumstances, be shown to be actionable ; so may words apparently actionable be explained, by circumstances, to hâve been intended and understood in an innocent sense. Thus, though the défendant should say, “ Thou art a mur- therer,” the words would not be actionable, if the défendant could make it appear that he was conversing with the plain- tiff concerning unlawful hunting, when the plaintiff confessed that he killed several hares (*)with certain engines, upon which the défendant said, “ Thou art a murtherer,” mean- ing a murtherer of the hares so killed. § Formerly a distinction was taken between saying, cc Thou art a thief, for thou hast stolen such a thing,” as a tree, the taking of which could not be felonious, and the saying, 66 Thou art a thief, and hast stolen such a thing since in the former case the subséquent words show the reason of calling the plaintiff a thief, and that no felonious imputation was meant ; butin the latter, the action lies for calling him a thief, and the addition, “ thou hast stolen,” is another distinct sentence by itself, and not the reason of the for- mer speech, nor any diminution thereof. || Little stress, however, would probably be now laid upon * Hob. 126. f 1 Roll. Ab. 74. Cro. Eliz. 496. t Cro. Eliz. 865. § 4 Go. 13. || Cro. J. 114. B. L. N. P. 5. Hob. Rep. 106. Cro. Eliz. 857. Hob. 77. Brownl. 2. God. b. 241. Hard. 7. AU. 31. Sty. 66. (*86)59 this distinction, since, in common discourse, and is frequent- ly intended to mean for. And even in the construction of legal instruments, in- stances are not unfrequent, where the vulgar and obvious acceptation of the word has been preferred to its strict grammatical signification.* Brittridge brought an action for these words, “ Mr. Brit- tridge is a perjured old knave, cmdthat is to be proved by a stake parting the land of H. Martin and Mr. Wright.” And upon motion in arrest of judgment, it was held, that although the words, “ thou art a perjured knave,” without any more, would hâve been actionable ; yet, that upon ail the (*) words taken together, no action lay, for the latter words extenuate the former, and explain his iritent, that he did not mean any judicial perjury ; and therefore it was adjudged that the words were not actionable. But it was said, that if the plaintiff’s eounsel had disclosed the truth of the case in the déclaration, the words would hâve maintained the action ; for the truth of the case was, that in an action be* tween Martin and Wright, the State of the eontroversy was, whether the stake stood upon the land of the one or the other, or indifferently as a boundary between their lands. And in that action the plaintiff was sworn as a witness ; and, by the pretence of the plaintiff, had perjured himself. But this spécial matter was not disclosed, and therefore it was decided for the défendant.f Sir Edward Coke in his fourth report observes, that, cc In case of slander by words, the sense of the words ought to be taken, and the sense of them appears by the cause and occasion of speaking of them ; for, “ Sensus verborum ex causa, dicendi accipiendus est” And again, “ God forbid that a man’s words should be, by strict and grammatical construction, taken by parcels against the manifest intent of the party, upon considération of ail the words which import the true cause and occasion, which manifest the true sense of them.” This rule is so clear, and so well established, that any further illustration of it would be nugatory ; and the questions which may arise, upon which party shall the onus of proving, or disproving * 6 East. 486. Mo. 422. 1 Wils. 140. t 4 Co. 18. Tel. 10. 34. 2 Roi. Ab. 343. Mo, 666. (*87)60 tlie injurious intention and meaning be imposed ? (*)and how shall the défendant best avail himself of explanatory circumstances in his favour ? will be afterward considered under more appropriate divisions. 3dly. From the mere description of the circumstances -constituting the offence. In the older cases, much difficulty prevailed with re- spect to the actionable quality of words containing a mere énumération of circumstances : itwas doubted, in the .first place, whether the circumstances, supposing them to be true, constituted an indictable misdemeanor î in the second, whether the imputing such a misdemeanor was a sufficient ground of action ? The affirmative of the latter question has already been attempted to be shown. With respect to the first point, it may be proper to advance a few observations. In considering the class of cases referrible to this head, where offences hâve been charged not amounting to, but connected with, felony, it will be convenient to distribute them into imputations charging, An attempt to commit a crime. A solicitation to commit a crime. Some préparation made in contemplation of the commis- sion of a crime. As to words charging an attempt to commit a crime. In the case of Sir Harbert Croft v. Brown.* Coke C. J. obsérved, that, in ancient time, “ voluntas reputabatur. pro facto and that if a person lay in wait to kill another, and upon his resisting, (*)wounded but did not killhim, it amount- ed to a felony at Common Law, and the offender was oust- ed of his clergy ; that the intention, ipanifested by an overt act, constituted a felony. The learned judge then proceeded to intimate, that any words charging an overt act done in pursuance of a felonious intention, woüld be actionable. But that in the principal case, the words, cc He keepeth men to rob me,” were not actionable, since they did not charge any waylaying or overt act done. * 3 Buis. 167. (*88) (*89)61 The words, “ He sought to murder me, and I can prove it,”* ** were held actionable. In this case it may be observed, the words imported more than a mere inclination to murder ; since the term sought is shown by the latter words to refer to some overt act ca- pable of proof. But for the words, “ Thou wouldest hâve killed me,”f it was held that no action lay, since intention only was charg- ed. * - In Muney’s case.:}: Coke C. J. and Houghton J. held the words, “ Thou art a knave, and hast laid in wait to kill me ; and thou hast hired'one W. to kill me,” not actiona- ble, beeause no act was laid to be done, but an intention only ; and that a mere intent is not punishable. It is remarkable, that the lying in wait, and hiring an as- sassin to murder another, should be considered as nothing more than mere intention ; and this decision seems very inconsistent with the subséquent doctrine of Lord Coke in Sir Harbert Croft’s case ;§ (*)notwithstanding therefore, this and some other contradictory authorities, it may be eollect- ed from a general view of the cases, that the charging any attempt to commit a felony is actionable, since such an attempt constitutes an indictable offence.|| Where the words charge a solicitation to commit a crime. The défendant said, “ Mrs. Margaret Passie sent a letter to my Mr. and therein willed him to poison his wife.” After judgment for the plaintiff, it was assigned for error, that the words were not actionable ; beeause they did not charge any act done ; and that it was notlike charging the plaintiff with lying in wait to commit a murder ; but ail the justices and barons, besides Kingsmill, held, that the action lay.^f The défendant said, tc Tibbot and one Grough agreed to hâve hired a man to kill me.”^ And judgment was given for the plaintiff by Wray C. J. and Fenner J. against the opinion of Gawdy. The défendant said, “ You set on folks to murder J. S.”ft * Cro. Eliz. 308. f Dr. Poe’s case, vid. 2 Buis. 206. 1 Vin. Ab. 440. pl. 9. î 2 Buis. 206. § 3 Buis. 167. |[ 2 East, 6. IT Cro. Eliz. 747. cited by Williams J. Buis. 201. ** Cro. Eliz. |f West and Philips, Keb. 325. (*90)62 And Wylde J. conceived the words to be actionable, since the offence was indictable. The défendant said, “ John Leversage would hâve robbed the house of J. S. if J. D. would hâve consented unto it* He persuaded J. D. unto it, and told him he would bririg him where he should hâve money enough.”* And although it was objected in arrest of judgment, that the plaintiff could receive no préjudice from the words, which didnot impute any act done, the plaintiff h ad judgment. ('x')The défendant said, “ He bade J. S. to steal what goods he could, and he would receive them.”f And it was held, on motion in arrest of judgment, that the words were not actionable, since they merely charged the giving bad advice, and no act done. But in Lady Cockaine’s case.j: A charge of having so- licited another to commit a felony, was held actionable. And in Sir Harbert Croft’s case § it was held, that to say, “ A. did hire a man to rob me,” would be actionable. Where the words charge some préparation made in con- templation of the commission of a crime. When a man does an act in itself indifferent, but in con- templation of the commission of a crime in future (since the act is not indictable,) an imputation ofit can scarcely be considered as actionable.—As if, for instance,^ a person were to purchase a pistol with the intent to commit murder at a future opportunity, the act would not, in law, amount to an indictable offence, though it might be a good ground for binding the party to his good behaviour. It is to be ob- served, however, that in Lady Cockaine’s case,|] the words charging her with having solicited a prégnant woman to kill her child, were held actionable ; because, if true, there was cause to bind her to her good behaviour. The words, how- ever, in that case, were clearly actionable upon another ground, and the reason given is insufïieient, since it appears, from a variety of decisions, that many imputations for which, if true, the party might be bound to his good behavior, are not actionable. The défendant said, “ He keepeth men to rob (f )me.”^[ And it was held, that the words were not actionable. * Cro. E. 810. 1 2 Jo. 157. J Cro, E. 49. § 3 Bals. 167. || Cro. E. 49. 1T 3 Buis. 167. (*91) (*92)63 After some conversation about robbing a house, the de- fendant said, “ It was T. M. (the plaintifF) and J, D. that were about to rob E. C.’s house.”* After a verdict for the plaintifF, it was adjudged by Archer and Vaughan Js. for the défendant. And it was said, that the going with the intent to lie in wait to kill a man was not indictable ; but that the lying in wait with the same intent was indictable. Upon the whole it seems, that where the words merely im- pute an act done in contemplation of the future commission of a crime, they are not indictable ; unless it appear that the défendant intended to charge the plaintifF with having solicit- ed, or conspired with, others for the purpose of committing the crime. Where the description of the circum stances is précisé, little doubt can arise. The défendant said, u You hâve caused this boy to perjure himself.”f And the words were held actionable, since the facts charged constitute the of- fence of subornation of perjury. So where the défendant said, “ You hâve bought a roan stolen horse, knowing him to be stolen.”:): The défendant said, “ He came to my door and set a pis- toi to my breast and demanded money of me; and I, for safeguard of my life, gave him what money he desired.”§ Roll. C. J. observed, If the words Sound to charge him with felony, the action (*)will lie ; and three of the Justices de- cidfed for the plaintifF. The défendant said of a justice of the peace and deputy lieutenant of the county of Warwick, “ I hâve heard that a maid of J. K.’s should report, that he being sick and she looking though ahole of the door where he then lay, saw a priest (innuendo—a popish priest) give the eucharist and ex- trême unction to Sir J. K.’5 It was moved in arrest of judg- rnent, that these words did not amount to calling him a pa- pist ; since it did not appear that the priest was a popish priest, unless by aninnuendo. Butit was, after two arguments, resolved, that the words taken altogether were actionable, and explained one another ; that a priest wbo gives the ex- trême unction, must be a popish priest, and he that receives it a * Ereem. 46. f Brownl, 2. § Neve v. Cross, Sty. 350. t Brigg’s case, God. 157. (*93)64 papist ; and the judgment given for the plaintiff in the Coin- mon Pleas, was afterward affirmed in the King’s- Bench.* The défendant said, Thon didst violently,f upon the highway, take my purse from me, and four shillings and two pence in it ; and didst threaten me to eut me off in the midst, but I was forced to run away to save my live.” And the words, which in fact amount to a description of a highway robbery, were held actionable. III. That the criminal act was meant to be imputed to the plaintiff. The application of the injurions charge to the plaintiff may be collected, generally, from any circumstances indicating the intention of the défendant, so to apply his words, and in- ducing the heârers to suppose that the plaintiff was the per- son meant. • (*)Thus, if the défendant shôuld say, “ I know what I am, and I know what the plaintiff is ; I never did such an act,”j: (specifying some criminal act,) the words would be actionable, provided the hearers understood the offence to hâve been imputed to the plaintif! by such words. Where a charge has been imputed to one of several, without specifying him, it has been held in many of the older cases, that no action was maintainable by any of them. The défendant said to three men who had given evidence against him, “ One of you is perjured.55§ And upon an action brought by one of them, it was adjudged, that*no action lay. And. so it has been held, that for the words, “ Onç of my brothers is perjured.5’ Although one of the brothers should bring an action, and aver that the words were spoken con- cerning him, yet, that on account of the apparent uncer- tainty, no action would be maintainable. || (35) But it has since been held, that for the wordsj “A. or B. murdered C.”^[ either A. or B. might bring an action. * Sir John Knightly v. Marrow, 3 Lev.r68. ’ t Lawrence v. Woodward, Cro. Car. 177. Î2 Lev. 150. Snell v. Webling, 1 Vent. 276. § Cro. Eliz. 497. || Per Tanfield J. in Wiseman v. Wiseman, Cro. J. 10 7. 10 Mod. 196. Cart. 56. (35) See Gidneyv. Blàke, 11 J. R. 54. (*94)6â If from the plaintiff’s statement it appear, that he couîd hâve been meant, the finding of the jury (*)for him will be conclusive as to the defendant’s application of the charge to him, since otherwise they could not hâve given him damages. The application may be ascertained by a variety of cir- cumstances ; as from his having been* the subject of pre- viousf conversation, or from his being described by naine. The plaintiff was a justice of the peace, and Receiver of ||}ie Court of Wards, and by reason thereof reçeived great ^pums of money for the king, and was used with much confi- fdence by the king ; and the défendant, speaking concern- ing him with one Thomas Whorewood, spoke these words, “ Mr. Deceiver hath deceived the king.”t After a verdict for the plaintiff the court, on motion in arrest of judgment, held, that the action well lay ; that the words “ Mr. Decei- ver,” were an ironical allusion and nickname to his office and place ; and that if such crafty évasions should be admit- ted, it would be a usual practice to slander sans punishment. If Â. B. say to C. D. before whom E. F. is walking, “ He that goeth before thee is perjured,”§ an action lies, if it appear that none but E. F. was walking before C. D. at the time of speaking. In the case of J. Anson v. Stuart, || the plaintiff was thus described in the libel—“ This diabolicaL character, like Polyphemus the man-eater, has but one eye ; and is well known to ail persons well acquainted with the name of a certain noble circumnavigator (meaning by the last-men- tioned words to allude to the name of the plaintiff, J. Jlnson.) (*) From these^If and a number of si milar instances, it may be laid down as a general rule, that the application of the words to the plaintiff is a matter to be collected by the jury, from the particular circumstances of each case. The difficulties^which occur upon this point, are generally of a technical nature, and consist in the doubt, whether the plaintiff has so stated his case in the déclaration as to show that the conclusion could properly be drawn : the considér- ation of these, however, belongs to a subséquent division of the subject. * 1 Roi. Ab. 85. 1 Roi. Ab. 75. t Sir Miles Fleetwood v. Curl, Cro. J. 557. || 1 T. R. 748. t Cro. J. 557.6 Bac. AK23&> § 1 Roi. Ab..81. Ü Cro.Eliz, 497. Cro. J. 444. 2jBarnard. Rep, Hughes v. Winter^Keb. 525* 9 (*95) (*98)66 (*)CIIÀPTEll Ü. Wheïè àn infèciiôüs Disordér iè irtipUted. ÂftoTHÏft Bfâhch of èàsës wherë thé lâw aîlows an aé^ tron to bé maint aine d, withoüt thé usual proôf ôf Spécial tiaihaige; èûnéists of thèse whérë à pèrsori is charged with Having an iiifectious diseâsè, thë èffeét of which imputation* if Believèd* woüld bé té exclude him frein society. (36) îi hâé béêh ëâid,*, thàf, “ Since màn is a being fofmèd fqf Sociéïy; and standing ih almost constant need of thê ad- vicê, comfort, and assistance of bis fèllôW-creatitrès, it is highly reasohàble that any Words which impôft the change of havipg a contagions disfèmpér, shèûïd Bé iri thernêelvés àiètionable ; Becaüsë àll prüdént përsons will âtoîd thé cüffi* pany of one having sueh a distemper.” Since the groiind of proceeding is the pfesüïioptièù that thé plaintîff will be whollÿ or pàrtiallÿ exclüded frOtii Soci- ety and its comforts, the action is èoiiSëquehtly confihed fà thé impütiég those disordërs Which are so infections in theit nature, and perhiciôüs în theit effécts, âs to reiider thé per- son afflicted ah object likely to be shùnnéd and avôided. Actions for words of this description seem, in the absence of spécial damage, to hâve beeh confinëd (*)to charges of leprosy and lues venerea. For though it wâS hèld, that ah action laÿ for sàying, “ Hè büried jpeople who died of thé plague in bis hôusë,”f it àppèarS that spèêiél dahiagé %as laid and proved. There is, however, one casé in which it hâs bëéh hèld, that to charge ahothër with having thé cc fâllihg Sièlm%sk,”i is actionable. * 6 Bac. Àb. 212. f Kit. 173 b. 1. Com. Dig. 252. | 1 Roll44.1. 7. (36) The doctrine contained, in the text recognized by Parker, Ch. J. in C haddock v, BriggSf 13 Mass. Rep. 252. (*97) (*98)67 So gréai, formeriy, was the dread crf leprous .contagion, that an especial writ was provided for the removal of tbuein- fected pbjfect to jaome seclnded place, wheie he Jtaaigiiut no !.lon;gjer:toia,itcrroj.^). society ; happily this writ ha$Jde- gree ceàsed to operate, ;an action will, evcn jat this day, he Jmtainable for a charge of either of the diseaseS* * * § alluded to. From the case of Yiilars and Monsley;f (it appears, that to say another bas the itch, is not actionpble ; -tbpugh such an accusation would be actionabie if written. It is to be re- marked, that in the above case both Wilmot C. J. and Gould J. seem to take for granted, that to impute the plague is ac- tionabie ; but no case was cited in which this point has been expressly determined. The ground of the action being the presumption of the plaintiff’s exclusion from society, no action will lie for an imputation in the past tense,| since such an assertion does not represent the plaintiff, at (*)the time of speaking, as un- fit for society, and therefore the substance of the action is wanting ; and it was observed, in the case of Carslake v. Mapledoram, that this doctrine was justified by ail the cases, except one, and that loosely reported. With respect to the terms in which the imputation is con- veyed, as in other cases, they may either expressly and by their own power impute the disease, or by the aid of col- lateral circumstances may render the implication unavoida- ble. Thus, to say a man has the leprosy,§ or to call him lep- rous knave, is actionabie : the term leper being itself a clear and unequivocal désignation of the speaker’s meaning. Without citing the disgusting string of cases upon this subject, with which the older reports abound, it may be deemed sufficient to observe, that wherever it can be col- lected from the circumstances, that the speaker intended the hearers to understand that the person spoken of was, at the time of speaking, afflicted with either of the disorders * Carslake v. Mapledoram, 2 T. R. 473. f 2 Wills. 403. t Carslake v. Mapledoram, 2 T. R. 473. Str. 1188, § 2 T. R. 473. Cr. J. 144. (*99)68 above mentioned, an action may be maintained. And the meaning may be evidenced either by reference to the mode in which the disease was cômmunicaited, the symptoms,* * * § with which it is attended, its effects upon the personf or constitution, the means| of cure, the necessity of avoiding§ the person infected ; or, in short, by any other allusion ca- pable of conveying the offensive imputation. * Holt. 563. t Cro. j. 480. 144. 1 Vin. Ab. 488. Cro. El. 214. 280. X Cro. J. 430. JCro. Eliz. 648. Roll. Rep. 420. § Cro. J. 430.69 (*)CHAPTER III. Where the Imputation affects a Person in his office, Profes- sion, or Business. Next to imputations which tend to deprive a man of his life, orliberty, or to exclude him from the comforts of society, may be ranked those which affect him in his office, profession, or means of livelihood. To enumerate the dif- ferent decisions upon this subject would be tedious, and to reconcile them impossible ; yet they seem to yield a general rule, sufficiently simple, and unembarrassed, namely, that words are actionable which directly tend to the préjudice of any one in his office, profession,* trade, or business.(37) Observations upon this class of cases may be divided into those relating to the grounds of the action,—the extent of the action,—and the degree of certainty and précision requisite to render the words actionable. Words which affect a person in his office generally are actionable, whether the office be merely confidential and honorary, or be productive of émolument. The ground of action in the two cases, seems, however, to be somewhat different. Where his office is lucrative, words which reflect upon the (*)integrity or capacity of the plaintiff render his tenure precarious, and are therefore pro tanto a détriment in a pecuniary point of view ; but where the office is merely confidential, the presumptive loss of émolument cannot sup- ply the ground of action. The whole class of cases in which magistrates, and oth- ers (whose offices are merely confidential and honorary) * 3 Wils. 186. (37) See M’Cluryy* Ross, 5 Binn. 221. 7 Conn. Rep. 257. Per Yeates, J. Sumner v, ütley^ (*100) (*101)70 hâve been allowed to recover a pecuniary compensation for words relating to their official character, seems to rest upon more dubious principles than any other in which a remedy is given without proof of spécifie loss. For since even the loss of office itself would not be attended with any loss of émolument, such as would naturally resuit from deprivation of liberty, or exclusion from society, the evil seems scarcely capable of pecuniary admeasmement. Besides, the bad conséquences which arise from degrading the magistracy, .are of a public nature, and are .thçreforç rather a .matter of civil than of crimimal çpgnizance, especially since the damages in a civil action are not considered as of a penal nat ure, but given as a priva te compensation to the party in- jured. Ithas long, however, been fully estahlished, that words are equahy ûctiomahle whether the office or profession fo which they relate be lucrative or merely çonfidential. îSo th,a:t words sppken of Justices of the Peace, orpbysh cians, or barristets, are Jrequently actionablev^lthough the office of the jfirst is merely confidentiah and the latter are mot in legal contemplation entitled to dernand the pay ment of fees. Where the office is merely confidential, a singnlar distinction bas been taken between words imputimg twant (*)of abilily in the holdei?, and ikose which charge htm with want of integrity. It has been held, that to charge n person in ^uch\an office with [any corruption, or with -any 411 d esign o r prinçipies, is actionable ; but that to reipreseot him apwhelly incompé- tent, in point of ability, to hold the effioe, is mot a glander for which an action is .maintainable. The reason assigned for the distinction is so remarkable, that itimay be proppr fo give it in the words of C. J. Holt . Hesays,* “Ithas been adjudged, that to callfa .Justice of the Peace blockhead, ms9 ;&c. is. not:m.^lan^?fi>r which an action lies, hecause he was mot accused of any morrup- tion in his employment, or any ill design, ^otipiiociple ; and it was not;his faultthatffie was-a hiockhead, forhemannet be otberwise than his Maker made him ; butif behadbeem a wise man, and wicked principles were charged upon him when he had not them, an action would hâve lain ; for * Howe v. Prinn, Holt, 653, Salk. 694. (*102)71 thoùgh a mari Cânnôt be wiser, hé may bé honester than hé is. If a pefsbn be in a place of profit, and he is accused of iiisuffieiency, he shall hâve remedÿ bÿ action. 5Tis other-* wisé if he bé onlÿ in a place of horiour ; thoügh eveîi therey if hé is charged with ill principlés* and as disafifected to the gôvernmenf, he shah hâve an action for such scandai to his réputation/* In the case of Orisîow v. Horné,* L. C, J. De Grey* in giving jùdgnient* observed, “It wàs objected at the bar, on the side of the défendant, thât words spdkeïi of an officer, or magistràte, are not àctionàble, unless they carry an im- putation ôf a (*)cfiminal bi each ôf düty. I will not give this mÿ sanction, becausè I think for imputation of igno- rance to one in a profession or office of profit, an action will certainly lie/* The reason for the distinction as giverl by C. J. Holt, as- sumes thé imputation to be true, in which case the défendant would, as the law nôw stands* be enabled to justify ; but the real question seems tô be, not whether a rnan cari help the natural dulness of his faculties, bût whéther a person is jus- tified in fâlsëly imputing to thé holder of an office, the want of an ésséntial qualificâtiôn for thât office; After it had been èstablished that a magistrate might rècoVer a pecünia- ry compensation for Words which rendérèd his tenure pre- carious, the action in reason and pririciple extended itself to ail imputations which could affect that tenure* and silice gross ignorance is as sufficient a Cause of deprivatiôn as çdrruptioh, it seèms difficult to say why an imputation of the former kihd should not be actionable as well as of the latter ; the malice of the author, the falsity of the charge* and its probable conseqüénces, being in the two cases preciséïy simw ilar; It may be added, that the distinction is incôïisistent with the class of cases in which barristers and physicians (whose situations are in làw considèred merely honorary) havè bëen allowëd to recover for words imputing want of abîlity* às well as for those which charged them with want ofintégrity. Thé case of Bill v. Nealef wâs a precedent for the opinion of C. J. Holt, in the case of Howe v. Pritm4 Thére Fos- ter C. J. and Wyndham and (*)Twysden Js. decided against * 3 Wils. 186. f 1 Lev. 52. {Holt,652. (*103) (*104)72 the opinion of Mallet J. that the words, “ He is a fool or ass, a beetle-headed justice,” were not actionable. But the three justices founded their opinion upon the cases of Sir John Hollis v. Briscow,* and of Hammond v. Kingsmill.f In the former case the plaintiff was a Justice of the Peace and Deputy Lieutenant of a county, and the défendant said to his servant, “ Your master is a base rascally villain, and is neither nobleman, knight, nor gentleman, but a most vil- lanous rascal, and by unjust means doth most viîlanously take other men’s rights from them, and keepeth a company of thieves and traitors to do mischief, and giveth them noth- ing for their labour but base blue liveries, and this ail the country reports, and other good he doeth not any.” And the défendant had judgment, chiefly on the ground, that the words were to be construed according to the now exploded doctrine of the mitior sensus, for which reason the case can scarcely be considered as an authority. In the latter case, the words were, “ He was a debauched man and not fit to be a justice.” But it appearsj: that the judgment in that case was given for the défendant because the words were spoken of a time past ; and Twysden J. said, that it would hâve been otherwise if the words had been, “ he is a de- bauched man.” The two cases, therefore, upon which re- liance was placed, in the case of Bill v. Neale, were no authorities for that decision. Where words relate to a man’s official character, the dan- ger of exclusion from office givesrise to (*)the action. It Was held, indeed, that an action was maintainable for the words, “ When thou wert a justice, thou wert a bribing justice.”§ And it was said, that though they refer to a thing past, yet they defame him for ever in other people’s opinions, and make him accounted unworthy to bear office afterward. The authority, however, of this decision appears very suspi- cious, and the reason given would apply to every case where general want of integrity is imputed to a private individual, since it may by possibility bave the effect of preventing him from being put in to the commission. C. J. De Grey, in giving judgment in Onslow v. Horne, said, “ I know of no case, wherever an action for words * Cro. J. 58. tïJ.t. J 1 Vent. 50. Sir J. Herle y. Osgood. (*105) § Yel. 153.73 was grounded upon eventual damages, which may possibly happen to a man in a future situation, notwithstanding what the Chief Justice throws out in 2 Yent. 366., where he is made to say, c That where a man had been in an office of trust, to say he behaved himself corruptly in it, as it import- ed great scandai, so it it might prevent his coming into that or the like office again,’ I think the Chief Justice went too far.” . -. And where an action is brought for words spoken of a barrister or physician, it must appear that he practised as such at the time the words were spoken for otherwise the words could not hâve affected him professionaly. A doubt has been raised whether damages are properly recoverable by barristers and physicians for words relating to their pro- fessions, since their fees are merely honorary and not deman- dable in a court of law ;f (*)the actual decisions, however, upon the subject leave no doubt as to their right to recover for such words : and if their situations be considered as merely confidential, their right to recover rests upon the same foundation with that of magistrates and others, whose offices are of a similar description. As to the extent of the Action. The action appears to extend to ail offices of trust or profit without limitation, provided they be of a temporal nature. Thus it has been held, that an action is maintaina- ble for words spoken of a curchwarden.| It has been said, that to call an escheator,§ coroner, sheriff, attorney, or such as are offieers of record, “ extor- tioner,” an action lies ; but that for calling a bailiff or steward of a base court, who are not offieers of record, cc extortioner,” no action lies ; because extortion cannot be but in such as are offieers of record. There seems, however, to be little force in this distinc- tion, since it has been held that any man is punishable for extortion.il * 3 Wils. 188. t 6 Bac. Ab. 215. ib. 216. &ty. 231. Poph. 207. t Sty. 33S. 1 Vin. Ab. 463. Cro. J. 339. 2 Buis. 218. Cro. E. 358. § Dal. 45, pl. 35. 1 Vin. Ab. 463. || Dal. 43.1 Vin. Ab. 463. 10 (*106)74 It was held, that for saying of the deputy of Clarencieux, king of arms, that he was “ a serivener and no herald,”* an action was maintainable. So for words of the master of the mint ;f of a clerk to a public company of a town clerk ;§(38) of a steward of a court. || (*)But where the défendantsaid of a member of parlia- ment, “ As to instructing our members to obtain redress, I am totally against that plan ; for as to instructing Mr. Ons- low (the plaintiff,) we might as well instruct the winds, and should he (the plaintiff) even promise his assistance, I should not expect him to give it us after verdict for the plaintiff judgment was arrested, and it was observed by C. J. De Gray, on that occasion, that the words did not charge the plaintiff with any breach of his duty, his oath, or any crime or misdemeanor, whereby he had suffered any temporal loss in fortune, office, or in any way whatever. The action extends to words spoken of men in their pro- fession, as hamsters,** attorneys,ff physicians,^ and cler- gymen.§§(39) And to words affecting a person in the particular art by which he gains his livelihood. As of a schoolmaster :|||| it has been held, indeed, that to slander a schoolmistress who taught children to read and Write, in her profession, was not actionable. The authority of the dictum, however, appears questionable. It was decided in the case in which it is reported to hâve been delivered, that to accuse a midwife of ignorance in her profession was actionable and it is difficult to say, upon what principle a schoolmistress is not as much entitled to the protection of the law against mali- cious attacks, by which her means of living are likely to be impaired, as a midwife. * Cro. El. 328. f Léo. 88. % Cro. El. 358. § Hutt. 23. || 1 Roll. Ab. 56. ÏÏ Onslow v. Home, 3 Wils. 177. ** 2 Vent. 28. ff 1 Lev. 297. îî 1 Roi. Ab. 54. per Twysden, 1 Yen. 21. Cro. Car. 27 0. §§ Al. 63. 3 Lev. 17. 1 Roll. Ab. 58. Str. 946. HH 2 Roll. R. 72. Het. 71. 1T1T 1 Vent. 21. (38) A charge of fraud and corruption against a town clerk, in the per- formance of his official duty, is actionable. Dodds v. Henry, 9 Mass. Rep, 262. (39) Seepost. note (42). (*107)75 (*)So any words tending to injure a merchant or trades- man are actionable ; whether they reflect upon the honesty of his dealings, his ci'edit, or the excellence of the subject matter in whicb he deals. And the action seems to extend to words spoken of a person in any lawful employaient, by which he may gain his livelihood. The défendant said,* “ Thou hast received money of the king to buy new saddles, and hast cozened the king, and boughl old saddles for the troopers.” And the words were held actionable ; for it was said, it was not material what employaient the pîaintiff held imder the king, if he might lose his employment and trust thereby, and that it was im material whether the employment was for life or for years. The défendant said of a person employed by the under- postmaster to carry about post letters, on which he had a profit,! ÉC has broken up letters, and taken out bills af exchange.” After verdict and judgment for the pîaintiff, one cause of error assigned was, that no action would lie for scandalizing such an employment; and Haie was of opinion, chiefly from the quality of the employment, that the judgment ought to be reversed ; for he said that a man should not speak disparagingly of his cook or groom, but an action would be brought, if such action could be main,-, tained. The humility of the employment or occupation seems, however, to be no objection to the action either in law or reason ; and it has long been clearly established, that an action is maintainable for malicious (*)misrepresentations of the characters of menial servants,—a subject which will afterward be more fully considered. In the case of Seaman v. Bigg,! in the reign of Cha. I., it was held, that the words, “ Thou art a cozening lmave, and hast cozened thy master of a bushel of barley,” spoken of a servant in husbandry, were actionable ; and the court said, that though true it is, generally, an action will not lie for calling one cozening knave, yet where they be spoken of one who is a servant, and accomptant, and whose crédit and * Mar. 82. 1 Vin. Ab. 465. pl, 19. Sir R. Greenfield’s case, fl Vent. 275. J Cro. Car. 480. (*108) (*109)76 maintenance dépends upon his faithful dealing, and he by such disgraceful words is deprived of his livelihood and maintenance, there is good reason it should leave an action for loss of his crédit and means. So lhe words, “ He is a cheating knave,”* applied to a lime-burner in his employ- ment, hâve been deented actionable. But ajobber or dealer in the public funds,f is not consid- ered as a known trader, and possessing a character as such. It does not appear necessary, that the party should gain his living in the character to which the slander is appiied, but it is suffi cient, if he habitually act in that character, and dérivé émolument from it. The rule, however, does not seem to extend to représen- tations, which affect nothing'more than casual instances, in which the plaintiff has assumed such a character. So that words misrepresenting the value ôf a horse, or particiilar piece of furniture, which the proprietor wishes to dispose of (*) would not be actionable, unless some spécial damage re- sulted from them. Next as to the degree of certainty and précision requisite to make the words actionable. The only question arising upon this point seems to be—do the whrds in any degree préjudice the plaintiff in his office, profession, or employment ? if they do, they are actionable ; the quantum of damage being a mere question of fact for the considération of the jury. Words in general belorxging to this class must relate to the plaintiff’s integrity, his knowledge, skill, or diligence, his cré- dit, or to the subject matter in which he deals. The effect of such imputations will be separately consi- dered. To impute want of integrity to any person who holds an office of trust or of profit is actionable : as to say of a judge,^; that “His sentence was corruptly given.”(40) * 1 Lev. 115. Terry v. Hooper. t 2 JBos- &Pul. 284. J Cro. Eliz. 305. (40) See ChaddocJc v. Briggs, 13 Mass. Rep. 253. Per Parker, Ch. J. These words spoken of the plaintiff, in relation to his office of shérif^ “ If his debts were paid, he would be worse than nothing ; that he would fail or break be- forelong ; thatraoneys which he had collected on execution, he had taken and converted to his own use, and that they could not be got out. of his (*110)77 Or of a justice of the peace,* “ I hâve often been with him for justice, but could never get any thing at his hands but injustice.”{41) Or, “ He covereth and hideth félonies,f and is not worthy to be a justice of the peace.” Where a person holds an office or situation, in which great trust and confidence must be reposed in him, words im- peaching his integrity generally, (*)and without express re- ferehce to his office, are actionable ; since they must ne- cessarily attach to him in his particular character, and virtu- ally represent him as unfit to hold that office or situation. Thus it has been held, that to say of a bishop “ He is a wickèd man,55| is actionable. (42) The défendant said of a justice of the peace and deputy lieutenant, § “ He is a Jacobite, and for bringing in the prince of Wales and popery.” And the words were held action- able, though it did not appear that the speaker applied the words to his offices, because, without any such application, thçy imputed such religious opinions andpolitical principles, as rendered him in law unfit for those situations. So where the défendant said of the plaintiff, who was a justice of the peace, || “ I am in danger of my life, my blood is sought, and I was like to hâve been murdered ; I was at Sir J, Harper’s (the plaintiff 5s) house, and John Harper drew me forth to see a gelding in the stable, and then *Cro. Car. 14. f 4 Rep. 16. J 2 Mod. 159. § How v. Prinn, Holt, 652. ^ Sir J. Harper v. Francis Beaumond, Cr. J. 56. hands,” were held to amount to a charge of mal-practice, and therefore, ac- tionable. Dole v. Fan Rensselear, 1 J. Cas. 330. See Davis v. Davis, 1 Nott & M’Cord, 290. Per Curiam. (41) See Lindsey v. Smith, 7 J. R. 359. Words spoken of a justice of the peace, to be actionable, must hâve relation to his official character or con- duct. Thus, to say, generally, of a justice of the peace ,that “he is a damn- ed rogue,” is not actionable. Oakley v. Farrington, 1 J. Cas. 129. (42) To charge a clergyman with drunkeness, is, in itself, actionable. Chaddock v. Briggs, 13 Mass. Rep . 248. M'Millan v, Birch, 1 Binn. 178, So, to call him a knave. tlarding v. Brooks, 5 Pick. 244. See Davis v. Davis, 1 Nott &MJ Cord, 290. Per Curiam. (*111)78 Thomas Beaumond, Sir H. Beaumond’s son, did throw his dagger air me twice, and thrust me through the breeches twice with his rapier to hâve killed me, ail this was done by the instigation of Sir J. Harper, and I can prove it.” In this case, although no misconduct in office was partieularly pointed out, it was held that the action well lay ; the instigation to do such an outrageous act being against the plaintiff’s oath, and a great misdemeanor, for which he was liabîe to fine and to be put out of the commission. The défendant said, to the plaintiff, who was one (*)of the attorneys or clerks of the King’s Bench, and sworn to deal duly without corruption in his office, “You are well known to be a corrupt man, and to deal corruptly.” And upon giving judgment for the plaintiff, it was said, quod sermo relatus ad personam, intelligi debet de conditione per- sonœ.* The défendant said of the plaintiff, who was an attorney, generally,f “ He is a common barretor.” After verdict, though it was objected, that the words were not actionable, having been spoken of the plaintiff as a common person, and not in relation to his office, yet the court held that the action was maintainable, silice it is a great slânder to an attorney to be called and accounted a common barretor, who is a maintainer of brabbles and quarrels, and said that words are to be construed secundum conditionem personarum of whom they are spoken. The défendant said of an attorney, + “Thou art a false knave, a cozening knave, and hast gotten ail that thou hast by cozenage, and thou hast cozened ail that hâve dealt with thee.” And the court held that the words were actionable, as touching the plaintiff in his profession.(43) An attorney brought an action for the words,§ “ I hâve taken out a judge’s warrant to tax Phillips (the plaintiff’s . *4Rep. 16. ' f Cro. Car. 192. t Cro. Jac. 5SS. § Philips v. Jansen, 2 Esp. 624. (43) To call a lawyer a knave, if the charge be believecî, must necesfca- rily produce damage ; and therefore, such words are actionable. M1 Millan v. Birch, 1 Binn. 184, Per Tilghman, Ch. J. See Davis v. Davis, 1 Nott & M’Cord, 290. Per curiam. (*112)79 bill, Pli brin g him to book, and shall hâve him struck off the roll.” Lord Kenyon C. J. ruled, at nisi prius, that the words were not actionable ; and added, had the words been, “ He deserves (*)to hâve been struck off the roll,” they would hâve been actionable. (44) With respect to this distinction, it may be proper to sug- gest a doubt, whether the words in the pricipal case cited would not in common acceptation convey to the hearer the same meaning with the words which the learned judge is reported to hâve deemed actionable, since they seem as clearly to évincé the opinion of the speaker, that the plain- tiff deserved to be struck off the roll, and no one would choose to employ an attorney who made exorbitant charges. Words imputing dishonesty to a tradesman, it seems, are not actionable, unless spoken with reference to trade. So that to call* a tradesman a cheat, generally, has been held not actionable.(45) But otherwise to say, “ He keeps false books ;”f for the words evidently relate to his course of trading. (46) So to call a tradesman a rogue| or a cheat, with reference to his trade, is actionable. But to say ge- nerally of such a person, “ Thou has no more than what thou hastgot by cozening and cheating,”§ has been held not actionable. || It may, however, be doubted, whether there is any solid distinction between these cases, since every tradesman’s livelihooddépends in some measure (*)upon his general cha- racter for honesty and integrity ; and it is difficult to sup- * 3 Salk. 326, f Holt, R. 39. t Burr. 1688. .. J § 12Mod.307. Il 12 Mod. 307. (44) To say of an attorney or counsellor, in reference to the management of a particular suit, “F. knows nothing about the suit, he will lead you on until he has undone you,” is not actionable, without the allégation and proof of spécial damage. Foot v< Brown, 8 J. R. 50. 2d. edit. (45) It has been held, in Maryland, that to call a merchant a cheat, is actionable. Marshall v. *âddisonf 4 Har. &M’Hen. 537. (46) Burtch v. Nicher son, 17 J. R. 217. So, to say to a merchant, “ You keep false books and 1 can prove it,” is actionable. Backus v. Richardson, 5 J. R. 476. See Rathbun v. Emigh, 7 Wend. 407. (*113) (*114)pose, that a general imputation of dishonesty, if believed, would not operate to his préjudices It seems that trust and confidence must be reposed in the plaintiff, in order to ren- der words reflecting upon his charaeter for integrity action- able. Thus the words of acarpenter,* CÉ He has charged Mr. Andrews for 40 days’ work, and received the money for the work, that might hâve been done in 10 days, and he .is a great rogue for his pains,” were, after verdict, held not to be actionable. The distinction seems to be this : Where great confi- dence must necessarily be reposed, as in an attorney or superintendant, words generally reflecting upon his charac- ter are actionable ; but where mere ordinary confidence is reposed, in the common course of honest dealing, as that a tradesman shall charge a fair price for his goods, or an ar- tificer, surveyor, or mechanic for his labour, the law holds the words not to be so injurious as to bear an action un- less they are applied to the plaintiff’s trade or business with certainty and précision. So where the office, profession, or employment of the plaintiff, requires great talent and high mental attainments, general words, imputing want of ability, are actionable without express reference to his particular cha- racter, since they necessarily include an inability to discharge the duties of such a situation ; but where the employment is of a mere mechanical nature, the words to be actionable must be applied to it clearly and unequivocally. (*)Thus, to say of a barrister,+ generally, that he is a “ dunce,” is.actionable, the Word dunce being commonly taken to mean a person of dull capacity who is not fit to be a lawyer. So, to say of a physician,| that he is “ no scholar” is ac- tionable, a learned éducation being considered as an essen- tial qualification in the medical profession. (47) * Lancaster v. Prench, Str. 797. t Peard v. Johnes, Cro. Car. 382. î 6 Bac. Ab. 215. 1 Roll. Ab. 54. Cro. Car. 270. (47) So, these words spoken of the plaintiff in his professional charaeter, as aphysician, in reference to his conduct in a case of midwifery ; where the woman had been delivered, by him, of twins, and soon afterwards, the mo- (*115)81 To say of a servant, that he is a “ lazy, idle, and imperti- nent fellow,” is actionable ; for these words, though spoken without express reference to his service, cannot but affect his character as a servant, since no one would be willing to employ a person whose general characteristic was idleness and impertinence. In general, however, the words must be spoken with refe- rence to the particular situation of the plaintiff, in which case they are actionable if they impute any want of know- ledge, skill, or diligence, in the exercise of his office or avocation : as to say of an apothecary*—“ It is a world of blood he has to answer for in this town : through his igno- rance he did kill a woman and two children at Southamp- ton ; he did kill J. P. at Petersfield ; he was the death of J. P. ; he has killed his patient with physic.” So where the défendant said of a midwife,(48) “ Many hâve perished for her want of skill. ”f The words spoken of a watchmaker were, “ He (*)is a bungler, and knows not how to make a good piece of work.5,| After verdict for the plaintiff, the words, on mo- tion in arrest of judgment, were held by the court not to be actionable, not having been laid to be of the plaintiff’s trade, but it was said that had the words been, “he knows not how to make a good watch,” they would hâve been ac- tionable. It may, however, be doubted whether this case would not now meet with a different decision ; the: point upon which the court gave judgment, was in a great measure technical ; and indeed the averment, that the * Tutty v. Alewin, 11 Mod. 221 f Flowers case, Cro. Car. 211. j Redman v. Pyne, 1 Mod. 19. ther and the twins died ; “ He has killed three, and ought to be hung ; damn him. They ail died through his mismanagement. I hâve understood he left the after-birth ; and a man that would do that, ought to be hung were held to be actionable, without the allégation of spécial damage ; as the natural and probable conséquences of the speaking of such words, would be injùrious to the plaintiff in his profession. Sumner v. Utley, 7 Conn. Rep. 257. See Davis v. Davis, 1 Nott & M’Cord, 290. Per curiam. (48) See Sumner v. Utley, ubi supra. Il (*116)82 words were spoken in dérogation of the plaintiff’s work- manship, seems scarcely necessary, for if it were believed that the plaintiff was a bungler, and could not make any piece of work well, how could it be supposed that he could make a good watch, a piece of work requiring very consid- érable skill and dexterity. The law has shown great tenderness in protecting mer- chants and traders against imputations upon their crédit, which if believed must necessarily operate to their serious préjudice. (49) Formerly, indeed,* it was held that the words, to support an action, must import bankruptcy : this doctrine has, however, long been abandoned, and it seems that such words spoken of a person in any business are now considered as actionable. It is not essential to the action, that the words should impute want of crédit at the time of speaking them. The défendant said, “ He came a broken merchant from Hamburgh (*)and the words were held actionable, since the plaintiff was charged with having been once broken, et qui semel est malus semper prœsumitur esse malus in eodem généré, and that they were a cause of discre- diting the plaintiff in his trade, and of injuring him in his crédit, which was a great means of gain. And it is not necessary that the words should be spoken with express reference to the plaintiff’s trade, since a general charge of want of crédit necessarily includes the particular one, and is equally pernicious with a more précisé allégation. Thus, to say generally of a merchant, that he is “broken” is ac- tionable, these being common and vulgar words of one who fails in his crédit and becomes a bankrupt. Words of this class are actionable when applied to a person carrying on a * Holt, 39. t Cro. Car. 387. (49) Tilghman, Ch. J. in M’Millan v. Birch, I Binn. 184, says, “ The reason why certain expressions are actionable when applied to persons of certain professions, is this ; that from the nature of the case, it is ©vident that damage must ensue: To say of a merchant, that he is bankrupt, must, if believed, necessarily produce damage.” See Davis v. Davis, 1 Nott & M’Cord, 290. Per curiam. Sewall v. Catlin, 3 Wend. 291. Ostrom v. Cal- kins, 5 Wend. 263. (*117)83 business purely mechanical, so that to call a dyer* bankrupt knave is actionable.(50) And any words, which in common acceptation imply want of crédit are sufficient, as to say of a tailor,f “ I heard you were run away.” Formerly, indeed, it was held that to call a trader “ bankruptly knave”:}: was not actionable : but the distinction between words adjectively spoken, and those con- taining an express and direct allégation, hâve, as has already been observed, been long deservedly disregarded. So, to say of a stock-broker,§ that he is “ a lame duck,” is actionable. So of a trader, “ You are a sorry pitiful fellow and (*)arogue, and compounded your debts for 5s. in the pound.”||(51) So where the défendant said,^f “ Ail is not well with Daniel Vivian ; there are many merchants who 'hâve lately failed, and I expect no otherwise of Daniel Vivian.” So, to say of a pawnbroker,** “ He is a broken fellow.” To a milliner,f f “ You are not worth a farthing.” So, though words merely import the speaker’s opinion ; as where the défendant said,|| Two dyers are gone off, and for aught I know Harrison will be so too within this time twelvemonth.” So where défendant said to an upholsterer,§§ u You are *Cro. J. 585; f Davis v. Lewis, 7 T. R. 17. t Cro. J. 345. § Morris v. Langsdale, 2 B. and P. 84. || Ld. Raym. 1480. Str. 672. IT SSalk. 326. *'* Holt. R. 652. ft Cro. Car. 265. Jt lOMod. 196, Harrison v. Thornborough. §§ Ame v. Johnson, 10 Mod. 111. (50) To say of a drover, whose business it is to purchase droves of cattle, drive tbem to market and sell them, that he is a bankrupt, is actionable, without the allégation of spécial damage. Hawley v. Lewis, 2 Day, 495. See Ostrorn v. Cdkins, ubi surpra. (51) Any words spoken of a person in relation to his trade or profession, which tend to impair his crédit, or impute to him fraud or indirect dealing, are, in themselves, aetionable: As, to say of a merchant or trader, “ You hâve got my money on your shelves ; you are a damned rogue.” Davis v. Davis, 1 Nott & M’Cord, 290. So, where the défendant uttered these words, “ Mr. Young, I must tell you, that you hâve received more tobacco than you hâve accounted for to the house.” Hoyle v. Young, 1 VVash. 150. (*118)84 a soldier, I saw you in your red coat doing duty; your Word is not to be taken the words were held actionable, it being a common practice, at the time they were spoken, for traders to protect themselves against their creditors by a eounterfeit enlisting, a soldier having by act of parliament the privilège of freedom frora arrest. So where the words were of a carpenter,* “ He is bro- ker! and run away, and will never re'turn again after ver- dict for the plaintiff, it was urged in arrest of judgment, that the words were not actionable, for though broken, the plain- tiff was as good a carpenter as ever ; but it was answered by (*)the court* that the crédit which a man has in the world may be the means to support his skill, for he may not hâve an opportunity to show his workmanship without those ma- terials wherewith he is entrusted. And where défendant said of a husbandman,f “ He owes more than he is worth ; he is run away the words were held actionable, though it was objected that it should not only appear that the plaintiff had a trade, but that he got hisliving by it. And next, the words are actionable when they throw discrédit upon the particular commodity in which the party deals. Thus, to say of a trader,}: “ He hath nothing but rotten goods in his shop,” is actionable ; though it was said in the case referred to, that had the words been “ he hath rotten goods in his shop,” they would not hâve supported the action, and that the slander consisted in saying that he had nothing but rotten goods in his shop. So to tax a bookseller falsely§ with having published an absurd poem, is actionable, the évident tendency of the imputation being to injure him in his business. So where the défendant said of the plaintiff, who was an innkeeper,|| “ Deal not with Southham, for he is broken, and there is neither entertainment for man nor horse.” So a false andmalïcious account^f of the performance (*)at a place of public amusement will support an action. * Chapman v. Lamphire, 3 Mod. !55. | Dobson v. Thorstone, 3 Mod. 112. § Tabert v. Tipper, 1 Camp. N. P. 350. V Dibdin v. Swan and Bostock, 1 Esp.27. (*119) (*120) } Cro- Car. 570. || 3 Salk. 326.85 So where the défendant, who was printer of a newspaper, called the Oracle, publised the following paragraph concern- ing the True Britton newspaper, of which the plaintiff was proprietor : “ Times v. True Briton.* cc In a morning paper of yesterday was given the following character of the True Briton :—that * It was the most vulgar, ignorant, and scurrilous journal ever publisHed in Great Britian.9 To the above assertion we assent, and to this account we add, that the first proprietors abandoned it, and that it is the lowest now in circulation, and we submit the fact to the considération of advertisers.99 It was held by Lord Kenyon at Nisi Prius, that the latter words of the paragraph, as affecting the sale of the paper and the profits made by advertising, were actionable. Where the plaintiff was a butcher,f and brought his action for the wôrds taxing him with having exposed to sale the flesh of a cow which died in calving, it was held after verdict, that the words (*}were not actionable, even though spécial damage was laid and proved. This case seems, however, to be very loosely reported, and is not sup- ported by either analogy or principle. Unless words affecting the plaintiff’s means of livelihood faliwithin one of the foregoing descriptions, it may be con- cluded that they are not actionable. The défendant said of the plaintiff, who taught girls to dance, “ that she was an hermaphrodite,” j: and it was held that the words were not actionable, and that it was no scan- dai to her profession to say that she was an hermaphrodite, because men usually teach young women to dance. * Herriot v. Stewart, 1 Esp. 437. t 3 Salk. 397. t Tassan v. Rogers, 2 Salk. 693. (*121)86 (*)CHAPTER IV. Where the Words tend to the Partes Disinherison, or affect his Title to Land. Words falling withinthis division either affect the proba- bility of the plaintiff 5s succeeding to an estate in future, or impeach a title which has already accrued. Instances of the former class, where damages hâve been allowed to be recovered on account of the manifest tenden- cy of the imputation to defeat the plaintiff ?s expectations, are exceedingly rare, and seem to hâve been confined to words impeaching the legitimacy of the birth of an heir apparent. The défendant* said to the plaintiff, who was heir appa- rent to his father and uncle, “ Thou art a bastard.” After verdict for the plaintiff, the court, on motion in arrest of judgment, held that the action was maintainable, since by reason of the words the plaintiff might be in disgrâce with his father and his uncle, and they conceiving a jealousy of him touching the same, might possibly disinherit him, and and that though they eventually should not, yet that the action well lay for the damage which might corne ; and the cases of Vaughan v. Leigh, and of Bannister v. Bannister,t were cited by Jones, J. as in point. (*)In the first of these cases:j: the plaintiff showed that land had been given in tail to his grandfather, and that his father had divers sons, whereof he was the youngest, and his elder brothers living. That a certain person offered to buy the land, and was willing to give him such a sum of * Humphreys v. Stanfield, Cro. Car. 469. Jo. 38S. t 4 Coke, 17. % Cro. J. 215. by the name of Vaughan v. Ellis. (*122) (*128) Godb. 451.87 money for his title, and by reason of the words refused to give him any thing. Àfter judgment for the plaintiff in the Exchequer, it was assigned for error, that it appeared by the plaintiff 5s own showing that he had not any présent title, and therefore no cause of action. But the two Chief Justices conceived that although he had not any présent title, it appeared that he had a possibility of inheriting the lands, and that being offered a sum of money to join in the assur- ance, although he had not any présent title, yet by reason of the words he had a présent damage, and in future might receive préjudice thereby in case he were to claim the lands by descent. This case, though cited as an authority for the former decision, does not warrant it to the full extent, since in the latter a loss had actually accrued to the plaintiff in consé- quence of the words ; in the former the supposed préjudice consisted in the probability that the expectation of the heit* apparent would be defeated. In the case of Turner v. Sterling,* it was said by the court, “The law gives an action for but a possibility of damage, as an action lies for calling an heir apparent bas- tard.5’ In an earlier casef the court observed, “The (*)word bastàrd is determinable by the Spiritual Court ; but if the plaintiff add further words to entitle himself as heir, or show some possibility of being heir, this shall make the same words calling him bastard to be actionable.55 The decisions upon this point do not, however, appear to hâve been uniform ; in the case of Turner v. Sterling! above cited, Yaughan, J. said, “ I take it not to be actiona- ble to call a man a bastard whilst his father is alive, the books are cross init ; nay, if lands had descended, I doubt whether it would be actionable any more than to say one h as no title to land.55 Thejast express decision upon the point appears to be that of Humphreys v. Stanfield above referred to. Words impeaching the plaintiff 5s présent title to lands, hâve in many of the older cases been deemed actionable without proof of spécial damage. * 2 Vent. 26. Vaughan, J. dissent. % 2 Vent. 26. See also 1 Roll. Abr. 37. pl. 18. f 2 Buis. 90. (*124)88 Thus, where a remainder man* brought an action against the défendant for saying that the tenant in tail had issue one D. who was then alive, it was held that the action was maintainable. It appears, however,f from anumerous class of decisions, that no action can be supported for words affecting the présent title of a plaintiff to an estate, without showing that some spécial damage and inconvenience has resulted from them, as that he was prevented from selling or making some advantageous disposition of it : the particular nature of such spécifie préjudice will be hereafter considered. (*)Although the numerous decisions upon the subject seem to leave no doubt that words reflecting upon a party’s présent title must, to give a right of action, be attended with spécial damage, it does not follow as an immédiate and ne- cessary conséquence of this doctrine, that imputations im- mediately tending to defeat the prospects of an heir apparent, are not in the mselvesactionable, though it appears at firstsight somewhat strange to say that it can be considered more pré- judiciai to impeach a title resting merely in expectancy, than to derogate from one already existing. There is, however, a plain line of distinction between the two cases. Where lands hâve already descended to the heir, to call him bas- tard, can work little préjudice ; the false imputation cannot divest the estate, though it may involve the owner inlitiga- tion, for which spécial damage he is entitled to his remedy ; but reflections of this nature, when cast upon an heir appa- rent, may produce conséquences infinitely more serious, since they may induce the ancestor to disinherit the progeny which he conceives to be spurious. In the former case the evii resulting from the slander can be but slight and temporary ; in the latter it may prove ut- terly irrémédiable. The cases relating to words of the latter description are of considérable antiquity and of rare occur- rence, and though they certainly carry the doctrine of pre- sumptive and anticipative loss to a great extent, y et they seem to be supported and warranted both by general prinei- ples and by the peculiar exigency of the case. * Cro. Car. 469. f Bliss v. Stafford, Ow. 27. Mo. 188. Jenk. 247. || Cro. Éliz. 196. 3 Keb. 153. 1. Vin. Ab. 553. Sty. 169. 176. Palm. 529. Snede v. Badley, 3 Buis. 74. (*125)89 (*)CHAPTER V. Where the Slander is propagated by Printingy Writing, or Signs. Bèsides the communications which hâve beeu eitume* rated under the preceding divisions, matty hâve been çon- sidered actionable, although unattended with spécial dam- age, on account of the mode in which they hâve been ef- fected. Observations upon this class of cases, relate, eitber to the reasons and authorities for this distinction, or to the exr tent to which the doctrine has been carried. First, as to the reasons and authorities upon which the distinction is founded. It has been said* that 4C slander in writing has at ail tirnes, and with good reason, been punished in a more exemplary manner than slanderous words, for as it has a greater ten- dency to provoke men to breaches of the peace, quarrels, and murders, it is of much more dangerous conséquence to society. Words, which are frequently the effect of a sud- den gust of passion, may soon be buried in oblivion ;r but slander which is committed to writing, besides that the author is actuated by more deliberate malice, is for the most part so lasting as to be scarcely ever forgiven.”{52) (*) And, that£C written slander hereby receives an aggrava- tion, in that it is presumed to hâve been entered upon with coolness and deliberation, and to continue longer and propagate wider and farther than any other scandal.,5f * 6 Bac. Ab. 202, tit. Slander. f 4 Bac. Ab. 449. 5 Co. 125. Ld. Ray, 416. 12 Mod. 219. (52) See M'Clurg v. Ross, 5 Binn. 219. 12 Per Tilghman, G h. J. . (*126) (*127)90 These grounds relate to three distinct points : 1. The malicious intention of the author of the scandai. 2. The increased détriment to the object of the slan- der from its more extended circulation and duration. S. The danger to the public peace. First, It is clear that written slander évincés a higher de- gree of deliberation, and therefore of malice, than that which is merely oral ; it may, however, be doubted whether that superior degree of malice constitutes the true principle upon which the distinction between oral and written slander is founded. The two essentials to an action are, as bas already been observed, the loss to the plaintiff and the wrongful act of the défendant ; the latter of which requisites in an action for slander, consists in the malicious motive by which the défendant was actuated in making the communication. The degree of malice does not, however, seem in any case to form a subject of inquiry ; its existence is, indeed, an es- sential requisite to the maintaining of an action ; but if it exist at ail, the legal condition is satisfied, and the only ques- tion which remains, relates to the loss sustained. Secondly, The increased détriment to the party (*)from the wider circulation and longer continuance of the slander, seems scarcely to warrant the distinction as to the legal quàlity of these two kinds of slander. It is true that slander, communicated by means of printing or writing, may be more widely diffused, may operate longer, than mere oral slander, and may also be consideredas of more weight and authority, from the presumption, that, unless well founded, it would not hâve been circulated in so deliberate a mode: these, however are circumstan- ces which rather affect the quantum of damages, than fur- nish a distinction as to the relevancy of an action in such cases. If it be supposed, for example’s sake, that a report to a man’s discrédit, from the circumstance ofits being propaga- a ted in public print, obtains a circulation greater by nine- ty-nine times, than it would hâve done, had it been convey- ed merely by word of mouth, and that the damage sustained is in proportion to the extent of circulation, the distinction between the two modes of communication would be a very good reason why a jury should give one hundred pounds damages in the former case, and but one in the latter ; but (*128)91 forms no ground for denying a remedy in the lattei* case al- together ; if in the former case any legal damage has been sustained, a damage of the same nature has likewise been suffered in the latter, though but to one-hundredth part of the amount, and therefore a proportional remedy is called for : if, on the other hand, no legal damage has been sustained in the latter case, it cannot be converted into such by a wider diffusion, which leaves its legal nature and (*)essence wholly unaltered, and therefore if an actionable damage doés not exist in the latter case, neither does it in the former. And this mode of reasoning seems equally to apply to the increas- ed détriment arisîng from the longer operation of the slan- der, and the stronger impression it is calcuted to make, from the mode in which it is communieated, since these circum- stances alter not the nature of the mischief, but its magnitude only. It may be further observed, that when an individual’s ré- putation is wounded, the scandai is for the most part confin- ed to the neighbourhood, with which he is connected by ha- bits of friendship or of business ; within this limited sphere verbal detraction is easily promulgated, and if the càlumny prevail there, it is of little importance to the sufferer what opinion may hâve been formed of him by strangers. The préjudice, too, must dépend in a great measure upon the intrinsic nature of the slander ; it may be thought by ma- ny a much more serious matter to be believed capable of false swearing, where it can be done with impunity, or of se- creting a will for the purpose of defràuding relations, than to be casually held up to ridicule on account of a*| natural deformity, or an habituai, but morally speaking, harmless eccentricity of manner. Thirdly, The danger to be apprehended to the public peace does not appear to warrant the distinction in question, though it may strongly dictate the necessity of subjecting the authors of such publications to the correction of the magis- tracy. (*) À question, ho^ever, of this nature is decided much better by expérience than by any arguments which mere theory can furnish ; in the présent instance, the antiquity of the distinction, and the frequent approbation which it has received from the most enlightened lawyers, constitute a ve- (*129) (*130)92 ry strong and convincing argument in favour of its practical utility. r The number of actual decisions founded upon the différ- ence between oral and written slander is exceedingly small ; the distinction itself has, however, been very frequentîy col- laterally countenanced and recognised by most able and ac- complished judges. It appears to hâve been lield in very early limes, that a li- bel* on thecharacter of a private individual was punishable by way of indictment. Sir Edward Coke, in his third Institutef cites a record of of the conviction of Adam de Ravensworth, who was in- dicted in the King’s Bench, in the reign of Edw. III. for the making of a libel in the French^tongue agâinst Richard of Snowshall* calling him therein, Roy de Raveners, &c. and adds, “ so a libeller, or a publisher of libel, committeth a pub- lic offence, and may be indicted thereof at Common Law.” This, indeed, was a criminal proceeding, and no in- stance of a civil action in case of libel appears till long after ; it seems, however, to hâve been uniformly (*)held,:f: that where a party is indictable for a written publication, an ac- tion }s also maintainable at the suit of the party injured. In the case of Dr. Edwards v. Dr. Wooton§ in the Star- çhamber, it appeared that Dr. Wooton had written to Dr. Edwards a letter containing scandalous matter, to which he had subscribed his name, and that he had likewise publisbed and dispersed a number of copies, of the saine letter. And it was resolved by the Lord Chancelier Egerton, the two Chief Justices, and the whole court, that this was a subtle and dangerous kind of libel, inasmuch as the writing a pri- vate letter to another without other publication, would not support an action on the case, (53) but that when published * The term Libel, in the following pages, is used to signify any writings, pictures, or other signs, tending to injure the character of an individual, or to produce publie disorder. f 74. j Skinn. 123,. 2 Wha. 204. . 4 Com. Dig, tit. Libel, C. 3. 6 Bac. Ab. til. Slander, 202. 3 Bl. Comm. 125. 2 Camp. R. 511. § 12 Rep. 35. (53) The sending a libeilous letter to the plaintiff, sealed up, is not a pub- lication of the libel ; and constifcutes no cause of action to the injured party ; but, in such case, an indictment may be sustained. Lyle v. Clason, 1 Caines, 581. (*131)UNIVERSITY LIBRARY 3T924~Ô64 750 874 31924064750874TO THE RIGHT HONORABLE EDWARD LORD ELLENBOROUGH, CHIEF JUSTICE OP ENGL AND, &e. &c. My Lord, I haye the honour to submit to your Lordship an hum- ble attempt to illustrate an extensive and important branch of English Jurisprudence, by reducing, under a systema- tic arrangement, a sélection of the principal decisions relating to it, interspersed with the dicta and opinions of many learned and experienced Judges. In the execution of this plan, your Lordship’s judgment (if exercised at ail on such a subject,) will, I fear, detect many faults ; my regret will be severe, should their number or their quality induce your Lordship to repent of your kind permission to inscribe this treatise to your- self.93 to others, to the scandai of the plaintif)) as it had oftentimes been adjudged, an action lieth. And it was said, that al- though the défendant had subseribed his name to the letter, yet since it contained scandalous matter, it was to be con- sidered in law as amounting to a libel. From this case, though thè contents of the letter in question do not appear, the opinion of the Lord Chancelier and the two Chief Jus- tices may be collected to hâve been, that generally, scanda- lous matter published in writing was a ground of action. Peacock* exhibited his bill against Sir George Raynal in the Star-chamber, for a libel written under these circum- stances : (*)The plaintifF was heir general to Richard Peacock, who was of the âgé of 86 years, and had lands of inheri- tance to the value of 800Z. a year ; the défendant, who had married the daughter of Sir Edward Peacock, who was a younger brother of Richard Peacock, wrote a letter to Richard Peacock, informing him, that the plaintifF was not the son of a Peacock, and was a haunter of taverns, and,that divers women had followed fhim from London to the place of his dwelling, and that he had desire to hear of the death of the said Richard, and that ail the inheritance would not be sufïicient to satisfy his debts, and many other matters concerning his réputation and crédit. And it was agreed that this was a libel, and for that the défendant was fined to 2001. and imprisonment, according to the course of the court ; and the plaintifF let loose to the Common Law for his recompense for the damages wbich he had sustained. In the case of King v. Sir Edward Lake,f the libel was contained in an answer to a pétition preferred by the plain- tifF to the House of Gommons, and consisted of many gene- ral reflections upon the conduct of the plaintifF. After verdict for the plaintifF, it wàs moved in arrest of judgment, that thè terms of the publication were too general to sup- port an action ; but it was said by Haie, Chief Baron, that “ Although such general words spoken once, without writing or publishing them, would not be actionable, yet here they being written and published, whieh contains more malice than if they had been once spoken, they are actionable.” In the case of Sir J. Austen v. Col. Culpeppér,^ (*)the * 2 Brownl. 151. t Skinner, 123. 2 Show. 314. t Hardr. 470. (*132) (*133)94 défendant h ad forged an order of the Court of Chaneery* containing many defamatory reflections upon the plaintiff, and at the bottom had drawn the fonn of a pillory, and sub- scribed to it the words, “ For Sir J. Austen and his wit- nesses by him suborned.55 It was contended that the action was not maintainable, since no certain slander was imputed by the words, and that if the words would not support the action, the repré- sentation could not, since it was not to be inferred that the parties were perjured, and that though for setting up horns, &c. for the purpose of ridicule, an indictment lay, y et that no action was maintainable; but the court held that an action in su ch cases was maintainable, as well as an in- dictment, and referred to the case of Col. King y. Lake,* where the plaintiff had judgment in the Exchequer. And the court added, that to say of any one that he is a dishon- est man, would not be actionable ; but that to publish it or put it on the posts would be actionable, and the plaintiff had judgment. In the case of Cropp v. Tilney,f it was said by Holt, C. J. “ Scandalous matter is not necessary to make a libel, it is enough if the défendant induce an ill opinion to be had of the plaintiff, or make him contemptible and ridiculous ; as for instance, an action was brought by the husband for riding Skimmingtonj: and adjudged that it lay, because itmade him ridiculous and exposed him.55 In Bradley v. Methwyn,§ which was an action on (*)the case for a libel, Lord Hardwicke, C. J. observed, that “The présent case is not for words, but for a libel, in which the rule is different; for some words may be actionable, or prosecuted by way of indictment, which would not be so if spoken only ; for the crime in a libel does not arise merely from the scandai, but from the tendency which it has to oc- casion a breach of the peace, by making the scandai more public and lasting, and spreading it abroad, which was déter- mined in this court in the case of King v. Griffin.55 Hil. 7. G. II. In Yillers v. Monsley,|| the libel charged the plaintiff with * Hardr. 470. f 3 Salk. 226. t Mason v. Jennings, Sir T. Ray, 401. contra. Sed vid. 2 Show. 314. § Selwyn’s Ni. Pri. IstEd. 925. n. 2. B. R. M. 10 G. II. MSS. Il 2 Wils. 403. (*134)95 having the itch : upon motion in arrest of judgment, Wilmot, C. J. observed, “ If any man deliberately, or maliciously, publish any thing in writing concerning another which renders him ridiculous, or tends to hinder mankind from associating or having interçourse with him, an action well lies against such publish'er.” Bathurst, J. “I wish thîs matter was thoroughly gone into and more solemnly determined ; howevei* I hâve no doubt at présent, but that the writing or publishing any thing which renders a man ridiculous, is actionable. I repeat it, I wish there were some more solemn détermina- tion that the writing and publishing any thing which tends to make a man ridiculous or infamous, ought to be punished.” Gould, J. “ What my brother Bathurst bas said is very ma- terial ; there is a distinction between libels and words : a libel is punishable both criminally and by action, when speaking the words would not be punishable either way; for speaking the words (*)rogue and rascal of any one, an action will not lie, but if those words were written and published of any one, I doubt not an action will lie. I thinkthe publish- ing any thing of a man that renders him ridiculous, is a libel, and actionable.” And judgment was given for the plaintif!* by the whole court, without granting any rule to show cause. In J. Anson v. Stuart* the action was brought in the Common Pleas, for publishing in the Morning Post, that “ The plaintiff was at the head of a gang of swindlers, a common informer, and had been guilty of deceiving and de- frauding divers persons with whom he had dealings and transactions.” The plaintiff demurred specially on account of the generality of the defendant’s plea, and judgment having been given for the défendant below, the plain- tiff carried the matter by writ of error into the Court of King’s Bench, where the same causes were assigned for error, which before had been alleged as grounds of spé- cial demuirer. The défendant further contended, that the déclaration was insufficient, since the words “ common informer” were not actionable, and the term “ swindler” was not a legal term^ * 1 T. R. 748. (*135)96 of whieh the làw could take notice. But Butler, J. ob- served, “ The objection afterward taken to the déclaration is, that the term ‘ swindler* is too general, and cannot be legally understood ; but Mr. J. Aston formerly held other- wise; for he said that the term swindling was in general use, and that the court could not say they were ignorant of it. But at ail events we cannot say upon this record, that we do not understand the import of it, for it is expïained to be 6 defrauding (*) divers persons.’ The déclaration con- tains as libellous a charge as can be well imagined.” The case cannot be considered as decided upon the dis- tinction in question, since it seems to hâve been the opin- ion of Mr. J. Buller, that the term “swindler,” as explain- ed by the subséquent words, was actioriable without refer- ence to the mode of publication.* Zenobio brought an action againt Axtellf for publishing in the newspaper called the Courier de Londres, the fol- lowing paragraph—“ The late famous Bishop of Autun, to the great satisfaction of ail honest men, has just received an order to quit England : the same compliment has been paid to an adventurer, a great gambler, who cails himself the count Zenobio.” After verdict'for the plaintiff, the défen- dant contended, in arrest of judgment, that the publication was not libellous ; since, however, there was another objection, which was fatal to the déclaration, the court did not give any opinion as to the actionable quality of the words. In Bell v. Stone,| the défendant wrote the following letter concerning the plaintiff, who was a land-surveyor, to one N. B. to whom the plaintiff owed a large sum of mo- ney : After the communication I had with your son in your ab- sence, I but little thought you would hâve been made the dupe of one of the most infernal villains that ever disgraced hu- man nature ; but I suppose you were deceived by those whom you thought well of, and whom he will deceive if they will give (*)him an opportunity ; I am told they are respectable, and how they can be connected with him is the most astonish- * In Savile v. Jardine, 2 H. Bl. 631. it was held that the term “ swindler’’ was not actionable. f 6 T. R. 168. | 1 Bos. andPul. 331. (*136) (*137)97 ing tbing to me. Mr. H. writes me you called upon him (meaning the plaintiff) on the subject of your account, for which the villain gave you his note at five months.” Spé- cial damage was laid in the déclaration, but none being proved at the trial, the learned Judg'e who tried the cause was of opinion that the letter, unsupported by spécial dam- age, was not actionable, and directed a verdict for the de- fendant. The counsel for the plaintiff, however, contending that the letter itself was actionable, it was left to the jury to say what damages they would give, supposing the plaintiff entitled to recover, and tliey answered, one shilling. A rule was obtained to show cause why the ver- dict for the défendant should not be set aside, and a verdict entered for the plaintiff, on the count containing the letter, for one shilling, on the ground that though the words in that count might not be actionable if only spoken, yet that being committed to writing they were so. Serg. Le Blanc was to hâve shown cause, against the rule ; but the court expressing themselves clearly of opinion, that cmy words written and published, throwing contumely on the partyy were actionable, the learned counsel declined arguing the point, and the rule was made absolute. After these authorities it can scarcely be considered as matter of doubt, whether the distinction between verbal and written slander is a legal and subsisting distinction ; in some of the cases eited, the point was expressly determined, and in the others the language of the judges has been constantly (*)the same, recognisîng the doctrine in a variety of col- lateral shapes. The very scarcity of express decisions upon this subject, may, perhaps, be attributed to the absence of doubt concerning it, and may, therefore, when coupled with the frequent approbation which the distinction has met with from the courts, be considered as very strong evidence in support of its early establishment and subséquent preva- lence. (54) (54) The distinction mentioned in the text, between oral and loritten slan- der, seems now to be well established. Van Ness v. Hamilton, 19 J. R. 367. Per Spencer, Ch. J * Steele v. Southwick, 9 J. R. 215. Per curiam. Biggs v. Den- niston, 3 J. Cas. 202. Per Kent, J. Stow v. Converse, 3 Conn. Rep. 341, 342. Per Hosmer, Ch. J. S. C. 4 Conn. Rep. 27. Clark v. Binney, 2 Pick. 116. Per Lincoln, J. M’Corkle v. Binns, 5 Binn. 349. M’Clarg v. Ross, 5 Binn. 219. Per Tilghman, Ch. J. Dole v. Lyon, 10 J. R. 449. Per Kent, Ch. J. 13 (*138)98 It is probable that in earîy times there was no différence, as far as concernée! civil actions, between verbal and written slander ; no distinction ismade between them either in the statutes of Scandalum Magnatum, or in the older cases relating to the subject, and the general rule appears once to hâve been, that ail words were actionable which. tended to take away a man’s réputation,* without regard to the mode of communication. It has already been seen that this rule was soon found too comprehensive, as applied to actions for oral slander, and that the judges accordingly felt themselves under the necessity of prescribing some restraints, and laying down those rules of limitation from time to time, which are to be found in the preceding chap- ters. It may not, however, be unfair to suppose that the inconvenience, and therefore the necessity of limitation, (*)did not extend itself to the case of written slander, in respect of which the old rule, therefore, remained unaltered. The number of actions brought for the publication of written slander, must, in early times, hâve been comparatively small, on account of the limited number of those whose éducation enabled them so to offend ; it is, therefore, improbable that the courts would deem it necessary to impose new restraints respecting them, though the overwhelming increase of ac- tions for trivial words spoken, might render their limitation unavoidable. Perhaps this conjecture as to the origin of the distinction in question, may receive some support and qolour from the considération, that the statutef limiting the amount of costs (in actions for slanderous words) to the quantum of dam- ages, where they do not amount to 40 shillings, and which was passed for the purpose of repressing actions brought for trivial slander, j; does not extend to written slander, a cir- cumstance which strongly tends to show that actions for in- juries of the latter description, did not call for the interfér- ence, or fall within the contemplation of the législature. The authorities already cited leave little to be said in rela- * 1 Bulst. 40. Smale v. Hammon, Holt, R. 654. 6 Mod. 24. Ld. Ray. 959. 8 Mod. 24. f2lJ. l.c. 16. î Tidd’s Practice, 4th Ed. 861. Hall v. Warner, Trin. 24 G. III. (*139)99 tion to the extent of the action for slander communicated by means of writing, printing, pictures, or other signs. According to Lord Coke,* every infamous libel is either in writing or without writing. À scandalous libel in writing is, when an epigram, rhyme, or other writing, is composed or published to the scandai or (*)contumely of another, by which his famé or dignity may be prejudiced. (55) / The libel without writing may be, lst. By pictures, as to paint the party in any shameful or ignominious manner. 2dly. By signs, as to fix a gallows, or other reproachful or ignominious signs, at the party’s door, or elsewhere. Upon the whole, it may be collected, that any writings, pictures, or signs, which derogate from the character of an individual, by imputing to him either bad actions or vicious principles, or which diminish his respectability and abridge his comforts, by exposing him to disgrâce and ridicule, are actionable, without proof of spécial damage ; in short, that an action lies for any false, malicious, and Personal imputation, effected by such means, and tending to alter the party’s situation in society for the worse, (55) This rule, though apparently very ^wide and compréhen- sive, cannot be considered as more extensive than thejus- * 5 Rep. 125. (55) A libel may be defined to be “ a censorious or ridiculing writing, pic- ture or sign, made with a mischievous and malicious intent towards govern- mcnt, magistrates or individuals.” Per Hamilton, arguendo, in The People v. Croswell, S J. Cas. 354. The preceding définition sanctionèd and adopted by the court, in Steele v. Southwick, 9 J. R. 215. See further, in M’Clurg v. Ross, 5 Binn. 219. PerJTilghman, Ch. J. Sharff v. Commonwealth, 2 Binn. 517. Per Brackenridge, J. So, in Commonwealth v. Clap, 4 Mass. Rep. 168, “ a libel,” says Parsons, Ch. J. “is a malicious publication, expressed either in printing or writing, or by signs and pictures, tending either to blacken the metnory of one dead, or the réputation of one who is alive, and expose him to public hatred, contempt or ridicule.” See Deccter v. Spear, 4 Mason, 115, M’Corkle v. Binns, 5 Binn. 349. Stow v. Converse, 3Conn. Rep. 341. Per Hosmer, Ch. J. Root v. King, -7 Cowen, 620. Clark v. Binney, 2 Pick. 115 a It is libellous, falsely and maliciously, to charge a person with insanity. Southwick v. Stevens, 10 J. R. 443. (*140)100 tice of the case demands. No man, abstraetedly, has a right to lessen the comforts or enjoyments of another ; and when he does it deliberately, wantonly, and maliciously, it would be an insult to comraon sense to contend, that he is not bound, upon the plainest grounds of policy and justice, to make compensation for the mischief so occasion- ed : and no inconvenience can resuit from the extent of the rule : it must be recollected, that (*)the onJy question at présent under considération is, the nature of the damage which must hâve been sustained to render words action- able : this damage is, however, but one of two essen- tial requisites for the supporting an action. To render the right complété, such damage must hâve been occa- sioned, as will afterward be seen, by the maticious act of the défendant. This further requisite, of malice, precludes litigation in ail cases where the party has acted in the discharge of any legal or moral duty, or in the fair and conscientious performance of bis part in any transaction arising out of the ordinary business of life, without a dé- viation for malevolent purposes, and confines the action to those instances in which the mischief is attributable to mere malice of heart, or to a wanton and guilty disre- gard of the feelings and interests of others. It is said, by the learned author of the Commentaries,* that, “ as to signs or pictures, it seems necessary always to show, by proper innuendoes and averments of the dé- fendantes meaning, the import and application of the scan- dai, and thât some spécial damage has followed ; otherwise it cannot appear that such libel by pictures was under- stood to be levelled at the plaintiff, or that it was attend- ed with any actionable conséquences.” It seems, how- ever, very diflicult to conceive any Sound distinction betwçen written and painted libels. A man may be as successfully exposed to ridicule by a caricature painting, as by any written misrepresentation ; and the object of the défendant as clearly manifested in the latter case, as the former. The difficulty, indeed, of proving the plaintiff to be (*)the person aimed at, may, in some instances, be greater in the latter case ; but when the doubt as to the défendantes application of the calumny * 3 Bl. Com. 126. (*141) (*142)101 has been overcome, there seem distinction. The pencil of the caricaturist is frequently an instru- ment of ridicule more powerful than the press ; and it is not easy to conceive an imputation which an ingenious artist would not be able successfully to communicate to minds of even the meanest capacity. À picture is the im- age or likeness of the scene itself : words written or printed are merely symbols, which, by virtue of a previous compact and understanding on the subject, are the représentatives of the ideas which theÿ communicate : but in legal considération, the only question is, whe- ther any and which of these modes is capable of con- veying that meaning which is detrimental to the plaintiff? If, in fact, they are equally capable of so doing, equally distributable, and equally durable,—in short, equally mis- chievous in every respect, they cannot be corisidered as distinguishable, for any legal purpose, upon any principle of reason and good sense : And no such distinction is to be found in the reports, it was expressly held by Holt C. J. that “ In case upon libel it is sufficient if the matter be reflecting ;* as to paint a man in any disgraceful situation.” The plaintifff brought an action of trespass against the défendant for destroying a picture of the plaintiff’s. Upon the trial it appeared that the picture in question, entitled La Belle et La Bête, (*)was a caricature représentation of a gentleman and his wife, who was sister to the défend- ant,. and that it had been publicly exhibited for money till the défendant eut it in pièces. The plaintiff insisted that he was entitled to the full value of the picture, to- gether with a compensation for the loss of the exhibition. The défendant contended that it was a public nuisance, which every one had a right to abate by destroying the picture. Lord Ellenborough C. J. “ The only plea upon the re- cord being the general issue of c not guilty,’ it is unnecessary to consider whether the destruction of this picture might or might not hâve been justified. If it was a libel upon the * Il Mod. 99. See also 2Hawk« pl. C. c. 73. s. 2. 5 Co. 125. Skinner, 123. 3 Keb. 378. f Du Bost v. Beresford, 2 Camp. Rep. 511. (*143)102 persons introduced into it, the law cannot consider it valuable as a pictuve. Upon an application to the Lord Chancellor, he would havre granted an injunction against its exhibition ; and the plaintiff was both civilly and criminally liable for hav- ing exhibited it.” There remains a class of communications differing from any of those adverted to, and which, though accompanied with circumstances of cooler deliberation and more settled purpose than words merely spoken, are not calculated to produce such lasting and widely extended conséquences as those effected by writings or pictures. The vulgar custom of riding Skimmington, and the prac- tice of carrying or burning the effigies of (*)persons intended to be held ont as public objects of disgrâce and ridicule, are instances of this description. The impressions made by such proceedings are naturally more lasting, and are likely to pro- duce a greater degree of mischief than words merely spoken, and yet the calumny is not so durable as if it had been con- veyed in priât or in writing. Since, however, these are means by which a man may be rendered, in many instances, contemptible and ridiculous, and in others may be exposed to the serious effects of popular indignation and resentment, —since the act of the défendant is more studied and delibe- rate, and the conséquences more mischievous than those for mere verbal slander, it is probable that such représentations would be deemed actionable, as falling within the same con- sidérations with the cases which hâve formed the subjeci of the présent chapter. (*144)103 (*)CHAPTER VI. Of Scandalum Magnatum. Words spoken in dérogation of a peer or judge, or oth- er great officer of the realm, are usually called Scandalum Magnatum ; and though they be sucb as would not be ac~ tionable when spoken of a private pérson, yet when applied to persons of high ratik and dignity, they constitute a more heinous injury, whieh is redressed by an action on the case, founded on many ancient statutes, as well on behalf of the crown, to inflict the punishment of imprisonment on the slanderer, as on the behalf of the party to recover damages for the injury sustairied.* Under this division will be considered, 1. The grounds of the action. 2. The parties entitled to maintain it. 3. The nature of the words which will support it. The statute 3 Ed. 1. c. 34.f afterpremising that “ Foras- much as there hâve been oftentimes found in the eountry devisors of taies whereby discord, or occasion of discord hath many times arisen between the king and his people, or great men of the realm,” enacts, “ that from henceforth none be so hardy to (*)tell or publish any false news or taies, whereby discord, or occasion of discord, or slander, may grow between the king and his people or the great men of the realm ; and he that doth so, shall be taken and kept in, until he hath brought him into court which was the first author of the taie. * 3 Blac. Comm. 123. t For the history ofthese statutes, see 2 Mod. 152. Barrington on thePe- , nal Statutes. 3Reeves. Hist.and 1 Pari. Hist. (*145) (*146)104 By 2 R. 2. st. 1. c. 5. “ Of devisors of false news and of horrible and false lies, of prelates, dukes, earls, barons, and other nobles and great men of the realm ; and also of the chancellor, treasurer, clerk of the privy seal, steward of the king’s house, justices of the ©ne bench or of the other, and of other great officers of the realm, of things which by the said prelates, lords, nobles, and officers aforesaid, were never spoken, done, nor thought, in great slander of the said pre- lates, lords, nobles, and officers, wliereby debates and dis- cords might arise betwixt the said lords, or between the lords and commons (which God forbid,) and whereof great péril and mischief might corne to ail the realm, and quick subversion and destruction ofthe said realm, if due remedy be not provided. It is straitly defended upon grievous pain, for to esche w the said damages and périls, that from hence- forth none be so hardy to devise, speak, or to tell any false news, lies, or other such false things, of prelates, lords, and of others aforesaid, whereof discord or any slander might rise within the said realm ; and he that doth the same shall incur and hâve the pain another time ordained thereof by the statute of Westminster the first which will, that he be taken and imprisoned «till he hâve found him of whom the word was moved.” (*)Alsoby the 12 R. 2. c. 11.—“Item. Whereas it is contained as well in the statute of Westminister the first, as the statute made at Gloucester, the second year of the reign of our lord the king that now is, that none be so hardy to invent, to say, orto tell any false news, lies, or such other false things, of the prelates, dukes, earls, barons, and other nobles and great men of the realm, and also of the chancellor, treasurer, clerk of the privy seal, and steward of the king’s house, the justices of the one bench or of the other, and other great officers of the realm ; and he that doth so shall be taken and imprisoned till he hath found him of whom the speech shall be moved. It is accorded and agreed in this parliament, that when any such is taken and impris- oned, and cannot find him by whom the speech be moved, as before is said, that he be punished by the advice of the council, notwithstanding the said statutes.” It does not appear very clear, whether, before these sta- tutes, any words would be held actionable when applied to a peer or other person of high rank and dighity which (*147)105 would not hâve been deemed so in case of a private person.* In the case of Lord Townsend v. Dr. Hughes,f the words were, “ He is an unworChy mari, and acts against law and reason and Scroggs and Atkins justices were of opinion, that by the Common Law no action would lie, though such words were spoken of a peer; but North C. J. con- sidered the words as actionable at Common Law ; and held, that no words would be actionable under the statute which were not so at Common Law. (*) Whether such a distinction prevailed or not at Com- mon Law, is at.présent a matter-of ’curiosity rather than of practical importance, since it has been established by a long train of decisions, that the distinction, if not created, has at ail events been considered as warranted, by the operation of the statutes alluded to. Upon these it has been held, that a remedy by action has been given to the great men of the realm, entitling them to a compensation in damages for injurious reflections upon their character, though the statutes them sel ves do not in express terms profess to bestow such a remedy. And this doctrine is founded upon the general rule, that when- everJ a party is prejudiced by the doing of that which is prohibited by statute, he is entitled to damages. It is a remarkable circumstance, that from the time of passing the st. 12 Rich. II. no civil action appears from the reports to hâve been founded upon it before the thirteenth year of Henry the seventh,§ comprising an interval of more than a century. 2. Next as to the parties entitled to main tain this action. Since the statute 2 R. II. st. 1. c. 5. commences with an énumération of persons inferior in rank to the king, it has been held, that the latter is not inclüded within the general words, || and great men of the realm.” But that he is inclüded within the first of Westminster.^ (*)The action has been adjudged to extend to orders of nobility created since the making of these statutes ; so that * See Buller. L. N. P. 4. and 12 Co. 133. f 2 Mod. 150. t Keil. 26. § Ld. Townsend v. Dr. Hughes, 2 Mod. 162. 10 Co. 75. || Cromp. Jur. 16. 35. 6 Bac. Ab. 97. 12 Co. 133. 1T12Rep. 133. 14 (*148) (*149)106 although the stat. 2. R. II. specifically mentions Dukes, Earls, and Barons only, a Viscount has been considered as entitled to the action,* though the title is of much later cré- ation.! It has been said,| that a female, noble by birth, is not within the statute ; but it seems difficult to say upon what principle a peeress is excluded from the benefit of this statu- table protection. Since the words dérivé their actionable essence from their application to the dignitaries specified in the statute, it must appear that the plaintiff held his rank at the time the words were published.§ By the act of union with Scotland, || is enacted, that àll peersof Scotland shall also be peers of Great Britain, and enjoy ail privilèges as fully as peers of England, except of sitting in the house of lards and the privilèges depending thereon. Under this clause it has been detérmined, that a peer of Scotland is one of the magnates to whom this statute extends ;^f andit was said, that though it had been custom- ary in such action to aver that the plaintiff had a vote and seat in parliament, such an averment was superfluous. It seems that the action is maintainable by a Baron of the Exchequer,** though the statute mentions only Justices of the one bench or the other. 3. What words will support the action. (*)The grounds of the action and the effect of these stat- utes, underwent much learned discussion in the case of Lord Townsend v. Dr. Hughes,ff which has been already referred to. The action was there brought for speaking the words, “ He is an unworthy man, and acts against law and reason.” Upon, notguilty pleaded, the cause was tried, and the jury gave 400ÔZ. damages. Upon motion in arrest of judgment, Sergeant May nard, for the défendant, allowed that it was toolate to contend that an action to recover damages was not maintainable under the statutes of Scandalum Magna- * Cro. Car. 136. Palm. 165. t John Beaumont, the first Viscount, was created isuch 18 H. VT. j Crom. Jur. 35. 6 Bac. Ab. 97. § Vent. 60. || 5 Ann. c. 8. Art. 23. IT Lord Falkland v. Phipps, Comyn. Rep. 439. 1 Vin. Ab. 549. pl. 22. ** Vid. Pal. 565. 12 Co. 133. ff 2 Mod. 150. (*150)107 tum, upon the principle before mentioned, that where a sta- tute prohibits any thing préjudiciai to another, the person pre- judiced is entitled to recover damages ; but he insis ted that thè words were not within the meaningof the acts: be- cause, the term unworthy imported no particular crime,— that it was merely a term of comparison, and that instances of unworthiness might be alleged whieh would not support an action ; but that, if the plaintiff had been compared to any base and unworthy thing, the words would hâve been açtionable : as in the Marquis of Dorchester’s case,* of whom the défendant said, “ There is no more value in him than in a dog.” That to say a raan acts against law and reason, is no scandai ; a man who buries one of his family in linen acts against law, but that, if the penalty be satisfied, the law is so too. That no instance was given in which the plaintiff had acted against law, and therefore that the case wasunlikethe Duke of Buckingham’s,f who brought an action for the (*) words, “ You are used to do things against law, and put cattle into a castle where they cannot. be re- plevied ;” for in that case, not only a usage was charged upon him, but a particular instance of oppression. That the words in question were uncivil, but not açtionable,— that there were many authorities which showed a peer not entitled to an action for every trivial and slight expression spoken of him. As to say of a peer, “ He keeps none but rogues and rascals about him,j: like himself;” which words, in the opinion of Yelverton and Fleming, Justices, were not açtionable^ That the statute was made to punish those who devised “ false news, and horrible and false lies of any peer,” &c. whereby discords might arise between the lords and com- mons, andgreat péril and mischief to the realm, and quick subversion thereof. But that it could not be contended Under the fair construction and intent of the act, that if one should say, “Such a peer is an unworthy man,” the king- dom would be presently in a flame, and turned into a state of confusion and civil war ; or, that the state would be en- dangered by saying of a peer, MiUanm v. Birch, 1 Binn. 178. See Jarvis v. Hatheway, 3 J. R. 180. 7 (*190)139 might be inserted in bills in so high a court to the great slander of the parties, and they cannot answer it to clear themselves, nor hâve their action as well to clear themselves, as to recover damages for the great injury and wrong done them, great inconvenience would ensue. That by law, no murder or piracy could be tried by bill, but by indictment only ; and therefore, that the défendant had not only mistaken the proper court, but the manner and nature of the bill had not any appearance of a suit in the ordinary course of justice. But that if a man brought an appeal of murder returnable in the common pleas, no action would lie ; for, though the writ was not returnable before competent judges, yet it is in the nature of a lawful suit, narnely, by writ of appeal.” The first part* of this resolution has been (*)frequently con- firmed, and extends to ail proceedings in the reguiar course of justice, and to actions for scandalum magnatumf. The défendant^ brought a writ of forger of false deeds against Lord Beauchamp ; and, pending the writ, Lord B. brought an action for the scandai. The défendant justified by his having the said writ before. Upon demurrer, the jus- tification was holden to be good, and out of the intendment of the law and statutes of slander. And if the publication be made in the course of a judicial proceeding it does not appear to be essential to the justifica- tion that the défendant strictly observed the technical mode of proceeding. The plaintiff declared, that he made an affidavit to hâve the défendant bound over to his good behaviour ; and that the défendant, in the hearing of the justices and officers§ of the court and others présent, said, “ There is not a word of truth in that affidavit, and I will prove it by forty witnesses.” And it was held that the words were justifiable, being in a judicial way.(71) And the same rule obtains where application is made in the usual course to a magistrate or other peace officer.(72) * 2 Inst. 228. Roll. Ab. 87. pl. 4. Sir W. Jon. 431. f 2 Bals. 269. 2 Butr. 808. 3 Bac. Ab. 492. X Lord Beauchamp v. Sir R. Croft, Dyer, 285. § Jo. 341. Mar. 25. Boulton y. Clapham. (71) See Kean v. M’Laughlin, 2 Serg. &R.471. Per TUghman, Ch. J. And see ante, note (69). (72) See ante, note (69). (*191)140 The défendant went to a justice of the peace for a war- rant against the plaintiff,* for stealing his ropes. The justice said, “Beadvised; and look (*)what you do;” and the défendant replied, “ I will charge him with fiat felony, for stealing my ropes from my shop.”(73) The court agreed, that fhese words being spoken to a justice of the peace when he came for his warrant, which was lawful, would not maintain an action ; for if they eould, no other would corne to a justice of the peace to inform him of a felony. By the latter resolution, in the case of Buckley v. Wood,f the court decided that scandalous matter would be actionable, if exhibited by means of an improper process, and in a court which had no jurisdiction over the subject matter ; butit plainly appears that the court held, that both impro- prietyof process and want of jurisdiction must concur to deprive the défendant of his justification ; for it was ex- pressly said, that the bringing a writ of appeal of murder in the common pleas would not be actionable; since, though they wanted jurisdiction in the particular instance, yet that the proceeding by writ of appeal was in the nature of a lawful suit. In Lake v. King,| the court said, that notwithstanding what was reported in Buckley’s case, it was held that want of jurisdiction will not make a libel, for it is only the error of counsel. (*)Powel, J.§ is reported to hâve said, “ I hâve heard my Lord Haie say, that for putting matters in a bill, of which the court hath no cognfeance, action does not lie against the plaintiff, though in the fourth report it is laid down oth- erwise.” Sergeant Hawkins, || in his pleas of the Crown, observes, “ It has been holden by some, that no want of jurisdiction of the court, to which such a complaint is exhibited, will make it a libel, because the mistake of the court is not im- * Hutt. 113. Mich. and Can. Rain v. Langley. |4Co. 14. t 1 Vin. Ab. 389. note topl. 67. §2 Lut. 1571. || PI. Cr. c. 73. s. 8. See also Serg. Williams’ note, 1 Saund. 132. (*192) (*193) (73) See ante, note (69).141 pfttable to the party, but to his counsel. Yet, if it shall ma- nifestly appear, from the whole circumstances of the case, that a prosecution is entirely false, malicious, and groundless, and commenced not with a design to go through with it, but to expose the défendantes character under a show of legal proceeding, I eannot see any reason why such a mock- ery of publie justice should not rather aggravate the offence than make it cease to be one, and make such scandai a good ground of indictment at the suit of the king, as it makes the malice of the proceeding a good foundation of an action on the case, at the suit of the party, whether the court had jurisdiction or not.” (74) From these authorities it may be collected generally, that no action can be maintained for any thing said, or otherwise publishèd, in the course of ajudicial proceeding, whether crimi- nal or civil, though for a malicious and groundless prosecu- tion, (*)an action, and perhaps an indictment, may be sup- ported, founded on the whole proceeding. It must, however, be recollected, that the justification does not extend to any publishing which the usual course of judicia! proceeding does not warrant. Thus, in Lake v. King, the great doubt was, not whether the exhibiting the pétition to parliament was lawful or not, but whether the dé- fendant was warranted in printing and publishing it in the manner alleged in his plea.* Andso, in the case of Hare v. Meller,f it was adjudged lawful to présent a pétition to the queen, though reflecting upon the character of the plaintiff, but deemed action- able afterward to divulge the contents to the disgrâce of the person intended. * 1 Saund. 132. f 3 Lev, 169. See also 4 Rep. 14. (74) See Thorn v. Blanchard, 5 J. R, S09. Gray v. Pentland, 2 Serg. & R. 23. Milom v. Burnsides, 1 Nott & M’Cord, 426, n. (*194)142 (*)CHAPTER XL Where Parliamentary or Judicial Proceedings are faithfully reported. In general, impartial and correct accounts of the pro- ceedings in parliament, or in the courts of justice, do not, in legal contemplation, amount to a wrong, so as to render the party publishing them either civilly or criminally respon- sible. Upon an information against the défendant, for publish- ing* “ Dangerfield’s Narrative,” he pleaded that he was, at the time of the publication, Speaker of the House of Com- mons, and as such, had a right to publish the votes and acts of the house, and that the narrative was printed and pub- lished as parcel of the proceedings ; and notwithstanding this the court gave judgment for the king.f But in the King v. Wright, j: an application was made to the Court of King’s Bench, to grant a criminal information against the défendant, for printing and publishing a libel on an individual. Upon the défendantes affidavit, it appeared that the charge complained of was a paragraph contained in the report (*)of the Committee of Secrecy of the House of Commons, a literal copy of which he had published. After hearing counsel on the part of the applicant, the information was refused. Lord Kenyon, C. J. observing, “ As this was a true copy of the report of the House of Commons, I think there was not the least pretence for the motion; the application supposes that the publication is a libel, but it is impossible to admit that the proceeding of either of the houses of parliament is a libel.” * R. v. Williams. 2 Show. R. 471. Comb. 18. See Sir R. Atkinson the Power of Parliament. f This case was reprobated by Lord Kenyon, C. J. and Grose, J. giving judgment in the King v. Wright. 8 T. R. 293. t 8 T. R. 293. (*195) (*196)143 The case of Sir W. Williams, which was principally re«* lied on, happened in the worst of times, but that has no rela- tion to" the présent case. There the publication was the paper of a private individual, and under pretence of the sanc- tion of the House of Commons, an individual published ; but this is a proceeding by one branch of the législature, and therefore we cannot inquire into it. Grose, J. said, “ On looking into the judicial proceedings of this court, I find no instance of such an information as the présent ; the case of Sir W. Williams is most like this, but it must be remembered, that that was declared by a great authoritv to be a disgrâce to the country.” Lawrence, J. observed, “ It has been said, that the pub- lication of the proceedings in courts of justice, when reflect- ing on the eharacter of an individual, is a libel ; to support which position, the case of Waterfield v. the Bishop of Chi- chester has been cited ;*but, on examining that case, it ap- pears that the charge there was, that the plaintiffhad not pub- lished a true account. The proceedings of courts (*)of jus- tice are daily published, some of which highly reflect on in- dividuals, but I do not know that an information was ever granted against the publisher of them. Many of these pro- ceedings contain no point of law, and are not published under the authority or the sanction of the courts, but they are printed for the information of the public. Not many years ago, an action was brought in the Court of Common Pleas by Mr. Currie,f against Walter, the proprietor of the Times, for publishing a libel in the paper of “ The Times which supposed libel consisted in merely stating a speech made by a counsel in this court, on a motion for leave to file a criminal information against Mr. Currie. L. C. J. Eyre, who tried the cause, ruled that this was not a libel, nor the subject of an action, it being a true account of what had passed in this court ; and iri this opinion the Court of Com- mon Pleas afterward, on a motion for a new triai, ail con- curred, though some of the judges doubted whether or not the défendant could avail himsélf of that defence on thè general issue : “ though the publication of such proceed- ings may be to the disadvantage of the particular individual coneerned, yet it is of the utmost importance to the public 11 B. and P. 525. (*197) * 2 Mod. 118.144 that the proceedîngs of courts of justice should be univer- sally known. “ The great advantage to the country in having these proceedîngs made public* more than counterbalances the in- conveniences to the private persons whose conduct may be lhe subject of such proceedîngs. The saine reasons also apply to the proceedîngs in parliament ; it is of advan- tage to the public, (*)and even to the législature besides, that true accounts of their proceedîngs should be generally circulated, and they would be deprived of that advantage, if no person could publish their proceedîngs without being punished as a libeller. “ Though, therefore, the défendant was not authorized by the House of Commons to publish the report in question, y et, as he only published a true copy of it, I am of opinion that the rule ought to be discharged.” But in Styles v. Nokes,* it was observed by Lord Ellen- borough, C. J. and Grose, J. that it must not be taken for granted that the publication of every matter whiçh passes in a court of justice, however truly represented, is, under ail circumstances, and with whatever motive published, justifiable, but that doctrine must be taken with some grains of allow- ance. “ It often happens,” said Lord Ellenborough, “ that circumstances, necessary for the sake of public justice to be disclosed by a witness in a judicial inquiry, are very distressing to the feelings of individuals on whom they re- flect. The protection afforded by law to such publications does not however, extend beyond a plain unvarnished state- ment of the proceeding, and will not warrant the least misrepresentation of facts, or even any high colouring of the circumstances stated.”(75) Lofieldf having recovered in an action against (*)Bank- croft, for maliciously charging him with felony and for pro- curing him to be arrested on suspicion of the same, after- * 7 East, 493. ~ ~ t Easter Term, 5 G. 2.1732. 2 Barnard. K. B. 128. The King v. Lofield. (75) Although a man may be justified in publisliing a correct account of a judicial proceeding ; yet, if it be accompanied by commenta and insinuations of his own, tending to asperse the charaeter of another, it is libellous. Com- monwealth v. Blanding, 3 Pick. 304. Thomas v. Croswell, 7 J. R. 264, 272. See State v. Lehre, 2 Const. Rep/^809, 819. (*198) (*199)145 ward published that Bankcroft had conspired to charge him with this felony, and that, in vindication of his charàcter, he had brought an action against him for so doing, and had recovered 11001. damages against him.” On a motion for a criminal information, the court said, that the présent ad- vertisement had falsely represented the fact, for Lofield did not bring his action for a conspiracy, but for Bankcroft’s maliciously charging him with felony, and a conspiracy re- quires an infamous judgment. The rule was made abso^ lute. It has been held, that the publication of matter contain- ed* in dépositions before a magistrate on a criminal charge, is not justifiable, the evidence being ex parte, and the disposi- tion made by the prosecutor only. A still stronger reason for prohibiting such prématuré statements is, that they induce a préjudice against the défen- dant, and tend to deprive him of the benefit of a fair and impartial trial. The printer,f publisher, and editor of a public newspaper, were ihdicted for publishing a paragraph, purporting to con- tain the examinations before a magistrate, upon a charge brought against the prosecutor by Mrs. Popplewel! ; the publication then proceeded to assume the truth of the dépo- sitions, and the guilt of the prosecutor, and to pronounce (*)that he would meet with the reward due to his villany. It was coûtended, on the authority of several of the cases above cited, that the publication was justifiable, as being a true account of the proceedings in a court of jus- tice. But Lord Ellenborough, C. J. said, “ Trials at law fairly reported, although they may occasionally prove injurious to individuals, hâve been held to be privileged. Let them con- tinue so privileged, the benefit they produce is greàt and permanent, and the evil that arises from them is rare and incidental ; but these preliminary examinations hâve no such privilège, their only tendency is to prejudge thôse whom the law still présumés to be innocent, and to poison the sources of justice. It is of infinité importance to us ail, that whatever has a tendency to prevent a fair trial should * R. and Lee, 5 Esp. 123. t The King v. Fisher and others, 2 Cainp. 563. 19 (*200)146 be guarded against Every one of us may be questioned in a court of law, and called upon 'to defend his life and his character ; we should then wish to meet a jury of our countrymen with unbiassed minds ; but for this there can be no security, if such publications are perrnitted.”147 (*)CHAPTEtt XII. In the two classes of cases immediately preceding, the presumption of law is conclusive in favour of the defendant’s innocence of intention. There is another, in which, though the motive of the party be not wholly exempted from examination, yet, iri considération of the character in which he has acted or assumed to act,—the law will pré- sumé in his favour in the first instance, and require the plaintiff to rebut the presumption in sôme particular mode. And the benefit of this prima fade presumption enures in a greater or less degree to ail défendants, who claim an interest for themselves or others ; as where a person makes an extra-judicial claim to an estate, or a counsellor speaks on behalf of his client in a court of justice. To those who act in a friendly character toward the plaintiff, as by communicating a slànderous report, and the author of it, to enable him to obtain a remedy. And to those, in general, who appear to act in the discharge of any duty which the convenience or exigencies of society call upon them to perfortn ; as, where a master gives the character of a servant, or avcritic that of a book, for the information and advantage of the public. (*)The nature and extent of the presumption of law in each of these cases will next be considered, and the means by which they may bé rebutted. And first, where a party, having probable cause, clalms any title or interesU 1 When a party lays claim to land or other property, by means of which the real owner is prejudiced, though the words be not spoken in the ordinary course of justice, (in which case, as has already been seen, no action would be maintain- able) yet, if the party had probable cause and colour for what he said, no action is maintainable, although no legal claim exist in fact. And the reason assigned for this by (*201) (*202)148 Sir E. Coke is,* * * § that if an action should lie when the de- fendant himself daims an interest, how can any make daim or title to any land, or begin any suit, or seek advice and counsel, but he should be subject to an action which would be inconvénient; and that this was agreeable to the opinion in Banister’s case,f that no action lies against ône who publishes another to be his villain, without adding something by way of threat, which produces spécial damage. But if the défendant say,J that J. S. has a better title to the lands than the tenant in possession, and makes no pretence of title in himself, an action lies, if spécial dam- age follow from the words. It has frequently been held, that not only a general asser- tion of title in the défendant is justifiable, but that a spécifie ground of claim, as under a lease, (*)is likewise justifiable, though the party knew he had no such lease. So that if B.§ published that he had a lease of Blackacre for one thou- sand years, he would not be subject to an action for slander, though he had no such lease, since it is his own title ; but the reason and principle of these decisions appear very dubious, for though it may be inconvénient to render a claimant lia- ble to ail the conséquences of his claim when bonafide made, the inconvenience does not extend to the case of a défend- ant, who asserts a fact in support of his title which he knows to be false. And such a doctrine seems directly contradict- ed by the case of Sir G. Gérard v. Diçkenson.jf The plaintiff there declared, that he was seised of the manor and castle of H. by purchase from Lord Àudley, and that he was about to demise the castle and manor of H. to Ralph Egerton for a term of twenty-two years ; that the dé- fendant said, “ I hâve a lease of the castle and manor of H. for ninety years,” and then and there showed and published a demise, supposed to be made by George Lord Audley, grandfather to the said Lord Audley, for ninety years, to * 4 Rep. Ï8. t Fitz. Action sur. le Case, 16 Bro. A c. sur. le Case, 90. 2 E. 4, 5. a. b. 15 Ed. 4. 32. a. b. 22E. 3. 1. Conspiracy. 38 E. 3. 33. 43 E. 3. 20. F. N. B. 116. b. tJenk.247.pl. 37. § Jenk. 247. Cro. E. 34. Mo. 144. Mo. 188. 410. Roll. Rep.409. 4 Rep. 18. Tel. 89. Cro. Car. 140. Cro. J. 397, 398, 485. 1 Roll. Rep. 244. 3 Buis. 75. Pal. 529. U 4 Rep. 18. Cro. Eliz. 197. (*203)149 Edward Dickenson her husband, and published the said de- mise as à good and true lease, when, in fact, the lease was counterfeited by her husband, and the défendant knew it to be counterfeited ; by reason of which words, the said R. E. did not proceed to accept the plaintiff’s lease. The défend- ant, in her plea, denied her (*)knowledge of the forgery ; and the plaintiff demurred. And it was resolved, 1. That if the défendant had affirmed and published that the plaintiff had no right to the castle and manor of H., but that she herself had right to themj in that case, because the défendant herself pretended right to them, although in tr uth she had none, no action would lie. 2. That the déclaration was tnaintainable, because it was alleged that the lease was forged and counterfeited ; and yet she, against her knowledge, affirmed and published that it was a good and true lease, and that she knew of the plaintiff’s communication with R. E. to lethim the land. From this case it appears clear, that thé extrajudicial as- sertion of a spécifie fact, against the knowledge of* the party, thereby claiming title, will not avail as a justification. On the contrary, so much strietness has been required in case of such justifications, that where the défendant had said, “ I know one* who hath twoleases of his (the plaintiff ?s) land, who will not part with them at any reasonable frate.” It was held, that the showing two leases to hâve been made to the défendant himself was not sufficient. From the first resolution in Gérard v. Dickenson, it seems to hâve been held, that a general claim of tille would, at ail events, hâve been justifiable ; yet, when a défendant, for the mere purpose of vexation, and knowing that he has no ground or colour of claim, prevents, by his false assertion, the selling or letting an estate, it seems to make no (^différ- ence in principle, whether he effects the mischief by a gen- eral claim, or by the alleging a spécifie false fact. The dis- tinction made in the two resolutions has been since material- ly contradicted—the more intelligible rule was laid down in the case of Goulding v Herring,f where it was agreed, that though the défendant daims title, yet if it be found to be done maliciously, the action lies ; but if, upon evidence, any probable cause of claim appears, it ought not to be found ma- * 1 Vin. Abr. 551. pl. 11. Cio. Eliz. 427. f 3 Keb. 141. (*204) (*205)150 liciously.(76) And according to ïtolle, C. J.* “ If I hâve colour of title to land, and I say to another, I hâve better title to the land than you, y et an action will not lie against me, though my title be not so good as the title of the other is.” In the case of Smith v. Spooner,f where the owner of a house had prevented the plaintiff, his lessee for years, from disposing of the remainder of his term, by falsely asserting that he had no title ; the court, after a verdict for the plaintiff, refused a rule to show cause why there should not be a new trial. Lord Ellenborough,| C. J. observing, 44 The circumstances of the défendantes title and interest may rebut the implication of malice, but here it was left to the jury to say whether there was malice or not.” But where an attorney to a creditor,§ who had previously committed an act of bankruptcy, stopt (*)the sale of an estate previously mortgaged and assigned to the plaintiff, by declaring tlie creditor’s bankruptcy, and that a decket had been made out for a commission ; it turned out that an act of bankruptcy had been committed, but that no commis- sion had been sued out. On action brought, it was held, that inorder to support it, there should be proof of malice, either express or implied ; that if the défendant acted bona jide, and told the truth, he did no more than his duty ; and though he went beyond what was strictly true, still, if there was no material variance, and no différence made with re- spect to the plaintiff’s title, the action was not maintainable. So a person acting in the course of his professional duty, is entitled to the bénéficiai presumption arising out of bis situation and the interest with which he is vested, till the malicious intention be proved.(77) The plaintiff|| brought an action against the défendant for these words, when the latter turned him ♦3B.&P, 587. (*225)164 away without giving him a month’s warning ; in consé- quence whereof, the plaintiff, conceiving himself entitled lo a month’s wages, refused to quit the service without being paid thaï sum. On this refusai, the défendant pro- cured an officer from the public office to put the plain- tiff out ofthehouse, and employed his attorney to settle his wages with him, Immediately after this, the défen- dant, who was going into lhe country, called onMr. Hol- land, with whom the plaintiff had previously lived, to in- form him that the plaintiff had behaved in an impertinent and scandalous manner, that he, the défendant had dis- charged him from his service, when the plaintiff refused to go without a month’s wages ; and he therefore desired Mr. Holland not to give him another character. While the plaintiff was in (*)the country, he offered himself to a Mr. Hand, stating that he had J with the défendant. Upon which, Mr. wrote to r-b.p uoiendant for a cha- racter, and ieceived the ^«^wthg answer: « -m answer to your’s, which came to hand yester- .10j,1 beg leave to acquaint you, that Thomas Rogers did not live with me six months, as he has told you, and I wish I had never taken him into my house, as he is a bad- tempered, lazy, impertinent fellow, and has given me a great deal of trouble, as I was obliged to send an officer from the Marlborough^stréét Police Office to put him and his things out of my house, and also to ernploy Mr. Bar- net, my attorney, of Soho-square, to settle his wages, as I look upon it he will take any advantage he can. am, gir, your rqost obedient humble servant, “ Gervase Cltfton.” Upon receipt of this letter, Mr. Hand refused to take the plaintiff into his service. It appeared that Mr. Holland never was applied to for a character of the plaintiff, after the communication made to him by the défendant ; and Mr. Holland stated, that without such communication he should hâve declined giving another character to the plaintiff. The plaintiff also proved, by servants of the family, that while in the défendantes service he had conducted himself well, and that no complaints of the nature ascribed to him in the défendantes letter had ail that time existed. The jury found a verdict for the plaintiff with 20Z. damages, but liberty was reserved to the défendant to hâve a nonsuit entered. (*226)165 (*) After the case had been argued, Lord Alvanley, C. J. said “ If it were to be understood, that whenever a master gives a bad character to a servant whq has quitted his ser- vice, he may be forced by the servant, in justification of such his conduct as a master, toprove the particulars which lie has stated respecting the servant, it would be impossible for any master, (so understanding the law, at least with any regard to his own safety) to.give any character but the most favourable to a servant, and consequently impossible for a servant, not entitled to the most favourable character to ob- tain any new place. In the two cases of Edmonson v. Stevenson,* and Weatherstone v. Hawkins,f the law upon this subject appears to me to be laid down as clearly as can be wished. Unquestionably the master, who has given a bad character of a servant to persons inquiring after his character, is not bound to substantiate by proof what he has said ; but it is equally clear, that the servant may, if he can, prove the character to be false, and the question be- tween the master and servant will always, in such ca&e, be, whether what the former had spoken concerning the latter, be malicious and defamatory. In this case, we are to con- sider whether the evidence adduced by the plaintiff was suffi- cient to be left to the jury.” His lordship, after stating the evidence, proceeded to observe, that the circumstance of the plaintiff’s refusai to quit his master’s house till his wages had been paid, was the only act of impertinence proved against him ; and that the défendant was not called upon by that single act to seek out Mr. Holland, and ofliciously to state what he did ; that if a servant (*)were strongly sus- pected of having committed a felony whilst in his master’s service, it would be the master’s duty to warn others from taking him into their service ; but that, in the principal case, the offence imputed to the plaintiff appeared to be of a trivial nature. His Lordship concluded by saying, that he should bave grievously invaded the province of a jury, had he not left it to them to say whether, considering ail the cir- cumstances of the case, the defendant’s conduct was not malicious, and that he did not consider himself at liberty to disturb the verdict they had given. Rooke, J. was of the same opinion, and wished it to be j 1 T. R. 110. (*227) (*228) * B. N. P. 8.166 understood as his opinion, that a master may, at any time, whether asked or not> speak of the character of his servant, provided that he speak in the honesty of his heart ; and that an action cannot be maintained against him for so do- ing ; at the same time, masters are not warranted in speak- ing ill of their servants from heat and passion. Chambre, J. referred to the case of Lowry v. Aikenhead,* before Lord Mansfield. In that case, the rule laid down by Lord Mansfield was, “ That where a person, intending to hire a servant, applies to a former master for a character, the master is not bound to prove the truth of the character he gives ; for what he speaks of the servant he does not speak officiously, but only discloses that which rests in his know- ledge alone ; but that where a master speaks ill of a ser- vant, without any previous application having been made to him, there he must plead and prove the truth of the charac- ter in justification.” (*) And the rule was discharged. It appears, therefore, fully established, that a servant, in an action against a former master, must prove express ma- lice. It seems to hâve been laid down generally by Lord Mans- field, in the case cited by Mr. Justice Chambre, that where a master, unasked, gives a bad character of a servant, he must justify as in other cases ; and though Mr. J. Rooke seems to hâve expressed an opinion somewhat different, there eau be no doubt that the manifestation of any forward and offi- cious zeal on the part of a défendant, who, uninvited, gives a character to the préjudice of his former servant, would be a material guide to a jury in ascertaining his real motive. Where a plaintiff, knowing the character which his mas- ter will give, procures it to be given for the sake of founding an action upon it, lie will not be allowed to recover.f So, in general, where the publication is made in support or furtherance of the interests of society, and not wantonly and invidiously for the gratification of private malice, the author is privileged. The défendant, j:who was sergeant in a volunteer corps, of which the plaintiff also was a member, represented to the (*229) * Mich. 8 G. 3. t Per Lord Alvanley, 3 B. & P. 592. I Barbaud v. Hookham, 5 Esp. R. 109.167 committee, by whom the general business of the corps was conducted, that the plaintiff was an unfit and improper per- on to be permitted to continue a member of the corps. . The words charged in the déclaration were, that the de- fendant had said that the plaintiff had been the executioner of the King of France, and that he (*)had clapped his hands, rejoicing at the event, adding, that France would then be one of the first countries in the World. It appeared in evidence, that the plaintiff was a French- man, and that the défendant had not made use of the words publicly, but had communicated them to the officers of the corps, who constitued the committee for its régulation. Lord Ellenborough said, that it was not to be allowed that such an action could be sustained. It was a communication made upon a most important matter for their considération, whether foreigners, the natives of a country in open war with us, were to learn the use of arms in a country threat- ened to be invaded by that other. The action was most ill advised and improper. . In Johnson v. Evans,* the words were, “ She is a thief, and tried to rob me of part of her wages.” It appeared upon the trial, that the plaintiff had been servant to the de- fendant. Upon a dispute taking place, he discharged her, and some différence arising respecting the payment of her wages, he charged her with having attempted to cheat him respecting her wages, and spoke the words as laid ; but the plaintiff failed in proving them to hâve been spoken at that time. Having, however, sent for a constable, in order to take her into custody, he made use of the same words to the constable when lie came, to whom he meant to hâve given her in charge, but which, in fact, he did not do. The constable proved the words as spoken ; butit further appear- ed in the course of his evidence, thatàthe (*)words had been spoken by the défendant, addressed to him in his cbaracter of constable, and in the course of charge and complaint which the défendant ruade to him against the plaintiff Lord Eldon, C. J. said, that the evidence given of the speaking of the words laid in the déclaration was not such as to induce him to direct the jury to find a verdict for the plaintiff Words used in the course of a legal or judicial * 3 Esp. R. 32. (*320) (*23î)168 proceeding, however hard they might bear upon the party of whom they were used, were not such as would support an action for slander. In this case, they were spoken by the défendant under a belief of the fact, and when he was about to proceed legally to punish it, it would be a matter of ;public inconvenience, and operate to deter persons from pre- ferring their complaints against offenders, if words spoken in the course of their giving charge of them, or préferring their complaint, should be deemed actionable.—Plaintiff nonsuited. Still this, it seems, amounts to a prima facie defence only, liable to be overthrown by proof of express malice pn the part of the défendant, as by showing that he knew at the time that the charge was false. In Smith v. Hodgkins,* the case was this. The plaintiff assaulted and beat the dé- fendant on the highway. The défendant meeting a con- stable, requested him to take charge of the plaintiff ; and the constable refusing to arrest the plaintiff unless the de- fendant would charge him with the commission of a felony, the défendant did so, and judgment was given on demurrer for the plaintiff ; (*)the court observing, that there was no ground for the charge of felony. And where property has been actually stolen,f the de- fendant is not warranted in the communication of a suspi- cion, which in fact is unfounded, except for the purpose of legal inquiry. Under this clasâ of communications may not improperly be ranked those publications whose professed object is to discuss, for the information of the public, the merits of the literary productions of the day. The authors of these, in the détection and exposure of vicious principles and bad taste, hâve a most difificult and important public duty to discharge, and in return are privileged in the most unlimited exercise of their reasoning powers, and of their talents for wit or satire, so long as it is confined to ils legitimate object, the merits of the work before them. In the case of Sir John Carr v. Hood,j: the plaintiff stat- ed, in his déclaration, that he had been the author of several * Cro. Car. 276. t Powel v. Piunket, Cro. Car. 52. t 1 Camp. N. P. 354. (*232)169 productive publications called, &c. but that the défendant intending to expose him to contempt and ridicule, had pub- lished a malicious and defamatory libel concerning the said Sir John, entitled, “ My Pocket-Book, or Hints for a righte merrie and conceited Tour, to be called, The Stranger in Ireland in 1805, by a Knight Errant.” The same libel con- taining a malicious and defamatory print of and concerning the said Sir (*) John and his books, called “ Frontispiece,” and entitled, “The Knight leaving Ireland with regret;” and representing, in the said print, a certain false, scanda- lous, malicious, defamatory, and ridiculous représentation of the said Sir John in the form of a man of ludicrous and ridiculous appearance, holding a pocket handkerchief to his face, and appearing to be weeping ; and also a certain false, malicious, and ridiculous représentation of a man of ludi- crous and ridiculous appearance, foliowing the représenta- tion of Sir John, representing a man loaded with and bend- ing under the weight of three large books, one of them having the Word Baltic printed on the back thereof, and a pocket handkerchief appearing to be held in one of the hands of the said représentation of a man, and the corners thereof appearing to be held or tied together as if contain- ing something therein, with the printed word Wardrobe de- pending therefrom, for the purpose of rendering the said Sir John ridiculous, and thereby meaning that one copy of the said first-mentioned book of the said'Sir John, and two copies of the book of the said Sir John secondly above mentioned, were so heavy as to cause a man to bend under the weight thereof ; and that his, the said Sir John’s ward- robe was very small, and capable of being contained in one pocket-handkerchief.” The déclaration concluded by lay- ing, as spécial damage, that Sir John had been prevented from selling to Sir Richard Phillips, for 600Z., the copyright of a book of which the said Sir John was the author, contain- ing an account of a tour of the said Sir John through part of Scotland. (*)Lord Ellenborough, as the trial was proceeding, inti- mated an opinion, that if the book published by the défen- dant only ridiculed the plaintiff as an author, the action could not be maintained. Garrow, for the plaintiff, allôwed, that when his client came forward as an author, he subjected himself to the criticism of ail who might be disposed to discuss the 22 (*233) (*234)170 merits of his Works, but that criticism muët be fair and lib- eral ; its object ought to be to enlighten the public, and to guard them against the supposed bad tendency of a par- ticular publication presented to them, not to wound the feelings and ruin the prospects of an individu al; if ridicule was employed, it should hâve some bounds. While a liberty was granted of analyzing literary productions, and pointing out their defects, still he must be considered as a libeller, whose only object was to hold up an author to the laughter and contempt of mankind. A man with a wen upon his neck perhaps could not complain if a surgeon, in a scien- tific Work, should minutely describe it, and consider its nature and the means of*dispersing.it ; but surely he might support an action for damages against atiy one who should publish a book to màke him ridicülous on account of his infirmity, with a caricature print as a frontispiece. The object of the book published by the défendant clearly was, by means of immoderate ridicule, to prevent the sale of the plaintiff’s Works, and entirely to destroy hiin as an author. In the late case of Tabart V; Tipper,* his lordship had held, that a publication by no means (*)so offensive or préjudiciai to the object of it, was libellous and actionable. Lord Ellenborough. “ In that case, thé défendant had falsely accused the plaintiff of publishing what he had never published ; here the supposed libel has only attacked those Works ôf which Sir John Carr is the avowed author ; and one writer, in exposing the follies and errors of another, may make use of ridicule, however poignant. Ridicule is often the fittest weapon that can be employed for such a purpose. If the réputation or pecuniary interests of the persorn ridiculed suffer, it is damnum absque injuria. Where is the liberty of the press, if an action can be maintained on such principles ? Perhaps the plaintiff’s Tour through Ire- land is now unsaleable, but is he to be indemnified by re- ceiving a compensation in damages for the person who may hâve opened the eyes of the public to the bad taste and in-.. anity of his compositions ? Who would hâve bought the Works of Sir Robert Filmer, after he had been refuted by Mr. Locke ? But shall it be said, that he might hâve sus- tained an action for defamation against that great philoso- pher, who was labouring to énlighten and ameliorate man- (*235') Vid. p. 172.171 kind ] We really must not cramp observations upon authors and their works ; they should be liable to criticism, to ex- posure, and even to ridicule, if their compositions be ridicu- Jous ; otherwise, the first who writes a book on any subject will obtain a monopoly of sentiment and opinion respecting it. This would tend to the perpetuity of error. Reflection on personal character is another thing. Show me an attack on the moral character of the plaintiff, or any attack upon his character (*)unconnected with his authorship, and I shall be as ready as any judge who ever sat here to protect him ; but I cannot hear of malice on account of turning his works into ridicule.” The Counsel for the plaintiff still complaining of the un- fairness of this publication, and particularly of the print affix- ed to it, the trial proceeded. The Attorney-general having addressed the jury on the behalf of the défendants, Lord Ellenborough said, every man who publishes a book commits himself to the judgment of the public, and any one may comment upon his performance. If the commentator does not step aside from the work, or introduce fiction for the purpose of condemnation, he exercises a fair and legiti- mate right. In thé présent case, had the party writing the criticism foliowed the plaintiff into domestic life for the pur- poses of slander, that would hâve been libellous ; but no passage of this sort has been produced, and even the carica- ture does not affect the plaintiff, except as the author of the book which is ridiculed. The works of this gentleman may, for aught I know, be very valuable ; but, whatever their merits, others hâve a right to pass their judgment upon them,—to censure them if they be censurable, and to turn them into ridicule if they be ridiculous. The critic does a great service to the public, who writes down any vapid or useless publication, such as ought never to bave appeared. He checks the dissémination of bad taste, and prevents peo- ple wasting both their time and money upon trash.-—l .speajc of fair and candid criticism ; and this every one basa right to publish, altho.ugh the author may suffer loss from it. Buch a loss the law does not consider as an injury, (*)be- cause it is a loss which the party ought to sustain. It is, in short, the loss of famé and profits to which he was never entitled. 66 Nothing can be coneeived more threatening to the liber- (*236) (*237)172 ty of the press than the species of action before tlie court. We ought to resist an attempt against free and liberal criti- cism atthe threshold.” The Chief Justice concluded by directing the jury, that if the writer of the publication com- plained of, had not travelled out of the work he criticised for the purpose of slarider, the action would not lie ; but if they could discover in it any thing personalîy slanderous against the plaintiff, unconnected with the works he had given to the public, in that case he had a good cause of action, and they would award him damages accordingly.— Verdict for the défendant. In the case of Tabart v. Tipper, alluded to in the prece- ding one,* the action was brought for a libel on the plaintiff, contained in a periodical work called “ The Satirist, or Monthly Meteor,” insinuating that the plaintiff (who was a vender of children’s books) had published and vended books of an improper and immoral tendency. Upôn the question, whether a witness ought to be cross- examined as to the defendant’s having published particular books, Lord Ellenborough observed, “ The main question here is, quo animo the défendant published the article complained of ; whether he meant to put down a nuisance to public morals, or to préjudice the plaintiff. To ascertain this, it is material to know the general nature of the défendantes pub- lications to (*)which the libel àlludes, and I therefore think that the evidence is receivable. The plaintiff is bound to show that the défendant was actuated by malice, and the défendant discharges himself by proving the contrary. Lib- erty of criticism must be allowed, or we sliould neither hâve purity of taste nor of morals. Fair discussion is essentially necessary to the truth of history and the advancement of science. That publication, therefore, I shall never consider as a libel, which bas for its object not to injure the réputa- tion of any individual, but to correct misrepresentations of fact, to réfuté sophistical reasoning, to expose a vicions taste in literature, or to censure what is hostile to morality.” But in the same case it appeared that the libel falsely iin- puted to the plaintiff the publication of some silly verses of an improper tendency, which were specified in the libel, and set forth in the information ; and it was allowed on the * t Camp. R. 350. (*238) 173 part of the défendant, that the plaintiff had not published thein, but it was contended that they were a fair specimen of his publications. Lord Ellenborough, however, informed the jury, that it was certainly actionable, gravely to impute to a bookseller having published a poem of this sort, to which he was a stranger ; as the évident tendency of the unfounded impu- tation was to hurt him in his business. In the case of Heriot v. Stuart,* it was held that no ac- tion was maintainable for asserting in a newspaper that anotlier public paper was the most vulgar, ignorant, and scurrilous journal ever published in Great Britain. But subséquent words, alleging that (*)it was the lowest paper in circulation, were deemed actionable, since they affected the sale and thé profits to be made by advertising. In the case of Dibdin v. Bostock,f which was an action for publishing a paragraph in a newspaper, stating that the songs at a place of public entertainment were not of the plaintiff rs composition, as they professed to be, and repre- senting the performances as despicable, and as gaining no applausé except from persons hired for the purpose. Lord Kenyon observed, “ The editor of a public newspaper may fairly and candidly comment on àny place or species of pub- lic entertainment, but itmust be done fairly, and without malice or view to injure or préjudice the proprietor in the eyes of the public ; if so done, however severe the censure, the justice of it screens the editor from legal animadversion : but if it can be proved that the comment is unjust, is ma- le volent, or exceeding the bounds of fair opinion, it is a libel, and actionable.” * 1 Esp. Rep. 437. f 1 Esp. R. 29. (*239)174 (*)CHAPTER XV. Where the Défendant9s Act is unexplained. Where the mere naked words, unwarranted by the situ- ation of the publisher, or the occasion of the publication, constitute the only circumstance from which the motive of the party using them can be inferred,* the law necessarily collects an evil intention from the mischievous tendency of the act, and in the absence of a justifiable cause, supposes the défendant to hâve had that end in view to which the means used were adapted, namely, the injury to the plain- tiff ’s character or property. The presumption is, however, nothing more than a rule of evidence, f that malice shall be inferred from the unex- plained act of the défendant ; an inference which is, never- theless, fiable to be rebutted by evidence showing that no malice really existed. The plaintiff brought an action against one, for saying of him that he heard he was hanged for stealing of a horse ; and, upon the evidence, it appeared that the words were spoken in grief and sorrow for the news. Twysden, J. cit- ed this as a case which he heard tried before Hobart, J. who nonsuited the (*)plaintiff, because the words were not spoken maliciously. And ail the court agreed that this was done according to law.j: In the King v. Lord Abingdon,§ Lord Kenyon observed, “ In order to constitute a libel, the mind must be in fault, and show a malicious intention to defame ; for, if published inadvertently, it would not be a libel ; but where a libellous publication is unexplained by any evidence, the jury should * See Lord Mansfield’s opinion, in K. v. Woodfall, and K. v. Almon. 5 Burr. f The King v. Lord Abingdon, 1 Esp. Rep. 226. t Lev. 82. Mich. 14. C. 2. B. R. 1 Vin. Abr. 540. § 1 Esp. Rep. 228. (*240) (*241)175 judge from the ôvert act ; and where the publication con- tains a charge slanderous in its nature, should from thence infer that the publication was malicious. And a wanton disregard of the feelings and interests of others, is, in point of law as well as morality, équivalent to express malice ; so that it is no defence for the publisher of a libel to say that he was but in jest ; for, as has been well observed by a learned writer, the mischief to the réputation of the party* grieved is in no ways lessened by the merri- ment of him who makes so light of it ; and it might, with equal regard to gravity and good sense, be contended, that a man who cuts the throat of another is not guilty of murder, because he takes a sanguinary delight in the operation ; as, that a man’s intentions are not wrongful and malicious when he destroys another’s réputation, because the actf of destruction gives him pleasure. Where a libel upon the character of an individual not intended to be published, is nevertheless, through négli- gence or accident, made public, to the détriment (*)of the party, it seems that the act of the person who composed the libel would be in law a wrong, though the contents should ultimately become public through inadvertence, since he had no right, in the first instance, to trust the inter est of another to chance, and render his character dépendent upon acci- dent; and therefore, by so doing, encumbered himself with at least the civil conséquences which might afterward ensue from an involuntary publication. The legal principie upon which this responsibility is found- ed is clearly delivered in Mr. Buller’s Law of Nisi Prius4 “ Every man ought to take reasonable care that he does not injure his neighbour ; therefore, whenever a man receives any hurt through the default of another, though the sarae were not wilful, yet, if it be occasioned by négligence or folly, the law gives him an action to recover damages for the injury so sustained.” This principle comprehends not only the instance just mentioned, where a writing not intended to be published, is divulged for want of proper care, but every case in which a noxious publication proceeds from mere levity or thought- * Haw. PI. C. c. 73. f 9 Co. 59. Moor, 627. Haw. P. C. c. 73. s. 14. î B. N. P. 25. (*242)176 less jocularity ; for though the actual intention to produce mischief might not at the moment actually influence the mind of the défendant, the act is attended with that criminaî inattention to conséquences which constitutes malice in its legal sense, and in justice renders the party responsible for the détriment so occasioned.177 (*)CHAPTER XVI. Process. Next are to be considered the means appointed by law for obtainîng such damage where the party is entitled ; and the means of defence where a party sues who is not so en- titled. The division of these proceedings is naturally suggested by the order in which they occur in point of time, and con- sist of, the process, pleadings, trial, judgment, and writs of error ; to which may be added, the writ of prohibition. Of the Process.—-The action to recover damages for slan- der, whether oral or written, is a spécial action on the case ; in which, since the damages are uncertain, the party can- not be held to bail without a spécial order of the court, or of a judge, on a full affidavit of the circumstances,* and no instance appears in the books in which such an order, in a common case, has been granted. Even in an action of scandalum magnatum, the court has denied an application for good bail ; in the Marquis of Dorchester’s casef the défendant agreed to put in bail to the amount of 50Z. (*)In the EarlofMacclesfield?scase,| the plaintiff desired that the défendant might put in spécial bail ; but the court would not grant it, and said, it was a discretionary thing, and not to be demanded of right.(81) * 1 Tidd. P. 150, ed. 4. f 2 Mod. 215. X 3 Mod. 41. (81) See Norton v. Bârnum, 20 J. R. 337. Clason v. Goulcl, 2 Gaines, 47. Van Vechten v. Hopkins, 2 J. R. 293. In South Carolina, it is a corn- 23 ' (*243) (*244)178 And it seems that the court will, in no case, aliow spécial bail, unless affidavit be made of the words spoken.*(82) *3 Mod. 41. mon practice, to hold the party to bail, upon a charge of slander. Pearson v. Pichet, 1 M’Cord, 473. In Pennsylvania it is the course of the court to hold to bail, in slander, if theplaintiff swear to spécial damage. Charles v. Holmes, 1 Browne, 297. And unless spécial damage be shewn, or the charge be of a crime of a gross nature, the défendant will be discharged on common bail. M’Cawley y. Smith, 4Yeates, 193. In Louisana, bail will not be ordered on the affidavit of the plaintiff j the facts on which such order can be jus- tified, must be established by indiffèrent witnesses. Folk v. Solis, 1 Martins L. R. 64. , (82) In an affidavit to hold to bail, in slander, the words spoken must be alleged to be faJ#c. Pearson v. Pickth179 (*)CHAPTER XVII. Of the Venue. Ït isnexttobe considered what there is peculiar to the pleadings in an action for slander : Observations upon the déclaration relate to the venue, the parties, the averments, and the joinder of different counts. First, to the Venue.—In general, the venue in an action of this nature may be changed upon the usual affidavit, where that affidavit can be made with propriety. But where* a libel, written or printed in one county, is circu- lated in others, the court will not change the venue to the first ; for, since every publication is a fresh offence, the de- fendant cannot swear that the cause of action was confined to any one county. f (83) But where a libel is written in one place, and send to another in the same county, the court will change the venue.:}: So, where the libel is written in one county and published in Germany, the défendant may change (*)the yenue, upon an affidavit that the cause of action arose in that county, and not elsewheré in this kingdom.§ And in the case of Freeman v. Norris,|| the distinction was * Hoskins v. Ridgway, H. 23 G. 3. K. B. Pinkney v. Collins, 1 T. R. 571. 1 Wils. 178. 1 T. R. 647. 1 Clissold v. Clissold, 1 T. R. 647. 1 Wils. 178. j Freeman v. Norris, 3 T. R. 306. § 3 T. R. 652. Metcalf v. Markham. || 3 T. R. 306. (83) See Root y» King, 4 Cowen, 403, 409, 406. Clintm v. Croswell, 2 Caines, 245. Nicholson v. Lothrop, 3 J. R. 138. Thomas v. Rumsey, 6 J. R, 26. (*245) (*246). 180 recognised between libels dispersed thrôughout the kingdom and those which are published in one county only. So that, where the libel is printed in one county and pub- lishecl in a second, the venue, if laid in the second, cannot be changed ; for the ’ publication in the latter county, is the act of the défendant, and he cannot make the usual affidavit. But the court will otherwise change the venue where spé- cial ground is laid. As if the défendant cannot havç a fair trial in the origi- nal county.* But in an action for scandalüm magnatum, it seems the venue cannot be changed upon the usual affidavit ; and the reason assigned is, that the scandai raised of a peer of the realm reflects upon him throughout the kingdom.f In the case of Lord Shaftesbury above alluded to, the venue was changed on the ground that the défendant could not hâve a fair trial in London where the venue was laid. In the Marquis of Dorchester’s case,^ on a motion to change the venue, which had been laid in London, Pember- ton, Serg. showed cause against the motion. ïst. Because the king was a party to the suit, for it is, (*)2dly. Because the plaintiff was alord of parliament, where his services would be required. North, C. J. wâs of opin- ion that the venue could not be changed, since the proceed- ing was in the nature of an information. But Atkins, J. in- clined to think that the venue might be changed ; but the court not agreeing, the défendant consented that the cause should be tried in London, and the venue was not chang- ed. But it seems that generally, unless spécial ground be laid for changing it, the plaintiff in scandalüm magnatum may re- tain his venue. § Formerly, in actions for slander as well as in others, wheie a local justification was pleaded, the courts observed great nicety in requiring the venue to be awarded, not only from the county, but the very place in which the justifica- tion, as stated in the plea, arose. The reasons for this were, indeed, frequently stronger in these actions than in other in- * Lord Shaftesbury’s case, 1 Vent. 364. f Gil. Ç. Pi 90. J2Mod.216. § Duke of Norfolk v. Alderton, 2 Salk. 668. 1 Lev. 56. 307.1 Vent. 364. (*247)181 stances, since where the truth of a criminal charge is plead- ed in justification, the issue partakes of the nature of a crim- inal process ; and it is said, that upon its being found against the plaintiff, he is liable to be tried by a petty jury without further inquest. In the case of Ford v. Brooke,* * * § which was an action for calling the plaintiff a perjured person at D. in Essex ; the défendant justified, averring that the défendant had perjured himself at Westminster in the county of Middlesex ; the plaintiff replied, de injuria, &c. and the court awarded the venire to be directed to the sheriff of Middlesex. (*)So, in an action for calling the plaintiff a thief, at Dale, in Essex, the défendant pleaded that the plaintiff had com- mitted a robbery at Sale, in the same county ; and issue be- ing joined upon that fact, the court awarded the venire from Sale.f And a misdirection of the venire was a good ground for arresting or setting aside the judgment, though the court would in such case, award a new venire. But the law upon this point is altered by the statutes 16 & 17 C. 2. c. 8. and 4 Ann, c. 16. s. 6. ; the former of which enâcts, that after verdict, no judgment shall be arrested or reversed, for that there is no right venue, so as the cause of action were tried by a jury of the proper county or place where the action was laid : and the latter directs that the venire shall be awarded out of the body of the county where such issue is triable. j: In Craft v. Boite,§ the words were, “ Look, there is a thievish young rogue, he hath stolen 200Z. worth of plate outof Wadham College,” (meaning Wadham College, in the university of Oxford.) The plaintiff brought his action in London; the défendant justified the words, because he said that the plaintiff at Oxford, in the county of Oxford, stole certain plate out of Wadham College ; the plaintiff pleaded de injuria, &c. ; and the issue was tried in London, where the plaintiff had a verdict with 50Z. damages. Saunders, for the plaintiff, moved in arrest of judgment, on the ground of the mistrial, but the court (*) (against the * Cro. Eliz. 261. t Clerk v. James, Çro. Eliz. 870. See also Bowyer’s case, Cro. Eliz. t See Serg. Williams’s note, 2 Saund. 5, § 1 Saund. 241. (*248) (*249)182 opinion of Twisden) conceivedthat the fault was cured by the statute which had lately passed.* And this, which ap- pears to be the first decision under the act, has since been acquiesced in. ♦1S&17C.2.183 (*)CHAPTER XVIII. Gf the Parties. Parties.—First, as to the number of plaintiffs. In this species of action, as well as in other cases of tort, two or more may join where their joint interest has been affected by the act of the défendant.* So that, where a libel reflects upon two partners in their trade, they may join in the ac- tion, f But unless a joint interest be affected, several ac- tions should be brought, though the same words be spoken or libel published concerning two. As, where A. says to B. and C., “ You, hâve murdered D.,” B. and C. must bring several, and not joint actions.! So it seems, that two joint- tenants or coparceners may join in action of slander of their title to the estate : for, as it must be shown in the dé- claration, and proved, that the plaintiffs received some par- ticular damage by reason of the slander, the damage, even as well as their interest in the estate, is joint. § So, for the words A. or B. murdered D., either (*)A. or B. may bring a separate action, || but they cannot maintain a joint one.^f Where** joint actionable words are spoken of a husband and wife, the tort is several, and the husband alone may bring the action ; but the wife may, in such case, be joined, provided the injury be laid, as done to herself.(84) * Weller v. Baker, 2 Wils. 423. 2 Williams’s Saund. 116. a. n. 2. f Maitland v. Goldney, 2 East, 425. 3 Bos. and Pull. 150. Cook v. Batch- elor, Shepp. Ac. 53. X Cro. Car. 512. 28 H. 8. fol. 19. Dyer, Shepp. Ac. 53. Deacon’s case. § 2 Will. Saund. 117. a. U 10 Mod. 198. IT 1 JEtoll. Ab. 81. ** Smith v. Çroker, Cro. Car. 512. (84.) See EbersoU v. Kmg, 3 Bian. 555,656. (*350) (*2Ô1)-184 The case of words spoken of the wife admits of three varieties ; lst. When the words are not actionable, but attended with spécial damage. 2d. Àctionable without spécial damage. 3d. Actionable with spécial damage. In the first case, the damage resulting to the husband is the sole ground of action, and the wife must not be joined. ÀSj where the action is brought for calling the wife a bawd, per quod the husband lost his customers.* And to join the wife in such case would be bad on demurrer, in arrest of judgment, or in error. But secondly, where the words are actionable, and no spécial damage laid, the wife must be joined,t and the décla- ration conclude ad damnum ipsorum, for there the action survives ; and she must be joined:}: in an action for any slander published of her before her marriage. But thirdly, where the words spoken of the wife are ac- tionable, and spécial damage has accrued in conséquence to the husband, great perplexity has (*)arisen on the question whether the wife should be joined or omitted. The difficul- ty in this case proceeds from the circumstance of two dis- tinct causes of action being involved in one and the same transaction,—the actionable words spoken of the wife, and the spécial damage resulting to the husband. For the for- mer, the husband is not entitled to damages without making his wife a party, and the cause of action survives to her. In the latter case, the loss is several, and peculiar to the husband, and ought not, therefore, to be stated as the loss of both. Accordingly, where the husband has brought the action alone, it has been contended that he ought to hâve joined his wife in respect of the actionable words spoken of her, that at ail events the action would survive to her, and therefore that the défendant would twice make compensa- tion for the same injury. And in similar cases, when the wife has been joined, it has been argued that the joint action was improper, since the spécial damage accrued. * 1 Lev. 140. B. N. P. 7. t Grove v. Hart, Tr. 35 G. 2. B. N. P. 7. t 3 T. R. 627. 631. Com. Dig. Bar. & Fem. Roll. Ab. 347. (*252) 1 Sid. 387. Ld. Ray. 1208.185 From a review of the decisions upon this point, it appears, that the wife is not barred by the husband’s action, though the spécial damage resuit from actionable words spoken of the wife, which removes the objection to a separate action, in which he alone is entitled to recover damages. In Guy v. Livesey,* the husband alone recovered in an action of trespass for a personal injury to himself, and also for beating his wife, by meansof which he lost her society for three days. And on motion in arrest of judgment, the court held, that the action was well brought ; for the action was not brought in respect (*)of the harrn done to thefeme, but for the particular loss of the husband, for that he lost the company of his wife, which was only a damage and loss to himself, for which he should hâve the action, as a master should hâve for the loss of his servant’s service. , In Young y. Pridd,f the plaintiff brought trespass, for that the défendant assaulted, ill treated, and carried away his wife, and detained her for half a year, by means of which he lost the comfort and society which he should otherwise hâve had with his said wife. Àfter verdict and judgment for the plaintiff, error was brought in the Ëx- chequer Chamber, and assigned that the husband had brought the action for the battery of the wife, which he could not do without his wife, and had recovered damages for the battery, and therefore that the jüdgment was erro- neous. But ail the Justices and Barons held, that the hus- band in that action did not recover damages for the battery of his wife, but for the loss which he had in wanting her company. That the pter quod consortium amisit and abduc- tion of her were one entire conjoined cause of action, for which the damages were given. That for the battery, true it was that the wife ought to hâve joined to recover dam- ages, and that the verdict and judgment did not bar the wife from an action, after the death of her husband, for the bat- tery, or that she might join with her husband in another action. And judgment was affirmed. In the case of Smith v. Hixon,| it was held that the hus- band alone might maintain an actiofi for the (*)mali- cious prosecution of the wife, by iïieans of which he was * Cro. Jac. 501. |Cro. Car. 89* JStr.977. See also Hyde v. Scyssor, 8 Mocl. 26. Cro. J. 538. Fort. 377. Cro. J. 664. (*253) (*254) 24186 put to expense. After verdict for the plaintiff, upon mo- tion in arrest of judgment, grounded on the omission of the wife, the court said, that though the rëmedy for the scan- dai might survive to the wife, it was no objection to the husband’s action, and that he might undoubtedly proceed for the battery of the wife, per quod consortium amisit9 and yet the action for the beating would survive to the wife. From these cases it appears, that the husband may sepa- rately maintain an action for the damage_ resulting to himself, from a personal injury offered to the wife, for which Person- al injury they might hâve maintained a joint action, and that the right of action would survive to the wife for the inde- pendent injury done to herself. The case of actionable words spoken of the wife, producing spécial damage to the husband, seems, in ail respects, perfectly analogous to those cited ; and on their authority it may be concluded, that a husband, for such words, or rather for the damage result- ing from them, may sue without his wife. And it seems highly reasonable that the husband, in respect of the spécial damage, should be entitled to a separate action. In case the words had not been intrinsically actionable, the husband must hâve sued alone ; and it can scarcely be contended that the injurious quality of the words can compel him to alter the nature of the proceeding, to recover for the separate tort to himself, the only alteration in the case consisting in the additional mischief to the wife. Since the injuries are completely distinct, (*J there seems no reason why the remedies should not be equal- ly independent. A contrary supposition w ould involve this absurdity, by the increased virulence of the words, the plaintiff would be placed in a worse situation as to his rem- edy, since, in case of actionable words, his title to damages would become dépendent upon the life of his wife, and would be extinguished by her dying before judgment recov- ered. There are, notwithstanding, several cases in which it has been held, that where there is a proper cause of action in the wife, though spècial circumstances are added which are actionable in the husband only, the déclaration is good by husband and wife, and the additional circumstances may be considered as a mere matter of aggravation. In Cookson and his wife v. Castline,* the plaintiff brought * Cro. Eliz. 96.187 trespass for entering upon their land, making hay of their grass, and carrying it away. It was moved in arrest of judgment, that the action doth not lie by baron and feme for the hay taken, for it is a chattel severed from the inheri- tance, and vested in the baron, for which the feme shall not join with him in the action. But the clear opinion of t^e court was, that they may well join ; for as they may join in trespass de clauso fracto, and cutting their grass, so they may join for the hay coming of it ; and so it was adjudged. But Wray said, if it were for taking twenty loads of hay, without saying, coming of the same, it would he otherwise ; for-itinight be intended of hay lying upon the land before, for which they cannot join. (*)But in the case of Arundell v. Short and bis wife,* which occurred soon after, upon a judgment given in tres- pass, by baron and feme, of their close broken and corn carried away, it was assigned for error that the feme ought not to join, for she can hâve no property in the corn, and 48 Ed. 3. 18, and 9 Ed. 4. 52, were cited as in point. For the plaintiffs, Godfrey and Coke, argued, that it is in the élection of the baron to join his wife in personal actions, and it may be intended that they were joint tenants of the corn before coverture, or that the feme had it as executrix, ’ and if the writ, by any intendment, may be good, it shall not abate. Gawdy, J. said, cc the books agréé, that for personal things they cannot join, but for personal things in action, it is in the élection of the husband to join his wife or not.” And the judgment was reversed. In Russell v. Corne.f The husband and wife brought trespass and false imprisonment for the imprisonment of the wife, by means of which the domestic affairs of the husband remained undone, to the damage ofboth. After verdict for the plaintiff, it was moved in arrest of judgment, that the business of the husband remaining undone, could not be to the damage of the wife, and that for such damage, the hus- band ought to hâve brought the action alone. But it was answered, that the action being well brought and conceived for the imprisonment, what came under the per quod could only be taken in aggravation, as if words in themselves ac- * Cro. Eliz. 133. f 1 Salk. 119. Holt. R. 699. 6 Mod. 127. (*256)188 tionable be spoken of a wife, and the husband and wife (*)bring the action, and conelude per quod, &c. the husband lost his customers, it would be well, for the words being in theipselves actionable, the per quod should be taken in ag- gravation, ail which the court allowed. But Lee, C. J. is reported to hâve said, “ In a manuscript note which I hâve seen of this case in Salkeld,* Holt, C. J. $ays, ‘ I will not intend that the judge sufferedf the hus- band?s business remaining undone to be given in evidence.5” In Todd v. Redford,| the husband and wife brought a joint action against the défendant, for the assault and battery of the wife. The déclaration set forth, that the défendant assaulted Eleanor the wife, and driving a coach over her, bruised her, &c. by means of which the husband laid out money for the cure, &c. After verdict for the plaintiffs, it was moved in arrest of judgment, that the husband and wife should not hâve joined, because the damage is laid to be for the money laid out in the cure of the wife, as well as for the battery, and that entire damages having been given, it was bad for the whole. On the other side, it was contend- ed, that the tort was only to the wife, and the rest but con- sequential damage, That it was so held in Russe! v. Corne ; but, per Powell, J., where husband and wife join in an ac- tion of assault and battery for beating both, it is wrong, but it may be helped by a verdict separating the damages. Here the gist of the action is only the beating of the wife, and the ratione inde is but in aggravation of damages. The husband and wife cannot join in assault and battery, per quod consortium amisit ; for the per quod> in such a case, (*)is the gist of the action ; but in the case at bar, had the ratione inde been left out, the surgeon’s bill might hâve been given ip evidence, in aggravation of damages. And judg- ment was given for the plaintif! In these and other cases where it bas been held that the wife may join, though spécial damage be laid to the hus- band,§ it has been said that action was well brought, because the spécial damage laid under the per quod> was merely in aggravation. *119. tstr. 1094. § 1 Salk. 119. 11 Mod. 264. Yeï. 89. 6 Mod. 127. (*257) (*258) t 11 Mod. 264. 1 Roll. Rep. 360. Holt, R. 699.189 Butithas frequentîy been decided, that those circum- stances cannot be laid in aggravation for which a different appropriate action is maintainable. Thus, in trespass for entering the plaintiff’s house, the beating his wife, child, or servant, may be stated in aggravation ; but the plaintiff can- not recover damages for losing the service of his child or servant, because he is entitled to another action for that in- jury* So in trespass, for entering the plaintiff’s house and as- saut ting him,f and for assaulting and menacing his servants and children, it was moved in arrest of judgment, that the master could not maintain trespass for beating and assault- ing his servants or children, without spécial damage. But it was resolved, that the action was for the breaking and entry, and that the further description was only to show the court how enormous that trespass was. That the plaintiff could not recover damages for losing the service of his chil- dren or servants, nor .could that (*)be given in evidence, because the plaintiff might hâve a proper action for that purpose. In Dix v. JBrooks,^: the plaintiff declared that the défendant broke and entered his house, and assaulted his wife. After verdict, it was moved in arrest of judgment, that the wife should hâve joined ; that by her not joining, the défendant pays damages to the husband, and yet that the action for the assault would survive to the wife, and so the défendant would be doubly charged. And besides that, there was no laying per quod consortium amisity to entitle the baron only to sue, and to exclude the wife. But the Court said, “ the plaintiff may join that in his déclaration to aggravate dama- ges, for which he could not singly recover, and the party injured hâve his separate action, as in the common case of beating a servant, per quod servitum amisit, both master and servant may recover. And in the case of Newman v. Smith, it was held, that the plaintiff might allégé the beating of his daughter in aggravation of damages.” By these cases, those of Russell and Corne, and Todd and Redford, appear to be much shaken, since the rule of policy which restrains a plaintiff from recovering in one action for * Peake’s Ca. Ni. Pri. 46. B. N. P. 89. 1 Sid. 225. Mod. 147. 2 Salk. 642. 3 Burr. J 078. t Newman v. Smith, Salk. 642. } Str. 60. (*259)190 an injury which ought to form the subject matter of a dif- ferent and more appropriate action, applies with much more force to cases like the principal one, where different rights are affected, and another person ought to join. Upon the whole, it seems perfectly clear, that where the words spoken of the wife are actionable, and also produce spécial damage to the husband, it (*)is proper that he should sue alonefor the spécial damage, and that the action for the slander would survive to the wife. On the other hand, since the spécial damage is the subject of a spécifie appropriate action by the husband alone, it seems improper to state it in an action brought by both ; the defect, how- ever, would be aided by a verdict, excluding the spécial pré- judice, and confining the damages to the détriment* sus- tained by the wife. (85) Next, as to the Joinder of different Défendants. Where the wrongful act is the joint act of two or more, the plaintiff may proceed against them in one and the same action; as, where the slander is contained in affidavits, made by two, but so connected as to form one slanderous charge.f(86) But where two persons speak the same words, the plain- tiff must bring separate actions, for the acts are several in their nature, and the tort of one is not the tort of the other. (87) The défendants said to the plaintiff, j: “Thou hast the plate of J. S., and we charge thee with that felony.” After verdict for the plaintiff, in an action against both, judgment * 2 Mod. 66. 2 Lev. 101. 1 Lev. 3. Com. Dig. Pleader, c. 87. | 2 East, 426. J Cro. Jac. 647. (85) Slander of the husband and slander of the wife cannot be joined in one action. Ebersoll v. Krug, 3Binn. 555,556. (86) Where the publication of a libel is the joint act of two or more per- sons, they may be joined in the same action ; but if separate actions be brought against each, the plaintiff can hâve but one satisfaction, though he may elect de melioribus damnis. Thomas v. Rumsey, 6 J. R. 26- (87) See Thomas v. Rumsey, ut supra. Patten v. Gurney, 17 Mass. Rep. 186. Per Parker, Ch. J. (*260)101 was arrrested. And the case of an action for mere slan- der differs in this respect from an action for charging a plain- tiff with felony, and procuring him to be indicted ; for in the (*)latter, the act of the défendants is joint, and the plaintiff may proceed against them in the same action.* Though the husband and wife speak the same words, the plaintiff must bring different actions, and the court will not permit them to be Consolidated, for it would be error to join the wife for words spoken by the husband only, and the dé- claration*)* would be ill either upon demurrer, or in arrest of judgment.(88) But where, in an action against husband and wife for speaking of the plaintiff certain scandalous words, the jury found the husband guilty, and the wife not guilty, the plain- tiff had judgment ; for though the action ought not to hâve been brought against both, and the déclaration would hâve been held ill on demurrer, yet the verdict cures the error. | ♦B. N. P. 5. f Swithen and his Wife v. Vincent and his Wife, 3 Wils. 227. Subly v. Mott, B. N. P. 5. î 1 Roll. Abr. 781. (o) pl. 1. Sty. 349. Com. Dig. Pleader, c. 87. (88) In an action of slander, for words spoken by the husband, words spoken by the wife cannot be joined ; therefore, if slanderous words be spo- ken by the husband and wife, there must be separate actions ; çne against the husband, for words by him spoken; and another against the husband and wife, for words spoken by the wife. Penters v. Englcmd, 1 M’Cord, 114. (*261)192 (*)CHAPTER XIX. -, Of the Jlverments* The déclaration in this, as well as in every other action* consists of a clear and technical statement of the facts neces- sary to support the complainant’s suit ; so that they may be understood by the party who is ta answer them, by the jury who are to ascertain the truth of the allégations, and by the court who are to give judgment upon them.*' It has been in ail times the fashion to préfacé the legal enunciation of the plaintiff’s case, with a preliminary pane- gyric upon his character ; this is superfluous, since itdoes not affect the gist and essence of the action. A man of bad character is not to be represented as worse than he really is, and therefore is entitled to a compensation, to be measured by the excess of the scandai beyond what is really due to him. In one instance,! indeed, it appears that the plaintiff’s an- nouncing himself to be of good famé, tempted the défendant to plead that at the time of publishing the words the plaintiff was not of good famé ; but the plea was holden to (*)be bad, since it answered matter of inducement which did not require any answer.(89) * Cowp. 682. Com. Dig. Pleader, C. P. 17. Co. Litt. 383. 2 B. & P. 267. f Strachey’s case, Sty. 118. (89) Where the déclaration fora libel, after stating.the plaintiff’s good name, &c. averred,that the défendant well knowing the premises, &c. and maliciously intending to injure the plaintif^ and bring him into great scandai and disgrâce, and cause it to be believed that the plaintiff had been guilty of (*262) (*263)193 In a late case, the plaintiflf, in an action for a libel, im- puting to him seditious principles, prefaced his déclaration with a boast of the uniform loyalty of his conduct ; it ap- pear.edthathehad been.some time in confinement under the sentence of the court, for publishing a seditious libel ; and the Lord Chief Justice animadverted on the impropriety and absurdity of such a preamble. It is necessary that the déclaration should plainly and clearly exhibit the two circumstances whose concurrence is, as frequently observed, essential tp the maintenance of the action. 1. The wrongful act of the défendant. 2. The damage sustained by the plaintiff ; where it is not presumed by lawfrom.the act itself. The wrongful act of the défendant consists in his having published that which is illégal concerning the plaintiff, with a malicious intention. First, as to the act of publication. It appears that a publication in effect must be stated, though no particular form of words is required. (90) In the case of Baldwin v. Elphinstone,** it was assigned for error, that in the second count the défendant was charged with having printed the libel, and liaving caused it to be printed in the St. James’s Chronicle, but was not charged with having published it. After argument in the Exchequer Chamber, the Justices and Barons were ail of opinion (*)that the judgment ought to be afiirmed. That there are various modes of publication, and ho tephnical words are necessary to describe it ; that it is sufficient if there be stated in the déclaration such matter as amounts to a publi- cation with out using the formai term published, and the Jury are upon the evidence to décidé whether a publication be sufficiently proved or no. That, printing a libel may be an innocent act, but unless qualified by circumstances, shall prima fade be understood to be a publishing : it * 2 Bl. R. 1037. treason, and of the promulgation of treasonable sentiments, published the libel j it was held, that this was mere matter of inducement, and need mot be proved, Coleman v. Southwick, 9 J. R. 45. Eastland v. Caldwéll, 2 Bibb, 24. (90) See Grubbs v. Kyzer, 2 M’Cord, 305. 25 (*264)194 must be delivered to the compositor and other subordinate workmen. That printing in a newspaper admits no doubt upon the face of.it. The court further observed, “ It is stated that he caused to be printed. This confirms the fact of publication, because it calls in a third person as agent, to whom the libel must hâve been communicated. In short, the count does not state generally, as it might hâve done, that the libel was published, but it expresses the pàrticular mode of publication, viz. in a newspaper. It thereby puts the publication in issue, and the jury hâve found it so.” It must be observed, that this was after verdict, which was relied upon by the Court, and probably the déclaration would hâve been considered as defective upon spécial de- murrer, for not stating a publication in more expîicit terms. In this case, too, great stress was laid upon the circu in- stance that the défendant caused the libel to be printed in a newspaper, had the allégation been simply, that the défen- dant printed and caused to be printed, the libel in question, it would hâve been difficult to hâve construed it into an averment that (*)he published, since a man may print, and therefore cause to be printed, without the intervention of others. The term published is the proper and technical word to be uséd in the case of libel, without référencé to the précisé degree in which the défendant has been instrumental to such publication ; since, if he has intentionalJy lent his as- sistance to its existence for the purpose of being published, his instrumentant y is evidence to show a publication by him.* In a déclaration for words spoken, it is sufficient to aver that the défendant spoke the words in the presencef of di- vers persons, without alleging that those présent either heard or understood them, and it will be intended that they did hear and understand the words till the contrary appear. But it would be insufficient to aver that the words were spoken, without stating them to hâve been spoken in the pré- sence of some one,j: or without some averment which ne- cessarily implied a publication to a third person as that the défendant palam et publice§ promulgavit de querente. * Lamb’s case, 9 Rep. t Cro. E. 480. Ne ~ 11 -19. Cro.J.59. Cro.Car.199. t Sty. 70. (*265)195 It has been doubted whether it be sufficient to lay the words to hâve been spoken under a cumque etiam, by way of récital ;* but in the case of Mors v. Thacker,f it was de- cided, that such an allégation in an action on the case is good, though it would be otherwise in trespass. But if the words be spoken in a foreign language, an averment is necessary that the hearers understood (*)them andeven when Welsh words were averred to hâve been spoken in Monmouthshire, which once was part of Wales, judgment was arrested after verdict for the plaintiff, be- cause it was not averred that they were spoken before Welshmen or those who understood the Welsh tongue.§ In the King v, Brereton, || the indictment stated that the défendant “Scripsit fecit et publicavit, seu scribi fecit et pub- licari causavit” And judgment was arrested on account of the uncertainty of the disjunctive charge; and in a civil proceeding, such an averment would probably be considered defective, if pointed out on spécial demurrer. Next it must appear that the publication çontained illégal matter. The words or signs are either intrinsically actionable, or dérivé their illegality from collateral circumstances ; it is therefore necessary to inquire, in the lirst place, how the mere words themselves are to be stated and connected ^vith the plaintiff ; and secondly, where they are not in them- selves actionable, how they are to be connected with the col- lateral facts from which their actionable quality is dèrived. First, as to the statements of the mere words or signs ; it has long been settled in both civil and criminal cases, that the déclaration or indictment must profess to set out the very words published, and thatit is not sufficient to describe them by their sense, substance, and effect.(91) (*)It seems^f formerly to hâve been held sufficient to set * 2Mod. 41. | 2Lev. 163. | Cro. E. 496. Cro. E. 865. § Cro. Eliz. 865. || 8 Mod. 328. IT SeeHugh Pyne’s case, Cro. Car. 117, which was submitted to ail the judges for their opinion, when many indictment s for uttering traitôrous and seditious words were cited4 in many of which nothing more than the Latin translation was set out. (91) See Fox v. Vanderbeck, 5 Cowen, 513,515. Kennedy v. Lowrey, 1 Binn. 393,395. These were actions on the case for oral slander. See also, State v. Walsh, 2 M’Cord, 248 j which was an indictment for a libel. (*266) (*267)196 out the words, not in English as they w.ere delivered, but in the Latin language ; the permitting which clearly recognised the propriety of a substantial, in contradistinction to an actual and précisé statement of the very expressions used, since in many instances it would be impossible to render the expres- sions used in Latin ones perfectly synonymous. And it appears* to hâve been the opinion of Holt, C. J. in Dr. Drake’s case, that the libel mïght hâve been set forth in the information in Latin, in which case a variance, which did not change the sense, would not vitiate it. No argument can, however, be drawn from this source, in support of a substantiel, in opposition to a précisé statement, since the doctrine l>as been virtually overruled ; for if it were sufficient to Set out a Latin translation whilst the pro- ceedings were drawn in Latin, it would, on the same princi- ple, after the passing of the statutesf which direct the En- glish to be substituted for the Latin language in ail legal pro- ceedings, hâve been sufficient to set out a libel published in French or Italian meiely by an English translation. But in the case of Zenobio v. Axtell,| judgment was arrested, because a libel published in French had not been set out in the original language, but merely described by way of trans- lation. And Lord Kenyon, C. J. upon that (*)occasion observed, that from the uniform current of proceedings, it appeared that the original words should be set forth with an English translation, showing their application to the plaintitf. In the case of the Queen v. Dr. Drake,§ Holt, C. J. is reported to hâve said, “ A libel may be described either by the sense or by the words ; but by the Ghief Justice’s appli- cation of this doctrine, it appears that he did not mean that a mere description of the words by their effect would be sufficient ; for he observes, “ A libel may be described either by the sense or by the words of it, and therefore an informa- tion, chargingthat the défendant made a writing containing such words, is good, and in that case a nice exactness is not required, because it is only a description of the sense and substance of the libel ; and if the Jury find some omissions, it will be sufficient if some words be proved.” The latter expression, “if some words be proved,” clearly évincé * Holt, R. 351. § 3Salk. 224. (*268) t 3 G. 2. c. 2. and6 G. 2. c. 14. t CT. R. 162, Holt, R. 347, 349, 350, 425. 11 Mod. 95.197 that the very words, and not merely their effect, were to be set ont ; and that his Lordship meant to say, not that it is unnecessary to State the words themselves, but that they may be stated two ways, either by their ténor, in which case the pleader undertakes to set out the words with the great- est précision, and the libel given in evidence must agréé ex- actly with the one set out in the information, or by stating that the défendant made a writing containing inter alla the words set out, in which case it would be necessary to set out those only which are material, and a variance would not be fatal, unless the se use were altered. (*)In the case of Newton v. Stubbs,* the action was brought for wordsspoken, which were. set out in the déclara- tion ad tenorum et effectum sequentem ; and after verdict for the plaintif?, jüdgment was arrested, because it was not expressly alleged that the défendant spoke the very words. (92) In the case of the King v. Bearf the indictment was for composing, writing, making, and collecting severai libels in uno quorum continetur inter alia juxta tenorum et ad effectum sequentem, and the words were then set out. And it was agreed that ad effectum would of itself hâve been bad, since the court must judge of the words them- selves, and not of the construction the prosecutor puts upon them, but that the words juxta tenorum sequentem import the very words themselves.t And it was held, that the words “ ad effectum” were loose and useless words ; but that the words juxta tenorum being of a more certain and strict signification, the force of the latter was not hurt by the former, according to the maxim “ utile per inutile non vitiatur” In the saine case,| that of Lord v. Bennett was referred to, where in a spécial action upon the case against Ben- nett and others, the plaintiff declared that the défend- ants, at Saltashe, procured a false and scandalous libel * 3 Mod. 71. t 2 Salk. 417. | 1 Lord Ray. 415, (92) In Kennedy v. Lowrey, 1 Binn. 393. it was held, that the déclaration was good, though it charged the défendant with speaking, “ in substance, the following false, scandalous and defamatory words,” &c. See Nye v. Otis, 8 Mass. Rep. 122. (*269)198 against the plaintiff to be written under the form of a péti- tion, and the libei was set forth after the words continetur ad tenorem et ad effectum sequentem. Two were fouiid guilty, upon which judgment was entered for the plaintiff, and af- ter ward upon error brought in the Exchequer, (*)the judgment was affirmed, the exception taken to the words ad effectum having been overruled without considération. And Holt, C. J. said, that he then thought the judgment to bè given with too great précipitation ; but he afterward, upon great considération, had esteemed it to be very good law. And the King v. Fuller,* and the King v. Young,f were cited as authorities in point ; and the whole court were of opinion, that notwithstanding the exception, the indictment was good ; but that if it had been only ad effec- tum sequentem, it had been ill, because it had not imported that the words were the spécifie words which were in the libei. In the above case of the Queen v. Drake,| a distinction was taken between an action for a libei and one for words, and that in the latter case it would be sufficient to find the substance ; but in case of words spoken, as well as written, it has been held necessary to set out the words themselves, and that it is insuffieient to aver that the défendant spoke these words vel Ms similia.§(93) And next, the statement of the words written or spoken must correspond with the publication to be proved, (94) It has been said,|| that the strietness fonnerly observed as to proving the words preciselÿ as laid, (*)has been aban- doned, and that it is sufficient to prove the substance of them ; but, at the présent day, itseems requisite to prove * Mich. 4W.&M. t Ibid. J Holt, R. 34S, 350. § Cro. J. 159, 1 Yin. Ab. 533. pl. 1. Br. Ac. sur le cas. pl. 112. 4 Ed. 6. 4 T. R. 217. || B. N. P. 5. cites 2 Roll. Ab. 18. a. Avarillo v. Rogers, T. T. 1773. (93) A déclaration in Slander, charging the words in the alternative, viz. that the défendant uttered certain words, “ or words of the samé import,” is good after verdict. Bell v. Bugg, 4 Munf. 260. (94) See post, note (21). (*270) (*271)199 some of the words, though not ail, precisely asthey are laid, both in case of oral and written slander.(95) If the slander* be contained in words of interrogation, it must be so laid, and must not be averred to hâve been spoken affirmatively. In the case of the Lady Ratclitfe v. Shubly,f the words laid in the déclaration were, “ She is as very a thiefe as any that robbeth by the highway side.” The jury found that the défendant spoke these words, “ She is a worse thiefe than any that robbeth by the highway side.” And Wray, C. J. was of opinion, that “ as very a thief,” and “ a worse thief,” are ail one ; but Gawdy and Fenfîer, Justices, ruled that the words did not agréé with the déclaration. So, an indictment for speaking these words of a magis- trate,f “ He is a broken down justice,” is not satisfied by evidence of the words, “ You are a broken down justice.” Lord Kenyon, indeed, in this case, held at nisi prius, that it was sufficient to prove the substance of the words stated, and the défendant was found guilty ; but the point was (*)reserved, in order that a verdict ôf acquittai might be en- tered, in case the court should be of a different opinion. On motion to that effect, Buller, J. said, that there was a case in Strange, in support of his lordship’s opinion, but that it had since been overruled in Lord Mansfield’s time, and that he *2East,434. 8 T. H. 150. 4 T. R. 217. f Cro.Eliz. 224. But see Dyer, 75. J R. v. Berry, 4. T* R. 217. ‘Blisset v. Johnson, Cro. Eliz. 603, contra. (95) Fox v. Vanderbeck, 5 Cowen, 513. It is sufficient, in actions of sian- der, to prove the substance of the words alleged to hâve been spoken. • MiU 1er v. Miller, 8 J. R. 58. 2d edit. Olmsted v, Miller, 1 Wend. 506, 609. Lewis v. Few, 5 J. R. 1. Treat v. Browning, 4 Conn. Rep. 408. Kennedy v. Lowrey, 1 Binn. 393. Grubbsv, Kyzer, 2 M’Cord, 305. Nye\. Otis, 8 Mass. Rep. 122. Hersh v. Ringwalt, 3 Yeates, 508. And where the déclaration, in an action for a libel, charged the publication of a libel, without purporting to setit forth in hcec verba, proof of the publication of a libelrcontaining part of the libellous matter charged, was held sufficient to sustain the action. Metcalfer. Williams, 3 "Litt, 389. Where the déclaration, in slander, pro- fessedly sets out the libel in hcec verba, an immaterial variance, cannot be urged in arrest of judgment. Calhoun v. M'Means, 1 Nott & M’Cord, 422. (*272)200 himself had known a variety of nonsuits on the same objec- tion ; and judgment was given for the défendant.(96) So, where A..* says of B. and C. “ You hâve committed such an offence,” though B. and C. may hâve separate ac- tions, each must state the words to hâve been spoken of both. So, where the words are spokenf ironically, they must be stated as spoken, with an averment that they were spoken ironically. Where the déclaration stated these words of the plaintiff, “ He stole a sheep of his,” (innuendo of the défendant.) It was moved in arrest of judgment, that his must refer to the last antécédent, and so that the words were répugnant, for a man cannot steal his own sheep ; | but the objection was overruled. Upon the authority, howéver, of more recent cases, it seems the variance between the words his, (*)as used in the déclaration, and mine, as proved in evidence, would be a ground of nonsuit. * Cro. Car. 512. - f 11 Mod. 86. J 8 Mod. 30. (96) The rule, in actions of slander, is, that words must be proved as laid ; yet, it seems to be well established, thatit is sufficient to prove the substance of them : (see next preceding note.) But whenever the manner of speaking becomes important, that must be proved. Thus, words charged to hâve been spoken in the third person, will not be supported by words spoken in the second person ; because “ there is a différence between words spoken in a passion, to a man’s face, and deliberately behind his back.” Miller v. Miller, 8 J. R. 58, 2d edit. Wolf v. Rodifer, 1 Har. & J. 409. M'Connell v. JU’Coy, 7 Serg. & R. 223. But formerly, in Pennsylvania, and also in Kentucky, the contrary rule has been adopted. Tracy v. Hopkins, 1 Binn. 395, n. Huffman v. Shumate, 4 Bibb, 515. The weight of authority, however, is against these decisions. In accordance with the general rule, that words must be proved, substàn- tially, as laid, it has been determined, that the averment that the défendant said “ there was a collusion between A. B» and C. to make a third person swear a false oath,” &c. is not sustained by proof of his having said, “ there was a collusion between A. and B.” for the same purpose. Johnston v. Tait9 6 Binn. 121. So, if the words laid are, “he stole the goods of A.,” thé s' charge is not supported by proving the words to hâve been, “he stole the goods of B.;” because the offence is not the same in both cases. Id. Per TUghman, Ch. J. arguendo. (*273)201 Where the words laid in the déclaration,* as spoken of a surveyor, were, “ Harrison is a scoundrel ; if I would hâve found him an oven for nothing, and given him after the rate of 20/. per cent, upon the amount of the charges for work and materials, he would hâve passed my account.” The first witness called for the plaihtiff proved these words : “ Harrison is a scoundrel, and if I had allowed 20/. per cent, he would hâve passed my account.” The second witness proved the words, “ Harrison is a scoundrel, and if I had deducted 20/. per cent, he would hâve passed my account.” Lord- Ellenborough, C. J. said, that words to be actiona- ble, should be unequivocally so, and be proved as laid; but that, as the words were proved, they did not support the déclaration. The words of the déclaration were, “ If he would give me 20/. per cent.” that might mean something to himself, by which he would be himself benefited to the préjudice of his employer, but the words proved were, “ If he would allow,” or “ if he would deduct 20/. per cent.” These words might import an allowance or déduction from the plaiotiff’s bill for the benefit of his employer, and were of a different meaning and import.” Where the words are spoken, or libel published, in a foreign language, they must be set out in the (*)origijial language, otherwise the déclaration will be bad in arrest of judgment.f But it seems that an English translation of them ought likevvise to be set forth, showing their applica- tion to the plaintiff. But in an anonymous case in Hobart,| the plaintiff declared against the défendant for calling him Idoner in the Welsh tongue, and had judgment, though he did not aver that the word amounted to a charge of perjury ; and the case was cited, in which the plaintiff had judgment for the words, “ Thou art a héaler of félons,” without any aver^ ment how the words were taken ; because the court were informed, and took notice that in some counties the term healer was understood to mean a smotherer or coverer of félons. But at ail events, the more correct mode is to aver the meaning of the words in English, since, when the orginal * 4Esp. R. 218. t Zenobio v. Axtell, 6 T. R. 162. 26 | 126. (*274)202 publication is made either in a foreign language or in a dia- lect of this kingdom, their meaning ought not to rest upon mere evidence, but to appear on the record, that a correct judgment may be given upon that meaning after it has been ascertained by a jury. It may next be considered what variances between the words stated andthose proved, are fatal to the action. (97). The variance must consist either in the addition or omission of one or more words, or in the substitution of one Word for another. First, in the addition. It is not necessary, in case of verbal slander, to (*}prov& ail the words, provided such of them be proved as are mate» rial. The pîaintiff declared that the défendant said of him, “ He is a maintainer of thieves, and a strong thief.” The jury found the whole to hâve been said except the word strong, and it was adjudged for the pîaintiff.* And even where spécial damage is the gist of the action, it is sufiicient to show that the loss was sustained in consé- quence of any of the words laid in the déclaration.! But if ail the words, as laid, constitute but one charge, the whole must be proved. The déclaration stated that the défendant said of the pîaintiff, “ He is selling his coaîs at one shilling a bushel,to pocket the money, and become a.bankrupt to cheat his cre- ditors.” Upon trial, the words “ and become a bankrupt,5* were not proved, and the pîaintiff was nonsuited.j: And the reason applies with equal force in the case of libel, where the addition of a word not proved would be fatal, if it at ail affected the sense, whether the words were set out under an inter alia or ad tenorem. With respect to variances from omission, it seems in ali cases sufficient to set out the words which are material, and it is not even necessary to state words which may qualify the objectionable ones ; and in the case of libel, it may be averred in uno quorum (*)continetùr inter alia, <ÿ*c. ;§ for, if something else were added, which did in fact qualify the objectionable words, it may be given in evidence on not guilty. || * Burgis’ case, Dyei, 7ô. t Holt, R. 139.' JFlower v. Pedly, 2 Esp. R. 491. § R. v. Beare, 4 Rep. || 8 Mod. 329. (97) See ante, notes (95) (96.) (*275) (*276)203 In Sir J. Sydenham’s case,* an action was brought for these words î “If.Sir John Sydenham might hâve his will, he would kill ail the true subjects of England, and the king too ; and he is a maintainer of papistry and rebellious per- sons.” The défendant pleaded, that he spake other words, absque hoc, that he spake these. The jury find that he spoke these words : “ I think, in my conscience, if Sir John Syden- ham,” &c. and found ail the other words Verbatim, and c.onclude si super totam materiam, he spake the words forma qua the plaintiff declared, they find for the plaintiff to his damage of 160 marks, if otherwise, for the défendant. And three of the judges, Montague, C. J. Croke, and Dodder- idge, J. held, that the plaintiff was entitled to judgment, since the other words fo und were not words of exténuation or alteration of the sense of the former words, but rather enfôrced them, and that there was no cause to stay the plain* tiff’s judgment. (98) For though the plaintiff declared of more words than the défendant spake, yet he declaring truly that the défendant spake those words, upon the evidence it appears that he spake these words which are actionable, and the words added, diminish not, nor are an alteration of the sense of the words whereof he déclarés; wherefore, although the issue (*)be specially found, yet the plaintiff shall hâve judgment. The fourth judge (Houghton) was of opinion, that the omission of part of the words proved, though the sense was uiialtered, was a fatal variance. A writ of error$ was afterward brought upon this judg- ment, and one ground of error assigned was, the variance between the words declared upon and proved ; and of this opinion were Hobart, C. J. of the Common Bench, Winch, and Denham ; but Tanfield, Chief Baron, Warburton, * Cro. J. 407. t Mich, IQ, Jao. (98) In Atkinson v. Hartley, 1 M’Cord, 203; the words laid were, u you are a damned mulatto son of a bitch and thé words proved were, “ you are a damned mulatto son of a bitch,” or, you are a damned mulatto looking son of a bitch (the witnesses being doubtful which set of words were uttered by the défendant,) it was held, that the proof did not support the déclaration. (*277)204 Bromley, and Hulton, were of a contrary opinion, where- upon the judgment was affirmed. And the rule is the same with respect to written slander ; for though, in the different reports of the case of the Queen y. Drake, a distinction is made_ between cases where the libel is set outjuxta tenorem, or in hœc verba, and where it is set out under an inter alia, there seems to be littie distinction between them, since, under the latter averment, some of the words must be proved as laid, and any variation from the sense would be fatal. It is to be observed too, that the word ténor does not necessarily imply an undertaking to set out a copy of the whole publication without addition or f diminution, since, in the King v. Beare, where the point was much con- sidered, the prefatory words were, in uno quorum continetur inter alia juæta tenorem, fyc. where both inter alia and juxta tenorem were used, and (*)no objection was taken on the ground of any inconsistency in the allégation.* The reasoningof the three judges in Sir J. Sydenham’s case, applies equally to the case where the libellons part only of an offensive publication is set out; for though, on evidence, it appear that more was published than appears on the face of the indictment or déclaration, it is nevertheless true that the défendant published the part complained of as alleged, although he, at the same time, published other mat- ter. If the additional words proved be altogether unimportant, their insertion would hâve been nugatory ; if their effect be to alter the sense of the part already set out, the défendant will bave the advantage of it by giving it in evidence under the general issue. One count of a déclaration stated the words of a libel as follows : “ My sarcastic friend, by leaving out the répétition or chorus of Mons. T.’s poem, greatly injures the tout en- semble, or general and combined effect.” The words prov- ed in evidence were “ My sarcastic friend---------, by leav- ing out,” &c. And it was held by Lord Ellenborough, C. J. upon trial of the cause, that there was a material variance between the libel declared upon in that count"and the libel * See Haw. P. C. c. 46. s. 140. Leach’s C. C. L. 158.172. ; from which it appears, that in criminal cases where the descriptive term “ ténor” is «sed, a variance in thespelling of a word wili not be fatal, unless the sensé be altered. (*278)205 proved, and that the plaintiff was not entitled to recover on that count.*(99) (*)JBut though it is not necessary to state the whole of a libellous publication, yet, if the most offensive parts be se- lected, the passages which are not continuous in the origin- al must be set out so in pleading, since any alteration of the sense arising from such a new arrangement would be a ground of nonsuit.f The correct mode of setting out two selected passages in the same count, is by saying, “ In a certain part of which said Jibel there was and is contained, &c. and in a certain other part of which said libel there was and is contain- ed,” &c. With respect to the alteration of a single letter, the rule seems to be, that if the sense be thereby altered, the vari- ance will be fatal, but not otherwise.KlOO) Provided the sense be not altered, the variance is not ma- terial even in an indictment for perjury. In the case of the Kingv. Beech,§ a variance was relied upon in favour of the prisoner between thé indictment for perjury and the af- fidavit on which the prosecution was founded. In the affidavit, the défendant swore that he.understood and be- lieved, &c. The assignment of perjury in the indictment was, that he had falsely sworn that he undertood and be- lieved, &c. omitting the letter s. Lord Mansfield—“ This is an application for a new trial in an indictment for perjury, upon the ground of a material variance between the affidavit and the indictment, the let- ter s being left out in the word understood. We hâve looked into ail the cases on the subject, some of which go to a (*)great length Of nicety indeed, particularly the case in Hutton, where the word indicari was written for indictari, * Tabart v. Tipper, Camp. N. P. 350. f 1 Camp. N. P. C. 353. | 3 Salk. 224. , § Leach C. C. L. 158. (99) See Tillotson v. Cheetham, 3 J. R. 56. Southwickv. Stevens, 10 J. R. 443. Lewis v. Few, 5 J. R. 1. Treat v. Browning, 4 Conn. Rep. 408. Fox v Vanderbecky 5 Cowen, 513. Stanfield v. Boyer, 6 Har. & J. 248. Olmstead v. Miller, 1 Wend. 506. Jitkinson v. Hartley, 1 M’Cord, 203. Johnson v. Tait, 6 Binn, 121. State v. Walsh, 2 M’Cord, 248. (100) See State v. Coffey, 2 Tayl. 272 ; and also, the cases referred to in the next preceding note. (*279) (*280)206 but that case is shaken by the doctrine laid down in Haw- kins.* “The true distinction seems to be taken in the Queen v. Drake,t which is this ; that where the omission or addition of a letter does not change the word, so as to make it an- other word, the variance is not material.”:j:(101) If the omission even of a letter render a word of a differ- ent signification from that contained in the libel, the vari- ance, it seems, will be fatal.§ As, when the word not was stated instead of nor;(102) for it was said, if in such a case a letter could be amended, why not â word, why not a sentence, and where would the non ultra be found ; that this was not so small a variance of a letter, as in false spelling or abbreviations, as if gaine in- stead of gain, where the word and sense would be the same ; but that, in the principal case, the words were different and of different significations, different parts of speech, the one an adverb, the other a conjunction, the one positive, the other relative. It was observed too, that though the objec- tion was in appearance trivial, the conséquences were weighty ; and that if the variance were not considered as fatal, the judges would hâve too great power in cases of trea- son, where the decision would be quotèd as a precedent. (*)Next it is to be considered whether the words are, upon the facé of them, illégal, or require the aid of some extrinsic circumstances to explain their quality. It may be laid down as a general rule, that where the slanderous charge or imputation can be collected from the words themselves, itis un- necessary to make any averment as to circumstances, to whose supposed existence the words refer. For the slander, which is the ground of proceeding,' appearing on the very face of the publication, it is a matter of indifférence as to the cause “of action, whether the circumstances referred to really exist- ed, or were invented by the défendant. In the latter case, indeed, the moral guilt of the slanderer may be enhanced in proportion to his wanton disregard of truth ; but it would * 2 Hawk. PI. C. c. 46. s. 190. f Salk. 660. | See Hart’s case, Leach, O. C. L. 172. Douglas, 194. § 3 Salk. 224. (101) See the cases referred to in note (99), ante. (102) See State v. Walsh, 2 M’Cord, 24S. (*281)207 be unreasonable on that accountto impose upon the plaintifF in any case, the difficulty of proving either the truth or falsi- ty of the facts presumed by the défendant. (103) Thus, when a person says of another,* “That is the man who killed my husband,” no averment of the husband’s death is necessary, for the defendant’s words hâve ascertain- ed the death. The défendant said to the plaintifF,f “ Thou hast given J. S. 9Z. for forswearing himself in chancery, and hast hired him to forge a bond.” After verdict for the plaintifF, it was moved in arrest of judgment, that the déclaration contained no allégation that any suit was in chancery, or that J. S. forswore himself in his answer, or as a witness, or that the plaintifF suborned J. S. to forswear himself, or show any particular (*)wherein he forswore himself. But it was held that these averments were immaterial ; for if J. S. never was sworn, it was scandalous in the défendant to say that the plaintifF procured J. S. to forswear himself in a court of record, although it was merelÿ false, because he never was sworn. And that as to the bond* though it was not said that J. S. had forged a bond, the charge against the plaintifF was nev- ertheless scandalous. In an action for these words,| “ Thou hast killed thy master’s cook.” On motion in arrest of .judgment, it was held un necessary to make any averment, showing who the plaintifF’s. master.;wàs, or that he was the master of the per- son slain, because the words in themselves imputed slander; In Wilner v. Hold, the words were, “ Thou art a rogue and a rascal, and hast killed thy wife.” On motion in arrest of judgment, among other causes, it was alleged that an action lay not for the words, because it was not shown that the wife was dead, or how she was killed ; but the objections were overruled,§ and the plaintifF had judgment. There are, notwithstanding, many cases in the books where averments of the kind hâve been deemed indispensa- ble ; but since these are contradicted by the more modem * Button y. Heywood and his Wife, 8 Mod. 24. Vent. 117. t Gro.Car.337. J Cooper v. Smith, Cro. J. 423. § See 1 Vin. Ab. 513. pl. 1, 2. (103) See Nye v. Otis, 8 Mass. Rep.'122. (*282)£08 decisions,* and are rather remarkable for their subtlety than for either convenience or consistency, it would be a waste of time to take further notice of them than by citing a few specimens. ^ After verdict for the words, “ Thou art as arrant a thief as any is in England,”f it was held, in arrest (*)of judg- ment, that the words were not actionable, for want of an averment that there was any thief in England. After verdict for the words, “ Thou art a murtherer, for thou art the fellow that did kill Mr. Sydnam’s man,” judg- ment was reversed, for want of an averment that any of Mr. Sydnam’s men had been slain. % And where the words of the défendant are general, no explan- ation is hecessary to render them more particyldr. The defendant§ charged the plaintiff with having for- sworn himself in his answer to a bill in chancery. After verdict for the plaintiff, it was moved in arrest of judgment, that the particulars of the perjury imputed were not poihted out in the déclaration, and that many indictments for perju- ry had been quashed, for not showing the perjury to hâve been in a material point. But the court held, that though indictments ought to show the cause of perjury, yet, that in an action for. words which is grounded upon the speech of another, the charge cannot be enlarged farther than the oth- er spoke.(104) Next, with respect to the connexion of the words with the plaintiff, where they are intrinsically actionable, and with extrinsic circumstances, when such are necessary to make the actionable quality apparent on the face of the record. Formerly it was the practice to aver that the défendant spoke the words in a certain discourse which (*)he had with others, or with the plaintiff himself in the presence of others, concerning the plaintiff. This was technically called lay- ing a colloquium, and till the case of Smith v. Ward,|| it seems to hâve been doubted whether a déclaration without * Peake v. Oldham, Cowp. 275. f Foster v. Browning, Cro. J. 687. X Barons v. Bail, Cro J. 331.—See a conjecture upon the original reason ofthis scrupulous nieety,p. 8t. § Sir R. Snowde v.----, Cro. Car. 321. || Cro. Jac. 674. 3 Salk. 328. Sir T. Ray. 85. 104 Miller v Miller, 8 J. R. 59.2d. edit. Per curiam. (*283) (*284)209 a colloquium would be good. In that case, it was alleged that the défendant said of the plaintiff, “ He (innuendo the plaintiff) is a thief and the court, on being informed that it was the common course to déclaré that he sàidde prœfa- to querente hœc verba, held it to be sufficient without a collo- quium. But though the custom was to lay a colloquium, it was always held necessary to aver that the words were spoken concerning the plaintiff. Where actionable words are spoken to a plaintiff, it is sufficient to lay a colloquium with him without an ex- press averment that thé words were spoken de querente; sinee it cannot but be intended that the words were spoken to him with whom the conversation is alleged to hâve been had.* But where actionable words are spoken in the third per- son, as, “ He is a thief though a colloquium of the plain- tiff be laid, it is necessary to aver that the words were spok- en concerning the plaintiff. f ( 10 5 ) And it is not sufficient in such case to connect the words with the plaintiff by means of an innuendo. 1(106) (*)But where a colloquium is laid, and there is an innuendo of the plaintiff, it seems the want of a direct averment must be pointed out by spécial demurrer, and that it will be in- tended after verdict, or upon general demurrer, that the words were spoken of the plaintiff, but that where no com- munication is laid concerning the plaintiff, the omission of such an averment§ is fatal to the déclaration. Where the person slandered is pointed out by the prefa- tory words thy son, thy brother, &c. or my son, my brother, which description may possibly apply to several, from the * Roll. Ab. 85. pl. 8. 1 Will. Saun. 242. (a) n. 3. f Roll. Ab. 85.1. 80. 1 Sid. 62. 1 Com. Dig. tit. Defam. G. 7. î Cro. J. 126. § 9 Roll. R* 244. Skutt v. Hawkins, 1 Will. Saun. 242. a. n. 3. (105) See Brown v. Lamberton, 2 Binn. 34,37. (106) Lindsey v. Smith, 7 J. R. 359. Cavev. Shelor, 2 Munf. 193. Van Vechten v. Hopkins, 5 J. R. 211. Bloss v. Tobey, 2 Pick. 320, 327. Càldwell v. Mbey, Harden, 529, 530. Shaffer v. Kintzer, 1 Binn. 537, 542. M'Clurg v. Ross, 5 Binn. 218. ' M’Claughry v. Wetmore, 6 J. R, 83. 27 (*285)210 current decisions it seems, that the plaintiff rnust aver that he stood in the described relation, and that he was the son or the brother of the person addressed in the former case, or of the speaker in the latter, and that a general allégation that the words were spoken of and concerning the plaintiff is. insufficient. *(107) -y So, where the words were, “ Go, tell my landlord (innu- endo the plaintiff,) he is a thief.”f Judgment was given against the plaintiff, for not having averred that he was the landlord of the défendant, although he had averred that the words were spoken of him self. And it is not sufficient to bring the plaintiff within the description by means of an in- nuendo4(107) And even where the description could by possibility apply to one person only, it has been held that an averment is necessary, to show that it was applied to him. (108) (*)The plaintiff declared that the défendant having a dis- course concerning the plaintiff with divers other persons, said these words of the plaintiff, “Your father (meaning the plaintiff) hath struck and killed Nicholas Russell.” And after verdict for the plaintiff, judgment was arrested, because it was not averred that the plaintiff was father to him to whom the words were spoken. § In Shalmer v. Foster,|| the déclaration stated, that “ The wife of the défendant spake of the foresaid plaintiff to Ann Rochester, the plaintiff’s mother, these words, “ Where is that lying thief, thy sonne? &c.” And it was moved in arrest of judgment, that the words were uncertain, no pre- cedent communication being alleged to be of the plaintiff, nor that he was the only son of the said Ann Rochester, to whom the words were spoken, and that it might be that she had divers sons, and every of them might hâve an action as * 1 Roll. 84.1. 15.30. 50. 85. 1.45. Cro. Car. 443. Jon. 376. Cro. Eliz. 416, even after verdict. t Cro. Car. 420. J Delamore v. Heskins, Hill. 11 Car. K. B. 1 Vin. Ab. 528. § Hil. 1652. Roi. 1037. 1 Vin. Ab. 530. Golds. 187. Cro. Eliz. 416. 439. Cro. Car. 92. 173. Mo. 365. Il Cro. Car. 177. But seeCro. J. 107. (107) See Gidney v. Blake, 11 J. R. 54. (108) See the cases referred to in note (106) ante. (*286)211 well as the plaintiff, and that there was an ambiguity who was meant by the words. And Whiteloek and Croke were of that opinion ; and the latter cited the cases of Harvey and Chamberlain,* and of Burnet and Codman,f where for such words it was adjudged for the défendant. But Hyde C. J. and Jones, J. doubted there of, becau se it was alleged that she spoke of the plaintiff, and was found guilty. But it was answeréd, that so were the words in every déclaration, and that so it was in the precedents cited. | (*)At this day, after so many of the technical niceties, with which actions of this description were formerly encum- bered, hâve been defeated, it may well be doubted whether much attention would be paid to these cases. The real end and object of such averments is, to show with certainty that the plaintiff is the person aiméd at by the défendant ; and though, upon the face of the words themselves, their appli- cation may be ambiguous, as where the défendant says, thy son, or thy brother, yet there appears no want of cer- tainty upon the record, when it is alleged that the words were spoken of the plaintiff ; and whether they were so applied or not, is a matter of evidence, to be proved by showing that he did stand in the relation specified, and with- out due proof of which the jury could not possibly find the truth of the averment that the w ords were spoken concern- ing him. Considering, however, the great number of express deci- sions upon this subject, it would not be prudent to omit a spécial averment. Where the description may apply to several persons, as brothers or sons, it is unnecessary for the plaintiff to aver, that he was the only brother or only son, so as to make it appear that the description applied to himself exclusively. This objection, however, appears to hâve been frequently taken ; and in Wiseman v. Wiseman,§ where the défend- ant spoke the words de prœfâto querente existente fratre smo naturali, on motion in arrest of judgment, it was held by Yelverton, J. that thé words were too uncertain ; that words, to be actionable, ought to (*)import in themselves pré- cisé slander without ambiguity, so that every one who heard * E. T. 20 J. 1. t T. T. 5 J. 1. § Cro. J. 107. j: The court adjôurned. (*287) (*288)212 them might intend of whom they were spoken ; for other- wise, if it could be helped by the averment of the plaintiff, everÿ one who was his brother might make the same aver- ment and hâve an action, which would not be reasonable. But it was afterward adjudged, by ail the judges, for the plaintiff. (109) A distinction was taken in thelast case by Tanfield, J., between words importing in themselves apparent uncertainty, and those which might be ascertained bÿ intendment. That, in the first case, no averment would aid the uncer- tainty, but that in the latter, it might be aided by an aver- ment and verdict ; and therefore, if the words had been “ one of my brothers is perjured,” there would be in them an apparent uncertainty; and that, although, one of the brothers should bring the action, and aver that they were spoken of him, yet that because it appeared to the court that there were divers brethren, and that it did not âppear to any of whom he spake, no action would lie, although the défendant should be found guilty by verdict. But it has since been held,* that for disjunctive words, as that A. or B. committed such a felony, both A. and B. are entitled to recover, and it would probably nôw be de- cided upon the same principle, that in the case put by the learned Judge, each brother would be allowed to maintain his action. (*)When the plaintiff’s name is mentioned, though a fur- ther description be given,f the general averment is sufficient, without a spécial allégation that such further description applied to the plaintiff. As, where the speaking is alleged to be of the plaintiff, and the words are stated, “ T. (innu- endo the plaintiff) is thy brother, &c.” it is sufficient without any other averment. In Nelson v. Smith,| the words were, “Captain Nelson is a rogue and a thief, and hath stolen away my goods;” and it was held, that the déclaration was good without any averment that he was a captain, or known by that name, * Harrison y. Thornborough, 10 Mod. 196. f Cro. Eliz. 429. t 22 C. 1. B. R. See also Osborne v. Brookes, 1 Vin. Ab. 529. 1 Roll. Ab. 85. (109.) See Gedney v. Blake, 11 J. R. 54. (*289)213 inasmuch as there was a communication of the plaintiff, and it was averred that the words were spoken of him. The general rule is* * * § that where the party can show that he was intended by the défendant, he may maintain an ac- tion, whatever be the mode of description. Tlius, for the words, “The parson of Dale is athief;” it was held that he who was parson of Dale at the time the words were spoken might maintain an action.* The défendant said,f “ That murderous knave Strough- ton lay in wait to murder me and the action brought by Thomas Stroughton was held maintainable. When the actionable quality is derived from explanatory cir- cumstances extrinsic of the words, the connexion with those cir- cumstances must appear. . . \ (*)The technical mode of effecting this is, by first stating in the introductory part of the declaratiofi those extrinsic facts by reference to which the words complained of become actionable ; secondly, averring that the words related to those facts by laying a colloquium, as it is usually termed ; and thirdly, connecting, by averments called innuendos, such parts of the publication as want explanation, with the introductory facts previously exhibted upon the record. By this process, the extrinsic facts incorporated, as it were, in the defendant’s publication, become an intégral part of the plaintifPs case, and the whole forms one entire slander- ous charge upon the face of the record. The nature and certainty of these two kinds of averments are next to be considered. First, of the colloquium^ or general averment, connect- ing the whole of the publication with the introductory facts. Where the words are actionable, as affecting the plaintiff in a spécial character, an averment that they were applied to him in that particular character is necessary,§ unless that application necessarily appear from the words them- selves ; in which case, the general allégation that they were spoken concerning the plaintiff, is sufficient. * 3 Buis. 326. f Shepp. Ac. 59. J To avoid circumlocution, the terni colloquium is used, notinits strict, but in its technical sense, to signify this general averment. § Savage v. Robery, 2 Salk. 694. Savile v. Jardine, 2 H. Bl. 531. Bur- net v. Wells, 12 Mod. 420. Str. 1169. 3 Salk, 326. Ld. Ray. 610. 8 Mod. 271. Gro. Car. 417. (*290)214 The défendant said of a tradesman,* “ He is a sorry pitiful fellow, and a rogue, he compounded his (*)debts at five shillings in the pound and the déclaration was held good, without an express colloquium of the trade.(llO) So, where the words published of a tradesmanf were, “ Hâve a cave of him, do not deal with him, he is a cheat, and will cheat you ; he has cheated ail the farmers at Epping, and dares not show his face there, and now he is corne to cheat at Hatfield.” And the court said, the words themselves supply a colloquium, they appear to be spoken of his trade. So, where the words spoken of a justice of the peace were, “ I hâve been often with Sir John Isham for justice, but could never get any thing at his hands but injustice it was held that the words were actionable without collo- quium, and that the court would intend that the words were spoken of him as a justice, and not a private man.:j:(lll) So, where the défendant said of an attorney, “ He is a commoïi barretor it was held unnecessary to aver that the words were spoken of the plaintiff in his profession, for the court would intend it, and that words were to be con- strued secundum conditionem personarum of whom they were spoken. So, where the words spoken to a merchant were, “He is not worth a groat, he is 100Z. worse than nought.”§ So, where the défendant said to aphysician,|| u Thou art a drunken/obl and an assj thou wert (*)never a scholar, and art not worthy to speak to a scholar.” The words were held actionable, though no communication was laid of the plaintiff’s profession. In general, where facts extrinsic of the words and of the plaintiff’s character are necessary to support the action, the * Lord Raymond, 1480. Stanton v. Smith. f 2 Lev. 62. tCro. Car. 15. 192.459. Cro. J. 657. 1 Lev. 280. § Cro. Car. 265. || Cro. Car. 270. ~ (110) Davis v. Davis11 Nott & M’Cord, 290. (111) But in an action of slander, the plaintiff being a justice of the peace, for speaking these words, ’Squire Oakley is a damned rogue,” it was held, that the words were not actionable ; a3 it did not appear, that they were spoken of the plaintiff in relation to his official character. Oakley v. Farrington, 1 J. Cas. 129. (*291) (*292)215 plaintiff must aver that the publication was made in refer- ence to those facts. The déclaration stated that the plaintiff,* a constable of D., was sworn before the justices at their quarter sessions concerning an affray made by the défendant upon one F., and that the défendant then and there, in the said court and in the presence of the justices, said, he (innuendo the plain- tiff) is forsworn, and it was held, the déclaration was bad without a eolloquium of the oath so taken, because it was necessary for the déclaration to show that the words intend- ed a false oath in a court of record. The déclaration stated,f that the plaintiff had put in an answer upon oath to a certain bill filed against him in the court of exchequer by the défendant, and that the latter, in a certain discourse which he thén and there had with one R. W., the plaintiff 5s servant, said, “ Ihave no doubt you will forswear yourself, as well as your master (the plaintiff) has done, before you,” meaning and insinuating thereby that the plaintiff had perjured himself in what he had sworn in his aforesaid awswer to the said bill so filed against him as aforesaid; In another count, the words spoken by the défendant to the . said R. W., the plaintiff’s servant, were (*)laid thus : “ Your master (meaning the plaintiff) has both cheated peo- ple out of their wages, and forsworn himself;” thereby meaning that the said plaintiff had perjured himself in the aforesaid answer, so put in by him to the bill so filed against him as aforesaid. It was held, after verdict, that both these counts were bad, on the g round that there was no eolloquium laid of the plaintiff ?s answer to the bill in chancery, and that it did not appear that the words were spoken in relation to that answer, and that without such an averment the innuendo was unwarranted. The eolloquium ought to extend to the whole of the pre- fatory matter necessary to render the words actionable. The plaintiff declared, j: that sôme evil persons unknown, had fe- loniously shorn the sheep of C., and that there being a - communication betwéen the défendant and another, coneem- ing the shearing of those sheep, the défendant said, “ I do * Drake v. Corderoy, in error, Cro. Car. 288. f Hawkes v. Hawkey, 8 East, 427. X 3 Buis. 83. Helly v. Hender. (*293)m know who did shearthe sheep and being «sked who it was, he replied, that it was the plaintiff, innuendo felonice, and Houghton and Doderidge, Justices against the opinion of Croke, J. held, that the words were not actionable, since the colloquium was of the shearing of the sheep onîy, and not of the felony. Secondly, with respect to the nature and office of the in- nuendo. An innuendo* may be defined to be an àverment which ex- plains the défendants meaning by reference to antécédent matter. The principal and important (*)rule of law re- lating to this species of àverment, is that its office is merely to explain, by pointing out the défendantes allusion, and that it can in no case be allowed to introduce new matter. (112) And the reason for this is a most substantial one ; for were it otherwise, questions of law and fact would frequently be confounded together. For instance, suppose the défendant had said, “Youare forsworn,” which words would not be actionable, unless spokenf with reference to a judicial oath, if the plaintiff averred by way of innuendo, and without reference to antécédent matter, meaning thereby Éf that he, the said plaintiff, was forsworn in a court of record,” or meaning thereby “ that he, the said plaintiff,-was perjured ;55 the àverment would involve a question of law, and the jury would hâve to décidé upon evidence, whéther the forswear- ing did in law amount to perjury, and ihe question would not be open to the court upon the record ; and besides this, that clearness and précision would be wanting which is es- sential to a legal and technical statement of the case. In the Kîngv. Horne,j: De Grey, C. J. observed, u In the case of a libel, which does not in itself contain the crime without some extrinsic aid, it is necessary that it should be put upon the record by way of introduction, if it is new matter or byway of innuendo if il is onlÿ matter of explanation. For an innuendo means no more than the * 2 Salk. 513. 1 Ld. Ray. 251. 12 Mod. 139. 1 Will. Saun. 243. t Holt y. Scholefield, 6 T. R. 691. % 2 Cowp. 683. (112) Goodrich y. Wolcott, 3 Cowen, 236. Bîoss v. Tobey, 2Pick. 329. Stow v. Converse, '4 Conn. Rep. 18. Van Vechten v. Hopkins, 5 J. R. 220. Shely y. Biggs, 2 Har. & J. 363. Shaffer v. Kintzer, 1 Binn. 537, 542. See Nott v. Comstock, 7 Cowen, 654» Bormnan v. Boyer, 3 Binn. 519. (*294)217 words “id est” “scilicet” or “meaning,” or “ aforesaid,” as explanatory (*)of a subject matter sufficiently expressed be- fore, as such an one, meaning the défendant, or such a sub- ject, meaning the subject in question.” An innuendo, therefore, cannot extend the sense of the words beyond their own meaning, unless something is put upon the record for it to explain.(113) As, in an action upon the case against a man, for say- ing of another,* “Hehas burnt -my~ barn the plaintifF cannot there, by way of innuendo, say, meaning,' “ his barn full of corn,” because that is not an explanation of what was said before, but an addition to it. But if, in the introduction, it had been averred that the défendant had a barn full of corn, and that in a dis- course about that barn, the défendant had spoken the words charged in the déclaration of the plaintifF, an in- nuendo of its being the barn full of corn would hâve been good ; for, by coupling the innuendo in the libel with the introductory averment, “ his barn full of corn,” it would hâve made the sense complété. If the innuendo materially enlarge the sense of the words, it will vitiate the déclaration even after verdict. The plaintifF,f in the first count laid, these words as spoken by the défendant, “ John Holt (meaning the plaintifF) has forsworn himself, (meaning (*)that the plain- tifF had committed wilful and corrupt perjury.) After a general verdict for the plaintifF with entire damages, judg- ment was arrested, on the ground that. the words in the first count were not in themselves actionable, and that the count containéd no colloquium or averment of the words having been spoken of a forswearing in a court of justice, and that the innuendo could not extend their meaning. In the case of the King v. Alderton 4 the aileged libel was containéd in an advertisement, reciting certain orders * Barham’s case, 4 Co. f Holt v. Scholefield, 6 T. R. 691. f Say. R. 280. [See what is said of the Report of Rex v. Æderton by Say • ér, 4 Mau. & Selw. 169, 170.] (113) Caldwellv.Abbey, Hardin, 630. Thomas y.. Croswell^l J. R. 264, 271. M'Claughry v. Wetmore, 6 J. R« 83. M’Clurg y. Ross, 5 Binn. 218. See the cases referred to in the next. preceding note. 28 (*29ô) (*296)218 made for collecting money, on account of the distempeT among the hornêd cattle, advertised by the clerk of the peace for the county ofSuffolk; and it chârged, that by these orders the money collected had been improperly applied. The information stated this to be a libel upon the Justices of SufFolk. In the body of the libel it was not said, “ by the order of the justices,” nor did the information in the introductory part say that it was a li- bel of and concerning the Justices of Suffolk. But when the information came to State any of the orders in the advertisement, it added this innuendo, “ meaning an order of the Justices of peace for the county of SufFolk but these innuendos could not supply the want of an - averment in the introductory part, of ils having been writ- ten “ of and concerning the Justices,” because they were not explanatory of, but in addition to the former matter. And the court were of opinion that the information hav- ing omitted the words “ of and concerning the justices” in the (*)introductory part, such omission was fatal, and judgment was accordingly arrested. In the case of Hawkes v. Hawkey,* before referred to, it was decided that where the introductory matter has been properly stated, it is necessary to connect the whole publi- cation with it, by means of a general averment that it re- lated to such previous matter, and that it was not sufficient to do it by means of an innuendo only. Upon motion in arrest of judgment, Lord Ellenborough, C. J. was of opinion, that it might be collected from what Lord C. J. De Grey said in Barham’s case,f that he con- ceived an introductory averment that the défendant had a barn full of corn, and also an averment that the de- fendant spoke the words in a discourse concerning that barn, necessary to warrant the innuendo “ my barri ' full of corn.” His Lordship added, 66 If a broad rule has been laid down as to the mode of declaring, in this species of action, whether properly laid down or not, in the first in- stance, it is better to abide by it, than to attempt making nice distinctions. The only peeuîiarity in this case which is relied upon, as distinguishing it from the current of authorities, is, the preliminary matter averred respecting ♦ 8 East, 427. f4Co. (*297)219 thé fact of the plaintiff having put in his answer to the bill filed in the exchequer ; and the question is, whether the innuendo alone will refer the words spoken to such intro- ductory matter so as to make it necessary for the plaintiff to prove any thing which he must hâve (*)proved had a colloquium been laid ; the case of Savage v. Robery seems to show that it will not.” And the court,* after considering the case of the King v. Horne, gave judgment for the défendant. In many instances, however, an innuendo will not vitiate the proceedings, though new matter be introduced. As, where the matter is superfluous, and the cause of action complété without it. The plaintiff alleged,f that the défendant addressed these words to him, “ Thou art a rogue and a rascal, and hast killed thy wife innuendo one Elizabeth, late wife of the plaintiff. And the plaintiff had judgment, though the dé- claration contained no prefatory averment that the wife was dead.(114) In Shalmer v. Forsterand wife,^: thé déclaration stated that the wife of the défendant spake of the foresaid plaintiff to Ann Rochester, the plaintiff’s mother, these words : “ Where is that lying thief, thy son, (innuendo the plaintiff,) he hath murdered my aunt (innuendo one Dorothy Stoke, the dé- fendants aunt,) and I will prove it.” After verdict for the plaintiff, though a motion was made in arrest of judgment upon another ground, no objection was taken to the innu- endo of the plaintiff’s aunt. So, where the words were laid,§ “ Thou hast robbed thé church,” (innuendo the church of St. Alphage,) no objec- tion was taken. In Craft v. Boite, || the words, as laid in the déclaration, were, “ He (meaning the plaintiff) hath stolen (*)two hun- * Cowp. 680. t Wilner v. Hold, Cro. Car. 489. t Cro. Car. 496. § 4 Cro. J. 153. 1 Vin. Ab. 512. j| 1 Will. Saun. 243. (114) A déclaration in slander, after averring a colloquium conceming tho plaintiff and A., charged the défendant with saying, that A. thinks it a hard matter to commit fornication with u his niece,5’ (meaning the plaintiff.) Held, that this was sufficient, without any averment that the plaintiff was A.'s niece. Miller v. Parish, 8 Pick. 384. (*298) (*299)220 dfed pounds worth of plate out of Wadham College,” (mean- ing a college called Wadham College, in the university of Oxford,) though the déclaration contained no previous averment of Wadham College, in the university of Oxford. It is suggested by the learned editor of Saunder’s Reports, that the innuendo is on such account improper ; the objec- tion, however, appears to be rather of form than of sub- stance ; and probably such a déclaration would be lield good on general demurrer or after verdict, since the gist of the action is the charge ôf stealing fro.u Wadham College, which is entirely unconnected with the situation of the col- lege in the university of Oxford, so that the innuendo might be expunged without affecting the cause of action. In Roberts v. Cambden,* the défendant said, “ He (mean- ing the plaintiff) is under a charge of a prosecution for per- jury. G. W. had the attorney-generaPs directions to pros- ecute and an innuendo that the attorney-general for the çounty palatine of Chester was meant, was rejected as sur- plusage. An innuendo, when répugnant or insensible, may be re- jected.f The record of Nisi Prius stated, that the said William spoke of the said James these scandalous words foliowing : He (innuendo the said William) 1 s a thief,” where the innu- endo should hâve been of James. After a verdict for the plaintitF, it was held that he was entitled to his judgment, since the innuendo was void, and an apparent misprisiôn. (*)It does not, in any case, seem necessary that the innu- endo should in terms state the legal mferen ce which is to be drawn from the publication, as connected with the facts stated ; its office seems more properly confined to mere reference of the défendantes meaning to previous matter ; and, indeed, such an averment would be improper, since the actionable nature of the charge is a matter of law, which the court will eollect from the facts, if they warrant such a conclusion ; and if they do not, no innuendo of their legal effect will avail to render them actionable. Thus, where, from the circumstances, it appears upon the whole that the défendant intended to impute a charge of wilful murder, it is unnecessary for the plaintiff to assert, by way of innuendo, that the défendant meant to impute the very crime of murder. • 9 E. 83. (*300) t Cro. Car. 512.221 In Peake v. Oldham,* in error, the plaintifFs declared, that upon a colloquium concerning the deaih of one Daniel Dolly, the défendant said to the plaintifF, “You are a bad man, and I am thoroughly convinced that you are guilty (meaning guilty of the death of the said Dolly,) and-rather than that you should want a hangman, I will hang you.” After a general verdict with damages, the défendant brought a writ of error. Judgment, however, was affirmed, though the count alluded to contaiftçd no express allégation, by way of innuendo oxotherwise, that the défendant intend- ed to charge the plaintiîF,"with the crime of murder. And though in the above cxàse spécial damage was (*)laid, it appears that the court held the words to be in themselves actionable ; and Lord Mansfield observed, “ These words plainly show what species of death the défendant meant, and therefore manifestly in themselves importa charge of mur- der.” On the contrary, if the plaintifF undertakes to ex- plain the import of the words, by specifying the particular imputation intended by the défendant, such explanation will not vitiate the déclaration, provided such an intention can be collected from the circumstances. Thus, in the case last alluded to, where a colloquium was laid concerning the death of Daniel Dolly, the plaintifF, in his fifth count, laid the words, “You are guilty,” (innuendo of the murder of D. D.) And the count was held good after verdict, though the colloquium was of the death only, and the innuendo of the murder. f An innuendo in one count may be supported by a collo- quium in a previous one. In Tindall v. Moore, | the words laid in the first count were, “ That rogue Joe Tindall (meaning the plaintifF) set the house on fire,” (meaning the summer-house that was burnt in the occupation of one Mr. Cotton.) In the fifth count the words were, “ Joe Tindall (meaning the plaintifF) set the house on fire,” (meaning the' same house.) It was moved in arrest of judgment, that the words in the last count were not actionable, for thaf every count in a déclaration is a substantive count, and that the in- nuendo (méaning the same house) could not relate to the summer-house mentiorfed in the first set of words. But by * 1 Cowp. 275. fSeealso Woolnoth v. Meadows, 5 East, 463, and Dame Morrison v. Cade, Cro. J. 162. | 2 Wils. 114. (*301)222 (*)the court, although the last set of words be not of them- selves aetionable, yet they shalt hâve relation to the former set.(115) From these decisions it appears, that both the colloquium and innuendo are averments, whose office it is to connect the defendant’s publication with the prefatory matter. That the first is a general averment, connecting the whole of the publication with the previous statement ; the latter a subordinate averment connecting particular parts of the pub- lication with what has gone before, in order to elucidate the defendant’s meaning more fully. , . That the want of the colloquium cannot be supplied by an innuendo. That the office of the innuendo is confined to a simple ex- planation of the defendant’s meaning by reference to pre- vious matter. That when it exceeds such limits in a mate- rial point, it will vitiate the déclaration or indictment ; if in an immaterial one, the fault will be cured by verdict, and would probably be overlooked on a general demurrer. Itwould not be easy, or perhaps possible, to point out a more clear and convenient process for technically stating a case upon the record than this, which has with great wisdom been adopted by the law from very early times ; it combines simplicity with précision, separating the law from the fact, and exhibiting a statement of the cause of action upon the face of the record, plain and distinct in ail its parts. It is true, that in some instances justice may be defeated, from a want of attention to the maxims which regulate this technieal kind of statement ; (*)but it ^is equally true that this cannot happen without a faulty inattention to a few very plain and rational rules ; that the failure might hâve been prevented by the exertion of a little prudence, aided by a very small stock of legal knowledge ; and that, on the other h and, the general advantages in point of perspicuity and legal précision, which resuit from an adhérence to these pre- scriptions, are too great to be placed in compétition with any individual inconvenience arising from an ignorance or mis- conception of them. (115) See Frazier v. FuUon, 1 Hawks, 231. (*302) (*303)223 (*)CHAPTER XX. Of JÊverments in General. In what cases it may be necessary to state prefatory cir- cumstances, to be afterward connected with the publication by means of a colloquium and innuendos, is of course a matter in which the pleader must exercise his discrétion in the particular instance before him ; the only general rule that can be laid down is, that such circumstances must be introduced upon the record, as will enable the court to dé- cidé upon the actionable quality of the publication, and the jury to find the facts which are connected with it Where, from the ambiguity of the terms in which alibel is expressed, it is doubtful who was meant, it is the proper office of the innuendo to render the allusion clear ; as, where but one or two letters of the -name are expressed,# or tbê plaintiff is libelled under a fictitious or borrowed name, or where the libèl is couched under a fable or allegory, whose tendency and meaning it is necessary to explain with pré- cision.(116) Thus, in the case of Sir Miles Fleetwood (*)y. Curl,f the plaintiff* was receiver of the court of wards, and the words were laid in the déclaration, with an innuen- do, as foliows : “ Mr.Deceiver (meaning the plaintiff*) hath deceived the king.” It was assigned for error, that the in- nuendo could not be supported, but the court held that it was well applied. * Haw. P. C. c. 73.1. 5. t Cro. J. 557. 2 Rolls. Rep. 148. (116) See Bornman v. Boyer, 3 Binn. 515, 517. (*304) (*306)224 So, in an information against Clerk,* for publishing ali- bel in “Mist’s Journal,” it was shown by proper aver- ments and innuendos, that in a pretended piece of Persian history the king and several other members of the royal family had been libelled, and that the king was represented under the name of Merewits, the Queen under that of Sulta- na, and that the character of the young Sophi was intended for the Pretender. In Baxter’s case,f it was shown that by the word Bish- ops, the Bishops of England! were meant. In the King v* Franklin, that by “ ministers,” were meant the ministers of the King of England.^ In an action for charging the plaintiff with having said that he could see no probability of the war’s ending with France until the little gentleman on the other side of the water (innuendo the Prince of Wales) was restored to his rights. The court held, that this was certain enoügh even without an innuendo. In Tucthin’s case,|| the introductory part of the informa- tion stated, that the libel was written concerning the royal navy of this kingdom, and the government of the said navy. One part of the libel (*)was, “ The mismanagements of the navy (innuendo the royal navy of this kingdom) hâve been a greater tax upon the merchants than the duties raised by parliament.” And it was held, that “the navy” waswell connected, by means of the innuendo, with the royal navy mentioned in the introductory part. In the King v. Mathews,the information in the intro- ductory part charged the libel to hâve been written “ Of and concerning the Pretender, and concerning his right to the crown of Great Britain.” The words of the libel were, “ From the solemnity of the Chevalier’s birth, and if hereditary right be any recom- mendation, he has that to plead in his favour.” And it was held, that the innuendos in the body of the libel, explaining the words to mean the Pretender, and his hereditary right to the crown of Great Britain, were, when connected with the previous averments, sufficient to verify the charge. In the King v. Home,** the libel, as stated in the in-^ * Barnard, K. B. 304. Dig % 4 Bac. Ab. 454. § 11 : IT 9 St. T. R. 682. ** (*306) . L. L. 24. Mod. 99. Cowp. 682. f 3 Mod. 69. || 5 St. T. 590. 3 Ann. 1704.225 formation, was averred to be of and concerning his said Majesty’s government, and the employment of his troops. The libel, as set forth in the information, advertised a sub- scription for “ the relief of the widows, orphans, and aged parents of oui* beloved American fellow-subjects, who, faith- ful to the character of Englishmen, and preferring death to slavery, were, for that reason only, inhumanly murdered by the King’s (tneaning his said Majesty’s) troops at or near Lexington and Concord, (*)&c. in the province of Massachu- setts:” The défendant having been found guilty, objectéd, in arrest of judgment, that there was no averment as to the state of the Massachusetts çolony at that time, or that the King had sent any troops there, or that the employ- ment of the troops was by the King’s authority. Lord-C. J. De Grej^, in giving judgment, observed, “Tne words in the présent case are, that the défendant, of and concerning the king’s government and the employment of his troops, said, 6 that innocent subjects had been inhu- manly murdered by the king’s troops, for preferring death to slavery.’ Do these words import, in their natural and obvious sense, that the king’s troops were employed by the act of government inhumanly to murder the king’s innocent subjects ? There can be no doubt but that the king’s govern- ment comprehends ail the executive power both civil and military, that be employs ail the national force, and that his troops are the instruments with which part of the executive government is to be carried on. The introductory part of this information charges that the subject of the writing in the présent case was, '* the troops and the king’s troops, and the business they had done.’ “ It has been truly said, that the king’s troops may, like other men, act as individuals, but they can be employed as troops by the act of government only. If the averment, therefore, amount to this, that in the discourse which was held, the words were said 6 of and concerning the king’s government,’ the natural import appears toustobe this : (*)M am speaking of the king’s administration of his gov- ernment relative to his troops, and I say that our fellow- subjects, faithful to the character of Englishmen, and pre- ferring death to slavery, were, for that reason only, inhuman- ly murdered by the king’s order, or the orders of his officers.’ The motive imputed tends to aggravate the inhumanity 29 (*307) (*308)226 of the act, and consequently of the imputation itself, because it arrains the government of a breach of public trust, in employing the means of the defence of the subject in the destruction of the lives of those who are faithful and inno- cent. “ As to any other circumstances not stated in the infor- mation, if those which are stated, do of themselves consti- tute an offence, the rest supposed by the défendant, whether true or false, would hâve been only matter of aggrayation, and not any ingrédient essential to the constitution of the crime, and therefore not necessary to be averred on the re- cord. With respect to words published in a foreign language, and phrases or terms whose use is confined to a particular district or class of people, and not generally understood, it has, as already observed, been said, 4hat no averment as to their meaning is necessary.* * This doctrine seems never- theless a little extraordinary, since, without such an expla- nation, the question of law does not appear open upon the record.f Supose, for instance, an action brought for calling the plaintif! Idoner, ^ without any averment of the meaning of the term,hnd that the défendant (*)demurred ; since an ac- quaintance with the Welch tongue forms no part of legal éd- ucation or practice, the judges might be placed in a strange situation if bound to give their judgment upon the legal meaning of the words ; but an averment as to the meaning, would preclude ail doubt, since by his de- murrer, the défendant would allow that the meaning of the Word was perjured or forsworn, as alleged in the déc- laration, and judgment would be given accordingly. If the plaintiff undertake to translate, and render a for- eign word of an actionable sense, by an English one whose meaning is not actionable, the déclaration will be defec- tive.§(117) * See 1 Will. Saund. n. 242. t Hob. 126. 1 Roll. Ab. 86. Zenobio v, Axtell, 6 T. R. Ï62. % In Welsh signifying perjured. § Sty. 236. Ross v. Lawrence. (117) In slander for words spoken in a foreign language, the proper mode of declàring is to State the words in the foreign language, and to aver the meaning of them in English and also, that they were understood by the persons who heard them. Wormouth v. Cramer, 3 Wend. 394. *309)227 In the case of Ross v. Lawrence, the plaintiff averred that the Word Idoner in Welch signified forsworn, though in fact it meant perjured ; and after a verdict for the plaintiff, judgment was arrested. After these observations upon the general nature of these averments, it may be proper to subjoin a few re- marks upon their application to the different classes of ac- tionable words which hâve been above enumerated. It has been observed, that it is in no case necessary to introduce upon the record any collateral circumstance, connected with the imputation, which is assumed by the defendant’s words. Thus, in declaring for the words, “ I will call him in question for poisoning my aunt,” there needs no averment that the aunt was poisoned.*(118) Formerly, indeed, a very considérable degree of pré- cision was required in pleading, when the words imputing the commission of a crime related to any (*)extrinsic facts. Thus, in declaring for the words, “ Whosoever he is, that is the falsest thief and the strongest in the county of Salop, whatsoeverhe hath stolen, or whatsoever he hath done,f Thomas Haselwood is falser than he,” it was held necessary to aver that there were félons in the county of Salop. But this resolution is to be attributed to the anxiety of the courts to discourage such actions ; it seems pretty clear that at the présent day no such averment would be deemed necessary. It would be sufficient to aver that the défendant, intend- ing to charge the plaintiff with felony, spoke the words ; and in setting them out, to add an innuendo to the same effect, in which case a verdict for the pjaintiff would be conclusive as to the defendant’s meaning and intention. The introduction of useless averments is in ail cases ob- jectionable, inasmuch as it encumbers the plaintiff’s case upon the trial with unnecessary proof, and in some instances the superflùity may prove fatal to the déclara- tion. In the case of Snag v. Gee,| where it appeared upon * Cro. Eliz. 569. 823. t Shepp. Ac. 269. J 4 Rep. 16. 1 Vin. Ab. 409. pl. 4. (118) The rule expressed in the text, adopted and confirmed in the case of Miller v. Parish, 8 Pick. 384. (*310)228 the record that the person, with whôse murder the plaintif? had been charged by the défendant, was still alive ; it was held that no action was maintainable. So, in cases where a felony is charged, it is unnecessary to make any averment introducing any circunistances relating to a felony actually committed ; so, with respect to imputations of forgery or perjury, where the meaning can be collected from the défendantes own words, no averment ought to be made (*)as to the existence of any circumstance to which the défendant might by pos- sibility allude, since it hasbeen long settled that their ex- istence is perfectly immaterial to the maintenance of the action.* But in case of a charge of forswearing, unless from the accompanying words, it is clear that a judicial forswearing was meant, the plaintiff must show upon the record that the défendant alluded to some particular forswearing which amounted to perjury. Thus, in a déclaration for saying, “ A. B.f being forsworn, compounded the prosecution.” No introduction of extrinsic facts is necessary, since an in- dictable forswearing must hâve been meant ; but in declar- ing for the wTords,| “ He has forsworn himself in Leakè Court,” it is necessary to show that Leake Court was one in which the offence of perjury could hâve been committed. Where., from the context, the import of the words is doubtful-, it is advisable to insert those qnly which certainly are actionable, in order to avoid ail doubt upon the record, which may be taken advantage of by demurrer, or by mo- tion in arrest ofjudgment, orby writ of error. Thus, in an action brought for the words,§ “ Mr. Brit- tridge is a perjured old knave, and that is to be proved by a stake parting the land of H. Martin and Mr: Wright.” Af- ter a verdict for the plaintiff, the défendant succeeded on a motion for arresting the judgment ; for though it was held by the court that the words in italics were actionable, they were of opinion that their force was explained away by (*)the latter, which showed that no judicial perjury was mentioned ; so that had the latter words been admitted, the plaintiff would hâve retained his verdict. In the description of the spécial character in which the t Cro. Eliz. 609. § 4 Co. 18. * Vid. supra, 85. t 1 Roll. Ab. 39. pl. 7. 6 Bac. Ab. 207. (*311) (*312) ,229 plaintiff sues, some nicety is to be observed, in not avër- ring more than is necessary ; for since the averment of character is material, the plaintiff upon the trial will be bound to prove it, with ali the circumstances with which the description in the déclaration is encumbered, though a much more simple one might hâve sufficed.(l 19) In an action for words, the plaintiff* declared that he was in medecinis doctor ; and it was moved in arrest of judgment, because he did not show that he was licensed by the Col- lege of Physicians, or that he was a graduate of one of the universities according to the statute.f But Bankes, C. J. and Crawle}?-, J. were of opinion that the act was a ge- neral one, which need not be pleaded. And even had the statute been a private one, it seems that the plaintiff in such an action would not be bound to set out his title, since, in general, in an action on the case against a wrong doer for a disturbance, it is sufïicient for the plaintiff to allégé his right (habere debet) generally, without showing’a title. (*)And in an action brought by a physician, it is sufïicient to aver§ that he had used and exercised the profession of a physician ;(120) but if he were to aver that he was a physician, and had duly taken the degree of doctor of phy- sic, he would at ail events be required to prove his degree as stated ;|| and if he were unable to prove it, he would fail. But though the plaintiff need not aver how he came by his title, hë must describe it in apt terms. Thus, in an ac- tion brought by a barrister, he ought to aver that he is homo conciliarius ; and it is not sufïicient to say that he is eruditus in lege.%(\2\) It was formerly held, that it was necessary for a trades- man** to aver in an action for words of his occupation or * Dr. Brownlow’s case, Mar. 116. pl. 3. 1 Vin. Ab. 539* t 14 H. 8. c. 5. i 2 Vent. 292. Cro. J. 43.123. Com. Dig. Pleader, c. 39. § 8 T. R. 305. H 8 T. 303. 1 N. R. 196. 2 Buis. 230. À 1 Vin. Ab. 539. pl. 2. ** Sid. 299. 1 Vin. Ab. 539. According to Coke, C. J. the technical description is homo conciliarius et in jure peritus. (119) Seepost, note (22) p. 590. (120) See Brown v. Mims, 2 Rep.Con. Ct. 235. (121) See McMillan v. Birch, 1 Binn. 180. (*313)230 trade, that he got his living by buying and selling ; but this arose from the idea, that the words, to be actionable, must import bankruptcy, and must be applied to a person who was liable to the statutes of bankruptcy, and has long been exploded :* it is sufficient to aver that the plaintiff ex- ercised the trade, and derived profit from it. Next, it should appear that the spécial character belonged to the plaintiff at the time of the publication. (121) So little précision has been required as to this statement, that it has been held that the averment by the plaintiff, that he is of such a trade, or has exercised it for divers years,f without saying ultimo etjarn elapsos, or that he is a freeman, exercising the art or mystery of a lin en draper for the space (*)of five years past, or that he has been an attorney | for divers years now elapsed, was sufficient, without an express averment that he was such at the time the words were spoken, since it is not to be presumed that a man alters his trade or profession. In the case of Dodd v. Robinson,§ the plaintiff declared that he was inducted into a parsonage in Ireland, and execut- ed the office of pastor for four years after. It was moved in arrest of judgment, that he did not aver that he was a parson at the time of speaking the words. But the court said, it should be intended that he continued parson, because he had a freehold in the parsonage during his life. In the case of Tuthill v. Milton,|| the court said, that in an action for words which affect the plaintiff in his office which he holds during pleasure, it must be expressly averred that he was in the office at the time the words were publish- ed ; but that if the words relate to his profession or trade, it is sufficient to aver that he has for some years past exercised the profession or trade, for that it shall not be intended that he has discontinued such profession or trade. But in the subséquent case of Collins v. Malin,where * Vide supra, 134, 135. f Tuthill v. Milton, Yel. 159. t 2 Roll. R. 84. 1 Vin. Ab. 538. § Ail. 63, 64. 1 Vin. Ab. 538. note to pi. 3. h Cro. Jac. 222. Yelverton, 159. ïï Cro. Car. 282. See also 2 Roll. 84. Dan. 170. (121) See M'Mïllm v. Birch, 1 Binn. 180. (*314)231 the plaintiff declared that he had, for a great while, used the trade of buying and selling cattle, and that the défendant said of him, “ Thou art a bankrupt.” After verdict for the plaintiff, judgment was arrested. (*) After verdict, indeed, if the continuance can be collect- ed frotn any averment or circumstances, the want of a précisé and technical allégation will be cured. As, where the plaintiff, after alleging that he was a jus- tice* of the peace for the county of Leicester, for divers years, averred that the défendant spake these words of him, being a justice of the peace. Sothe continuance may be collected frorn the words themselves ; as if the défendant say of an attorney, that “ he plays with both hands.”f In the proceeding by writ of scandalum magnaturn, the plaintiff déclarés tam pro domino rege quampro seipso,\ though he is entitled to the whole of the damages recovered. It has been held,§ that the statute 2 R. 2. st. 1. c. 5, is a general law, and that the plaintiff need not recite it in his déclaration ; but that if he undertake to recite it and vary from it in any material point, the déclaration will be bad. * Sir Thomas Beaumond v. Sir Henry Hastings, Cro. J. 240. t 2 Roll. 85. I 6 Bac. Ab. 100. 1 P. Will. 690. § 4 Co. 12 b. Cro. Car. 136. Com. Dig. Defam. B. 3. (*315)232 (*)CHAPTER XXL Jlverment of Malice. Since a malicious intention to injure the plaintiff forms an essential ingrédient in this species of action, it seems ne- cessary to introduce into every déclaration an averment of the defendant’s malice. No précisé and prescribed form of words is requisite for this purpose, though the epithet malicious, as applied to the matter published, and the word maliciously, to the act of publishing, are the most usual and appropriate terms. Any form of words will suffice, from which a malicious intention can be inferred ; thusit has been held sufficient to aver, that the défendant spoke the words, or published , the îibel falsely or wrongfully,* or that the défendant, machinants pejorare dixit, f And Holt, C. J. j: was of opinion, that in the déclaration it isnot necessary to use either the word falsely or malicious- ly, though it is otherwise in case of an indictment or infor- mation. But it is suggested by Mr. Sergeant Williams, in his notes on Saunders,§ that this must be taken to mean that the omission would not be fatal after verdict. (*)But such words, it seems, are essential in indictments and informations. || It has been the fashion with pleaders, both ancient and modem, to deal so profusely in the evil motives and inten- tions attributable to the défendant, that few cases are to be * Moor, 459. Ow. 51. Noy, S5. f Danv. 166. Com. Dig. tit. Defam. G. 5. I Sty. 392. § 2 Wili. Sau. 242. J| Sty. 392. Per ttoll, C. J. 1 Vin. Ab. 533. pl. 3. (*316) (*317)238 met with where any objection lias been taken, for wantof an averment of this nature.^ It does not appear to be necessary* for the plaintitf to make any averment by way of exculpation, since it is in- cumbent on the défendant, in case he mean to rely on the justice of the charge in his defence, to plead the justification specially, and he cannot give it in evidence under the gene- ral issue. And perhaps the averment of innocence, on the part of the plaintitf, of the charge cast upon him, or of the falsity of the defendant’s publication, would be considered as unne- cessary, on account of the general presumption which the law entertains of a man’s innocence till the contrary be made to appear. Formerly, however, it was held incum- bent upon the plaintitf not only to aver the falsity of the charge in general terms, but also to négative particular facts contained in the publication complained of ; for instance, where the slander was published as heard from another,f it was held necessary to aver that the défendant had not heard it. In Hooker v. Tucker, j: it was held by Holt, C. J. that in a déclaration for these words of a trader, “ He is a piti- ful fellow, and , not able to pay his debts.” There needed no averment that he (*)was no pitiful fellow, and that he was able to pay his debts. So, in Bendish v. Lindsey,§ where the action was brought for charging the plaintitf with bribery at an élection, the défendant, holding up some guineas in his hand, said of the plaintiff, who was a candidate, “These guineas are Mr. Bendish’s money, and were given me to vote for him ; he has bought my vote, and he shall hâve it.” It was object- ed in arrest of judgment, after verdict for the plaintitf, that it was not averred throughout the whole pleading, that the plaintiff did not give the money. But Holt, C. J. said, it need not be averred that the plaintitf did not give the money, for it is said, hwc falsa Jicta malitiosa verba, which is well enough. The falsity of the charge may be implied from the aver- ment that it was made ex malitia, since the term, in its legal sense, imports a publication without legal excuse. || * 2 Wils. 147. f Morrison’s case, Sheppard, Ac. 267. § Il Mod. 194. || Sutton v. Johnstone, 1 T. R. 493. 30 t Holt, R. 39. Cro. Car. 271. (*318)234 Where a party repeats the slander of another, knowing it to be false, and that the author lias retracted his assertion or opinion, it seems an action is maintainable against the reporter, though, at the time of publication, lie announced the name of the person from whom he heard it ; but in such case, it would be necessary to aver the défendant’s know- ledge, in the déclaration ; for, if the fact or circumstance were not to be averred in,the déclaration, and the défendant pleaded that he gave the plaintiff a cause of action by nam- ing his author, the plaintiff might be considered as precluded from replying that the défendant maliciously published the slander (*)against his own knowledge and conviction ; for if he could reply it, issue must necessarily be joined upon the fact of knowledge, which has been held not traversable. Thus, in the case of Sir G. Gerrard v. Dickenson,* the action was brought for publishing a lease, knowing it to be counterfeit, and thereby hindering the plaintiff from letting his land ; the défendant pleaded, that she found the lease, and traversed her knowledge of the forgery ; and the plea was held insufficient, because the knowledge of the forge- ry is not traversable, any more than the sciens in an action on the case, where the defendant’s dog has bitten the plain- tiff’s cattle, and where the plaintiff avers that the défendant knew that the dog was accustomed to bite sheep. The ob- jection to traversing the scienter assigned is, that it is no di- rect allégation, nor ever alleged in any place, and therefore cannotbe tried.f This objection on the score of locality ceased indeed, when it was no longer required that the ve- nire should be awarded from the vicinage ; and there seems to be no very satisfactory reason why a party in plead- ing should not confine the evidence by traversing any distinct circumstance which is essential to his adversary’s case, and which must be proved upon the trial. Since, however, the technical objection to traversing the scienter^has not been ju- dicially defeated, it would not be proper to omit the aver- ment of knowledge in the déclaration, in a case where it is material ; as, where a party has repeated slander, knowing the author to hâve been convinced of his error, or sets up a lease which (*)heknows to be a forgery, for the purpose of injuring the plaintiff. * 4 Rep. 18. | 4 Rep. 18. (*319) (*320)235 Where particular circumstances hâve been introduced to show the defendant’s conduct to hâve been malicious, it will be necèssary to prove them upon the defendant’s plead- ing the general issue.* * 2 East, 437.236 (*)CHAPTER XXIL Of Damage. The défendantes wrongful act having been considered, the next question is, as to the statement of the loss to the plaintiff resulting from it. Where the words are intrinsically actionable, the loss to the plaintiff is, as has been seen, a mere inference and presump- tion of law ; and it does not seem necessary for the plaintiff to aver that the words complained of amount to the charging a précisé crime ; since their actionable quality is a question of law, and not of fact, and will be collected by the court from the circumstances, if they warrant it.* But in such case, it may frequently be advisable to aver spècial damage to hâve been sustained in conséquence of the words ; such an averment will not préjudice, since it will not be necessary to prove it on the trial. If no such proof be then given, and the jury give a general verdict, the défendant, if it should be neces- sary afterward in order to enable him to move in arrest of judgment, may hâve the verdict amended by confining itf to the actionable words according to the judge’s notes. (*)Formerly it was heldj: that, where the words were not actionable, but the spécial damage was the gist of the pro- ceeding, such spécial damage might be given in evidence, although the particular instances of the spécial damage were not stated in the déclaration ; but that, when the words themselves were actionable, particular instances of such damage could not be given in evidence, unless speci- fied on the record. But modem practice§ does not warrant this distinction, • See Peake v. Oldham, Cowp. Rep. 275. f This is done at Chambers, as of course, without a motion in court. J 1 Str. 666. § B. N. P. 7. 1 Will. Saund. 243. n. 5. (*321) (*322)237 and at the présent day it seems that in both cases the par- ticular damage must be specified.(122) The general rule of pleading, as to spécial damage, is, that it must be averred with that degree of certainty and particularity which the case admits of, in order that the de- fendant may be apprized what it is he cornes to answer, though in some cases where particularity would be produc- tive of inconvenience, and the circumstances are not imme- diately within the knowledge of the party, a more general statement has been deemed sufficient. Thus the averring generally, that by means of the pub- lication, several customers (not naming them) left the plain- tiff’s house, is not sufficiently précisé.* And so, where the alleged damage consists in loss of marriâge,f the plaintiff must point out the (*)individual with whom the marriage would otherwise hâve been contracted. And for the same reason, where the plaintiff States a marriage with J. N. to hâve been hindered, she cannot after- wards give in evidence, loss of marriage with any other person.f But it has been said, that greater certainty is requisite where the spécial damage is the gist of the action, than where it is merely laid by way of aggravation.§ Where the spécial damage consists inthe|| plaintiff *s hav- ing been prevented from disposing of, or settling his estate, it is necessary to show how he was prevented, as that he had taken some steps for the purpose of selling, and that the bidding was stopt by the défendantes act ; but it is un- necessary to specify the names of any of the bidders. Where the plaintiff,% _who had been a preacher in a cha- pel to a dissenting congrégation, averred generally in the déclaration, that by reason of the words the persons who frequented the said chapel had refused to permit him to preach there, and had discontinued giving him the gains and ♦B.N.P.7. lRoll.Ab.58. f 1 Sîd. 396. 1 Vent. 4. Cro. J. 499. 12 Mod. 597. I Lord Ray. 1007. § Per Çur. in Wetherell v. Glerkson, 12 Mod. 697. 2 Lut. 1295. || Smead v. Badley, Cro. J. 397. Sir W. Jones, 196. 1Î Hartly v. Herring, 8 T. R. 130. (122) Herrick v. Lapham, 10 J. R. 281. 508. Hersh v. Ringwalt, 3 Yeates, (*323)238 profits which they had usually given, and otherwise would hâve given ; the court* held on motion in arrest of judg- ment, that where a plaintifF brings an action for slander, by which he lost his customers in trade, heôught, in his déclara- tion, to State the names of these customers, in order that the défendant may be enabled (*)to meet the charge, if it be false ; but that in the principal case, the plaintifF could not hâve stated the names of ail his congrégation, and that it was sufficient to say that he had been removed from his office, and had lost the émoluments of it.(123) Where actionable words are spoken, within the scope of a private jurisdiction, the déclaration may allégé a consé- quent al loss of customers at a place beyond the limite-of- such jurisdiction. For the allégation is only in respect of damages to increase them, and may be inquired of in any place whatsoever.f( 124) Where the words are in themselves actionable, and the character of the plaintifF is stated in aggravation, it is not necessary to state the circumstances of that situation with so great certainty as where it is essential to the action. Th us, where the words are spoken of a candidate to serve in parliament, it is sufficient to state the fact general- ly, and unnecessary to set forth the writ to the sheriff.ij: In general, § the place where the words are spoken is immaterial : yet, if the plaintifF state the place by way of aggravation, and not merely as venue, it seems he will be bound to prove the speaking to hâve been in the place named. With respect to joining different injuries in the same pro- ceeding, words spoken _at different times may be included in the same count. (*)In such case, however, if it should appear on the face ofthe count that the words were spoken at different times, and that some of them were not actionable, judgment wouldbe arrested if entire damages were given for the whole count. * 4 Burr. 2424. f Ireland v. Blockwell in error, Cro.C.570. t Harwood v. Sir J. Astley, 1 N. R. 47. § B. N. P. 5. (123) See M’Millan v. Birch, 1 Binn. 178, 185. (124) See Sewall v. CaMm, 3 Wend. 291. (*324) (*325)239 And it seems a count for verbal slander* may be joined with a count for a libel in the same déclaration. And the causingf a plaintiff to be brought before a magistrale may be joined with a complaint for a malicious accusation before the magistrate. * King v- Waring and uxor, 5 Esp. R. 13. t Cro. Car. 271.240 (*)CHAPTER XXIII. Of the défendants Plea. The principal circumstances of which the défendant may avail himself in resisting an action for slander, hâve already been sketched out; the technical mode of an- swering the plaintifPs claim upon the record is next to be considered. Under this division it may be enquired, first, what must be pleaded ; secondly, what may be pleaded ; and thirdly, how it should be pleaded. lst, What must be pleaded. Since an action upon the case is founded on the justice and equity of the plaintiff’s claim, it is a general rule that whatever will, in equity and conscience, preclude the plaintiff from recovering, need not be pleaded, but may be given in evidence under the general issue.* In the particular case ofan action for slander, if the instances be excepted where the défendant relies on the truthofthe imputation, or the plaintiff is barred by the statute of limitations, there does not appear to be any defence of which he may not avail himself under the general issue ; since, in every other (*)case where the plain- tiff is not entitled to recover, he must fail from his ina- bility to substantiate in evidence the two leading circum- stances whose union is essential to the action, the wrongful act'of the défendant, and the loss resulting to himself; these, in ail cases where the general issue is pleaded, he must prove upon the trial, and in default of such proof, would be liable to a nonsuit ; and where he has established a * Burr. 1353. 1 Bl. R. 388. 1 Wils. 45. (*326) (*327)241 prima facie case, it seems equally competent to the défend- ant to controvert and overthrow it by opposite evidence. Where the défendant insists that the plaintiff is not entitled to recover, because he is really guilty of that wherewith he bas been charged, the justice of the case imperatively re- quires that the plaintiff so taxed with an offensive or crimi- nal imputation, which his adversary proposes to subtantiate against him in evidence, should be apprized by means of a spécial plea, of the nature and circumstances of the charge, that he may be fully prepared toanswer it in court. The rule of law upon this head has long been settled, that the défendant, if he mean to rely upon the truth of that which he has published, either in bar of the action or in mitigation of damages, must plead it specially. Formerly a distinction was made in this respect between words imputing an offence generally, and such as charged a particular and spécifie one. (*)In the case of Smith v. Richardson,* the twelve Judges were unanimously of opinion, that where the words im- port a general felony, as “ Thou art a thief,” or “ Thou stolest a horse,” or any other thing not specifying the per- son from whom or when and where it was stolen, the défen- dant ought not, upon the general issue, to be allowed to give the fact in evidence to mitigate damages. The words in the principal case were, “ John Smith is a rogue, and hath stolen my beer ; John Smith has robbed me of my beer.” And eight of the Judges were of opinion, that in no case whatever where the words imported felony or trea- son, such evidence ought to be admitted on not guilty pleaded ; but four were of opinion that it might, where the words imported a particular felony. Rut in the case bf the Bishop of Salisbury v. Nash, quot- ed in the above case, which was an action for saying of the plaintiff, “ He preacheth nothing but lies in the pulpit.” The défendant pleaded not guilty, and his counsel offered to give evidence of the truth of the words in mitigation of damages ; but Lord Macclesfield refused to admit it with great indignation. Where a particular offence not capital was charged,f evidence of the truth was allowed under the general issue. * Willes, 20. 31 | B. N. P. 7. (*328)242 But in the case of Underwood v. Parkes, the défendant pleaded not guilty,* and offered to prove the words to be true in mitigation of damages, which the Chief Justice re- fused to permit, saying, that at a meeting of ail the Judges upon a case that (*)arose in the Common Pleas, a large majority of them had determined not to allow it for the future, but that it should be pleaded, whereby„the plaintiff might be prepared to defend himself, as well as to prove the speaking of the words. That this was now a general rule among them ail, which no Judge would think himself at liberty to départ from ; and that it extended to ail sorts of words, and not barely to such as imported a charge of felony.(12ô) Where the justification arises from the occasion on which the words were published, or from the particular character of the author, it seems unnecessary to plead the defence spe- cially, since the nature and essence of the defence is the absence of that malice which is essential to support the ac- tion. Th us, where the words hâve been spoken, or the alleged libel published, by a member of either house of parliament in the course of his public duty,f by a Judge, j: acting in his judicial capacity, by a counsellor, in the management of the cause when they are pertinent to the issue, and hâve been * Str. 1200. f 1 Esp. R. 226. 1 W.&M. st.. 2. c. 2. J 2 N. R. 341. (125) The correctness of the rule preseribed in the text has been fully re- cognised in the United States. Shepardv. Merrill, 13 J. R. 475. Van *flu- kin v. Westfally 14 J. R. 233. Æderman v. French, 1 Pick. 1. Whether the law will allow a justification of a libel which does not charge any indictable offence ? Quere. Riggs v. Dennistont 3 J. Cas. 198. See further, in An- drews v. Van Duzer, 11 J. R. 38. Rootv. Ring, 7 Cowen, 613. Skinner v. Powers, 1 Wend. 451. Bailey v. Hyde, 3 Conn.' Rep. 463. Hix v. Drury} 5 Pick. 296. Wormouth v. Cramer, 3 Wend. 395. It seems, however, that in an action ofslander, for charging the plaintiff’with perjury in a judicial pro- ceeding, the défendant, on the plea of not guilty, though not permitted to prove the falsity of the words sworn by the plaintif?, may prove what those words were, in mitigation of damages. Grant v. Hover, 6Munf’. 13. See also, Commomoealth v, Blanding, 3 Pick. 304. (*329)243 suggested (*)by a client ;* by a witness, in delivering his évi- dence ;f by a master, in giving the character of a servant or, in short, by any person under eircumstances which rebut the allégation of malice,§ the general plea is sufficient. And this principie seems to comprehend the cases where parlia- mentary or judicial proceedings hâve been faithfully report- ed. An action was brought against the editor of the Times Newspaper,|| for having published a libel on the plaintiff ; the publication complained of imported to be an account of an application to the Court of King’s Bench, for an information against the plaintiff and Mr. Bingham, both justices, of the peace for Hampshire, for refusing to license an inn at Gos- port. The défendant pleaded the general issue ; and at the trial, after the plaintiff had proved the publication of the pa- per by him, a person whom he employed to collect legal in- telligence for the use of his paper, was called, in order to prove that the report was a true and faithful account of what had passed in the Court of King’s Bench upon the motion. It was objected on the other side, that the défence ought to hâve been put upon the record, and could not be given in evidence under the general issue. The objection, however, was overruled by Eyre C. J., and the jury found a verdict for the défendant. Afterward a motion was made in arrest of (*)judgment ; one ground for which was, that the matter proved by the défendant at the trial had been impro- perly received in evidence under the general issue, and ought to hâve been pleaded in bar to the action. After ar- gument, the court doubted upon this point, the case stood over, and no judgment was ever given. In Astley v. Yonge,^[ and Styles v. Nokes,** the latter of which was subséquent to that of Curry v. Walter, the défen- dants justified specially. Before the case of Underwood v. Parks,f f it appears to hâve been the practice to allow evidence of the truth of the pub- lication in mitigation of damages, generally, and in some instances in bar of the action, which affords an inference that the présent defence, which would be much less likely to subject the plaintiff to any inconvenience by way of surprise, * Cro. J. 90. Poph. 69. | Brownl. 2. tlT. R. 110. 3 B. & P. 587. § See 1 Will. Saund. Î31. n. 1. H 1 B. & P. 525. % Burr. 807. ** 7 E. 493. 1f Str. 1200. (*230) (*331)244 was also admissible under the general plea. To tbe great rule of pleading an action on the case, namely, that the défendant is at liberty, under the general plea, to give every matter of justification or excuse in evidence, the action for slander furnishes an exception in the instance where the défendant relies on the truth of his assertion ; and such a defence contains an intrinsic necessity for making it an ex- ception ; but here no such reasons oppose themselves to the general rule ; there is no room for surprise, sinee the plaintif!’ is informed by the publication itself that it purports to be a report of a parliamentary or judicial proceeding. It seems difficult to assign a distinction in principle between this case and those where the words are spoken in the course (*)of a judicial proceeding, by a judge, counsellor, or witness, in the latter, since the lavv excludes the idea of malice, the situation of the party is evidence under the general issue ; and the reason applies with equal force to the defence in question, where the law protects the défendant on grounds of public expediency in the fair publication of judicial or par- liamentary proceedings, and will not permit his conduct io be attributed to malice. It does not appear that a défendant, who repeated the slander of another, and who has given up his author is under the necessity of pleading the matter specially.* The defence in such case does not dépend upon naming the author and his scandai in the plea, but is grounded entirely on the cir- cumstance of the defendant’s having, at the time of publica- tion, supplied the plaintiff with the means of obtaining a remedy against a former publisher. (126) The situation of a person thus lending his aid to an injur- ed party, repels, at least, in the first instance, if it does not wholly obstruct the inference of legal malice. (127) In an action for words,f alleging loss of marriage with J. S., the défendant, under the general issue, offered to prove that J. S. was the plaintiff’s aunt ; but it was held that the evidence was inadmissible, (*)that the right to marry could * 7 T. R. 17. 5 East, 463. t The case of Sir C. Gerard’s bailiff, B. N. P. 7. (126) See Kennedy v. Gregory, 1 Binn. 85. Morris v. Duane, 1 Binn. 90. n. (127) See the cases refered to in note ante, p. 213. (*332) (*3SS)245 not then be tried, and that it was sufficient if they intended to marry ; and that the woman, for that cause, ’refused. It seerns difficult to support this decision on legal princi- pes, since the preventing that, whicli could not legally hâve taken place, can scarcely be considered as a damage for which the plaintiff is entitled to recover a compensation. But, 2dlv, though the défendant may, with the exceptions mentioned, reserve his defence till the trial, he frequently has it in his élection to answer the plaintiff specially upon the record. And the rule, as laid down in the fourth re- port, is, that the défendant* shall never be put to the general issue when he confesses the words and justifies them, or confesses the words, and by spécial matter shows that they are not action- able, Since the plaintifPs ground of action consists of the defen- dant’s having maliciously published concerning him that which has occasioned temporal préjudice, and according to the foregoing rule, the publication of the action able words must be conlessed, it foliows that the défendant may plead any matter in bar which either rebuts the malice or shows that no damage, either presumptive or actual, has been sus- tained. Where the défendant has uttered the alleged slander in a judicial proceeding,f or in correctly reporting parliamentary or judicial proceedings, he may justify by pleading the fact, since in these cases the presumption of law is conclusive in favour of the (*)defendant ; so where the défendant, at the time of publication,^: gives up his author, unless it appear that he really knew the charge to be false, the presumption is equally strong in his favour, and he may plead the fact for the purpose of rebutting the averment of malice. So, where a barrister,§ in the course of a cause, asserts that which is relevant to the issue, and has been suggested by his client. In other cases, though the inference of malice may be re- butted on the trial, as by showing that the party had an in- terest, or was giving the character of a servant, yet it does not appéar that the matter can be exhibited upon the re- cord, since the character in which the défendant allégés him- self to hâve acted is not conclusive as to his intention, and aj- f Cro. Eliz. 230. § Cro. Jac. 90. * 4 Co. 14. Pop, 66. î 7 T. R. 17. 5 East, 463. (*334)246 mounts at most to a simple négation of malice, which is in- cluded in the general issue. The damage sustained is either the legal damage, pre- sumed by law in the case of words intrinsically actionabie, or an actual damage to be proved in evidence, and in ei- ther case the défendant may show, by his plea, that none has been sustained ; and this may be done in the first in- stance either by the introduction of new matter, or by 3, traverse of facts already stated, showing that the ter ms complained of were not used in an actionabie sense. (*)Thus it has been held, that in an action for calling the plaintiff a murderer, it may be pleaded that the word was used in the course of a conversation about unlawful hunting, and that the words merely imported that the plain- tiff was a murderer of haies.* So, where the plaintiff de- clared upon an imputation of an unlawful maintenance, it was held that the défendant might justify, by showing that the words were used in reference to a lawful maintenance.f So, in the case of Kinnersley v. Coopéré the plaintiff de- clared that he had taken on oath, which was recorded in the court of the Guildhall, in a judicial proceeding ; and that the défendant speaking of that oath, had said, that he had sworn falsely. The défendant, in his plea, denied that any such oath had been taken ; and the plaintiff demurred, on the ground that the taking the oath was but conveyance to the action, and not traversable ; and seeondly, that the plea was bad, since it amounted to the general issue. But the justices were of opinion that the matter was traversable, since the action was grounded upon it. In the case of Lord Cromwell v. Denny,§ the plaintiff de- clared in scandalum magnatum against the défendant, for having charged him with liking those who maintained sédi- tion. The défendant pleaded that he was vicar of Northlinham, which was a bénéfice with the cure of soûls ; and that the plaintiff procured J. T. and J. G. to preach severally in the church of Northlinham ; who, in their sermons, inveighed against (*)the book of Common Prayer, which was estab- lished by the queen and the whole parliament in the first year of her reign, and affirmed it to be superstitious and im- * 4 Rep. 14. t Cro. E. 168. b. Rép, 14. (*335) (*336) f Cro. Jac. 90. § 4 Rep. 14.247 pious ; upon which the plaintiff and défendant, speaking in tbe said church of these sermons, because the vicar knew that they had no licence, nor were authorized to preach, when they were ready to preach, before their sermons, for- bade them, but they, by the encouragement of the plaintiff, proceeded, when the plaintiff said to the défendant, “ Thou art a false varlet, Iiike thee not.” To which the vicar said, “ It is no marvel that you like not of me, for you like of these (innuendo the said J. T. and J. G.) that maintain sé- dition against the queen’s proceeding.” It was moved by the plaintiff’s counsel that the plea was bad, since, if the matter contained in it amounted to a justification, then, upon the dialogue between the parties, the défendant was not guilty, and that he ought to have_ pleaded so, and given the matter in evidence. But the court held, that the défen- dant had done well to show the spécial matter by which the sense of the word sédition appears upon the cohérence of ail the words, not to mean any violent and public sédition, as it had been described to mean, and as ex vi termini the word itself imports. In these and similar cases, the effect of the justification is to show, that there was no legal damage, the terras not having been used in an actionable sense ; and it seems that it is equally open to show by spécial matter that no actual damage (*)has been sustained for which an action is main- tainable. Thus, in the case where the plaintiff alleged that by rea- son of the words he had lost his marriage with J. S., the défendant might plead that J. S. was aunt to the plaintiff : but the plea of nondamnifieatus generally would be bad.* To these pleas, some of which must, and others may be pleaded, has been added the plea of minority, or at least, that the défendant was within the agef of seventeen ; but this is contradicted by the observation of Mr. Justice Law- rence in Woolnoth v. Meadows and Lord Kenyon ex-, pressly stated, that if an infant§ utter slander, he is respon- sible for it in a court of justice. When the words, as stated upon the record, appear demurrable, it may be useful to apply the rule which Sir E. Coke termed “ an excellent * Dyer, 26. <• f Com. Dig. Pleader, 2 L. 2. J 5 East, 47J. § 8 T. R. 337. See also Bac. Ab. tit. Infancy, (*337)248 point of learning in actions for slander,” namely, “ observe the occasion and cause of speaking of them, and how it may be pleaded in the defendant’s excuse. When the matter in fact will ciearly serve for your client, although your opinion is, that the plaintiff has no cause of action, yet take heed you do not hazard the matter upon a demurrer, in which, upon the pleading and otherwise, more perhaps will anse than you thought of, but first take advantage of matters of fact, and leave matters of law, which always arise upon the matters of fact ad ultimum, and never at first demur in law, when after triai of the matters in fact, the matter in law will be saved to you.” (*)Where the action is brought for claiming tille to an estate, by means of which the plaintiff is prevented from selling or letting it, and the déclaration allégés that the de- fendant asserted a false title, knowing, it to be false, if the défendant has in fact any colour of claim, he should plead the general issue, by which means the plaintiff* will be obliged to prove, on the trial, that he knew it to be false, and it is said that the fact of knowledge cannotbe traversed in pleading. f Thirdly, How it must be pleaded. Observations upon the manner of pleading relate to the plea of justification generally, to particular pleas, or to the joinder of different pleas. 1. To the plea of justification generally. The plea of justification in general must confess the pub- lication as laid in the déclaration, otherwise it will be bad on demurrer ; \ and this is an immédiate conséquence resulting from the great rule of pleading, which requires the party pleading either to confess the previous matter, and avoid it, or to traverse it.(128) In Johns v. Gittens,§ the words laid in the déclaration * 2 East, 437. f 4 Co. 18. Cro. J. 398. t Jon. 307. Cro. Eliz. 153. § Cro. Eliz. 239. (128) If tlie défendant plead the general issue, and also a spécial plea in justification, which is adjudged bad, upon demurrer, in which the speaking of the words is admitted, the spécial plea may be used upon the trial of the general issue, as evidence to prove the speaking. Æderman v. French, 1 Pick. 1. Jackson v. Stelson, 15 Mass. Rep. 48. See L&medv, Buffinton, 3 Mass. Rep. 546. (*338)249 were, “ Thou hast played the thief with me, and hast stolen my cloth and half a yard of velvet.” The défen- dant pleaded that the plaintiff was his tailor, and that upon such a day he çlelivered (*)to him a yard and a half ôf velvet, to make him a pair of hose, and he made them too straight ; by reason whereof he spoke these words, “ Thou hast stolén part of the velvet which I delivered you,” denÿing that he spoke any words aliter vel alio modo. The plaintiff demurred, and it was held that the plca was bad, for not confessing the words laid in the déclaration** If the défendant justify specially, it will not be necessary for him in his pie a to deny the innuendôes and epithets con- tained in the déclaration ; for if the faet be justified,f the motive intended and manner are immaterial. Unless, from the particular occasion of speaking the words, the day, or the place, becorne materïal, the plea should adopt the day and the place stated in the déclaration without a traverse ; but when they become material, and differ from those stated in the déclaration, the plea should traverse the speaking of the words on the day or at the place laid in the déclaration. Thus, if the plaintiff déclaré of words spoken at B., in the county of Salop, and the défendant mean to justify the pub- lishing them in a judicial proceeding at Westminster, he should traverseX the publishing them at B., in Salop, at any time. The spécial plea of justification, grounded upon the truth of the publication, may be considered ; Jirst, with reference to the matter contâined in the plea ; and secondly, with re- gard to the charge complained of in the déclaration. (*)Thë same degree of certainty and précision are required in thïs plea as are requisite in an indictment or information. In Wyld v. Cookman,§ the wrords were, “ Thou wast forsworn in such a leet, on such a day.” The défendant pleaded that the plaintiff the same day was sworn with others before the steward, to présent, &c., and that they presented such a ditch not scoured ad nocumentum, &c. which was false, and so justifies, but did not say that they knew it to be false of their ownproper knowledge. It was moved on demurrer, that they might hâve presented it upon * See also Cro. Eliz. 153, Bellingham v. Mynors. f Burr. 807. X See the case of Buckly v. Wood, 4 Rep, 14. 1 Salk. 222. X Will. Saund. 82. n. 3. ÿ Cro. Eliz. 492. 32 (*389) (*340)250 evidence. Gawdy and Fenner, Justices, held, that it was properly and commonly to be intended that the presentment was false of their own knowledge, and so perjury ; and that if they presented it upon evidence, the plaintiff ought to show it in his réplication. But Popham, J. said, that a man may not justify by intendment, but that it ought to hâve been precisely alleged. * But there was another defect in the plea which was held by ail the justices to be incurable, viz., the want of an allégation that the ditch was within the leet ; for if not, then the presentment thereof was out of their charge, and there was no perjury. Where the original charge is in itself spécifie, the défen- dant need not further particularize it in his plea. In an ac- tion on the case* for calling the plaintiff thief, and saying that he stole two sheep of J. S. the défendant pleaded that the plaintiff stole the same sheep, by reâson of which he called (*)him thief, as well he might ; and the plea was held good. Secondly, as to the nature of plea, with reference to the words laid in the déclaration. Though the charge imputed to the plaintiff be general, as laid in the déclaration, the de- fendant must, in his plea, charge him with specificf instan- ces of offences of the same nature with the general charge. Thus a défendant is not at liberty to charge a person with swindling, without showing spécifie instances of it ; for whenever one charges another with fraud, he must know the particular instances upon which his accusation is founded, and therefore ought to disclose them.j:(129) In Morris v. Langdale,§ which was an action for calling the plaintiff (who was a stock-jobber) a lame duck, the défendant justified, pleading generally that the plaintiff had * Br. action sur cas. 27. H. 822. pl. S. fl Roll. Ab. 87. t Styles, 118. Strachey’s case. § 2 B. & P. 284. (129) In a plea in justification of a libel, it is not suflicient, if the plea be as general as the déclaration ; but it must State, specifically, the facts on which the charge is founded, to give the plaintiff an opportunity of denying, and taking issue upon them. Van Ness v. Ilamilton, 19 J. R. 349, 367, et seq. Spencer, Ch. J. in delivering the opinion of the court in the preceding case, cited /Vhwoîi v. Stuart, 1 Term Rep. 748, assettling the rule on this subject. Td. 368. (*341)251 not fulfilled his contracts. Upon demurrer, Lord Eldon, C. J. observed, that it had been strongly argued in support of the demurrer to the plea, that in conséquence of its ge- neràlity the plaintiff must proceed to trial at the hazard of being able to produce evidence applicable to any contract which he éver made. But the déclaration itself was defec- tive, and the plaintiff had leave to amend. In Newman v. Bailey,* the plaintiff, a justice of the peace, brought an action against the (*)defendant, for having charged him with “ pocketing ail the fines and penalties forfeited by delinquents whom he had convicted, without distributingthem to the poor, or in any manner accounting for a sum of 601. then in hand.” The défendant pleaded that the plaintiff was a justice of the peace, and that during the time he acted as such, he convicted divers and sundry persons respectively, ,in divers and sundry fines and sums of money, for and on pretence of their having respectively committed divers respective offences against the form of divers statiîtes of this realm ; which said respective fines and sums of money, amounting in the whole to 601. he re- ceived of the respective delinquents so by him convicted, and had not paid the saine to the several persons to whom the same ought to hâve been paid by virtue of the respec- tive statutes, but had kept and detained the same, &c. To this there was a spécial demurrer, and the court were clear- ly of opinion that the plea was bad, because it did not specify any one fine or penalty which had been unjustly levied. The matter alleged in the justification to be true, must in every respect correspond with the imputation complained of in the déclaration. Thus, where the défendant, inthe first instance, charges the plaintiff with having feloniously stolen one kind of chattel, he cannot afterwards justify by pleading that the plaintiff had really been guilty of stealing a different one.f And so with regard to every circumstance at ail mate rial, the facts set up by way of justification in the plea mustbe strictly conformable (*)with the imputation charged in the déclaration. The words for which the action was brought charged the plaintiff with having been a bankrupt on the first day of Àpril, in the 17th year of James the First. The défendant pleaded tha,t the plaintiff was a bank- * Hîl. 16 G. 3. B. R. f Hilsden v. Mercer, Cro. J. 676. (*842) (*343)252 rupt on the first day of April, in the 15th year of the same reign, and that therefore he published the words ; and the plea was held bad,* because it was not averred that the plaintifF continued a bankrupt to the time of publishing the words, for he might afterward recover his crédit in trade. In Eyshf v. Thorowgood, the plaintifF deciared that a commission issued out of the Exchequer, direeted to the plaintifF and one J. S. by force whereof they took and re- turned the e^aminations of several witnesses, and that thereupon the défendant said, that the plaintifF had return- ed as dépositions the examination of divers that were never sworn.” The défendant pleaded in bar that he did retnrn the examination of one J. S. who was never sworn. Upon. demurrer3 it was adjudged that this was no good justification in bar, because it is of one witness only, whereas the charge was in the plural number. Where the ofFence consists in the defendant’s having pub^ lished the words in the course of a judiçial proceeding, the défendant must show in his plea that lie has been guilty of no publication which the nature of the proceedings did not call for, or at least càre must be taken that no publication stated in the déclaration is left unprotected by the matter of justification pleaded. The défendant J had (*)exhibited his bill in the Star Chamber, alleging that the plaintifF was a procurer of murderers and piracies ; the déclaration al- leged the exhibiting the bill, and that the said défendant, at B., in the county of Salop, said, that • the said bill, and the matters contained therein, were true. The défendant, in his plea, confeSsed the exhibiting of the bill in the Star Chamber, and that he, in the said court at Westminster, spoke the said words absque hoc ; that he spoke the words in the county of Salop before or after the day mentioned in the déclaration, by which he excluded the day itself, for which reason the plea was held to be insufïicient. But judgment for the plaintifF in this case was afterward revers- ed upon writ of error in the Exchequer Chamber, be- cause the défendant had assertedin the county of Salop no- thing more than that the matters contained in the bill were true without specifying the contents of the bill. * Upsheer v. Betts, Cro. J. 578. f Cro. Eliz. 623. t 4 Co. 15. (*344)253 Where the alleged libel was contained in a pétition to the members* of a committee of the House of Gommons, the plaintiff, in his déclaration, alleged generally that the défendant had published the libel to “ divers subjects,” the défendant justified the publication to divers persons being members of the committee, and averred it to be the same publishing of which the plaintiff had complained, and the plea was held sufficient. But it seems, that if the plaintiff, in his déclaration, allégé a publication to divers people by name, if the défendant justify the publication to some of them by name, he must traverse a publication to the rest. (*)And the reason of the distinction is, that in the for- mer case, where a general publication to divers subjects is alleged, the plea that he published to divers subjects being members of the committee, is consistent with the déclara- tion, and therefore, with the averment that the publication is the same. But if the plaintiff déclaré of a publication to A. B. C. and D., the défendant, in justifying a publica- tion to A. and B., cannot aver it to be the same publica- tion with that complained of, but should traverse the pub- lication to C. and D.f Where part of a publication* consists of a report of judi- cial proceedings and the rest of comment, since the sépa- ration is necessary for the purpose of defence, the défen- dant ought j: to take upon himself the burthen of making it, in order that the court may see what parts he means to justify. And if he does not, the court will not allow him to amend his plea. A plea of justification, however, may in such case be good, with a general référencé to certain parts of the libel set forth in the déclaration, if the court can see with certainty what parts are referred to, as if the reference be to so much of the libel as imputes to the plaintiff such a crime as perjury, that would be sufficient without repeat- ing ail those parts again, which would lead to prolixity of pleading and ought to be avoided.§ By st. 21 J. 1. c. 16. s. 3. it is enacted, that ail actions upon the. case (other than for slander) shall be (*)com- menced and sued within six years next after the cause * Lake v. King, 1 Saund. 120. f See 1 Will. Saund. 133. n. 4, and 22. n. 2. \ 7 East, 493. § Per Le Blanc. J. 7. E. 507. (*345) (*346)254 of such action or suits, and not after. And the said action upon the case for words within two years next after the words spoken, and not after. It has been held under this statute, that the latter limitation applies to words in themselves actionable, only, and not to cases where* * * § the spécial damage is the ground of action, nor to written slander ; and it has been decided that cases of scandalum magnatum are not within the latter, though within the former limitation, f Itseems now fully settled, that if the défendant mean to avail himself of this statute, :j: he must in ail cases plead it. Where the words are actionable, the time begins to reck- on from the speaking of the words ; but where spécial dam- age is essential, the damage itself is the cause of action, and not the speaking of the words ; in such case, there- fore, it seems that it would not be sufficient for the défend- ant to aver in his plea that he did not speak the words within six years ; because, though that was the fact, the cause of action, namely, the spécial damage, might hâve arisen within the six years, he ought therefore to plead that the cause of action did not accrue within the limited time. Where, however, the words are in them- selves actionable, though spécial damage be laid, since the words themselves give lise to the action, and the damage is mere matter in aggravation, it would be sufficient to plead that the défendant (*)did not speak the words within the time limited by the statute. The défendant may, under the statute,§ by leave of the court, join a general plea of not guilty to the whole déclara- tion,|with a plea of spécial justification to the whole or part ;|| and he may plead not guilty as to part of the words, and justify the speaking of the residue.^I * 6 Bac. Ab. 241. Cro. Car. 193. Salk, 206. 1 Sid. 95. f Cro. Car. 535. | See 2 Will. Saund. 63 a. where this point is fully discussed. § 4 Ann. c. 16. || Cro. J. 267. lï See Tidd, 603, 4th edit. (*247)255 (*)CHAPTER XXIV. Of the Réplication. It seldom happens that any thing can be-replied to the defendant’s spécial plea, except the general réplication of de injuria propria, &c. which puts the whole of the défend- antes plea in issue.* In some instances, however, a spécial réplication becomes necessary. As, where the original slander imputes to the plaintiff the commission of a spécifie crime, and the défend- ant pleads in justification that the plaintiff was really guilty, the plaintiff may reply, that after his commission of the crime, and before the speaking of the words, he was pardoned.f And it has been said, that in such case it makes no dif- férence whether the pardon be a spécial one, of which the défendant was ignorant, or a general one, since a man who tabes upon himself to spread slander, does it at his péril ; but that if a man who had committed felony, secretly pro- cure a pardon, and another, not knowing of the pardon, cause him to be apprehended for felony, he would be justi- fied, bedause what he did was for the advancement of justice. (*)But where the pardon is general, containing clauses of exception, it seems the plaintiff should aver that his case does not fall within any of the exceptions. | And even after a pardon, if the défendant merely say that the plaintiff was a thief \ the pardon§ will not be available. Where the plaintiff has stated the publication generally * 1 Saund. 242, n. 7. J Hob. 67. f Cuddington v. Wilkins, Hob. 81. § Hob. 82. (*348) (*349)256 to hâve been made to divers persons, not naming them, and the défendant justifies the publication to particular persons as to the members of a committee of the House of Com- mons, if the plaintiff mean to insist upon a publication ta any others, he should state such publication by way of new assignment.* *See 1 Saund. 133. and Chitty on Pleading, 603.257 (*)CHAPTER XXV. Of the Evidence. The course and extent of the évidence to be adduced by the parties at the trial, will be considered in the same order with the pleadings by which the evidence is regulated. First, as to the fact of publication.—Where the action is for words spoken, evidence of the speaking before any third person will be sufficient, though the déclaration allégé them to hâve been spoken before A. B. and others.* And where the words are in themselves. actionable, it is sufficient to prove some of them which are actionable, provided they be proved precisely as laid.f(130) If the words be spoken, or libel published, in a foreign language, or in characters not understood by those who hear or see them, there is no publication, since there is no com- munication préjudiciai to the plaintiff ;(131) and if the words be spoken, or libel addressed, to the plaintiff only, without further publication, no action is maintainable, since no tem- poral damage can hâve accrued from the défendantes act,j: but such a publication would be sufficient (*);to sustain an indictment on the ground of its tendency to produce a breach of the peace. * B. N. P. 5. f 2 East, 434. 8 T. R. 150. supra, 309. 11 Will. Saun. 132. n. 2. 2 Esp. R. 226. (130) Where the déclaration, in an action for a libel, charges the publica- tion, without purporting to set it forth in hœc verba, proof of the publication of a libel, containing part of the libellous matter charged, is sufficient. Met- calfe v. Williams, 3 Litt. 389. See Stanfield v. Boyer, 6 Har. Sx, J. 248. Loomis v. oicky 3 Wend. 205. (131) See «nie, note (117.) 33 (*350) (*351)258 Where a witness, who heard scandalous words spoken, has committed them immediately to writing, he may after- ward read the paper in evidence, ïf he swear that the words contained in it are the very words and if the words hâve not been written immediately, the witness may refer to his minutes to refresh his memory.f In case of libel, before any evidence can be given of its contents, prima facie evidence must be given of a publication by the défendant. Evidence of a publication is either of a publication generally, or of a publication in some particular county or place, and it is either direct or indirect The publication may be directly proved, not only by év- idence that the défendant, with his own hand,^: distributed the libel, or exposed its contents, or painted an ignominious sign over the door of another, or took part in a procession carrying a représentation of the plaintiff in effigy for the purpose of exposing him to contempt and ridicule, but also by maliciously reading or singing the contents of the libel in the presence of others ;§ ail of (*)which facts are direct proof of the àverment that the défendant published the al- leged libel. || But it frequently happons that no direct proof can be given of the défendants agency in the publication of the libel^ and resort must be had to indirect evidence, in or- der to connect him with the libel, and fix him with its publi- cation. The most usual and important piece of evidence for this purpose consistsin proving that the libel published is in. the haridwriting of the défendant ; when the plaintiff has proved this, he has made out such a prima facie cause as ehtitles him to hâve the contents read in evidence. It was observed by a great authority,** that u When a li- bel is produced written in a man’s own hand, he is taken in the mainer, and that throws the proof upon him ; and if he cannot produce the composer, the verdict will be against him.” The grounds of this presumption are plain and reasona- ble. A man is at liberty to think or to Write what suits him ; at ail events, he incurs no civil responsibility unless he di- * Fer Holt, C. J. Sandwell v. Sandwell. Holt, R. 295. f Ibid, i R. -v. Almon, Burr. 2689. Seven Bishops’ case. St. Tr. § 5 Rep. 125. Moor, 813. || 5 Rep. 125. 9 Rep. 59. b. IT Burr. 2689. ** Per Holt, C. J. R. v. Beere, Ld. Ray. 417. Mullett v. Hulton, 4 Esp. 248. (*352)259 vulge his thoughts to the (*)temporal préjudice of another ; but it seems equally clear as a proposition either of law or expediency, that if he write what is false, and the caluinny become public to the détriment of its object, he is just as re- sponsable for the effects of his négligence as if he had been the voluntary publisher of the scandai ; if a man write libels for his own perusal, he must be content to enjoy the satis faction diminished by the risk and péril of an accidentai pub- lication and ils conséquences. The writing a libel* does not, however, in any case, amount to a publication, but is mere evidence from which it may be inferred ;(132) what amounts to a publication is a question of fact, falling within the province of the jury to decide ;f and though proof that the libel is in the hand- writing of the party, goes far in fixing him with the publi- cation, he is still at liberty to rebut the strong présomption thus raised against him, by reconçiling the fact with his own innocence. The effect of such proof in evidence having been thus briefly considered, it may next be inquired with what degree of certainty and précision the handwriting of the party must be established before the writing can be read ; a mat- ter of evidenccr most important when considered in its rela- tion to civil suits, wherein the disposition of the fortunes of individuals (*)so frequently dépends upon written testi- mony, but demanding still more serious attention when considered as the medium of proof in cases of libel, for- gery, and treason, with the decision of which offences the security, liberty, and life, of every subject of the realm, are intimately connected. Upon the mémorable trial of the Seven Bishops for an alleged libel addressed to the King,J Sir Thomas Exton stated, that he had never seen the Archbishop of Canterbury write five times in his life, but * Lamb’s case, 9 Rep. 59. 15 Vin. Ab. 91. Mod- 813. f Baldwin v. Élphinstone, 2 W. Black. 1037, } St. T. R. 45. 2.1688. (132) The sending a sealed libellous letter to the plaintifi himself, is not such a publication as will sustain an action by him j as every letter sent, is presumed to hâve been sealed j and if, after a man has received such a letter, he make the contents known, he is the publisher;—and nolenUnon ût injuria. Lyle v. Clason, 1 Caines, 581, (*353) (*354)260 that he believed one of the signatures on the paper produced to hâve been written by the Archbishop. Mr. Brookes stated, that he believed another signature to hâve been written by the Bishop of Ely ; but upon cross- examination, it turned ont that his belief was founded upon the resemblance which the writing bore to that contained in a letter sent to the Bishop of Oxford, which letter the witness concluded to hâve been written by the Bishop of Ely from having waited upon him with the Bishop of Ox- ford’s answer, and communicated with him on the subject of the original letter. , Upon this evidence, Mr. Justice Powell observed, “ That’s a strange inference, Mr. Solicitor, to prove a man’S hand.” —Mr. Attorney General—“We hâve more evidence, but let this go as far as it can.” Mr. Sergeant Pemberton— “ Certainly, my Lord, you will never sutfer such a witness as this.” Lord G. J. Wright—■“ Brother Pemberton, I suppose they can prove it otherwise, or else this is not evi- dence.” After some other evidence had been given, Mr. (*) Justice Powell observed, “ Mr. Solicitor, I think y ou hâve not sufficiently proved this paper to be subscribed by my Lords the Bishops.”—Mr. Sol. General, “ Not to read it, Sir'!”— Mr. J. Powell, “ No, not to read it ; it is too slender a proof for such a case. I grant you, in civil actions a slender proof is sufficient to make out a man’s hand, by a letter to a trades- man or a correspondent, or the like ; butin criminal cases, (such as this is,) if such a proof be allowed, where is the safety of your life, or any man’s li-fe, here î”—Mr. Solicitor General, “ We tell you a case where it was allowed, and that is Mr. Sidney’s case—-a case of treason, and printed by authority. We tell you nothing but what was done the other day.” \ L. C. J. Wright—CÉI tell you what I say to it : I think truly there is proof.enough to hâve itread, and I am not ashamed nor afraid to say it, for I know I speak with the law, say what you will of criminal cases and the danger of people’s lives ; there were more danger to the governinent, if such proof were not allowed to be good.”—M. J. Powell—I think there is no danger to the government at a 11, in requiring good proof against ofFenders.”—L. C. J.—Here’s my Lord Archbishop, and the Bishop of St. Asaph, and my Lord of Ely ; their hands are proved, it is proved to be my Lord (*355)261 Archbishop’s writing by Mr. Brookes ; and he proves my Lord of Ely’s hand by comparison, and so my Lord of Asaph’s. Now, Brother Pemberton, there’s an answer to your objection. It.being proved that it is ail my Lord Arch- bishop’s handwriting ; then they corne and say, 4 We’11 prove the hands of the othets (*)by comparison and for that theybring you witnesses, that say, they hâve received letters from, and seen their handwriting several times ; and com- paring what they hâve seen with this very paper, says the witness, 4I do believe it to be his hand.5 Can there be a greater evidence, or a fuller.”—Mr. Sergeant Pemberton— 44 Admit it to be full evidence against my Lord Archbishop ; what’s that to the rest T There’s no evidence against them.55 —Mr. Justice Allybone—44 Brother Pemberton, as to the objection you make of comparing hands, it is an objection indeed, I do agréé ; but then consider the inconvenience which you and Mr. Pollexfen do so much insist upon. If a man should be accused by a comparison of hands, where is he 1 he is in a most lamentable case, for his hand maÿ be so counterfeited, that he himself may not be able to distinguish it.—But then you do not consider where you are, on the other side ; that may be an objection in matters of fact, that will hâve very little weight, if compared and set altogether. For, on the other side, where shall the government be, if I will make libels, and traduce the government with prù- dence and discrétion, and ail the secrecy imaginable? Pli write my lihel by myself, prove it as you can. That’s a fatal blot to the government, and therefore the cases are not the same, nor is your doctrine to pass for current here, because every case dépends upon its own factSé If I take upon me to swear 1 know your hand, the inducements are to myself, how I came to know it, so as to swear it. Knowledge dépends upon circumstances ; I swear that I know you, but yet I may be under a mistake, for I can (#)have my knowledge of you no other way but from the visibility of you. And another man may be so much like you, that there is a possibility of my being mistaken ; but certainly that is evidence, good evidence. Now here are several gentlemen that swear as to my Lord Àrchbishop’s handwriting. I do agréé as to some of the others, that the evidence is not so strong for what that man said, that he did believe it was rather such a Lord’s hand, than that which went before, or that which came after, it is of no weight at. (*356) (*357)262 ail, and so some of tlie others, but it is positively proved against my Lord Archbishop. And one or two more, so that that’s enough to induce the reading of this writing.” Mr. Justice Holloway—“ Good, my Lord, let me give my opinion.”—-L. C. J.—“ With ail my heart, brother.”—Mr. J. Holloway—-uMy Lord, I think, as this case is, there ought to be a more strong proof; for certainly the proof ought to be stronger and more certain in criminal matters than in civil matters. In civil matters we do go upon slight proof, such as the comparison of hands for proving a deed, or à witness’s name, and a very smaîl proof will induce us to read it ; but in criminal matters we ought to be more strict, and require positive and substantial proof, that is fit- ting for us to hâve in such a case, and without better proof I think it ought not to be read.” L. G. Justice—u You must go on to some other proof, Mr. Soîicitor, for the court is divided in their opinions about this proof.” The rational observation of Mr. J. Powell, that there is no danger to government in requiring good (*)proof against offenders, afFords a pleasing relief to the disgraceful and pernicious doctrine expounded by the Chief Justice and his coadjutor Allybone, which in plain terms was an avowal that in a State prosecution the life and îiherty of the subject are of too little importance to be entitled to considération, and that défendants, therefore, in such cases, ought to be convicted upon evidence, on which, in any other case, they would be acquitted. When a similar distinction was at- tempted to be made in a subséquent case,* it was observed by Lord Camden, C. J. “As to the distinction which has been aimed at between state offences and others, the Corn- mon Law does not understand that kind of reasoriing.” The defendantf having committed a riot upon the person of Sir F. W. in his own house, an information was tiled against him, and he produced a witness to sweàr to the con- tents of a letter from the prosecutor, who deposed it was in the same hand with another letter which had been admitted to be read in evidence. But H oit, C. J. said, “ In the case of a deed lost or burnt, we will admit a copy or counterpart, or the contents to be given in evidence ; but we never per- + Case of seizure of papers,, 11 St. Tr. 317. t ft. v. Sir T. Culpepper, Holt, R. 293. (*358) '263 mit it, unless it be proved that there was such a deed exe- cuted. Now here the witness cannot prove this letter writ- ten, for he never had seen the prosecutor write,” and there- fore it was disallowed. In Crosby’s case,* * * § which was a trial before Holt, C, J. for high treason, sëveral treasonable papers (*) were produc- ed, which the witnesses swore they believed to be in the hand writing of the prisoner. And on this a question arose, whe- ther, compàrison of hands was evidence. And the court held, that though it was not sufficient for the original foun- dation of an attainder, it might be well used as a circum- stantial and confirming evidence,f if the fact be otherwise ful- ly proved, as in Lord Preston’s case, where it was proved that he attempted to go with certain papers into France, and where they were found upon his person; but that in thé principal case, since they were found elsewhere, to con- vict on a similitude of hands, would be to run into the error of Colonol Sidney’s case. Upon this trial, the prisoner pro- duced a copy of the àct of parliàment for the reversai of Sidnéy’s attainder, iri which it is declared that the compari- son of handsj is not legal évidence. A papér was produced, said to be the handwriting of a deceased rector.§ Inorder to prove this fact, the plaiutiff’s counsel offered to produce many of the returns of the spirit- ual courts, of the births and burials made in the time of the rector, and signed with his name, Mr. J. Yates said, “ I hâve no doubt to reject this evidence as not admissible ; l do not know of any case where compàrison of hands has been allowéd to be evidence at ail.” In Revett v. Braham,|| to prove that certain (*)written in- structions to be a forgery, two clerks of the Post-Office were càlled, who swore, that they were aceustomed to in- spect franks and detect forgeries, and they were allowéd to swear to thêir belief that the writing in question was written, not in a natural, but in imitation. * 12 Mod. 72. Holt, 753. Salk. 689. f See the cases ofLayer, Ld‘. Près ton, Algemon Sidney, St. Tr. Buchanan, Dr. Hensey,. 1 Burr. 642, and the trial of O’Connor and others at Maidstone. X Lord Ray. 40. § Brookbard v. Wooeley, Peake’s C. N. P. 20. Sèe also Macplierson v. Thoytesj ibid. || 4 T. R. 497. (*S59) (*360)264 They were then asked, if they could judge whether the instructions were written by the person who wrote a raemo- randum, which was produced. This question was objected to, âs being a comparison of hands, but allô wed by the court. And Lord Kenyon, C. J. mentioned a case where a décipherer had given evidence of the meariing of letters, with- out explaining the grounds of his art, and wheretheprison- er was convicted and executed. And Buller, J. said, it was like the case of “ Wells har- bour,” where persons of skill were allô wed to give evidence of opinion. In Carey v. Pitt,* the plaintiff, to prove the defendant’s acceptance of à bill of exchange, called an "inspecter of forgeries at the Post-Office to prove that he had fre- quently seen franks pass the office in the defendant’s name, and that, from the character in which those franks were usu- ally written, he believed this acceptance to be the défend- antes handwriting. Lord Kenyon said, ercise my own judgment in rejecting it.55 From these cases it may be collected, that previous to the case of the seven Bishops, it was the common practice in civil cases to admit evidence by comparison of hands ; that is, a witness comparing the writing A. with the writing B., was allowed to swear to his belief that they were both writ- ten by the same person. (*365)i?68 (*)That such evidence is not admissible in either a crim- inal or civil proceeding.( 133) That there is now no différence* between civil and crimi- naï proceedings, as to the admissibility of written evidence. That no person is competent to prove handwriting, who has not either seen the party write, or has been conversant with his handwriting from habits of business ; in which case, he must give his evidence from the general knowledge of the character which he has acquired. And that even where the person whose handwriting is tobe proved, is dead, other writings ascertained to hâve been his are not allowed to be compared by the jury with the writing in question.f That a person who is conversant with the détection of forgeries is competent to prove that any given writing is in a disguised hand, or is not the genuine handwriting of the person to whom it is attributed. Where a person has seen another write, though but once, the belief founded upon that knowlëdge is evidence to go to a jury.j: A défendant may be guilty of publishing a libel not only by distributing copies of it with his (*)own hand, but Jby employing an agent for the purpose.§ The déclaration generally avers, that the défendant pub- lished and caused to be published ; but the latter words seem perfectly unnecessary either in a civil or cri-min al pro- ceeding; sinçe, in civil proceedings, the principal is to ail purposes identified with the agent employed by him to do any spécifie açt? and in treason and misdemeanorsH ail ac- cessaries are considered as principals. . The most frequent case in which evidence to show a pub- lishing by an agent, is adduced, relates to actions or prose- * 2 T. R. 201. The Attorney General v. Le Merchant, B. N. P. 236. t Where the antiquity of the writing makes it impossible for any living witnessto swear he ever saw the party write, evidence of similitude has been jrçceived. B. N. P. 136. % Garrels v. Alexander, 4 Esp.37. § 7 East, 65. Bac. Ab. tit. Libel, 458. || 1 Hal. P. C. 613. (133) Evidence from comparison of handwriting, supported by other cir- cumstances, is admissible ; and on the same principle, from a comparison of the types, devices, &c. of two newspapers, one of which is clearly proved, and the other imperfectly so, the jury may infer, that both were printed by the same person. M’Korkh v. Binns, 5 Binn. 340. (*366) (*367)269 cutions against booksellers, where a libel bas been sold by an apprentice or servant, who traiisacts his master’s business. The effect çf such evidence appears to hâve long been per- fectly settled by a number of decisions, which show that a sale by an agent, in the regular course of business, amounts to prima facie proof of a sale and publication by the owner ; and that though it be not conclusive as to a guilty knowledge of the contents, yet that it imposes upon him the necessity of rebutting the inference by evidence to the contrary.* It has been said, “ that it is not material whether the person who disperses libels is acquainted with their contents or otherwise, for that nothing would be more easy than to publish the most virulent papers with the greatest security, if the concealing the purport of them from an illiterate pub- lisher, would make him safe in dispersing them. And that, on this. foundation, it has been constantly ruled of late, (*)tliat the buying of a book or paper containing libel- lons matter, at a bookseller’s shop, is sufficient evidence to charge the master with the publication, though it does not appear that he knew of any such book being there, or what the contents thereof were, and that it will not be presumed that they were brought there by a stranger ; but the master, if he suggests any thing of this kind in his excuse, must prove it.f It is to be recollected, that the only question at présent considered is, how the libel and its publication must be con- nected with the défendant by evidence, to admit the reading its contents ; and it appears perfectly established, that the sale by his servant, in the ordinary course of his employ- ment, is a sufficient préparation for such admission, though undoubtedly it is a mere presumption which the master is competent to eut down, if he can, by opposite proof. An information^ was moved for against the défendant for selling and publishing a libel against one Chambers, and it was insisted upon for the défendant, that her servant took the libel into the shop without her knowledge. But by the court, this isno excuse ; for a master shall answer for his * Bac. Ab. tit. Libel, 458. t SeeBac. Ab. tit. Libel, 458. WoocTs Inst. 445. 2 Sess. Cass. 33. 12 Vin. Ab. 229. Fitzgib. 47. Haw. P. C. c. 73. s. 10. Barnard, K. B. 308. Plunkett v. Cobbet, 5 Esp. 186. t R. v. Dodd, 1724. 2 Sess. Cas. 33. D. L. L. 27. (*368)270 servant, and the law présumés him to be acquainted with what,his servant does. And L. C. J. Raymond said, that it had been ruled, that where a master lives out of town, and his trade is carried on by his servant, the master shall (*)be charged with his servantes publishing a libel in his absence.(134) In the case of the King v. Nutt,* the défendant was indicted for being the publisher of a treasonable libel. It was proved that she kept a pamphlet shop, where the libel was sold ; no evidence was offered to prove her knowing of its being bought or sold out. The défendant proved that^ her house, where she lived, was a mile off from the shop, and that she had been bed-ridden there for a long time. The Chief Justice held, that the master of a shop is answer- able for whatever books are sold there. This liability of booksellers was fully discussed in the case of the King v. Almon.t The défendant had been convicted of publishing a libel (one of Junius’s letters) in one of the magazines called the London Muséum, which was bought at his shop, and professed to be printed for him. (135) The défendant was found guilty on proof that the libel in question had been sold in his shop. A motion was af- terward made for a new J;rial on an affidavit, the principal bearing of which was, that the libel had been sent to his shop, and sold there by a boy without his knowledge, privity, or approbation. But the court were of opinion, that none of the (*)matters on behalfof the défendant, nor ail ofthem add- * Barnard, K .B. 306. Fitzgib. 47. Di g. L. L. 27. | 5 Burr. 2689. (134) An action for a libel will lie against the proprietor of a newspaper, though the publication be made without his knowledge. Jlndres v. Wells, 7 J. R. 260. But if a printing press and newspaper establishment be assign- ed to a creditor merely as security for a debt, and the press remain in the sole possession and management of the assignor, the ownership of such credi- tor i3 not such as to render him liable, in slander, as proprietor, on account of any slanderous publication appearing in such paper. Id. So, it is sufficient prima fade. evidence of a person being the printer of a newspaper, in which a libel is published, that the papers were usually deposited in a hole behind the door of a public library, and that his common clerk cdllected the bills for the paper. Republica v. Dames, 3 Yeates, 128. (135) See post, note (26), p. 591. (*369) (*37Q)271 ed together, were reasons for granting a new trial, whatever weight they might hâve in exténuation of bis offence, and in conséquence lessening his punishment ; for they were ex- tremely clear and unanimous in opinion, that tbis libel be- ing bought in the shop of a coramon known bookseller and publisher, importing by its title-page to be printed for him, was a sufficient prima facie evidence of its being published by him ; not indeed conclusive, because lie might hâve con- tradicted it, if the facts would hâve borne it, by contrary év- idence. In the above case, Lord Mansfield observed, “A libel cannot be read against a défendant before it has been prov- ed upon him. This must, however, be understood, of such prima fade proof of publication as would be sufficient to be left to a jury ; for no evidence on the part of the plaintiff, or in support of a prosecution, can in strictness amount to proof? since the evidence of any witnesses, is always liable to be rebutted by opposite testimony, and must after ail dé- pend for its effect upon the crédit given by the jury to the character of the witnesses, and the circumstances under which such evidence is given.”* If one procure another to publish a libel, the procurer is guilty of the publication wherever it shall be made ; and the publisher is a competent witness to prove that he was em- ployed to publish the libel, and did in conséquence publish it.f (*)Next, of the evidence to prove a publication inapar- ticular county or place. It seldom is material in a civil action, to prove the libel to hâve been published in an^ particular county ; thougb, in a criminal proceeding, which is in its nature local, the offence must be proved to hâve been committed within the county in which the indictment has been found.(136) But * See the King v. Johnson, 2 East, 65. See also the King v. Dod, 2 Ses. c. 33. Bac. Ab. tit. Libel, 497. Wood’s Ins. 445. f Ibid. (136) In an indictment for a libel published in a newspaper, printed in one State, but which was usually circulated in a county in another State, and the number containing the libel, was actually received in such county ; the court decided, that this was competent and conclusive evidence of a publi- cation in such county. Commonwealth v. Blanding, 3 Pick. 304. (*371)272 since, in a civil action, it may becoipe necessary to prove a local publication, it will not be irrelevant to eonsider in this place the evidence bÿ which such a publication ought to be supported. In general, where a publication has once been sanctioned, the author of it is guilty of such publica- tion in whatever county the libel shall in conséquence be published.* A general confession that the défendant was the writer of a libel, does not amount to a confession that the libel was published at ail, even( though it should afterward be found to hâve been published in a particular county, still lésa does it admit the publication in such county.f In the case of the seven Bishops, after the proof which had been offered by comparison of hands had been rejected, the court being divided in opinion, it was proved that the défendants had, with much unwillingness, confessed before the king and council (*)at Whitehall, that the signatures subscribed to the pétition had been written by them. It was also proved that the pétition had corne into the king’s hands at Middlesex, but by what agency did not appear. The reading of the pétition upon this evidence was at first oppos- ed by the défendants’ counsel, upon the ground that no act of publication had been proved in Middlesex. It was, how- ever, afterward consented to, on an understanding that the point should be reserved. Had the evidence rested here, it seems the Chief Justice would, though against his inclination, hâve yielded to the force of this objection, even though it appeared upon the face of the pétition that the intention of the petitioners was to présent it to the king, and it had before been proved to hâve reached him. When a libel has been sent by the post, it seems that the défendant is guilty of a publication in any county into which the libel shall be carried-t But the post-mark, how- ever, upon a letter, is not evidence of a publication in the 'county from which such letter purports, by its post-mark, to hâve been sent, for it may hâve been forged.§ It seems, * B. N. P. 6. 7 East, R. v. Johnson, f Seven Bishops’ case, St. Tr. 4. J. 2. I R. v. Watson, 1 Gamp. 214. 4 St. Tr. 353. (*872) § Ibid.273 however, that in sonne instances the post-mark may be évi- dence when corroborated by other circumstances.* In the case of the King v. the Hon. Robert Johnson,f the défendant was indicted in the county of Middlesex for having published a libel in Cobbett’s Weekly Register. Mr. Cobbett, the publisher (*)of the Register, proved that he had received an anonymous letter (the original of which he believed to be destroyed) in the same handwriting as the libels which he afterward received ; in which letter (paroi evidence of which was admitted to be given for this purpose) the writer inquired whether it would be agreeable to Mr. Cobbett to receive for publication in his Register, cer- tain information of public affairs in Ireland, and if it were, he was desired to say to whom such information was to be directed. In conséquence of the receipt of this letter, which was published in the Register, Mr. Cobbett, through the medium of the same Register, requested the promised information to be directed to Mr. Budd, No. 100, Pall Mail, whose shop was at that time used by Mr. Cobbett for the publication of his Register, where letters of communi- cation were addressed to him, and from whence he received them, his own house being in Duke-street, Westminster. Af- ter this intimation, Mr. Cobbett received in due time two se ver al letters, containing different parts of the libels in question, both in the same handwriting with the letter pre- viously received. Both the letters came under cover, but the covers were believed either to be destroyed or lost, hav- ing been thrown aside as useless ; and therefore paroi évi- dence was admitted, to prove that they had the Irish post-mark upon them, and were directed in the manner pointed out in the Register. The ürst of the letters, dated 29th Ôctober, 1803, was received, and the cover opened by Mr. Budd, who thereupon sent it, together with the cover opened, to (*)Mr. Cobbett in Duke-street, by a person in the office whom the witness did not recollect. But inconséquence of his desiring Mr. Budd not to open any other letters so di- rected, Mr. Cobbett received the next letter, which came to Mr. Budd, by a subséquent post, unopened. Several wit- nesses were then called, who, upon examination of the let- * R. v. Johnson, 7 East, 65. 35 . f 7 East, 65. (*373) (*374)274 térs so received by Mr; Cobbett, swore to their belief of their being the handwriting of the défendant, who, at the period in question, was an Irish Judge. It was then pro- posed by the attorney-general that the letters containing the libels should be read, which he said contained internai évi- dence that they were written and sent by the writer to Mr. Cobbett, for the purpose of being published in his Register. But the reading was objected to, upon the ground that thére was no evidence to go to the jury, of a publica- tion by thé défendant in Middlesex. That, âdmitting the libels to be in the handwriting of the défendant, there iVas no evidence to show that he had sent them into Mid- dlesex to be theré published, nor any privity ëstablished be- tween himself and Cobbett. The case of the seven Bishops was quoted as in point; and it was eontended, that if any publication, proved to hâve taken place in Middlesex, was süfficient ground for the reading of the libel there, it ought to hâve been read in that case, silice the pétition, which had been àcknowledged to hâve been signed by them, was foünd in the king’s hands in Middlesex ; and that the only link there wanting was, that it came there by the ageney of the Bishops, which (*)was holderi not to be supplied by the évidence of their acknowledgment of their handwriting in that coîinty. The trial was at bar, before Lord Ellenbo- rough, C. J. and Grose, Lawrence^ and Le Blanc, Justices. But it \Vas answered by the court, that the case ofthe sèvén Bishops was irrelevant ; that it had been soundly rüled in their case, that the confession of their signatures, extorted from them as it was, did not amount to evidence of a publication in Middlesex ; that in the présent case, a publication in Middlesex had been proved by Mr. Cobbett, and that the notification by letter to him, that he should rèceive certain papers for the purpose of publication, the public anSwer in the Register appointing the mode of sehd- ing, and thé conséquent receipt of papers by Cobbett, through that channel, answering the description of those proposed to be sent, and proved tô hâve been written by thé défendant, afforded evidence to go to a jury to décidé, whether the publication in Middlesex had not been made through the defendant’s procurement. Besides the general proofs already mentioned, some still remain relating peculiarly to the publishers and pro- priètors of newspapers. In the case of the King v. Top- (*S75)275 ham,* the défendant was indicted for publishing, in a certain newspapèr called the World, a libel reflecting on the memory of the late Earl Cowper. To establish the fact of publication, it was proved that the paper in ques- tion was sold at the défendantes office ; that the défen- dant, (*)as proprietor of the paper, had given a bond to the stamp-office pursuant to the 29th G. 3. c. 50. s. 10. for securing the duties on the advertisements ; and that he had from time to time applied to the stamp-office re- specting the duties. The jury, on this évidence, found the défendant guilty ; and upon a motion for a new trial, this was held by the court to he strong evidence of publica- tion. (137) By 38 G. 3. c. 88. which is entitled, “ An Act for pre- venting the mischiefs arising from the printing or publish- ing newspapers and papers of a like nature, by persons not known, and for regulating the printing and publication of such papers in other respects,” it is enacted, By Sect. 1. That no persqn shall print or publish any newspaper until certain affidavits or affirmations shall hâve been. delivered to the commissioners of stamps or their officers. By Sect. 2, These must contain a true description of the proprietors, or of two of them, and of their places of abode, of their shares in the paper, and the house wherein itis intended to be printeci, and of its title. By Sect. 5. The affidavit or affirmation (in case the party be a Quaker) must be in writing, signed (*)by the parties, and sworn to or affirmed before the commis- sioners, or an officer appointed by them. By Sect. 7. A penahy of 100Z. is imposed upon such as * 4 T. R. 126. (137) In an action for a-libel, a witness testified that he was a printer, and had been in the office of the défendant, where a paper called the Ontario Messenger was printed, and he saw it printed there j and the number of the paper produced in evidence by the plaintiffcontaining the libel complain- ed of, was, he believed, printed with the. types used in the défendants office ; this was held to b e prima fade evidence of publication by the défendant. Southwick v. Stephens, 10 J. R. 443. See Respublicav. Davies, 3 Yeates, 128. M'Corkle v. Binns, 5 Binn, 340. Binns v. M'Cvrkle, 2Browne, 79. (*376) (*377)276 shall print, publish, vend, or deliver any newspaper, without making such affidavit or affirmation. By Sect. 9. It is enaeted that, ail such affidavits and affir- mations as aforesaid, shall be filed, and kept in such manner as the said commissioners shall direct, and the saine, or copies thereof, certified to be true copies as hereinafter is men- tioned, shall respectively in ail proceedings, civil and criminal, touching any newspaper or other such paper as aforesaid, which shall be mentioned in any such affidavits or affirma- tions, or touching any publication, matter, or thing contained in any such newspaper or other pape.r, be received and ad- mitted as conclusive evidence of the truth ôf ail such matters set forth in such affidavits or affirmations as are hereby reqüired to be therein set forth against every person who shall hâve signed, sworn, or affirmed such affidavits or affir- mations, and shall also be received and admitted in like man- ner, as sufficient evidence of the truth of ail such matters against ail and every person who shall not hâve signed or sworn, or affirmed the same, but who shall be therein men- , tioned to be a proprietor, printer, or publisher of such news- paper or other paper, unless the contrary shall be satisfac- torily proved.” The section then contains an exception in favour of such as hâve, before the publication of the paper in question, delivered in to the commissioners an affidavit, stating that they hâve ceased to be the printers, &c. of such paper. (*)By the lOth section, it is enaeted, that in some part of every newspaper, &c. shall be printed the names, additions, and places of abode of the printers, &c. and the place were the same is printed, under a penalty of 100Z. By Sect. 11. It is further enaeted, that it shall not be necessary, aftereany such affidavit or affirmation, or a certifi- ed copy thereof, shall hâve been produced in evidence as aforesaid against the persons who signed and made such affidavit, or are therein named, according to this act, or any of them, and after a newspaper, or other such paper as aforesaid, shall be produced in evidence, intituled in the same manner as the newspaper, or other paper men- tioned in such affidavit or copy is intituled, and wherein the name or names of the printer and publisher, or printers and publishers, and place of printing, shall be the same as the name or liâmes of the printer and publisher, or printers and publishers, and the place of printing mentioned in (*378)277 such affidavit or affirmation, for the plaintiff, informant, or proseeutor, or person seeking to recover any of the penàlties given by this act, to prove that the newspaper or papers to which such trial relates, was purchased at any house, shop, or office, belonging to or occupied by the défendant or défendants, or any of them, or by his or their servants or workmen, or where he or they, by themselves or their servants or workmen, usually carry on the business of printing or publishing such paper, or where the same is usually sold. By Sect. 13. It is enacted, that a certified copy of such affidavit or affirmation shall be delivered by the (*)commis- sioners to the persons requiring it, upon payment of one shilling. By $ect. 14. In order to prevent the inconvenience which might resuit from requiring the personal attendance of the commissioners, it is enacted, that a certificated oopy of any affidavit or affirmation proved to be signed by the officer who has the custody of the original, shall be received in évi- dence as sufficient proof of such affidavit or affirmation, and that the same was dulÿ sworn or affirmed, and of the contents thereof ; and that such copies, so produced and certified, shall also be received as evidence that the affidavit or affirmation, of which they purport to be copies, hâve been sworn or affirmed according to this act ; and shall hâve the same effect in evidence as the originals would hâve had, in case they had been produced and proved to hâve been duîy so certified, sworn and affirmed, by the person appearing by such copy to hâve sworn or affirmed the same as aforesaid. By the 17th section it is enacted, that every printer or publisher of every newspaper or other such paper, shall within six days deliver to the commissioners, or their officer, one of the papers so published, signed by the printer or pub- lisher in his handwriting, with his name and place of abode ; and that the same shall be kept by the commissioners or their officer, under a penalty, in case of neglect by such printer or publisher, of 100Z. And that upon application by any person to the commissioners or their officer, to hâve such paper produced in evidence in any proceeding, whe- ther civil or criminal, such commissioners or officer shall, at the expense of the applicant, (*)at any time within two years from the publication, either cause the same to be pro- duced in the court, and at the time when the same is re- (*379) (*380)278 quired to be produced, or shall deliver the sanie to the ap- plicant, on his giving reasonable security, at his own ex- pense, for returning the same. And that, in case such cpm- missioners or their oflicer cannot, by reason of a previous application, comply with the terms of a subséquent one, they shall comply with such subséquent one as soon afterward as they shall be able so to do. By the 28th section, it is enacted, that if a bill be filed in any court, for a discovery of the names of an}^ persons concerned in the property of, or as printers, editors, ôr pub- lishers of, or otherwise in any newspaper, or other such pa- per, or of any matters relating to the printing and publish- ing, in order to enable the party more effectually to bring or carry on any suit or action for damages alleged to hâve been sustained by reason of any slanderousor libellous mat- ter contained in such newspaper or other paper as aforesaid respecting such party, it shall not be lawful for the défen- dants to plead or demur to such bill, but they shall be com- pellable to make the discovery thereby required ; provided that such discovery shall not be made use of as evidence or otherwise, in any proceeding against the défendants, save only in that proceeding in which the discovery is made. Hart and White, the printer and proprietor of a news- paper called uThe Independent Whig,”* were (*)indicted in London for a libel published in that paper. The prosecutor gave in evidence the affidavits sworn by the défendants, with their handswriting thereto, and deliver- ed to the commissioners, containing ali the particulars re- quired by the act, and among the rest, the description of the place where the newspaper was printed, which was in London. An officer from the Stamp-Office, (which is not in London) produced a newspaper, without stating from whence it came, containing the libel in question, which newspaper answered the whole description contained in the affidavit, and stated, at the foot of it, that it was printed at No. 33, Warwick-Lane, London ; and it was also proved, that the defendant’s printing-house was at the same place. The défendants were found guilty, but a new trial was afterwards moved for, on the ground thatthe.evidence at the trial was insufficient to prove a publication in London ; that (*381) * 10 East, 94.279 the 9th clause of the act cited made the affidavit evidence of nothing more than the matters contained therein, which, by réference to the second clause, are the names, addi- tions^ descriptions, and places of abode of the printers, pub- lishers, and prôprietors,*the description of the printing-house, and title of the paper ; that it was still necessary to prove a publication in the county where the trial was had, since the paper, though printed ki one place, may be published in another : that the llth section is confined to actions or in- formations for penalties given by the act ; that the object of the 17th clause was (*)to fix the printing and publication upon the parties described in the Stamp-Office documents, by comparing the newspaper so delivered with any other of the saine impression published in the county where the trial is had ; but that a publication to the commissionefs under the direction of the act could not be considered as a îibellous and guilty publication, without any other evidence of publication in the same place ; that besides, the news- paper was only produced by an officer from the Stamp-Of- fice, without any proof how it came there, or from whom it was received. The court were satisfied that the evidence of a publica- tion in London was sufficient,* on the grounds that “ the act requiring an affidavit to be madeby the printers, pro- prietors, and publishers, specifying their names and places of abode, &c. makes the affidavit conclusive as to the seve- ral facts contained in it, as against the persons signingit, unless they ceased to be printers before the publication complained of. That had the act stopped here, the affida- vits would be conclusive that one of the défendants was the printer and publisher, and the other the proprietor of the pa- per so intituled and that it was printed at the place therein described, which is within the city of London, that would hâve put them upon showing that the paper produc- ed was a fabrication. But the llth section goes further, and enacts, that proof of the affidavit shall render it unnecessary to prove that a newspaper corresponding in title, &c. with the one described in the affidavit, and to which, the trial (*)relates, waspurchased atany house, &c. belonging toor occupied by the défendants, their servants, &c. or where * Lord Ellenborough, C. J. gave no opinion. (*382) (*383)280 they usually carry on the business of printing or publishing such paper, or where the same is usually sold. That at ail events, the llth section superseded the neces- sity of further proof, since the words of it, plaintifF, informer, prosecutor, &c. were general, andnot confined to informants seeking to rebover penalties. Where the défendant, having exhibited a libellous paper, retains it in his possession, if, after notice to produce it, he refuse, paroi evidence may be given of its contents, and that even in cases of treason and a printer may prove that he received a libel in manuscript from the défendant, and return- ed it to him.f To‘prove| the publication of a newspaper, an unstamped copy may be given in evidence, and the witness may swear, that similar papers were published. * See Le Merchant’s Case, 2 T. R. 201. Layer’s case, 6 St. T. 229. f R. v. Pearce Peakê’s Cas. 75. \ Ibid.281 (*)CHAPTER XXVI, Of Evidence relating to Spécial Character, Malice9 fyc. Where the plaintiff has averred that the scandai affects him in some particular character, he is in general bound to prove that such character belonged to him at the time of the publication. The character is described in the déclaration, eitlier par- ticularly or generally. In the former case, it is incumbent on the plaintiff to prove such description, with ail its circumstances, though a more general proof, under a more general description, might bave sufficed ; since, though an averment wholly irrelevant may be regàrded as surplusage, one which is material must be proved as pleaded. The défendant* said of the plaintiff, “ He is a quack, and if he shows you a diploma, it is a forgery.” The déclaration averred that the plaintiff “ was (*)a physi- cian, and had regularly taken his degree of Doctor of phy- sic.” In support of this averme nt, he procfuced a diploma, purporting, on the face of it, to hâve been granted by the University of St. Andrew’s, in Scotland, and to hâve the university seal appendant to it. To authenticate this, a witness was offered, to prove that the rector and profes- sors of the university of St. Andrew5s had acknowledged, in his presence, their signatures subscribed to the diploma- The same witness was ready to prove a certificàte, by the master and professors, of the due taking of the degree, and an acknowledgment by the seal-keeper of the university, * Dr. Moises v. Dr. Thornton, 8 T. R. 303. 36 (*384) (*385)2S£ that the seal appendantto the diploma was the seal of the university. Lord Kenyon, C. J. deeming this evidence insufficient, the plaintiff was nonsuited. A motion for a new trial was afterward refused, on the ground, that the plaintiff having averred that he had duly taken the degree of Doctor of physic, he was bound to prove it ; and it was observed by Lawrence, J. “ everï if it he not necessary in general for the party to show that he has taken his degree, in this case it is necessary on account of the plaintiff’s allégation.” Lord Kenyon, C. J. also observed, that the best evidence to prove the taking of a degree is by the production of the books containing the act of the corporation by which the degree is conferred. It seems perfectly settled, that the plaintiff may de- scribe his character generally in the déclaration, as that he is a physician or attorney. What evidence will satisfy such a description is not so certain. (*)In the case of Pickford v. Gutch,* the action was brought for calling the plaintiff a quack. The déclaration alleged that the plaintiff had used and exercisèd the pro- fession, &c. of a physician, &c. To prove this, a person, who was a surgeon and apothecary, was called, who would hâve proved that the plaintiff for several years had prescrib- ed, &c. as a physician, and that the witness had acted under him. But Buller, J. was of opinion, that the evidence was insufficient, and that it was necessary to produce the plaintiff’s diploma ; on which it was produced in court, and the plaintiff recovered. In the case of Berryman v. Wise,f the plaintiff averred that he was an attorney of the court of King’s Bench, and having been employed in a particular cause, had received a certain sum of money, which the défendant charged him with swindling, adding a threat, that he would move the court to hâve him “ struck off the roll of attorneys.” Up- on the trial before Thomson, Baron, at the York assizes, the plaintiff proved the words, and his having been em- ployed as an attorney in that and other suits. It was ob- jected that the plaintiff had not proved the first allégation in his déclaration, viz. that he was an attorney of thè court of King’s Bench, which couîd only be proved by his * Before Buller, J. Dorchester Summer assizes, 1787. (*386) 1 4 T. R. 366.283 admission, or b y a copy of the roll of attorneys. But the objection was overruled, the learned Judge reserving the point, with liberty to move to enter a nonsuit. Upon motion made, the court were of opinion, (*)that the evidence was sufficient, for the défendantes threat im- ported that the plaintiff was an attorney. (138) And Buller, J. said,“ In the case of ail peace officers, justices of the peace, constables, &c. it is sufficient to prove that they acted in those characters without proving their appoint- ments, and that even in the case of murder. Excise and custom-house officers, indeed, fall under a different considération ; but even in their case evidence was admit- ted, both in criminal and civil suits, to show thjat the party was a reputed officer, prior to the llth Geo. I. c. 10i s. 12.(139) In case of actions brought by attorneys for their fees, the proof now insisted upon has never been required ; neither in actions for tithes is it necessary for the incumbent to prove présentation, institution, and induction ; proof that he re- ceived the tithes, and acted as incumbent, is sufficient.” But in the last case upon this subject, Smith v. Taylor,* nearly the same question arose as in Pickford v.Gutch; and the point was much discussed both by the counsel and the learned Judges of the Common Pleas, who were ulti- mately divided in opinion. The déclaration stated, that the plaintiff, at the ti me ofspeaking the words, was a “physi- cian.” Upon trial of the cause before Sir J. Mansfield, C. J. it was proved that the plaintiff had practised for some years as a physician in the (*}town of Yarmouth; that Dr. Girdlestone, who was also a physician at Yarmouth, and of longer standing than the plaintiff, had been attending one Richard Helsden as a patient, and that the défendant was employed as his apothecary. That Dr, Girdlestone being * 1 N. R. 196. (138) See Cummin v. Smith, 2 Serg. & R. 440. (139) In an action for a libel, paroi evidence was held admissible to prove the averment in the déclaration, that the plaintiff was state printer and president of the Mechanics’ and Farmers1 Bank ; these façts being stated as inducement and collaterally. Southwick v. Stevens, 10 J. R. 443. See High- land Tumpike Company v. M’Kean, 10 J* R- 154. (*387) (*388)284 obliged to leave Yarmouth for a day, the plaintifF was sent for at the request of Helsden’s wife, and prescribed for him ; the prescription was made up by the défendant. On Dr. Girdlestone’s return, the plaintifF requested that he might be sent for ; Dr. G. refused, and the plaintifF then, with refer- ence to the transaction, said, “ I and Dr. G. both thought that Helsden was doing well, till Mrs. Helsden called in Dr. Smith, who has upset ail we hâve done, and die he (Helsden) must.” Moises v. Thornton was cited on the part of the défendant, to prove it necessary for the plaintifF to show that he was a regular physician. His lordship was of opinion, that the case was irrelevant and the plaintifF ob- tained a verdict for 100Z. The case was afterward argued on a rule to show cause why the verdict shoüld not be set aside, and a new trial had ; and the learned judges not be- ing agreed, delivered their opinions seriatim, Sir J. Mansfield, C. J. and Mr. Justice Heath, agreeing that the plaintifF was entitled to recover without further proof ; and Rooke and Chambre, Justices, conceiving it to be requisite for the plaintifFto prove that he was lawfully authorized to practise. Since the court were equally divided, the plaintifF of course re tain ed his verdict. p)In hazarding a few observations on the subject of this legal difficulty, it will be convenient to consider the varieties which spécial characters admit of, considered with reference to the means by which they are acquired. 1. The character may be acquired by mere user, without the aid of any legal form for the pnrpose of elothing the party with that Gharacter ; as, where he sues as a merchant or mechanic. 2dly. In other cases, where the character is not créâted by any legal form, the acting in it may be prohibited, unless the party qualify himself in some particular mode ; as, where a person exercises a trade mentioned in the statute 5 Eliz. c. 4. in such case he is a tradesman by mere user, but is prohibited under penalties from following it, unless he has qualified himself bÿ serving as an apprentice for seven years. 3dly. Some legal form may be necessary, in order to confer the character in which the plaintifF sues ; as, where words are spoken of him as a justice of the peace, or as the incumbent of a particular bénéfice, where legal forms are necessary to mvest the party with the character in which he assumes to hâve been injured. (*389)285 In the first of these, no doubt can arise as to the (*)évi- dence ; a merchant, who complains that his réputation as a merchant bas been injured, can give no other proof of his title to the character than that he bas traded as such. In the second class of cases, the character is required by user ; but the user itself is prohibited, unless certain statuta- ble réquisitions hâve been complied with. It does not appear in general to hâve been deemed neces- sary for a plaintiff, who sued in such a character, to show that he had complied with every requisite which a penal statute might hâve prescribed ; and since such a rule com- prehends a great number of cases much litigated, the ab- sence of objections on the subject is a cogent argument to prove that they were never thought available. If such proof were necessary, the necessity would extend to every action in which a tradesman or mechanic, comprehended within the 5th of Elizabeth, brought an action for words re- lating to his trade or business, and he would upon trial, be put to prove that he had served for seven years as an appren- tice, since other wise his exercise of it would be unlawful ; and on the same ground every magistrate, or officer under government, would, in a similar case, be bound to prove that he had duly taken the sacrament, or complied with other forms prescribed by the statutes, the neglect of which would render the acting in such office illégal. In the case of Smith v. Taylor, where the plaintiff averred himself to be a physician, the point expressly arose. It could not be contended in that case, that the plaintiff was not a physician, since no (*)precise form is by law essen- tial to the constituting a person a physician ;* and physi- cians existed eo nomine, and were contemplated by the law as such before the prohibiting statute was passed, which rendered their practising without certain qualifications un- lawful. That statute could not therefore, be considered as creating a new order and description in the profession. The objection then amounted to this, that the plaintiff being what he had by user proved himself to be, “ a physician,” was bound to proceed, and show that he had exercised his profession without violating any statute. (140) * Com. Dig. tit. Physician. (140) In slander by a physician, evidence that the plaintiff practised in (*390) (*391)286 Though the case of Berryman v. Wise be not an express and distinct authority to show that the legal investment with an office is in no case necessary to be proved, inasmuch as the user in that case wâs mingled with the admission con- tained in the defendant’s threat ; yet it goes far to prove, that where no formai inception of character is required by law, it is unnecessary to prove a compliance with any statutes prohibiting the acting in that character under particular re- strictions. In that case it was not contended that the plaintiff was obliged to prove that he qualified himself to act in the ca- pacity of an attorney, as directed by the 25th Geo. 3. c. 80 ; and yet it appears clear, that if it had been shown that the plaintiff, at the time the words were spokèn, was acting as an attorney (*)unlawfully, and in direct violation of a statute, he could not hâve recovered. There was the same necessity, therefore, in Berryman and Wise, of proving that a eertificate had been taken out by the attorney, as existed in the case of the physician, to prove his compliance with the statute of Henry the Eighth, supposed to.prohibit the practising as a physician without a degree or lefters tes- timonial. Neither does the admission in Berryman and Wise at ail apply to this point, or in any way operate as supplementary evidence ; since, allowing it the most ample effect, it can amount to no more than an acknowledgment that the plaintiff 5s name had been admitted on the roll of attorneys, which affords no evidence that he afterward re- gularly qualified himself by taking out the statutable cer- tificate. The plaintiff, in the case of Smith v. Taylor, having proved that he had practised as a physician, since it was not contended, on the other hand, that he would be entitled to recover if the practising was illégal, the question was, upon which party the burthen of proof should be thrown—upon the plaintiff, to show that he had acted legally, or upon the défendant, to prove that the plaintiff had violated a statute. The general presumption of the law in favour of innocence speaks powerfully in favour of the plaintiff ; but to this it is objected, that the plaintiff, by proving that he has acted in a character requiring the observance of certain legal requisites, his profession for severai years, with suceess, and réputation, is, per se, suffi- cient evidence of his being a physician. Brown v. Mimsf 2 Const, Ct. Rep. 235. (*392)m has placed himself in the same situation with a défendant against whom an action is brought to recover statutable (*)penalties ; in which case, it is incumbent upon him to re- but a presumed liability by proving the qualification. There seems, however, to be a material distinction as to the legal situation of the parties in the two cases : in the one, the plaintiff proceeds to enforce the existing law, by the means which the law directs, and the question of qualification is directly in issue between the parties. In the other, the défendant adopts a mode of proceeding which the law does not warrant, and then attempts to screen himself behind a defect in the plaintiff’s title, which does not corne directly in issue ; he does not contend that his own conduct is pure, but relies on the eulpability of his opponent ; con- tending, that on grounds of general policy, the plaintiff is not entitled to damages. The rule of policy certainly pre- scribes that a person, in the illégal receipts of profits, shall not recover for their diminution, by whatsoever means it may hâve been effected, but it seems equally to prohibit a wanton attack upon character at the discrétion of an indi- vidual, which may produce conséquences infinitely more serious than the pecuniary penalty prescribed by the législa- ture : not that the magnitude of these conséquences is mate- rial where the illegality has once been substantiated, but the possibility of their far exceeding the legislative measure of punishment, seems to operate in favour of the plaintiff, where the question is, from whom the proof of illegality or innocence shall be expected. Evidence that the party has acted in a particular capac- ity, for which he ought to hâve qualified himself (*)in a manner prescribed, in a proceeding against him grounded on the neglect to qualify, imposes upon him no doubt the necessity of proving his qualification ; but the same necessi- ty does not always exist when the party has brought him- self by evidence within the predicament ; if it did, it would follow that a carpenter, in an action for a month’s work and labour for the défendant, must go on to prove his having served an apprenticeship ; and that a surgeon* in London, in an action for his service, must prove his license from the * See Gremare v. Le Clerc Bois Valer, 2 Camp. 144. Law v. Hodgson, 2 Camp. 147. 11 East, 180. (*393) (*394)288 college. In such cases, tliough upon grounds of strict legal policy, the plaintiff may be disabled to recover where the illegality of his acting is manifest ; yet the law will not présumé the defect, but require proof of it from the^ défen- dant, who obtrudes the objection upon the notice of the court. The general presumption of the law in favour of a man’s having performed his duty is so strong as in some instances to " outweigh the rule which calls upon the party to prove the affirmative ; and this happens where the party neglect- ing would hâve been guilty of a criminal omission. The case of Monke v. Butler,* is very sti’ong to this effect. The plaintiff sued for tithes in the spiritual court, the défendant pleaded that the plaintiff had not read the thirty-nine articles, and the court put the défendant to prove it, though â néga- tive. Whereupon hemoved the court for a prohibition, which was denied, since the law will présumé that a par- son has read the articles, for otherwise he is to lose his bene** fice. (*)Ànd upon the same principle, upon an information against Lord Halifax,f for refusing to deliver up the rolls of the auditor of the Court of Exchequer, the court put thé plaintiff upon proving the négative, viz. that the défendant did not deliver them, for a person shall be presumed duly to execute his office till the contrary appears. In the King v. Coombs,| the défendant swore an affirma- tive, for which an information was exhibited against him ; and although a négative could not be proved, the court di- rected that the prosecutors should first give probable evidence, and that the défendant should afterward prove the affirma- tive if he could. These cases were cited, and their authori- ty recognised by Lord Ellenborough, C. J. in delivering the opinion of the court in the case of Williams against the East India Company.§ It seems difficult to distinguish the case of Monke v. But- ler from that of Smith v. Taylor, as far as relates to évi- dence of character. In each case, the plaintiff charges the défendant as a wfong doer ; in the first, by unlawfully with- holding tithes ; in the second, by diminishing his professional * 1 Roll. Rep. 83. t B. N. P. 298. Vin. Ab. tit. Evidence. tComb. 57. § 3 East. R. 192. (*395)profits by an officious intermeddling.; the nature of the defence is the same, since in each the défendant insists upon the want of a legal qualification in his adversary ; and in each the défendant would be guilty of neglect in acting without the qualification ; so strong, therefore, is the analo- gy, that it is not easy to conceive upon, what grounds the presumption which prevails in favour of the plaintiff in the one case, should not equally operate in the other. (*)Thirdly, Where the character is derived from some legal and formai investment. In the case of Berryman and Wise, the évidence that ’the plaintiff had acted as an attor- ney was mingled with the quasi admission, supplied by the defendanfs words, and stress was laid upon that circüm- stance both by the learned judge who tried the cause and by the court above, by whom his opinion was confirmed ; the decision, therefore, cannot be considered as a distinct and express authority, to show that evidence of user alone is in such cases sufficient. But the dictum of Mr. Justice Buller, subjoined to the opinion of the court, clearly évincés his opinion, that évi- dence of the plaintiff’s having practised as an attorney would alone hâve been sufficient ; since, without adverting fp the circumstance of admission, he places the evidence on thé same footing with that allowed in the case of a con- stable, in which it had solemnly been decided, that his hav- ^ing acted in the office was sufficient proof that he was a constable, even in an indictment formurder. The general mode of pleading in an action against a wrong doer for a disturbance, supplies an argument applica- ble to this case. In à possessory action, where the plaintiff complains that he has been hindered in the enjoyment of any right, it seems to bè in no case necessary to allégé any legal title* to that in which he is disturbed ; so that in an action against the défendant for a disturbance in his right to take toll, or toenjoy an exclusive right of ferry, it is suffi- rent for the plaintiff to a ver his possession, or that “ habere debet” without setting out his title ; (*)the pîain reason for allowing which is* that the plaintiff is to recover damages only* and the right'or title to the land ddes not corne in ques- tion. *Ow. 109. 2 Will. Sau. 1Î3. a. n. 1. 37 (*396) (*397)And so, in the action for slandering a plaintiff in his profession or office, which bears a stron'g analogy to an action on the case for a disturbance, it is sufficient to aver that the plaintiff* used and exercised the profession, or generally, that he held the office; whence it shouîd seem, that proof of such possession, as against a disturber, without legal authority, would be sufficient evidence to satisfy the allégation. , Nextas to evidence of malice. The different presumptions of law in cases of slander, as already observed, are, first, conclusive in favour of the de- fendant ; secondly, in favour of the défendant, but liable to be rebutted by evidence of express malice ; or thirdly, against the défendant, but liable to be controverted bÿ any evidenèe proving his intention to hâve been pure.. In the second class, where lhe burthen of proving ex- press malice îs thrown upon the plaintiff, he may, in sup- port of the allégation, givé in evidence any expressions of the défendant, whether oral or written, indicating spite and ill-will towards him, for the purpose of showing the tempe r and disposition with which he made the communication complained of. And since the object of such evidence is to enable the jury to ascertain whether the défendant acted from good or evil motives, it is not material whether thé in- stances of the defendant’s ill-will, are or are not immedi- ately connected with the publication in question ; (*)but a judge will, in such a case, instruct the jury to confine thêm- selves, in their assessment of damages, to the words stated in the déclaration. It was once doubted whether, in admit- ting evidence of this nature, a distinction ought not to be made between words not actionable in themselves and those which are so. In the case of Mead v. Daubigny,f Lord , Kenyon rejected evidence of words actionable in themselves, and not mentioned in the déclaration ; but his Lordship afterward changed his opinion, and admitted such evidence in a subséquent case. 1(141) *8 T. R. 305. Pickford v. Gutch. f Peake’s Case, 125. î Lee v. Huson, Peake’s Cases, 166. R. v. Pearce, Ib. 75. (141) Bodwellv. Swan, 3 Pick. 376. Wallis v, Mease, 3 Binn. 546. Kecm v. M’Laughlin, 2 Serg, & R. 469. And in an action for slander, the plaintiff (*398)291 In Russe! v. Macquister,* evidence of actionable words spoken after the time of thqse laid in the déclaration, was ob- jected to, on the ground that if such words were taken irito considération, by the jury, the défendant might.be- made to pay a double compensation, for ihe same injury, since another action might be brought for the words last spoken, and the distinction was taken between that case and the case of words not actionable. But Lord Ellenborough, C. J. overruled the objection, observing, that though (*)such a distinction had once prevailed, it was not founded in prin- ciple ; and that, although no evidence can be given of any spécial damage not laid in the déclaration, yet that any words, or any act df the défendant, is admissible, tô show quo animo he spoke the words which are the subject of the action. (142) Upon the same principle, j* where a libel was contained in a political paper published weekly by the défendant, after proof that the paper in question had been purchased at the defendant’s office, evidence was admitted of the previous sale of other papers with the same title at the same office. And the reason of admitting it was, to show that the papers* which purported to be weekly publications of public trans- actions, were sold deliberately, and vended in the regular course of circulation ; that the paper containing the li- be! was not published by mistate, but vended publicly, de- liberately, and in regular transmission for public perusal. *■ 1 Camp. 49. f Plunkett v. Cobbett, 5 Esp. 136. having proved the words laid, may, for the purpose of showing the malice of the défendant, give in evidence the speaking of other slanderous words, of a similar import to those charged, by the défendant of the plaintifïj before the bringing ôf the action. Duvall v. Griffith2 Har. and Gill. 30. So, an un- snccessful attempt to justify the truth of the words spoken, in a civil action, is evidence of malice. Rootv. King, 7 Cowen, 613. Jackson v. Stetson, 15 Mass. Rep. 48. Hix v. Drury} 5 Vick. 296. So, the fact of taking dépositions, &c. to prove the truth of the words pub- lished, the défendant afterwards declining to plead in justification, may pro- perly be given in evidence to the jury, in proof of malice. Bodwell v. Osgood, 3 Piçk. 379. See further in Thomas v. Croswell, 7 J. R. 264. King v. Root, 4 Wend. 113. " (142) See M'Jllexander v. Hariris, 6 Munf. 465.292 In case of actions brought by former servants against masters for giving false chavacters, it lias already been seen that it is incumbent on the plaintiff to adduce extrinsic proof of malice. Insuch instances the plaintiff, if charged with dishon- esty and miscondüct in the defendant’s service, is at liber- ty to prove his good character and (*)conduct in former services, sinçe general charactei is in some.respects in issue ; and it seems that wherever the words impute crime or dis-, honesty, evidence of previous good conduct is admissible.f So thé plaintiff may prove by the evidence of other servants in the same family, that whilst he remained in the defend- ant’s service, he conducted himself well, and that no com- plainte of the nature ascribed to him by the défendant then existed. f And the tendency and bearing of thiô evidence is to show, that the défendant knew that the character he gave was false. It has been said, that a servant in order to recover, must prove the character tohave been maliciously% as well as falsely given. Bythis is to be understood, that in addition to that presumption of law, as to the plaintifFs innocence of the charge, arising from the defendant’s déclin^ ing to justify, he must go further, and show that the charac- ter was given oui of spite and ill-will ; and the plain reason for this is, that the knowledge of misconduct frequently rests with the défendant himself ; and being unable to prove it by the testimony of others, if the general presumption were to operate against him, he would be left without defence. To prevent such incoiivenience, the law does not permit the presumption of falsity so to operate, but requires malice to be proved from other sources. In case, however, the plain- tiff should be able expressly to prove that the défendant was aware of the falsity, no further proof of malice would be requisite ; nor, indeed, could a stronger proof of it be pro- duced than that the défendant (*)had given a character of* the plaintiff injurious to his réputation, with a full knowledge that it was untrue. The circumstances under which the master and servant parted, any expressions of ill-will uttered by the former, his officiously acquainting others with the servants misconduct, without any previous application to him for a character,§ * King v. Waring and Uxor, 5 Esp. 13. f 3 B. & P. 589. t Weatherstone v. Hawkins, 1 T. R. 110. § 3 B. and P. 587. (*400) (*401)393 are ail facts proper to be left to a jury to give their opinion "upon* the question of intention. . In-t-he third class of cases, where the presu mption of law is against'the défendant, no evidence of malice is of course expected front the plaintiff ; and any overt act of publication imposes the burthen of explan ation upon the défendant, since it will be presumed that the party knew the contents of that which he published. Thusit has been seen, that a book seller is, in the first instance, presumed to know the contents of anÿ book sold at his shop ; and upon proof of the sale, the contents are so far considered to hâve been fix- ed upon him, that the plaintiff is entitled to hâve them read in evidence against him ; so far has this species pf presump- tion been carried, that it has been held, thatunder an indict- ment for sending a threatening letter,f the bare delivery of it, though sealed, was of itself prima facie evidence of a guil- ty knowledge of the contents. So, in- case a servant deliver a letter containing a libel, by his master’s directions, the mere proof of delivery, though sealed, would in the first instance entitle the plaintiff in an ac- tion against the servant, (*)to hâve the contents read ; and if the servant, in his defence, showed that he received the let- ter sealed from his master, the plaintiff might reply to such evidence, by showing that the servant was actually aware of the contents ; since, thoilgh a servant is in duty bound to execute the comniands of his master which appear lawful, he is not protected in the execution of those which he knows to be illégal* In general, no evidence can be given of any damage not stated in the déclaration^: ; and any damage which is stated must be proved to hâve resulted from the wçongful act of the plaintiff, as averred in the pleadings. It has been s'aid, that the plaintiff, in an action fora malicious prosecu- tion, may give in evidence the circumstances of the de- fendant, in order to increase the damages. The principle, however, upon v/hich such evidence is allowable, is not very obvious, and scarcely can be warranted, unless the situation and rank of the défendant hâve affected the quantum of pré- judice sustained by the plaintiff. (143) *3 B. & P. 587. f TheKing v. Girdwood, Leach. Cas. C. L. 169. I See Russell v. Macquister, 1 Camp. 48. (143) See Larned v. Buffington, 3 Mass. Rep. 546. (*402)294 (*)CHAPTER XXVII. Evidence for the Défendant. It lias already been seen of what circumstances the de- fendant maÿ avait himself, to show thàt his conduct was not attributable to malice, under the general issue* or by plead- Mg- Where the words are capable of being explained by refe- rence to circumstances, such proof is incumbent on the de- fendant.f In the case of Penfold v. Westcote,^: it was proved that the défendant said of the plaintiff, “Why don’t y ou corne out, you blackguard, rascal, scoundrel Penfold, you are a thief.” The witness, who proved the words, was not asked whether, by the word cc thief,5’ he understood that the défen- dant meant to charge the plaintiff with felony. Chambre, J. in his direction to the jury, said that it lay on the défendant to show that felony was not imputed by the word “ thief.” And after a verdict for thé plaintiff, a new trial was refused. But where it plainly appears fi*om the context, that the word was nôt used in a felonious sense, the (*)plaintiff will be nonsuited upon his own showing.§ In general, it seems that where the publication df a libel|| has been fixed upon the défendant, it rests with him to establish the innocence of his intention.^! *Seè Chap. 23. t-Cro.J.114. B. N. P. 5. . t 2 N. R. 335. ■ .§1.Camp. 48., || R. v. Topham, 4 T. R. R. v. Withers, 3 T. R. 428. R. v. Woodfall, Burr. R. v. Almon, Burr. 2686. 1T See Girdwood’s case, Leach, C. C. L, 169. (*403) (404) .295 ït may next be considered of what evidence the défen- dant may avail himself for the purpôse of mitigating the damages. In Mullett v. Hulton,* the déclaration stated that the plaintiff was about to take a house, but that the défendant, in order to prevent him, addressed a letter to the owner, containing the foliowing passage : “ Mr. Hulton cannot for a moment suppose that Mr. Salter is acquainted with the newspaper particulars relative to the party alluded to (the plaintiff,) otherwise it is not probable that Mr. Salter would introduce an acknowledged félon, debauchee, and seducer, into the neighbourhood of Angel Row.” Erskine, for the défendant, contended that he was at lib- erty to go into evidence that the plaintiff had been, in fact, a seducer, not as an answer to the action, but in mitigation of damages. He admitted, that not having pleaded the truth of the words, he coüld nôt prevent a verdict from passing against the défendant ; but that he, having referred to news- paper authority for the words used in the letter, and not having given them as his own, or from his own knowledge, that he should be at liberty (*)to give the fact in evidence as Corning from another source, to which he referred in his let- ter, and as the.slander did not proceed fronr him, it would go in mitigation of damages. Lord Ellenborough, C. J. said, that as the pleadings stood on the record, the evidence offered was inadmissible as an ^answer to the action. The libel itself was proved, and there was no justification that entitled the défendant to a verdict ; but he added, that as the words referred to a news- paper, and' were so written as à quotatiorf from a newspa- per, if the newspaper could be produced, he would admit it as evidence, as having aaused the défendant to adopt what he had written in the letter, he having so referred to it.(144) Where the défendant lias not pleaded the truth in justi- fication, it does not appear {terfectly settled how far he is at liberty to proceed in evidence tending to prove the truth of the matter published.(145) * 4 Esp. 248. (144) SeeSkinnerv. Powers, 1 Wend. 451. (145) See Baily v. Hyde, 3 Conn. Rep. 463. Wormouthv. Cramer, 3 (*405)An action ^as, brought* for a libel published in the Morning Post, charging the plaintiff, with having been eon- cèrned with a person of the name of Knowles in procuring money from the relatives Nand 'friends of persons convicted of capital offences, under pretence of being uble to procure pardons (*jthrough the interférence ofthe Duke ofPortland, in whose service the plaintiff was. The défendant pleaded the general issue, and in mitiga- tion of damages offered evidence to prove strong grounds of süspicion agairist the plaintiff Eyre, G. J. at first doubtéd whether this evidence was admissible. Adair, Serg. for the défendant, admitted that the défendant could not give in evidence ou the general issue, facts whieh, if pleaded, would amount to a justification ; but contended that the y might prove facts. which showed there was cause of suspicion, and therefore proved that the défendants were not induced to publish this paper by reason of malice against the plaintiff, but for the purpose of conveying infor- mation to the public, this being a côncern of a public nature. A note of the case of Curry v. Walter was then read, in whieh his Lordship admitted the distinction, and received such evidence. . ? Eyre, Ç. J. said, he believed in that case he admitted the evidence inordef to show that the défendant had not in fact published a libel, he having only published the pro- ceedings of a court of justice,, whieh the court afterwards' determined tô be no libel in point of law ; but he would not deny but he might also hâve received it in mitigation of damages: for though he had never known the evidence given in an action for a libel, yet he had always understood that in an action for words the défendant 'might, in mitiga- tion of damages, give any evidence short of such as would ■ be à complété (*)defence to thé action, had a justification been pleaded. * Knobell v. Fuller and another, sittings after T. T. 179t. [S. C Pèake’s Evid. App. xxxii. 2d Am. Edit.] Wend. 395. Root v. King, 7Cowen, 613. Buford v. M'Luny, I Nott & M’Cord, 268. Moi'ris v. Duane, 1 Binn. 92. n. Cheatwood v. Mayo, 5 Munf. 16. M’Æexander v. Harris, 6 Munf. 465. Ædermanv. French, 1 Pick- 1. Wolcott v. Hall, 6 Mass. Rep. 514. (*406) (*407.) *29? The défendant then called Mr. Ford, a magistrate, to prove, that on the examination of the plaintiff before him, he admitted that he had received five guineas for convey- ing a letter to the Duke ; and the Duke himself being exam- ined, said, that thinking the plaintiff had misconducted him- self in that respect, he had discharged him from his service. An action was brought for a libel* published in the Morning Herald, imputing to the plaintiff the offence ' for which Lord Audley suffered in the reign of Charles I. The déclaration contained the usual exculpatory averments, and stated that the plaintiff had lost the society of many worthy subjects in conséquence of the publication. The défendant pleaded not guilty. Upon the trial before Sir J. Mansfield, C. J. évidence WaS offered in mitigation of damages, that at the time of the pub- lication, the plaintiff was generally suspected to hâve been guilty of the charge imputed, and that in conséquence of this general suspicion his acquaintanoe had deserted him. This evidence was objected to. It was contended that it would be in vain to bring an action if such evidence were permitfced. That a plaintiff could not corne prepared to dé- fend every act of his life. That there was nothing on the record to put the character in issue ; and that to admit such evidence would only be giving the défendant an opportunity (*)of continuing and aggravating the original libel. Sir J. Mansfield, C. J. admitted the evidence, observing, that he could never answer to his own satisfaction, the ar- guments used for the plaintiff. That since it had been held that any thing short of proving the evidence imputed in the libel was evinced in mitigation, he did not know how to reject the witnesses. Besides that, the déclaration stated that the plaintiff had always preserved a good character in society, from which he had been driven by the insinuations in the libel. That the question for the jury was, whether the plaintiff had actually suffered this grievance or not, and therefore that evidence to show that his character was in as bad a situation before as after the libel, mu$t be admit- ted.(146) * Earl of Leiccster v. Walter, 2 C. N. P. 251. (146) See ante, note (145). 38 (*408)298 The learned Judge, in summing up, directed the jury to consider, in assessing the damages, whether the reports which had been proved were sufficient to show that the plaintifF could receive little injury ; and that, in this point of view, it did not matter whether the reports were well or ill- founded, provided they got into many men’s mouths.(146) Though the admissibility of such evidence does not seem to hâve been yet decided upon argument, yet the opinions of the eminent persons who hâve deemed such to be admissi- ble at Nisi Prius, îeave no doubt upon the question, especially considering (*)that the last learned Judge, before whom the point arose, conceived himself bound to the admission, not only by the averments upon the record, but also by the anté- cédent decisions on the subject. Some difficulty, however, may be found in reconciling the rule laid down in its ful- lest extent, namely, that any matters short of actualproof are admissible in mitigation, with the resolution of the Judges in Underwood v. Parks.* The evidence offered in the cases cited, is either general evidence of the plaintifF’s suspicious character previous to the publication, or of particular facts tending to show his actual guilt. In the former case, the reason of admitting the evidence appears plain and obvious, and it seems to be immaterial whether the plaintifF avers his previous good character, and the désertion by his acquaint- ance or not, since the law will présumé that he has a good one till'the contrary be proved, and will equally présumé a loss after proof of actionable words ; but it is impossible to say that the défendant has not a right to give general evi- dence that the plaintifF did not sustain any loss of cha- racter in conséquence of his publication, but that, on the contrary, his character had previously been ruined, since the loss of character is the very basis of damages, and notice to this efFect by a spécial plea would render no assistance to the plaintifFin providing counter-evidence, since ail he could do would be to prove by général testimony that his réputa- tion was previously good, which, as already observed, the * Stra. 1200. (146) S®e ante, note (146) % (*409)299 law présumés for (*)him, and which he would not be able to prove by any particular facts.( 147) But particular facts, which might form part of a chain of circumstantial evidence against the plaintifF, in case he were indicted for the ofFence imputed, seem to fall under a differ- ent considération, (147) First, because any fact of such a nature is evidence rather to rebut malice tham to af- fect the quantum of damages ; since, though malice be es- sential to the action, it is not the criterion and measure of damage ; and though circumstances inducing a belief of the plaintifF’s guilt in the mind of the défendant, take away considerably from the malignity of his intention ; yet, since they do not amount to a justification, there is still a residuum of malice sufficient to support the action. And secondly, if one circumstance be admitted, tending to fix actual crimina- lity upon the plaintifF, a second and third could not, in prin- ciple, (*)be rejected ; and it would, in many instances, be difficult for a judge to confine the evidence within such îim- its, that it should not produce on the minds of the jury a conviction of the plaintifF ’s guilt, or, in other words, to avoid infringing upon the general rule laid down by ail the judges.* Where extrinsic assertions are given in evidence by the plaintifF, to show the defendant’s malice, the latter is at liber- ty to prove the truth of such assertions under the general is- sue, since he had no opportunity of pleading the matter spe- cially.f A member of parliament may be called upon to state^: whether another member took part in a particular discussion, but cannot be examined as to what was said in the course of the debate. ( 148) In Curry v. Walter,§ a barrister was supœnaed, to prove that he had made a motion in the court of King’s Bench for a criminal information against the plaintifF, for publishing * ln Underwood v. Parkes, Str. 1200. f B. N. P. 10. t 5 Esp. R. 136. § 1 Esp. 456. (147) Vick v. Wakefield, 2 Hayw. 222. Foot v. Tracy, 1 J. R. 46. Bufm'd v. JWLuny, 1 Nott & M’Cord, 26S. Wolcott v. Hall, 6 Mass. Rep. 514. Lar- ned v. Buffinton, 3 Mass. Rep. 546. Ross v. Lapham, 14 Mass. Rep. 279. (148) See Coffin v. Coffin, 4 Mass. Rep. 1. (*410) (*411)300 which the latter brought his action. Upon the trial, Eyre, C. J. was of opinion that it was improper to call a barrister as a witness to prove such à circumstance, but that the party (*)ought to prove it by other means ; that it was at the option of the counsel to give or withhold his testimony. (*412) *3*301 (*)CHAPTER XXVIII. Proceedings after Verdict. Where the situation in which the défendant was acting at the time of speaking the words, or publishing the libel, was such as to rebut the implication of malice, and no ex- press malice was proved, the court, it seems, will, after a verdict for the plaintiff, grant a new trial ; and this, even though the défendant knew that what he said was not strict- ly true, provided the variation from the truth be immaterial to the interest stated to hâve been affected.* But where the false assertion of the défendant is material, no new trial will be granted, though the défendant had an interest in the subject matter affected.f Where the damages are so outrageous as to induce a strong presumption of partiality in the jury, a new trial will be granted in an action for slander, as well as in other cases, though in such an action the amount of the loss sustained from the injurious act dépends upon circumstancès of ail othèrs the (*)most appropriate for the calculation and as- sessment of a jury. ( 149) * 4 Burr. 2422. | See Smith v. Spooner, p. 236. (149) In general, in actions for slander, libel, and other personal torts, the court will not grant a new trial on the ground of excessive damages, unless the amount of damages be so flagrantly outrageous and extravagant, as ma- nifestly to shew that the jury must hâve been influenced by passion, préju- dice, partiality or corruption. Coleman v. SouthwicJc, 9 J. R. 45. Moody v. Baker, 5 Cowen, 351. Cole v. Perry, 8 Cowen, 214. Root v. King, 7 Gowen, 613. Southwick v. Stevens, 10 J. R. 443. Tillotson v. Cheetham, 2 J. R. 63. (*413) (*414)302 In the case of Lord Townsend v. Dr. Hughes,* which was an action for scandalum magnatum, the words were, “ He is an unworthy man, and acts against law and reason.” The jury found a verdict for the plaintiff with 4000Z. dam- ages. A new trial was moved for on these grounds : lst. Because the witnesses who proved the words were not persons of crédit, and that, at the time when tliey were leged to be spoken, many clergymen were in company with the défendant, and heard no such words spoken. 2dly. Because one of the jury confessed that they gave such great damages to the plaintiff, not that he was damni- fied so much, but that he might hâve the greater opportunity to show himself noble in the resisting of them. 3dly. (Which was the principal reason,) because they were excessive. North, C. J. and Wyndham and Scroggs, Justices, were of opinion, not new trial ought to be granted ; that in a civil action, where the words themselves are actionable, without an averment of spécial damage, the jury oqght to take into considération the whole of the damage which the party might sustain, since he could not bring a fresh action ; that it was impossible for the court to tell what value to set upon the honor of the plaintiff ; that (*)the j ury were, by law, judges of the damages ; and that it would be very in- convénient to examine upon what account they gave their verdict. Atkins, J. dissented from his brethren, conceiving that the court ought to compare the words with the damages, and to consider whether they bore any proportion. He also cited the case of Gouldston v. Wood, where the plaintiff, in an action on the case for calling him a bank- rupt, recovered 1500Z. damages, and the court granted à new tiial, because the damages were excessive. In the same case it was said by Scroggs, J. that had the jury given but one penny damages, the plaintiff * 2 Mod. 150. JVcaZ v. Lewis, 2 Bay, 204. Davis v. Davis, 2 Nott & M’Cord,.8i. Nettles v. Harrison, 2 M’Cord, 230. Coffin v. Coffin, 4 Mass. Rep. 1. Clark v. Bin- ney, 2 Pick> 113. Bodwell v. Osgood, 3 Pick. 379. Shute v. Barrett, 7 Pick. 82. Riley v. Nugentj 1 Marsh. 431. (*415)303 could not hâve obtained a new trial in hopes to increase them. When the plaintiff’s title to reeover does not appear perfect upon the face of the record, the défendant may make his objection, either by moving in arrest of judgment within the usual time, or by bringing a writ of error. 1t has already been seen what are the rules to be observ- ed in the construction of the défendantes expressions ; that they are to be taken according to their plain and obvious meaning, and in the sense in which the hearers or readers understood them. After a verdict for the plaintiff, by which the defen- danfs act, meaning, and intention, hâve been ascertained to correspond with the statement upon the record, the courts will not listen to trivial exceptions, but require the party objecting to point out* a substantial objection upon the face of the proceedings. (*)And> in general, where words may be taken in a double sense, the court, after a verdict, will always con- strue them in that sense which may support the verdict, f Where there are several counts in a déclaration, and en- tire damages are given, if one count be defective, judgment must be arrested for the whole, since it is impossible for the court to apportion the damages, and to say what abate- ment ought to be made in respect of the vicious count. :{:( 150) * See the opinions of Lord Ellenborough, Mr. J. Le Blanc, Lord Mans- fièld, L. C. J. Parker, Lord Holt, C. J. Pratt, Mr. J. Buller, and C. J. De Grey, as herein before cited. t 3 Mod. 240. î Holt v. Scholefield, 6 T. R. 694. (150) Cheethamv. Tïllotson, 5 J. R. 430. Gibbs v. Dewey, 5 Cowen, 503. Goodrich v. Wolcott, 3 Cowen, 239. Backus v. Richardson, 5 J. R. 476, Bay- ard v. Malcomb, 2 J. R. 573. Per Clinton, Sen. Renselaer v. Platner, 2 J. Cas. 18. Hopkins v. Beedle, 1 Caines, 347. Lyle v. Clason, 1 Caines, 583. Benson v. Swift, 2 Mass. Rep. 53. Per Sedgwick, J. Highland Turnpike Company v. M’Kean, 11 J. R. 98. Shaffer v. Kintzer, 1 Binn. 537. Stevenson v, Hayden9 2 Mass. Rep. 408. In South Carolina, it has been decided, that where there are some good counts and some bad, a general verdict is good. Neal v. Lewis, 2 Bay, 204. Hogg v. Wilson, 1 Nott. & M’Cord, 216. Neilsonv. Emerson, 2 Bay, 439. Taylor v. Sturgineger, 2 Const. C t. Rep. 367. (*416)304 And the same rnle holds in case one count in the décla- ration contain words averred to hâve been spoken at dif- ferent times. As, if at one time the défendant call the plaintiff “ traitor,” and at another time “ arrant knave and cozenor and the plaintiff allégé* the words to hâve been spoken at different times, as several causes of action, if the jury assess the damages, generally, judgment will be ar- rested. But if actionable words are averred to hâve been spoken at the same time with others not actionable, the latter are consideredf as laid, merely in aggravation.(2) In case the déclaration consist of several (*)counts, in one of which lhe words are not actionable, and no spécial da- mage be averred, or, supposing it to be averred, the finding of the jury as to the spécial damage be for the défendant, and as to the rest generally for the plaintiff, the judgment would be erroneous, and might be avoided by motion, or reversed by writ of error.f Where, therefore, there is any doubt as to the validity of any one count,§ it is a matter of prudence to hâve the damages assessed severally, or to take a verdict upon the othér counts only.(151) In|| Rich v. Holt, the words laid down as spoken of the plaintiff at one time were, “Tou are a paltry lawyer, and use to play onboth hands at another, “ He is a furtherer and maintainer of félonies.” The défendant as to ail the words, except those in italics, pleaded not guilty, and as to those a justification. The plaintiff replied, de injuria, propria, #c. The jury, upon the first issue, found the whole of the words, and assessed damages for the whole ; they likewise found the second issue for the plaintiff, assessing separate damages. The court, on motion in arrest of judgment, decided, that the words, “ You are a paltry lawyer,” were not actionable, but held * Cro. Eliz. 329. Cro. Car. 236,237, 32S. 3 Wils. 185. t 3 Wils. 185. Lloyd v. Morris, Willes Rep. 443. Roll. Ab. 576. Moor, 142, 708-Cro. Eliz. 328. 788. 1 Buis. 37. J See the cases, 2 Will. Saund. 171. d. § Burnet v. Wells, 12 Mod. 420. || Cro. J. 267. (2) See Bloomv. Bloom, 5 Serg. & R. 393. Borden v. Fitch, 15 J. R. 121. Rensselaer v. PJatner, 2 J. Cas. 18. (151) Sëe Cheetham v. Tülotson, 5 J. R. 435. Per Clinton, sen. (*417)305 that the plaintiff was entitled to judgment on the first issue* It should seem, however, that the plaintiff (*)was not entitled to judgment under the first assessment, supposing the deci- sion to hâve been correct, that the words “ You are a pal- try lawyer” were not actionable. For the words to be considered under the first issue of not guilty were the two sets, cVYou are a paltry lawyer,” and “ He is a furtherer and maintainer of félonies,” the words in italics not coming under the considération of the jury, since they were confessed ; the damages under the first assessment were, therefore, partly given for the words, “ You are a paltry lawyer,” which were held not actiona- Me. lt is said to be the practice in the Court of Common Pleas, to award a ventre de novo where judgment is arrested in such a case, upon payment of costs, in order that the plaintiff may sever his damages.* But in the case of Holt v. Scolefield,f in the King’s Bench, a ventre de novo was refused. In the case of Beevor v. Hides,^: Bathurst, Justice, ex- pressed an opinion, that where the words in one count were not actionable, yet that the postea might be amended, and a verdict as to those words entered for the défendant, upon the Judge’s certifying that no evidence was given of them at the trial. But Lord Cambden said it would be very dangerous, after a verdict of twelve men recorded by the Court, to refer to the Judge’s notes in order to alter it, and he thought there was no precedent of such a case, and that the verdict could not be varied. (*)The general practice however is, where general dam- ages hâve been given, andit appears that the plaintiff is entitl- ed to recover upon one count, though not upon others, either to amend the postea, which is done where it clearly appears that no evidence was given on the defective counts, or by awarding a v. /. de novo, where such evidence has been giv- en, in order that the plaintiff may ascertain to what dam- * 2 Will. Saund. 171. d. Barnes, 478, 480. t 6T. R. 61. Sed vid. Eddowes v.Hopkins, Doug. t 2 Wils. 300. (*418) (*419) 39806 âges he is entitled for so much of his cause of complaint as will support damages.(152) It does not distinctly appear, upon what principle actions for slander form an exception to the general rule. (152) See Hopkins v. Beedle, 1 J. Cas. 347. Lyle v. Clason, 1 Caines, 581.307 (*)CHAPTER XXIX. Of Costs. By the 21 Jac. 1. c. 16. it is enacted, that“ in ail actions upon the case for slanderous words, to be sued or prosecut- ed in any of the courts of record at Westminster, or in any court whatsoever, that hath power to hold plea of the same ; if the jury, upon the trial of the issue in such action, or the jury that shall inquire of the damages, do find or assess the damages under forty shillings, then the plaintiff or plaintiffs in such action shall hâve and recover only so much costs as the damages so given or assessed amount unto, with out any further increase of the same ; any law, statute, or usage, to the contrary notwithstanding.” This statute has been held not to extend to actions of scandalum, nor to those where the spécial damage is the gist of the action, as in case of slander of title,* nor to ac- tions for libel.f (153) (*)But where the words are in themselves actionable, the case is within the statute, though spécial damage be averred ; for the plaintiff is at ail events entitled to a verdict for the actionable words, without proving the spécial damage ; and if he were in such case entitled to costs, where the damages were under 40 shillings, the statute might in ail cases be evaded by a suggestion of spécial damage. This construc- tion is, however, not free from inconvenience, since where spécial damage has actually accrued, the circumstance of * 2 Bl. 1062. 2 Ld. Raym. 1588. Prac. Reg. 111. Cro. Car. 140. Jon. 196. 2 Ld. Ray. 831. 1 Salk. 206. 7 Mod. 128. Willes, 438. Barnes, 132. 2H.B. 531. 3Burr. 1688. Barnes, 142. f Hall v. Warner, T. 24 G. 3. Tidd, 861. (153) See Waterman v. Van Benschotten, 13 J. R. 425. Stuart v. Harkins, 3 Binn. 321. (*420) (*421)308 the words being in themselves actionable, may operate to the plaintiff’s disadvantage, and he may be placed in a worse situation, by that very presumption of law which was inten- ded for his advantage. And where it clearly appears, as by a spécial verdict and separate assessment, that the spécial damage was actually considered by the jury, it seems reasonable that the plaintiff should hâve full costs, though the damages do not reach the statutable limit.* Where the words are actionable, and other matter like- wise actionable is stated as a distinct injury, and not as a mere conséquence of the words, the plaintiff is entitled to full costs ; as where the déclaration, after stating the words imputing felony, averred that the défendant procured the plantiff to be imprisoned.f Where there are different counts in the same déclaration, some containing words not actionable, and others con- taining actionable ones, and spécial damage (*)be laid refer- ring to ail the counts, then the plaintiff will, under a gene- ral verdict, be entitled to full costs. For some part of the sum assessed must hâve been given in respect of the conse- quential damage. | The statute extends to damages found under a writ of in- quiry.§ The 22d and 23d C. 2. c. 0. is very general in its terms, which comprehend “ ail personal actions.” By this statute it is enacted, that in such actions, wherein the judge at the trial of the cause shall not find and certify under his hand, upon the back of the record, that an assault and battery was sufficiently proved by the plaintiff against the défen- dant, or that the freehold or title of the land mentioned in the déclaration was chiefly in question ; the plaintiff, in case the jury shall find the damages to be under the value of 40 shillings, shall not recover more costs than damages. At first it seems, that the statute was held to extend to ail per- sonal actions; || but it appears now settled, that it is con- fined to actions of assault and battery, and for local tres- passes, wherein it may be possible for the Judge to certify, *1 Vent. 93. lMod.31. S Keb. 589. fStr. 645. Ld. Ray. 1588. Cro. Car. 163. Cro. Car. 307. t'2 H. B. 531. §2Str. 934. H 2 Keb. 849. 3 Keb. 121.247. (*422)309 that ihe freehold or title to the land was chiefly in ques- tion.* This statute, therefore, does not affect the présent class of actions, unless indeed some cases may be imagined, where the title to land may by possibility corne in question ; as if the plaintiff should déclaré (*)against the défendant for having slandered his title, and the défendant plead a spécial justification, averring himself to be entitled to the freehold. And since the« case of slander is not considered within the latter statute, a justification does not entitle the plaintiff to full costs, where the damages are below 40 shillings.f * See Tidd’s Prac. (4 Ediî.) 861. where the authorities on the subject are collected. f Halford v. Smith, 4 East, 567. Barnes, 128. 2 Wils. 158. (*423) »310 (*)CHAPTER XXX, Of the Writ of Prohibition. A prohibition to the Ecclesiastical Court is grounded either upon a defect in their jurisdiction, or upon some ir- regularity in the course of their proceedings. The power of these courts, in cases of defamation, was expressly recognised by 13 E. 1. st. 4. “ In cause of de- famation, it hath been granted already, that it shall be tried in a Spiritual Court, when money is not demanded, but a thing done for punishment of sin ; in which case the spirit- ual Judge shall hâve power to take knowledge, notwith- standing the king’s prohibition.” Whence it appears that these courts, before the passing of the statute, had the same jurisdiction ; and also that the extent of the jurisdiction was to deal out punishments pro sainte animez,* and not to award any temporal compensation in the way of damages for loss of character.f And the latter position appears still more clearly from the st, of Ar- ticuli Cleri ;X which enacts that, “ In defamations, (*)pre- lates shall correct, the king’s prohibition notwithstanding ; first enjoining a penance corporal, which, if the offender will redeem, the prelate may freely receive the money, though the king’s prohibition be showed.” Under these statutes it has been held, that no suit is main- tainable in the Ecclesiastical Courts for any slander§ not of spiritual cognizance. So that an imputation of perjury is not a ground for proceeding in the Spiritual Court. In the instance cited, the party has his remedy by action at Common Law ; but provided the slander do not impute * 2 Inst. 492. § 2 Burn. Ecc. L. 120. Mod. 112. (*424) (*425) 1 Ib. Ld. Ray. 212. 397. I 9 Edw. 2. c. 4. God. 517. 2 Salk. 692. 11311 any offence cognizable by the Spiritual Court, no punish- ment can be inflicted for it by such court, though the slan- der should not be a ground of action at Common Law.* Thus a suit was instituted in the Spiritual Court for calling the plaintiff a false knave, and a prohibition was granted. And it was said,f that though these words do not imply any offence, of which the temporal law takes cognizance, yet being also not of spiritual cognizance, the Temporal Courts will grant a prohibition that the Ecclesiastical Courts^ may not exceed their jurisdiction. And the same rule holds though the words be spoken of an ecclesiastical person. The words spoken of a parson were, “ He§ has no sense ; he is a dunce or blockhead, and deserves to hâve his gown stripped over his ears.” It was held that the (*)défendant was not punishable in the Spi- ritual Court ; for a parson is not punishable in that court for being a knave or a blockhead more than any other man ; and it was said, that if the Jparson should be deprived for want of learning, he must bring his action at Common Law. So it has been held, that to call a dean u a knave,” was not suable in the Spiritual Court. || Bujfc where words^f spoken of a parson impute that which, if true, would subject him to censure in the Ecclesiastical Court, he is entitled to sue there. Where words of spiritual cognizance are coupled with terms of abuse, which are not in themselves actionable in the temporal courts, no prohibition will be granted so that no prohibition lies in a suit for the words, “ Hë is a cuckoldy knave ;”ff and the rule is the same though it should be suggested that the words were spoken through heat and passion 41 Where the words themselves are of mere spiritual cogni- zance, but spécial damage ensues, for which an action is brought in a temporal court, it seems no prohibition is grant- able. In the case of Evans v. Brown,§§ where the words were of * 2 Ins. 493. f Ibid. J 2 Ins. 695. § Coxter v. Parsons, Salk. 694. J| Holt. R. 593. Nelson v. Hawkins, dean of Chichester. IT Clark v. Price, 11 Mod. 208. * § ** 2 Salk. 692. ff Gobbett’s case, Cro. Car. 339. Golds. 172. «Ld. Ray, 1136. S §§ Ld. Ray, 1101. (*426)312 mere spiritual cognizance, a prohibition was moved for upon a suggestion that the plaintiff below had brought an action at law for the words, grounded upon spécial damage sustained by reason (*)of the defendant’s speaking them. It was contended, that this was like the case where one calls a woraan whore and thief: in that case she shall not hâve an action in the Ecclesiastical Court for the words, though she might for the word whore; because i£ being joined with the word thief, an action lies at Common Law for the words. Thafrin such case the words could not be split, and an action brought at law for the word thief, and a suit in the Ecclesiastical Court for the word whore ; so that here, though the words are properly suable for in the Eccle- siastical Court, yet a spécial damage attending the speaking of them, by which means an action lies at Common Law for the words, they shall not proceed for the speaking in the Ecclesiastical court. But the court refused to grant a pro- hibition. But it seems that in general the Spiritual Courts hâve not, in case of defamation, any concurrent jurisdiction with the courts of Common Law ; so that if the same words impute a spiritual and temporal offence, the jurisdiction of the former court ceases. Hollingshead prayed a prohibition to stay a suit in the Spiritual Court for defamation. The words were, “ Thou art a bawd, and I will prove thee a bawd and because these words were properly determinable in the Spi- ritual Court, and no action lies for them at Common Law, the prohibition was denied. But* it was held, that, for say- ing, “ Thou keepest a house of bawdry this being matter determinable at the Common Law by iudictment, suit shall not lie in the Spiritual Court. (*)If a man who has lands by descent sue in the Spiritual Court for words of bastardy, a prohibition lies; for the words tend to the temporal! disinheritance of the plain- tiff. But it seems that the mother would, in such case, be entitled to sue in the Spiritual Court, for the imputation upon her own chastity contained in such a charge of bas- tardy ; since, with respect to herself, the slander is of mere * Cro. Car. 229. Str. 1100. Cro. Car. 329. f 2 Roll, Ab. 292. Glu. et vid. cap. 4. (*427) (*428)313 spiritual cognizance ; and even where the ttiother and son jointly preferred their libel for such words, a prohibition was denied.* There seems to be a stronger reason why a man should not sue for words of bastardy, than the one assigned in Rolle, namely, that he is not punishable for being a bas- tard. Where the same words imputed incontinency, and an infection with the venereal disease to the plaintiff, who sued in the Spiritual Court, a prohibition was granted :f al- though the first words were of ecclesiastical cognizance. So where words of^: incontinency were imputed at the same time with others of felony, a prohibition was moved for and granted for the whole. If part of the words he actionable, it seems a prohibition will be granted for the whole, though the others charge a spiritual offence. As where the défendant said, “ You are a whore and a thief.”§ Where words are of temporal cognizance from (*)the custom of a particular place, a prohibition will be granted. As where words of incontinence are imputed to a woman in London, no suit is maintainable in the Spiritual Court. || If it appear, however, upon suggestion supported by affida- vit, or upon the face of the libel itself, that the parties did not live within the scope of the local jurisdiction, no prohi- bition will be allowed. Thus, in the case of W. Johnson v. Bewiek,^[ the words were, “ Thou art a whore,” and the custom of London was suggested ; but it appeared on the face of the sug- gestion that neither of the parties lived within the jurisdic- tion of London. It was urged, thatit would be hard to de- prive the défendant of the power of punishing the plaintiff, for havingspoken these malicious and defamatory words in a court where she may proceed, to drive her to another court, where she cannot proceed, the plaintiff living out of the ju- risdiction of the court. And of that opinion was the whole coùrt ; and Holt,C. J. said, that if in such a case a prohibi- tion were granted, it would give license to ail the market wo- * Lord Ray. 1287. 11 Mod. 117. f Lord Ray. 446. I Legale v. Wright, H. 10. G. 2. § 2 Roi. 297. 1 Sid. 404. 3 Mod. 74- || Ld. Ray. 711. Str. 187. ITLd. Ray. 711. (*429) 40314 men, when they were in London, to defame their neighbours, without fear of punishment. It seems, that where a prohibition is prayed, grounded upon a supposed want of jurisdiçtion in the Spiritual Court, the defect, if not apparent upon the face of the proceedings, must be verified by affidavit.* (*)In the case of Argle v. Hunt,f a prohibition was moved for on the ground of a defect of jurisdiçtion appearing on the face of the libel, where it was stated, that the words, which wereof incontinency, had been spoken in London. But the court said that they could not judicially take notice of the custom, without an affidavit. But in the case of Power v. Shaw,|a rule to show cause was granted why prohibi- tion should not go for calling a womaii strumpet, in Bristol, though there was no affidavit of the custom. It seems, generally, that any§ words from which the inten- tion to impute whoredom can be collected, will.be .-a good ground for prohibition. The Spiritual Court is bound to allow the défendant the advantage of any justification which would hâve availed him atCommonLaw.|| The plaintiff proceeded in the Spiritual Court for the words, “You had a bastard.”^f The défendant pleaded that the plaintiff had been sentenced for this cause of hav- ing abastard, and ordered to keep the bastard, at the sessions, at Norwich. Notwithstandihg this the court proceeded, and the défendant, in the Spiritual Court, moved for a pro- hibition, suggesting the spécial matter, to which the other party demurred. It was adjudged that the prohibition should stand : for, being sentenced to be the reputed father bythe Justices of the Peace, which is by the authority of the.Sta- tute Law, that sentence could not be impeached in the Spi- ritual (*) Court, or elsewhere ; and ail are concluded to say the contrary until it be reversed. By the lst Edw. 3. st. %. c. 11. u No suit shall be made in the Spiritual Court against indictors. The Com- mons do grievously complain, that when divers persons, as well clerks as lay people, hav.e been indicted «before sheriffs * M. 18. G. 2. Hinds v. Thompson. Driver v. Driver. Hil. 12. G. 2. And. 304. f Str. 187. | 1 Wills. 62. §Str. 471. )| Com. Dig. lit. Prohibition, G. 14. IfCro.J. 625. 2 Roi. Rep. 82. (*430) (*431)315 in their turns, and after the inquést procured be delivered before the Justices ; after their deliverance they do sue in the Spiritual Court against such indictors, surmising against thern that they hâve defamed them, to the great damage of the indictors, wherefore many people of the shire be in fear to indict such otfenders ; the king will that in such case every man that feeleth himself aggrieved thèreby, shall hâve a prohibition framed in the Chancery upon his case.” Though the statute in terms comprehends indictments before sheriffs in their turns only, it seems that it extends to indictments in ail other courts, and to ail witnesses and others who hâve affairs in temporal courts.* By 27 G, 3. c. 44. No suit for defamatory words shall be brought in any of the Ecclesiastical Courts, unless the same shall be commenced within six calendar months from the time when such words shall hâve been uttered. The. distinction as to the time of moving in prohibition is, that where the defect alleged is extrinsic of the libel itself, the party must apply before sentence in the Spiritual Court ; for where the Spiritual (*) Court has an original jurisdiction which is to be taken away upon account of some matter arising in the suit there, after sentence the party shall never hâve a prohibition, because he himself hath acquiesced in their manner of trial, which is a waiver of the benefit of a Common Law trial. But if the defect of jurisdiction appear upon the libel, the party never cornes too late.f In the early part of the reign of Queen Anne, a prohibi- tion was moved for to stay a proceeding in the court of the Earl Marshal against the défendant, for having said to the plaintiff, who was a knight, “You a knight !j: you area pitiful fellow, and an inconsiderable fellow,” to the great scandai of gentlemen and of the order of knighthood. From the judgment given by Lord Holt upon this occasion, it appears that a prohibition had been sent to a Court of Honour some years before, though it had then been contend- ed that (under 13 Rich. 2. c. 2.) the proper mode of resist- ing any encroachment by such courts, was by a writ from the Privy Council to restrain them ; since in ail cases of en- croachments by courts of inferior jurisdiction, the proper remedy is by writ of prohibition. * 12 Co. 43. t Argyle v. Hunt, Str. 187. t Chambers v. Jennings, 7 Mod. 125. (*432)316 With respect to the court itself, to which the prohibi- tion prayed for was to be sent, it appeared that it had been held before the Constable and Marshal till the 13th year of H. 8. when the Constable* was attaintedof treason, and the office (*)extinguished ; but that the pleas relating to matters of law had since been held before the Earl Marshal only. But the court were of opinion, that whatever colour there might be to hold plea of some things before the Mar- shal alone, there was no pretence to hold plea off words. ♦ Stafford, Duke of Buckingham. t Several instances of great oppression, where this court held plea of words, as oited ip Huipe and &d. Clarendon, (*433)317 (*)ÇHAPTER XXXI. Of the Public Wrong. The civil injury and the means of obtaining a remedy having been thus inquired into^ the subject will next be con- sidered in its relation to the interests of the public. An offence against the public peace, may consist either in an actual breach of the peace, or in doing that which tends to provoke or incite others to break it. Within the latter description are contained ail attempts to produce disorder by means of written, printed, or even oral communications, made for the purpose of generally weakening those religious and moral restraints, without the aid of which, mere legisla- tive prohibitions would prove ineffectual ; or for the more open and direct purpose of alienating the minds of the peo- pie from the constitution under which they live—of render- ing them dissatisfied witli its administration, and thereby inciting them to acts of sédition and rébellion ; or lastly, for the purpose of encouraging or provoking particular individ- uals to commit some breach of the peace or other illégal act. (*)In considering this offence, whose outline has been thus imperfectly sketched, a distribution analogous to that which has been observed in the preceding part of this treatise naturally présents itself, and it will be inquired, lst. What circumstances constitute the offence. &dly. The means of prévention or punishment appointed by lawf lst. What circumstances constitute the offence ? The offence consists in the offender’s wilful attempt to produce mischief to the public by means of oral or written communications having such a tendency. The considéra- tion of this branch of the subject, therefore, relates, (*434) (*435)318 lst. To the question—When has a written, oral, or other communication a tendency to produce a breach of the peace. 2dly. To tlie wilful design or malice of the offender. 3dly. To the overt act by which the attempt is made. lst. When has a written, oral, or other communication a tendency to produce a breach of the peace ? The intrinsic essence of the offence may consist in the tendency of the communication to weaken religious or moral restraints,—to disgust men with the civil constitu- tion of the state, or the* * * § administration of its affairs,—to produce some public inconvenience or calamity,--or to in- cite individuals to the commission of some illégal act. It is the close connexion between moral obligation and opinions on religious and theological (*)topics, which as it were invests the Temporal Courts with jurisdiction over the latter, which are apparently ôf mere spiritual concern. The importance of this relation is strongly illustrated in the instance of judicial oaths. The foundation of these is a belief in a supérinténding Deity, who watches over the affairs of men, and who will, in a future state, administer rewards and punishments with reference to their conduct here. To remove thereforë so solemn and weighty an obligation, would be to overthrow, or at least to weaken, that confidence in human veracity so necessary for the purposes of society, without which no question of proper- ty could be decided, and no cri min al brouglit to justice.* Upon the dangerous temporal conséquences likely to proceed from the removal of religious and moral restraints, the punishment for blasphemous, profane, and immoralf publications is founded, without aïiy view to the spiritual correction or amendment| of the offender. Blasphemy against the Almighty by denying his being or providence, contumelious reflections upon Jbe life and charaeter of Jésus Christ, and in general flippant and .in- decorous remarks and comments upon the scriptures, are •• offences at Common Law ; for Christianity,§ it has been * Utiles esse opiniones has quis negat cum intelligat quam multa firmen- tur jurejurando j quantæ saiutis sint fœderum religiones ; quam multos divin! supplieii metus a scelere revocarit ; quamque sancta sit societas civium inter ipsos Diis immortalibus interpositis tam judicibus tam testibus. Cic. de LL. f llMod. 142. I 4 Bl. Comm. 59. Fitz. 65. 2Roll. Ab. 78. § 4 Bl. Com. 59. 1 Haw. PI. Cr. 7. 1 Vin. 293. 2 Str. 834. (*436)319 said, is part of that law. There are also some offences against Christlanity in particular, which will be afterward noticed, as having (^)been- defined by certain statutes. The fîrst instance of a prosecütion for words reflecting on religion occurred in the 15th year of James I. Atwood* wâs convicted upon an indictment before Jus- tices of the Peace for saying “ the religion now professed was a new religion within 50 years ; preaching is but prat- ing, and hearing of service more edifying than two houis preaching.” It was assigiied, for error, that this was an offence not inquirable upon indictment before Justices-of the Peace, but only before the High Commissipners ; and it was referred to the Attorney-Generalf to consider thereof, and he certified that it was not inquirable before them, and of that opinion were the whoîe court. In the King v. Taylor, + the défendant was convicted up- on an information for saying that “ Jésus Christ was a bas- tard, (154) a whoremaster ; religion was a cheat ; and that he neither feared God, the Devil, nor man.” Haie, Chief Baron, observed, that such kind of wicked and blasphemous words . were not only an offence against God and religion, but a crime against the laws, state, and government, and therefore punishable in this§ court, that to say religion is à cheat, is to dissolve ali those obligations whereby civil so- cieties are preserved ; and that Christianity is parcel of the laws of England ; and, (*)therefore, to reproach the Chris- tian religion is to speak in subversion of the law. In the cases of Clendon|| and Hall,^ the défendants were convicted of having published libellous reflections upon the Trinity, and it does not seem to hâve been doubted in those cases whether the offence was of a temporal nature. In the case of the King v. Woolston,^* the défendant had been convicted of publishing five libels, wherein the miracles of Jésus Christ were turned into ridicule, and his life and conversation exposed and vilified. It was moved in arrest of judgment, that the offence was punishable in the Tempo- * Cr. J. 421. ' t Sir Henry Yelverton. t Vent. 293. 3 Keb. Rep. 607. § I. e. of K. B. H E. T. 1Ô Ann, cited Str. 789. IT H. T. 79. 1 Str. 416. ** Str. 834. Fitzgibb. 64. Barnard, 162. (154) People v. Ruggles, 8 J. R. 225. 2d. edit. (*437) (*438)320 ral Courts. But the court declared they would not suffer it to be debated, whether to Write against Christianity in gen- eral was not an offence of temporal cognizance. The counsel for the défendant further contended, that the intent of the book was merely to show that the miracles of Jésus were not to be taken in a literal but in an allegorical sense, and therefore that the book could not be considered as aim- ed at Christianity in general, but merely as attacking one proofof the divine mission. But thé court said they were of opinion, that the attacking Christianity in this way was destroying the very foundation of it ; and that though there were professions in the book that the design of it was to (*)establish Christianity upon a true bottom, by considering these narratives in scripture as emblematical and propheti- cal, yet that these professions could not be credited, and that the rule is, allegatio contra factum non est admittenda. But the court, in declaring that they would not suffer it to be debated whether writing against Christianity in gene- ral was a temporal offence, desired that it might be noticed that they laidtheir stress upon the terni general, and did not intend to include disputes between learned men upon parti- çular controverted points ; and Lord Raymond, C. J. in de- livéring the opinion of the court said, “ I would hâve it tak- en notice of, that we do not meddle with any différences in opinion, and that we interfère only* where the very rootof Christianity is struck at.” An information! was filed by the Attorney General^ against Jacob Ilive for publishing a profane and blasphemous libel, tending to vilify and subvert the Christian Religion, and to blasphémé our Saviour Jésus Christ, and to cause his divinity to be denied, and to represent him as an impostor, and to scandalize, ridicule, and bring into contempt, his most holy life and doctrine ; and also to cause the truth of the Christian religion to be disbelieved and totally rejected by representing the same as spurious and chimerical, and a piece of forgery and priestcraft. An information§ was exhibited by the Attorney-General|| against Peter Annet, for publishing a (*)profane and blasphe- * Fitzgibbon, 66. t Hiil. Term, 29 G. 2.1756, Dig. L. L. 83. I Charles Pratt, Esq. afterwards Chief Justice of the Coramon Pleas. § Hil. 2 Geo. 3. || Charles Yorke, Esq. (439) (440)321 mous libel, intitulée!, “ The Free Inquirer,” tending to blas- phémé Almighty God, ridicule and discrédit the holy Scrip- t lires, and particuîarîy the Pentateuch, represeiiting the prophet Moses as an imposter, and the truths and miracles set iorth and recorded in the Pentateuch, as impostures and false inventions. An information* was exhibiled by the Attorney-Gene- ralf against John Wilkes, for pubîishiog an obscene ad impi- ous libel, tending to vitiate and corrupt the minds and man- ners of his majesty’s subjects ; to introduce a total contempt of religion, modesty, and virtue ; to blasphémé Almighty God and toridicule our ëaviour and the Christian reli- gion. In the King v. Williams,! the défendant was convicted of having published a libel, entitled “ Paine’s Age of Rea- son,” which denied the authority of the Old and New Tes- tament ; asserted that reason was the only rule by which the conduct of men ought to be guided, and ridiculed the pro- phets, Jésus Christ, his disciples, and the scriptures; Up- on being brought up to reçoive sentence, Mr. Justice Ashhurst observed, that such doctrines were an offence not only against God, but against law and government, from their direct tendency to dissolve ail the bonds and obligations of civil society ; and, that upon this ground it was, that the Christian religion constituted part of the law ôf the land. Daniel Isaac Eaton was convicted upon an information (*)filed by the- Attorney-General,§ of having published an itaa- pious libel, representing Jésus Christ as an impostor*-—the Christian religion as a mere fable-—and those who believed in it as infidelsto God. Upon being brought|| up to re- ceive the judgment of the court, though his counsel address- ed the court for the purpose of mitigating the punish- ment, no exception was taken to the legality or propriety of the conviction. It appears, therefore, to hâve been long perfectly settled, that blasphemy against the Deity in general, or an attaek against the Christian religion individually, for the purpose of exposing its doctrines to contempt and ridicule, is indict- * Hil. 4. G. 3. f Sir Fletcher Norton. t Before Lord Kenyon, C. J. at the Guildhall, 1797. § Sir Vicary Gibbs, Knt. now a Justice of the Common Pleas. Il Easter, 52 G. 3. (*441) 41322 able and punishable as a temporal offence at Common Law. With respect to theextentof this offence and the nature and certainty of the words, it appears, in the first place, im- material, whether the publication is oral* or written ; though the committing mischievous matter to print or writing, and thereby affording it a wider circulation, would undoubtedly be considered as an aggravation, and affect the measure of punishment. ' It does not, in principle, seem material, whether the direct attaclc is made upon religion in general or upon some partic- ular proof or evidenee in support of it : thus, in Woolston’s case, the publication was considered illégal, though the im- médiate and professed object of the writer was tooverthrow the evidenee of the divine mission suppliedby the(*) mira- cles, and to dégradé them into mere emblems and allegory. The court were then of opinion, that a general and deliberate intention to subvert Christianity might be evidenced by an attempt to weaken one of the several proofs upon which its credibility rests ; and, indeed it would be inconsistent to inflict penalties for any general attack upon the System of Christianity, and yet to allow its foundations to be gradually sapped and undermined with impunity. It may be asked, is every publication which tends to weaken any particular argument which has been adduced to prove the existence of a superintending Deity, or of the truth of Christianity, illégal and indictable ? The principles of law and actual decisions seem to afford this answer, that the malicious publication of any thing which tends to weaken men’s belief in an overruling Providence, or to subvert Christianity, is indictable ; but that the publication must be maliciously designed for that end and purpose.f In the cases cited, the défendants were charged with having expos- %The King v. Atwood, Cro. J. 421. The King v. Taylor, 3 Keb. Rep. 607. Vent. 293. f See the trial of the publisher of Paine’s Age of Reason. The learned counsel for the prosecütion (Mr. Erskine) observed, “ Every man has a right to investigate, with reason, controversial points of the Christian religion ; but no man, consistently with a law which only exists under its sanctions, has a right to deny its very existence, and to pour forth such shocking and insulting invectives as the lowest establishments in the gradations of civil authority ought not to be subjected to, and which would soon be borne down by vio- lence and disobedience if they were.” (*442)323 ed Christianity, and its doctrines, to contempt and ridicule, for the purpose of introducing a general disregard of reli- gion. And in Woolston’s case the court desired it might be particularly notieed, that they laid stress upon the term general* and did not intend to include disputes (*)between learned men upon controverted points. Both the language of the indictments, therefore, and the guarded expression of the court in the above case, show that it was ne ver a crime, in the contemplation of the. law, seriously and con- scientiously to discuss theological and religious topics, though in the course of such. discussions doubts may hâve been both created and expressed on doctrinal points, and the force of a particular piece of scriptural evidence casually weakened. This position is further warranted and confirmed by a circumstance notorious to ail literary men, that not only particular and subordinate matters of belief hâve been can- vassed and discussed by the learned, but that even the au- thenticity of particular miracles has been questioned, and the authority of most important texts disputed ; yet these discussions hâve ne ver been considered as libellons, though frequently tending to weaken particular évidences ; and persons of a different religious persuasion, as Jews, though in supporting their own doctrines they must necessarily deny the authority of other religious Systems, hâve never been punished as libellers at Common Law for so doing.f With respect to the degree of force and intensity neces- sary to render such a tendency criminal, it is évident that no limitation can be made. The law cannot measure the degree of tendency to produce disorder which an impious libel carries with it ; and were it otherwise, any limitation would be absurd, and the law could not tolerate mischief (*)because it did not amount to a certain degree or limit. Upon the whole, it may not be going too far to infer from these principles and decisions, that no author or preacher who fairly and conscientiously promulgates the opinions with whose truth he is impressed, for the benefit of others, is, for so doing, amenable as a criminal : that a malicious and mis- chie vous intention is in such case the broad boundary * 2 Str. 834. f Enactments, 3 Wil, (*443) (*444)324 between right and wrong ; and that if it can be collected from the offensive* levity with which so serions a subject is treated, or from other circumstances, that the act of the party was malicious, then since the law bas no means of distinguishing between different degrees of e vii tend ency, if the matter published contain any such tendency, the pub- lisher becomes amenable to justice. The quantity of mischief likely to flow from a given pub- lication cannot be taken irito considération in defining the offence ; arguments levelled against religion or moral obliga- tion, may te trite, or their force despicable, still minds may be found, upon which the vilest sophistry may producé an evil effect ; and the weakest mind, as well as the weakest person, has a claim to the protection of the law; if the poison can operate, the malicious distribution of it ought to be and is forbidden. The législature has nevertheless deemed it proper to for- tify the Common Law restraint by several penal enactments applicable to particular persons (*) and cases. By statutes 1 Ed. 6. c. 1. and 1 Eliz. c. 1. s. 14. whoever reviles the sacrament of the Lord’s s.upper shall be punishèd by fine and imprisonment. By stat. 1 Eliz. c. 2. if any minister shall speak any thing in dérogation of the Book of Common Prayer, he shall, if not beneficed, be imprisoned one year for the first offence, and for life the second ; and if he be beneficed, he shall for the first offence be imprisoned six months, and forfeit a year’s value ofhis bénéfice ; for the second, he shall be deprived and suffer one year’s imprisonment ; and for the third, shall in like manner be deprived, and suffer imprisonment for life. And if any person whatso- ever shall, in plays, songs, or other open words, speak any thing in dérogation, depraving or despising of the said book, or shall forcibly prevent the reading of it, or cause any other service to be read in its stead, he shall forfeit for the first offence 100 marks, for the second 400, and for the third, shall forfeit ail his goods and chatte]s, and suffer im- prisonment for life. * J3ir William Blackstone, in his Comment upon the Statutes çited below, observes, “ It is clear that no restraint should be laid upon rational and dis- passionate discussions of the rectitude and propriety of the established mode of worship, yet contumely and contempt are what no establishment can tol- erate.” 4Bl.Com. 5L (*445)3 25 By the 13 Eliz. c. 12. a person ecclesiastical, advisedly affirming any doctrine contrary to the articles established at a convocation, holden at London in the year 1562, is liable to deprivation, if he persist in his error. By the 3 J. 1. c. 21. whoever shall use the name of the Holy Trinity profanely or jestingly in any stage play, inter- lude, or show, shall be liable to a penalty of 10Z. By 1 Will. 3. c. 18. s. 17. whoever shall deny, (*)in his preaching or writing, the doctrine of the Trinity, shall lose ail benefit of the Tolei ation Act. By stat. 9 and 10 Will. 3. c. 32. if any person educated in* or having made profession of the Christian religion, shall by writing, printing, teaching, or advised speaking, deny the Christian religion to be true, or the holy scrip- tures to be of divine authority, he shall, upon the first offence, be rendered incapable to hold any office or place of trust ; and for the second, be rendered incapable of bringing any action, being guardian, executor, legatee, or purchaser of lands, and shall suffer three years im- prisonment without bail ; but if the delinquent shall, with- in four months after the first conviction, publicly renounce his error in open court, he is discharged for that once from ail disabilities. A person offending under this statute is still indictable at Comraon Law, since a statute inflic tin g a new punishment does not take away the old one, un- less it change the offence,* or make it of a different na- ture. ** Str. 834. Barnard. K. B. 162. R. v. Williams, 1797. R. v, Eaton, 1812. (*446)326 (*)CHAPTER XXXII. Of Publications tending to subvert Morality. It is now fully established, that any immodest and immo- ral publication, tending to corrupt the mind, and to destroy the love of decency, morality, and good order, is punishable in the temporal Courts, though some doubt, as will appear from a brief review of the cases, seems formerly to hâve been entertained upon this subject. Sir Charles Sedley* was indicted for having exposed his naked body in a balcony in Covent Garden, and for having committed other indécent acts before a great multitude of people. The indictment was openly read to him in court ; and afterward, on being required to take his trial at bar, he submitted to it. From the different reports of this case it appears, that after the abolition of the Star-chamber, the Court of King’s Bench was considered as the custos mo- rum, to whom the cognizance of such offences most pro- perly belonged ; and although it was afterward contended, that judgment was given against the défendant on account of the personal (*)violence he used in throwing down bot- tles upon the mob, yet from the language of the reporters it clearly appears, that the Judges considered the offence to hâve been committed against modesty and good manners, and found it necessary to interfère in those profligate timesf to punish such immodest practices, which the * Keb. R. 720. 2 Str. 791. Foster, 99. Mich. 15 C. 2. f During this licentious reign, it appears to hâve beenof little use to convict offenders of this description ; for though there were many prosecutions against the players for immodest plays, they had interest enough to get the proceedings stayed before judgment. Frem. Ent. 209. 213, 214, 215. (*447) (*448)327 Court said wete as frequent, as if not only Christianity but morality also had been neglected. Hill* * * § was indicted for publishing some obscene poems of Lord Rochester tending to the corruption of youth, but go- ing abroad he was outlawed. * Readf was indicted for publishing a lascivious and ob- scene libel, and was tried and convicted before Ld. Holt, C. J. It was moved in arrest of judgment, that the offence was merely of spiritual and not of temporal cognizance ; Ld. Holt was of opinion, that the offence ought to be pun- ished in the Ecclesiastical Court, and that the temporal Courts could not interfère, since there was no precedent for it and Powell J. regretted that it was not punishable at Common La w, since it certainly tended to the corruption of manners. And it does not appear, (*)that any judgment was ever pronounced against the défendant.§ The Attorney-general exhibited an information against Curl, for printing and publishing an obscene book, intituled, “ Venus in the Cloister, or the Nun in her Smock.” The défendant having been found guilty, it was moved in arrest of judgment, that the offence was of mere spiritual cogni- zance, that in the reign of Charles II. there was a run of obscene writings, for which no prosecutions were instituted in the temporal courts, and Read’s case was cited. It was ànswered by the Attorney-general, || that to destroy morality is to destroy the peace of government, since gov- ernment is no more than public order ; that the Spiritual Courts punish only spiritual defamation by words, but that if it be reduced to writing, it is a temporal offence punishable as a libel. The Judges had some difficulty at first in givin g judgment against the défendant, chiedy on account of Read’s case ; but afterward they gave it as their unanimous opinion, that this was a temporal offence. They said, it was plain, that the force used in Sir C. Sedley’s case was but a small ingré- dient in the judgment of the Court, who fined him 20001. And that if the force was ail they went upon, there was no * Str. 790. Di g. L. L. 60. Mich. 10 W. 3. | Easter, 6 Ann. Fost. Rep. 98, 99. t Sir C. Sedley’s case seemsto be a precedent in principle. § 2 Str. 792. || Sir Philip Yorke. (*449)328 occasion to talk of the Court’s being custos morum of the King’s subjects ; that if Read’s case wére to be adjudged, they should raie it otherwise ; and, therefore, gava judgment for the King. (*)An information* was granted against John Wilkes, for printing and publishing an obscene and impious libel, entitled “ An Essay on Woman.” Upon which he was convicted, and sentenced to pay a fine of 500Z., to be impri- soned fortwelve months, and to find security for his good behaviour for seven years. Since the decision in Curl’s case, it seems to hâve been settled, that any publication tending to corrupt the morals, is punishable by indictment ; and a great number of con- victions hâve since taken place for publishing and vending immodest books and pictures. With respect to the extent of the offence and mode of publication. Although many vicious and immoral acts are not indictable, yet if they tend to the destruction of morality in general, if they do or may affect the mass of society, they become offen- cesf of a public nature. In the cases referred to, with the exception of Sir C. Sedley’s, the défendants were indicted for printed libels ; the principle, however, of those cases, and the express decision in Sir C. Sedley’s, seem to comprehend oral communications when made before a large assembly, such as the performance of an obscene play, which offence, it seems, has formed the ground of many prosecutions.ij: In this case, as weli as in that of blasphemous and irreli- gious (*)publications, any tendency to produce immorality is sufficient ; since, for the reasons before assigned, the in- tensity and degree of that tendency cannot constitute the boundàry between guilt and innocence, and, therefore, can- not forma subject for legal inquiry.§( 155) * Sid. 168. t Str. 790. % 4 Burr. 2527. § i. e. not before a jury. (155) See Commonwealth v. S harpies s 12 S erg. & R. 91. 3Day, 103. (*450) (*4ôl) Knowles v. State,329 (*)CHAPTER XXXIII. Publications against the Constitution, fyc. Publications tending to excite popular tumult, sédition, or rébellion, by engendering distrust or dissatisfaction in the minds of the subject, relate to alleged defects in, or mis- reprêsentation of the constitution and form of government ; or to the personal imperfections, inabilities, and mismanage- ment of those who are intrusted with its administration: and reflections upon the latter affect them either in their conduct in office, or as individuals.(l56) In the first of these cases, since. the opinions communicat- ed are entirely abstracted from ail personal allusion, they do not very frequently become the objectof legal inquiry ; they are too spéculative, for the most part, to generate pop- ular heat, unless they corne into close contact with personal rights or privilèges. By the IS’th of Eliz. c. 1. it is a misdemeanor, and pun- ishable with forfeiture of goods and chattels, (*)for any per- son to hold, affirm, or maintain, that the Common Laws of the realm, not altered by parliament, ought not to direct the right of the crown of England. By the 5th Ann, c. 7. s.7. it is niade high treason to affirm by writing, or printing, that the king is not the lawful and right- ful king of the realm, or that any other person has title to the same otherwise than according to the Bill of Rights, the Act of Settlement, and the Act of Union, or that Parliament has not authority to limit the descent of the crown. (156) The courts ofthe United States, hâve ho common law jurisdiction in cases of libel against the goVernment of tlje United States. United States v. Hudson & Goodwin, 7 Cranch, 32. 42 (*452) (*458)330 One of the earliest cases in which an opinion is given up- on the indictable quality of words abstractedly reflecting up- on the constitution, appears to hâve been given in the forty- first year of Elizabeth ; where it was adjudged, that no in- dictment lay for saying that the laws of the realm were not the laws of God, because true it is they are not the laws of God ; but that it would be otherwise to say that the laws of the realm are contrary to the laws* of God. In the 15thf year of Ch. 2. Brewster was a second time convicted for printing and publishing a libel, called “ The Phœnix ; Or the Solemn League and Covenant,” in which it was declared, that a king abusing his power, may be op- posed,—that if he attempt to enforce his encroachments by arms, he may be resisted, because he has violated the con- tract and covenant made between himself and the people, and that the breaking this covenant was a greater sin than breaking a commandaient. (*)The défendant:}: was convicted on an information charg- ing him with having published concerning the government of England, and the traitors who adjudged King Charles I. to death ; that the government of the kingdom consists of three estâtes, and that if a rébellion should happen in the kingdom unless that rébellion was against the three estâtes, it was no rébellion. It was moved in arrest of judgmènt, that there can be no rébellion against the king, but it must be against the three estâtes, who are ail united in the king. But the court overruled the objection, sinceby 13 C. 2. c. 1. it is expressed, that neither one nor botli Houses of Parlia* ment can make war against the king, under any pretence whatever ; and that though there be three estâtes as to mak- jng laws, there is but one authority as to war. And the court supposing that the words tended to set on footthe position upon which the war, ïevied in 1641 by the two houses against the king, was grounded, were much dis- pleased that counsel would undertake to defend them. The king had judgmènt, and the défendant brought error in Parliament. So a treatise upon hereditary right has been held to be a * 2 Roll. Ab. 78. f Hili. 15 Oh. 2d. K. B. Di g. L. L. 72. t R. v. Harrison, 3 Keb. 841. Ventr. 324. Dig. L. L. 66. (*454) 331 libel, though containing no reflection upon the existing gov- ernment.* Tutchin was convictedf for publishing, in a paper called- the Observator, that there were mis managements in the government ; that for such they had a right to call their gov- ernors to account, to (*)displaee the ministers, dethrone the reigning sovereign, and to transfer their allegiance to whom they pleased. Dr. Browne| was convicted for writing a libel, entitled “ Mercurius Politicus,” which asserted, that “thelate rév- olution was the destruction of the la ws ofEngland.” Richard Nutt§ was convicted, upon an information, for publishing a libel, entitled “ The London Evening Post,” in which it was suggested, that the révolution was an unjust and unconstitutional proceeding ; and the limitation estab- lished by the act of settlement was represented as illégal ; and that the révolution and settlement of the crown, as by law established, had been attended with fatal and pernicious conséquences to the subjects of this kingdom. In the prosecution of Shebbeare,|| upon an information for a libel, and of Thomas Paine, *|[ on an information for a similar offence, one ingrédient, though mixed up with many others, was an attack upon the justice and policy of the rev- olutionj representing it as the origin and foundation of many political evils and caîamities. Such are the principal cases of prosecutions for libel where the matter has been spéculative ; not directly pointed at either particular men or measures. Spéculative remarks upon the constitution cannot be re« duced to any determined scale, by which their intrinsic le- gality, that is their tendency, can be ascertained ; (*)they admit of every variety, from the mere useful and honest hint and recommendation to the législature, to remedy a detected abuse or defect, or to introduce into the System of govern- ment some new rule or principle which may benefit the community, to the daring and treasonable assertion, that the family on the throne were illegally placed there. The intrinsic essence of a libel consists in its tendency to do mischief ; the question, therefore, as far as concerns its * The Clueen v. Bedford, 2 Str. 789. f2i.d. Ray. 1061. Salk. 61. 6Mod.268. t 11 Mod. 86. § Dig. L. L. 68. 27 G. & il Hil. 31 Geo. 2. Dig. L. L. 69. IT 32 Geo. 3. (*455) (*456)332 libellous quality is, whether frorn its terms it is calculated to alienate the mind of the person who reads it from the gov- ernment under which he lives, and to inflame him to acts of violence and sédition ; or merely to iïistil those wholesome and salutary principles which may be applied to public ad- vantage, and soberly and rationally to point out those par- tial defeçts under some of which the most perfect System of government must labour ; not for the puvpose of exciting unthinking men to seek a violent remedy, in attempting which the political constitution may perish altogether, but for the more wise and benevoient design of pointing out to those who hâve political power, hovv it may best be exerted for the benefit of the state.* A publication affecting government, may assert either the personal imperfections, or the mismanagement of those who are intrusted with the administration (*)of the existing con- stitution, and may affect them in their public character, or as individuaîs ; these will be considerèd, first as lhey relate personally to the king and his title. Wordsf spoken, hâve frequently been deemed overt acts of treason for which the speakers hâve suffered, Two per- sons were executed for unguarded expressions in the reign of Edward IV. the one a citizen, who said he would make his son heir to the Crown (alluding to the sign of the house in which he lived)—the other, a gentleman, whose favourite buck the king killed in hunting, whereupon the owner wish- ed it horns and ail in the belly of him who had counselled the king to kill it, and the king being his own counsellor on the occasion, the words were construed into a treasonable expression against the king himself. But in less arbitrary times, the legality of such proceed- ings has been much questioned ; and if the position that words may constitute an overt act of treason may not be considered as totally exploded, the rigour of the doctrine has at ail events been greatly mitigated. It has been most humanely observed,^: that words may be spoken in heat, * Lord Loughborough, in the debate upon the Lihel Bill, observed, “ Ev- ery man may pnblisb, at his discrétion, bis opinions concerning forms and Systems of government ; if tbey be wise and enlightening, the world will gain by them—if they be weak and absurd, tbey will be laughed at and for- gotten—if they be bonafide, tbey cannot be criminal, however erroneous.” f Hale’s PI. Cro, Ç. il5. See also Hugh Pine’s case, Cro. Car. 117. where*)ther capital convictions for speaking words in that reign are cited. j 4 Black. Comm. 79, (*457)333 without any intention ; or be mistaken, perverted, or misre- membered by the hearer ; their meaning dépends always on their connexion with .other words and things ; they may signify differently even according to the tone of voice with which they are delivered ; and sometimes silence is more expressive (*)than any discourse. Since, therefore, there can be nothing more equivocal and ambiguous than words, it would indeed be unreasonable to make them amount to high treason. Of this opinion were Stamford, Ld. Coke, Ld. Haie,* Sir Michael Foster,f and Sir William Black- stone,^: whose opinion has just been cited ; and in the reign of Charles the First, some very atrocious words havingbeen spoken concerning the king by one Pine, ail the- Judges certified, that “ Though the words§ were as wicked as they might be, yet that they were no treason ; for unless it be by some particular statute, no words will be treason.” It seems clear|| however, that words joined to an act may explain it, and that words of persuasion to kill the king, or manifesting an agreement, or consultation, or direction, to that purpose, are sufficient overt acts of compassing his death. It has frequehtly been held, that words committed to print or writing, and published, amount to an overt act of treason, to prove the compassing the king’s^ death ; but even in such case it seems that a publication is necessary, though in arbi- trary times, the contrary has been adjudged, particularly in the instances of Peachum,** a clergyman, and of Algernon Sydney the former of whom was convicted for treason- able passages in a sermon never preached, and (*)the latter for some spéculative opinions contained in papers discovered in his private closet ; but so unsatisfactory did the grounds of these convictions appear, that Peachum was not execu- tedj and the attainder of Sidney was reversed. À contempt of the king’s person may be by imputing to him the want of capacity or integrity4J by charging him * 1 Haie, 111. 323. f Fost. Cr. L. 200. } 4 fil. Com, 80. § Cro. Car. 125. See Haw. PI. Cr. c. 17. s. 32, 33, 34, 35, &c. Fost. Cr. L. 200. I Haie, 111. 323. J| Haw. PI. Cr. c. 17. s. 37. Fost. 202. 1F 2 Roi. 89, 90. Fos. 346. 11 Modem, 322. 1 St. Tr. 977. 3 Si. Tr. 228. 5 Bac. Abr. 117. ** Cro, Car. 125. tt Foster, 198. Il Haw. PI. Cr. c. 23. 4 Bl. Comm. i23. (*458) (*459)334 with a breach of his coronatiôn oath,* cursing him, wish- ing him il], spreading false rumours concerning his inten- tions,f—or, in short, by mcdiciously asserting any thing con- cerning him, which tends to lessen him in the esteem of his subjects, weaken his government, or raise jealousies be- tween him and his people. These are considered as high contempts and misprisions, and are punishable as misde- meanors at Common Law. So to deny the King’s title to the crown, or to raise doubts concerning it, in unadvised discourse, would amount to a con- tempt at Common Law ; and to do it deliberately and advisedly, if it did not eonstitute treason, would at least subject the offenders| to the penalties of a præmunire. In the reign of Elizabeth,§ ail the Justices and Barons of the Coif assembled at Sergeanfs-Inn, concerning a book, devised by one Brown, containing the following pas- sage, “ Every preacher runneth to the Queen now, as though he were to be directed by her to tarry for reforma- tions to be had for matters of the church. If the Magis- trates will agréé, ail is well ;—if they will not, they are not of (*)the church, and it is a shame to tarry for them, or for a parliament, or proclamation.” And it was held by ail, that this was a moving of insurrection and sédition.j| In the Digest^ of the Law of Libel it is said, that at the saine meeting, Sir Edmund Anderson, Ch. J. of the Com- mon Pleas, propounded the following case to his brethren — A person had caused the arms of the queen- to be painted upon a post in a church in Suffolk, with this inscription painted near them, “ I know thy works, that thou art neither hot nor cold ; I would thou wert either hot or cold ; there- fore, because thou art lukewarm, it will corne to pass that I will spew thee out of my mouth.” But the Justices came to no resolution. John Wilkes** was convicted upon an information filed by the Attorney-General,ff for printing and publishing a mali- * Noy, 105. Haw. PI. Cr. c. 23- s. 5. f See 3 E. 1. c. 34. t Black. Comm. 123. Haw. PI. Cr. c. 17. s. 35. § Dig. L. L. 65. || The question proposed was, whether the publication was an offence within the 23d Eliz. c. 2. which was a temporarv stat. ; but under the construc- tion which the Judges put upon this book, it was a libel at Common Law. 1T D.L.L. 66. Sav.49. ** Dig. L. L. 69. Informations were also filed against Keaisley and Wil- liams, for printing and publishing the same. ff Charles Yorke, Esq. | f*460)835 cious libel, entitled The North Briton, No. 45, tending to vilify and traduce the King and his government—toimpeach and disparage his veracity and honour—and to represent and make it believed that his Majesty’s most gracious speech, de- livered from histhrone to the parliament, on Tuesdaythe 19th day of April, 1763, contained many falsities and gross impo- sitions upon the public ; and that his Majesty had suffered the honour and dignity of his crown to be sunk and prostituted and the interests (*)of his subjects and allies to be treacherously betrayed ; and also to render the king and his government contemptible and odious, and to excite tumults, commotions, and insurrections, &c. &c. An information* was üled by the Attorney-General against the printer and proprietor of the Morning Chionicle newspaper, for publishing the following paragraph, with a malicious intent to alienate from the king the affections of his subjects “ What a crowd of blessings rush upon one’s mind, that might be bestowed upon the country, in the event of a total change of System. Of ail monarchs, indeed, since the révolution, the successor of George the Third will hâve the finest opportunity of becoming nobly popular.” Lord Ellenborough, C. J. in summing up to the jury, observed, “ The first sentence admits of an innocent inter- prétation—c What a crowd of blessings rush upon one’s mind, that might be bestowed upon the country, in the event of a total change of System.’ The fair meaning of the expression, ‘Change of System,’ I think, is a change of political System, not a change in the frame of the established government, but in the measures of policy which hâve been for some time pursued. By total change of system, is certainly not meant subversion or démolition ; for the descent of the crown to the successor of his Majesty is mentioned immediately after. The writer goes onto speak of the blessings that may be enjoyed upon the accession of the Prince of Wales ; and therefore cannot be understood to (*)allude to a change in- consistent with the full vigour of the monarchicàl part of the constitution. Now I do not know that merely saying, there would be blessings from a change of system, without reference to the period at which they may be expected, is expressing a wish or a sentiment that may notbe innocently * 1 Camp. Rep. (*461) (*462)336 expressed in reviewing the political condition of the country. The information treats this as a libel on the person of his Majesty, and his personal administration of the government of the country. But there may be error in the présent System, without any vicious motives, and with the greatest virtues, on the part of the reigning sovereign. He may be misled by the ministers he employs, and a change of System may be désirable from their faults. He may himself, not- withstanding the ut most solicitudefor the happiness of his peo- ple, take an erroneous view of some great question of poîicy, either foreign or domestic. I know of but one Being to whorn error may not be imputed. If a person who admits the wisdom and virtues of his Majesty, laments that in the exercise of these, he has taken an unfortunate and erroneous view of the interests of his dominions, I am not prepared to say that this tends to dégradé his Majesty, or to alienate the affection of his subjects. I am not prepared to say that this islibellons: butitmust be with perfect decency and respect, and without any imputation of bad motives. Go one step further, and say or insinuate, that his Majesty acts from any partial or corrupt view, or with an intention 'to favour or oppress any individual or class of men, and it would become most libellous. However, merely to represent (*)that an erroneous System of government ob- tains under his majesty’s reign, I am not prepared to say, exceeds the freedom of discussion qn political sub- jects which the law permits. Then cornes the next sen- tence : * Of àll the Monarchs, indeed, since the révo- lution, the successor of George the Third will hâve the finest opportunity of becoming nobly popular.5 This is more equivoeal, and it will be for you, Gentlemen of the Jury, to détermine what is the fair import of the words employed. Formerly it was the practice to say, that Words were to be taken in the more lenient sense ; but that doctrine is now exploded ; they are not to be taken in the more lenient or more severe sense, but in the sense which fairly belongs to them, and which they were intended to convey. Now, do these words mean, that his Majesty is actuated by impro- per motives? or that his successor may render himself no- bly popular by taking a more lively interest in the welfare of his subjects ? Such sentiments, as it would be most mis- chievous, so it would be most criminal to propagate. But if the passage only meant that his Majesty, during his reign, or (*463)337 any length of time, may hâve takenan imperfect view of the interests of the country, either respecting our foreign relations, or the System of our internai policy ; if it imputes nothing but honest error, witho ut moral blâme, I am not préparée! to say that it is a libel. The extract read at the request of the défendants, does seem to me too remote, in point of situation, in the newspaper, to hâve any material bearing on the paragraph in question. If it had formed a part of the same discussion, it must certainly (*)have tended strong- ly to show the innocence of the whole. It speaks of that which every body in his Majesty’s dominions knows—his Majesty’s solicitude for the happiness of his people ; and it expresses a respectful regard for his paternal virtues. - What connexion it has with the passage set out in the information, it is for you to détermine. Taking that passage substantive- ly, and loy itself, it is a mat ter, I think, somewhat doubtful, whether the writer meant to calumniate the person and char- acter of our august Sovereign. If you are satisfied that this was his intention, by the application of your understandings honestly and fairîy to the words complained of, and you think they cannot properly be interpreted by the extract which has been read from the same paper, you will find the défen- dants guilty. But if, looking at the obnoxious paragraph by it- self, you are persuaded that it betrays no such intention ; or if, feeling yourselves warranted to import into your consid- .eration of it a passage connected with the subject, though considerably distant in place, and disjoined by other matter, you infer from that connexion that this was written without any purpose to calumniate the personal government of his Majesty, and render it odious to his people, you will find the défendants not guilty. The question of intention is for your considération. You will not distort the words, butgivethem their application and meaning, as they impress your minds. What appears to me most material is the substantive para- graph itself ; and if you consider it as meant to represent that the reign of his Majesty is the only thing interposed between the subjectsof this country (^)and the possession of great blea- sings, which are likely to be enjoyed in the reign of Üis suc- cessor, and thus to render his Majesty’s administration of his government odious, it is a calumnious paragraph, and to be dealt with as a libel. If, on the contrary, you do not see that it means, distinctly, according to your reasoning, to impute any purposed mal-administration to his majesty or 43 (*464) (*465)338 those aetiing under him, but may be Fairly construed an expression of regret that an erroneous view has been taken of public affairs, I am not prepared to say that it is a libel. There hâve been errors in the administration of the most enlightened men. I will take the instance of a man, who for a time administered the èoncerns of this country with great abiüty, although he gained his élévation with great crime, I mean Oliver Cromwell. We are at this moment suffering from a most erroneous principle of his government, in turning the balance of power against the Spanish mo- narchy, in favour of the house of Bourbon. He thereby laid the Foundation of that ascendency, which, unfortunate- ly for ail mankind, France has since obtained in the affairs pf Europe. The greatest monarchs who hâve ever reigned —monarchs who hâve felt the most anxious solicitude for the welfare of the country, and who hâve in some respects been the authors of the highest blessings to their subjects, hâve erred ; but could a simple expression of regret for any error they had committed, or an earnest wish to see that error corrected, be considered as disparaging them, or tend- ing to endanger their government ? Gentlemen, with these directions, the whole subject is for your considération. Ap- ply (*)your minds candidly and uprightly to the meaning of the passage in question : distort no part of it for one purpose or another, and let your verdict be the resuit of your fair and deliberate judgment.” The King’s character and title are further guarded by several legislative provisions. The 13th of Ed. 1. c. 34. enacts, that none be so hardy to tell or publish any false news or taies, whereby discord, or .occasion of discord, may grow between the King and his people, or the great men of the realm.* By 6 Ann. c. 7. s. 7. it is made high treason to aflirm, by writing or printing, that the King is not the lawful and rightful King of the realm, or that any other person has title to the same, otherwise than according to the Bill of Rights,f the A et of Settlement4 and the Act of Union, or that Par- liament jias not authority to limit the descent of the crown. To assert that the Common Laws of the realm, not alter- ed by Parliament, ought not to direct the right to the crown * See Cro. J. 38. and the case of A. Scott, for publishing falâe news. O. B. Jane Sess. 1788. Haw. P. C. c. 23. s. 4. flW.&M. st. 2. c. 2. s. 9. î 12 & 13 W. 3. c. 2. .(*466)339 of Èngland, is a misdemeanor, and punishable with forfei- ture of goods and chattels.* In the reign of Ed. 6. it was, by an act which expired with that King, made high treason to assert in print or writ- ing, that he was not the suprême head of the church.f (*)By the 36th Geo. 3. c. 7. it is enacted, that if any person shall imagine or intend death, destruction, or any bodily harm to the person of the King, or to déposé him, or to levy war, in order by force to compel him to change his measures or counsels, &c. and shall express and déclaré such intentions hy printing, writing, or any overt act, he shall suffer death as a traitor. And if any one by writing, printing, preaching, or other speaking, shall use any words or sentences to incite the people to hatred and contempt of the King, or of the gov- ernment and constitution of this realm, he shall receive the punishment of a high misdemeanor ; that is, fine, im- prisonment, and pillory, and for a second offence, he is subject to a similar punishment, or transportation for seven years, at the discrétion of the court. The time of prosecution under the act is limited to six months, and the slatute does not affect any prosecution at Common Law, unless a prosecution be previously commenced under the statute. With regard to contempts committed against the per- son or title of the King, more perhaps has been said than was called for by any thing requiring explanation. Where the subject is convinced, that a particular measure has been adopted by any branch of government caîculated to pro- duce mischief, it is a duty which he owes his country to point it out ; but where the supposed error is connecta ed with the personal character of the sovereign, he is bound by the plainest rules of common decéncy, to make his représentation in language the most moderate and respect- ful. Any personal reflection is sufficient to (*)render the actor criminal ; for it would be strange indeed, if that might be said or written of the monarch with impunity, which it would be criminal to pronounce of one of his no^ blés, or to Write concerning the meanest of his subjects, Since, in contemplation of law, the affairs of the State are administered by the King, reflections upon the admi- * 13 Eliz. c. 1. f See also St. 23 Eliz. c. 2. which expired with that sovereign. (*467) (*408)340 nistration of government, or upon the capacities of those to whom it is immediately intrusted, are, by virtüe of a similar construction, a contempt of the King himself. Ithas been said by a high authority,* that u çvery free- man has an undoubted right to lay what he pleases before tbe public—-to forbid tliis is to destroy the freedom of the press ; but if he publishes what is improper, mischievous, or illégal, he must take the conséquence of his own temer- ity.”(157) This privilège necessarijy includes candid comments upon public affairs, and the mode in which they are con- ducted ; since such cannot be considered in the abstract as faljing within the meaning of the terms, improper, mischievous, and illégal. On the trial of James Perry and another,f on an informa- tion for a libel, the Attorney-general, in his opening to the J u- ry, observed, “ From the Bench you will hear laid down, from the most respectable authority, the law which you are to ap- ply to those facts. The right of every man to represent what (*)he may conçoive to be an abuse or grievance in the gov- ernment of the country, if his intention in so doing be hon- est, and the statement made upon fair and open grounds, can never for a moment be questionèd. I shall never think it my duty to prosecute any person for writing, printing, and pubîishing, fair and candid opinions on the System of the government and constitution ôf this country, nor for point- ing ont what he may honestly conceive to be g devances, nor for proposing legal means of redress.” When measures are fairly canvassed, and their defects, real or imaginary, pointed out with coolness and temper, it does not seem to hâve been contended, in modem times, that tbe line of duty has been transgressed, though the discussion may tend to prove the authors of those measures to be ill qualified for their situations. Party heat and zeal will overleap those bounds, or any, indeed, which decency might prescribe ; and the thirst after bonors and wealtli, and, frequently, motives still more reprehensible, produce personal attacks upon charaçter,—misrepresentation or exaggerated State- ments of matters of fact,-—or downright lies fabi icated to an- * 4B1. Comm. 151. f Before Ld. Kenyon, 1793. SeeRidgway’s Collection, &c. 2 Vol. 371. (157) Respubliça v. Dennie, 4 Yeates , 267. See post, p. 585, note (1). (*469)341 swer particular ends, and illustiated with inflammatory coin- ment s. To prevent ail excesses of this nature, without destroying at the same time the liberty of the press, would be as im- practicable as to root ont from human nature the passions which gave them birth ; but though it may not be politic to interfère in ever}^ instance where the bounds of rational discussion may hâve been overstepped, it seems clear that any such excess is illégal. (*)The test of intrinsic illegality must, in this as in ôtlier cases, be decided by the answer to the question, “ Has the communication a plain tendency to produce public mischief, by perverting the mind of the subject, and creating a general dissatisfaction toward government V’ This tendency must be ascertained by a number of circumstances capable of infinité variety ; it is evidenced by the wilful misrepresenta- tion or exaggerated account of facts which do exist, or the assertion of those which do not, mingled wîth inflammatory comments, addressed to the passions of men and not to their reason, tending to seduce the mindsof the multitude, to irri- tate and inflame them. It may be said, where is the line to be drawn J Discon- tent may be produced by a fair statement of facts, inasmuch as it is very possible for an imbécile or corrupt man to be employed in the administration of public aflairs. To this it may be replied, that to render the author criminal, his publication must hâve proceeded from a malicious mind, bent not upon making a fair communication for the purpose of exposing bad measures, but for the sake of exciting tumult and disaflection. The Judge, who présidés at the trial, is bound by the law of the land, to deliver his opinion to the Jury upon the quality and tendency of the publication ; and the défendant cannot be convicted, unless that Jury be con- vinced of the unfairness, that is, of the malice of the repré- sentation. It would exceed the proposed limits of this treatise, to cite cases in detail under this division ; every case, in- deed, falling within it, is too intimately (#)involved in its particular circumstances to admit of any abstract less general than the éléments which hâve been laid down as es- sential to the libeîlous quality, the plain intrinsic tendency* * SeeR. v. Beare, 12 Mod. 221. Ld. Ray. 418. Dig. L. L. 19. 121. R. v. Redford, 2 Str. 789. Rex. v. Owen, K. B. MSS. Dig. L. L. 67. R. v. (*470) (*471)342 of the communication to produce public disorder, and the malicious intention of its author. A person delivered* * a ticket up to the rninister after a sermon, wherein he desired him to take notice, that offences passed now without control from the civil magistrate, and to quicken the civil magistrate to do his duty, &c. This was held to be a libel, though no magistrates in particular were mentioned, and though it was not averred that the magistrates suffered these vices knowingly. And the ground of the conviction has been stated to be, that general misrepresen- tations of the government or state of the nation, or mutinous hints, tend to excite discontent and sédition in the people, and that the generality of the reflection made it the more dangerous, since it had a bad effect on the whole frame of government f Lawrence was convictedij: upon an information charging him with having sent a letter to Sir John Pigot, desiring him to moderate his zeal, for that the King (meaning King James II.) would soon be restored ; and that for further saisfaction herein, he would soon hear that many lords would repair (*)to him to France, what to do he rnight guess. The de- fendant was fined forty marks. John Tutchin was convicted§ upon an information for publishing the several libels containing the following para- graphe : “ If we may judge b y our national miscarriages, perhaps no nation in Europe has felt the influence of French gold more than England ; and worthy it is our greatest lamenta- tion, that our dear country should be thus weakened by men of mercenary principles, when countries, inferior to us in strength and riches, are secured from attempts of this nature only by the fidelity of their people. What is the reason that French gold has not aflected Holland as well as England, but that their ministry is such as is entirely in the interest of their country, and altogether incorruptible. They prefer men that are knowing in their posts, and are active in busi- ness, when in England we find out offices for men, and not men for offices. By this, and by preferring men by interest Lawrence, 12 Mod.3ll. R. v.Bliss, clerk, K. B. MSS.5G. 1. Dig. L. L. 122. * Sid. 219. Keb. 773. Bac. Ab.-tit. Libel, 450. 16 Car. 2. t Dig. L. L. 5. f 12 Mod, 311. Dig. L. L. 121. § 5 St. Tr. 532. 3 Ann. 1704- (*472)343 and favour, hâve the excise, the customs, and other branches of the revenue, intolerably sunk, and by this means has the navy of England, our chief support, been hitherto perfectly bewitched. And can Lewis spend his money better, than in getting men into office in England, who are either false or ignorant in the business, or who are his friends ?” Ld. Holt C. J. in summing up to the Jury, observed, “ To say that corrupt officers are appointed to administer affaire is certainly a reflection on (*)the government. If persons should not be called to acc-ount for possessing the people with an ill opinion of the government, no government can subsist ; nothing can be worse to any government, than to endeavour to procure animosities as to the management of it ; this has always been looked upon as a crime, and no government can be safe unless it be punished. Now you are to consider, whether these words I hâve read to you, do not tend to beget an ill opinion of the administration of the government.” John Clarke* was found guilty upon an information, charging him with having printed and published a malicious libel, intituled “ Mist’s Weekly Journal,” containing false, malicious, and seditious refleclions on his late and présent majesty, by drawing odious parallels, and thereby maliciously and falsely insinuating our government to be tyrannical, and the ministry corrupt and abominable. Richard Franklinf was found guilty upon an information, charging him with having printed and published a malicious libel, intituled “ No. 235. The Country Journal, or the Craftsman,” containing an extract from a private letter from the Hague, with intent (inter alia) to scandalize and vilify the administration of his Majesty’s government of this kingdom, and his principal officers and ministers of state, and to represent his said officers and ministers of state as persons of no integrity and ability, and as enemies to the public good of this kingdom. William Cobbett^: was tried upon an information (*)for publishing a libel in the Weekly Register, entitled “ Juver- na.” Ld. Ellenborough, C. J. in summing up to the jury, observed, “ It is no new doctrine, that if a publication be N:alculated to alienate the affections of the people by bringing the government into disesteem, whether the expédient be *' 9 St. Tr. 273. Feb. 25, 1729. f 9 St. Tr. 255. t E. T. 1804. (*473) (*474)344 by ridicule or obloquy, the person, so conducting himself, is exposed to the inflictions of the law. It is a crime ; it has ever been considered as a crime, whether wrapt in one form or another. The case of the King v. Tutchin has re- moved ail ambiguity from the question ; and although at the period when that case was decided great political conten- tions existed, the matter was not again brohght before the Judges of the Court upon any application for a new trial.V In a subséquent part of the same charge, his Lordship ad- ded, “ It has been observed, that it is the right of the Bri- tish subject to exhibit the folly or imbecility of the jpaembers of the government. But, gentlemen, we must confine our- selves within limits. If in so doing individual feelings are violated, there the line of interdiction begins, and the offence becomes the subject of penal visitation.”* In ail these cases it may be laid dôwn as a general rule, that though the discussion of political (*)measures is innocent in the abstract, their discussion must not be made a cloak for an attack upon private character, which is of itself a substantive injury, independent of its political con- nexion. It may be asked, how can members of the govern- ment be blaraed without an injury to their feelings, bad measures can be derived but from one or both of two sources, knavery and folly. The plain and obvious answer seems to be, that as far as the préjudice to private charac- ter or feelings results simply from the exposure of an absurd and inefficient measùre, the author must be content to bear with it ; he has made himself in some sort publici juris, by undertaking to act in a public capacity ; and, therefore, has no right to complain on accoünt of any personal inconveni- ence, which niay accrue from a fair comment upon his exe- cution of that duty. He seems to stand in a situation simi- lar to that of the author of a book, who, as far as he identi- fies himself with his work, is the fair object of criticism, however disagreeable it may prove to his private feelings. * Note. For other illustrations of this subject, see the cases of JLd. Bal- merino, 10 Car. St. Tr. Seven Bishops, 4 Jac. 2 St. Tr. Brewster, 15 Car. 2. St. Tr. Brookes, 15 Car. 2. St. Tr. Henry Carr, 31 Car. 2. St. Tr. Fitz- gerald, 1 Ann. Salk. 401. Johnson, 2 Ja. 2. Show. Rep. 488. Leighton, 6 Car. 1. St. Tr. Owen, 25 Geo. 2. Dig. L. L. 68. Pain, Salk. 281. 5 Mod. 163. Prynne, Sid. 219. Keb. 773. 16 Car. 2. St. Tr. Sacheverell, Dr. St. Tr. and the more modem cases of Finnerty, Lovel, Drakard, Cobbett, and Gale Jones. (*475)345 The line of distinction seems plain between a fair discus- sion of the merits of any measure adopted by government, and an attack upon the private characters of those who pro- posed it ; if the measure be bad, policy requires that the error should be made public, but the same policy can never justify either general or particular imputations on the in- tegrity of individuals ; if there be ground for such a charge the guilty party is amenable to the laws, and it is the duty of the accuser to apply to the proper tribunal, and not to allow the crimination to rest ôn (*)his own bare assertion : if the fact be doubtful, the necessity for judicial examina- tion, in opposition to bare assertion, is stiîl stronger : if the charge be a mere fiction, the calumniator attempts to impose upon and injure his country, by destroying the characters of those who are watching over its interests,—an act of guilt, the malignity of which can scarcely be exceeded. Next, as to publications aftecting the administration of justice. Contempts against the King’s Judges, and scandalous reflections on their proceedings, fall within the same con- sidération with the former class of offences, since nothing tends more to disturb public order than to infuse suspicions concerning the administration of justice. Offences of this nature may consist either in the more gross violation of decency, by making use of contumelious and insolent language in the face of the court, or in the publishing of reflections on the purity of its proceedings, tending to obstruct the course of justice. Generally, any contemptuous or contumelious words, when spokeh to the Judges of any courts, in the execution of their office, are indictable.* As if onç give the lief to a Judge of à Court Leet, in the face of the court ; or, being admonished by him to pull off his hat, say,j: “l do not value what you can do or tell him, in the face of the court, that (*)he is forsworn,§ or call him a fool,|| or say, ÉC If I cannot hâve justice here, I will hâve it elsewhere.”^[ When reflecting words are spoken of the Judges of the Superior Courts, at Westminster, the speaker is indictable * 1 Sid. 144. Str. 420. 2 Roi. Ab. 78. t Ow. 113. Mo. 470. Cro. Eliz. 581. § 2 Roi. Ab. 78. || Cro. Eliz. 78. 44 • t Ray. 78. 1 Keb. 451. 465. IT 1 Sid. 144. Keb. 508. (*476) (*477)346 boih at Common Law and under the statutes of Scandalum Magnatum, whether the words relate to their office or not. But it seems that no indictment lies for contemptuous words spoken either of or to inferior Magistrates, ünless theÿ be in the actual execution of their duty, or at leâst unless the words affect them directly in their office, though it may be good cause for binding the offender to his good behaviour.* Next, where the publication reflects upon the adminis- tration of justice. . Hurryj* had summoned Watson, who was a member of a corporate body, into a Court of Requests, to recover the sum of Ils. Hurry was afterward indicted by Watson for perjury, alleged to hâve been committed in the Court of Requests, and was acquitted on the merits. Hurry then brought an action against Watson, for a malicious pro- secution, in which he recovered 3000Z. damages, and the court refused to set aside the verdict. A majority of the corporation afterward entered a resolution in their books, asserting, “ that Mr. Watson had been actuated by motives of public justice” and voted him the sum of 23001. An information was applied for, one ground for (*)which , was, that the terms of the order constituted a high contempt of the administration of justice. On granting the information, Ashhurst, J. observed, “ The assertion that he was actuat- ed by motives of public justice, carries with it an imputation ôn the public justice of the country ; for if these were his only motives, then the verdict must be wrong.” And Buller, Justice, Nothing can be of greater impor- tance to the welfare of the public than to put a stop to the animadversions and censures which are so frequently made upon courts of justice in this country ; they can be of no service, and may be of the most mischievous conséquences. Cases may happen in which the Judge and Jury may be mistaken i when they ave, the law has afforded a remedy, and the party injured is entitled to pursue every method which the law allows to correct the mistake ; but when a person has recourse to a writing like the présent, by publi- cations in print, or by any other means, to calumniate the proceedings of a court of justice, the obvious tendency * 6Mod. 125. Haw. PL C. c. 21. s. 13. [posf, note 33.] t The King v. Watson and others, 2 T. R. 199. (*478)347 of it is to weaken the administration of justice, and in con- séquence to sap the very foundation of the constitution itself.” . An information had been filed* by the Atorney-General against White and others, for an abusive comment on the conduct of a Judge and Jury, by whom a person had lately been tried for murder, and acquitted. Upon the trial of the défendants for the libel, Mr. Justice Grose informed the jury, that in case they were of opinion that the publication (*)had been made, not with a view to elucidate the truth, but tô injure the characters of individuals, and to bring into hatred and contempt the administration of justice in the country, they ought to find the defendantsf guilty. The same policy which prohibits seditious comments on the King’s conduct and government, extends, on the same grounds, to similar reflections on the proceedings of the ’two Houses of parliament. These bodies, so essentiala part of the constitution, are at ali events entitled to reverence and respect on account of thegteat and important public services which they are bound to discharge, They hâve ex- ercised, from very early times, those means of repressing immédiate insults and contempts of their authority, which are essential at least to their dignity, if not to their very existence ; nevertheless, they hâve been sparing in the ex- ercise of their extensive and apparently undefined powers, and hâve, in many instances, waived their privilèges, and delivered over offenders to be dealt with by the Common Law. It seems to hâve been the policy of the courts to en- courage such a proçeeding ; and it is no less the duty of juries to pay a ready attention when proof of such insults is submitted to them. It will be sufficient to glance slightly upon the conséquence likely to arise from a contrary conduct ; the compelling those important assemblies to redress their own affronts—a measure necessarily irksome to them, since they are obliged to unité characters (*) which the general policy of the law has, éxcept in these and other cases of necessity, kept asunder, and which, if very frequently resorted to, might * Sittings after Easter Term, 48 Geo. 3d. f The Jury found them guilty, and they were sentenced to three years. imprisonment. (*479) (*480)348 eventually introduce disagreeable discussions as to the ex- tent of those most important and essential privilèges. In the case* * * § of the King v. Rayner, the défendant having been convicted of printing a scandalous libel upon the Houses of Lords and Gommons, called “ Robin’s Reign, or Seven’s the Main,” the court set a fine of 50Z. upon him-— committed him for two years, and until he should pay the fine—-and likewise till.he should find seciiiity for his good behaviour for, seven years. William Owenf was tried upon an information exhibited against him for publishing a malicious libel, entitled “ The Case of the Honourable Alexander Murray, Esq. in an Appeal to the people of Great Britain,” &c. tending to scandalize and vilify the whole body of the Commons in Parliament assembled ; to represent the proceedings in Par- liament as cruel, arbitrary, and oppressive ; tomakeit be- lieved that the Commons in Parliament assembled had acted,' in their legislative capacity, in open violation of the ConstL tution ; and also to represent the said House of Commons as a Court of Inquisition* &c. &c. &c. Upon the publication of this alleged libel by the défen- dant, the Commons addressed the king, desiring (*)his ma- jesty togive orders to proseeute the publisher, which was done4 After the impeachment of Mr. Hastings, a review of the articles of impeachment was published, by John Stockdale. Upon the suggestion of Mr. Fox, one of the managers of the impeachment, the House unanimously voted an address to the King, praying his majesty to direct his Attorney-géné- ra^ to file an information against Mr. Stockdale, as the publisher of a libel upon the Commons. The Attorney- general, on opening the case to the Jury, after statiiig the address of the Commons, proceeded to observe, “ I state it as a measure which they hâve taken, thinking it, in their wisdom, as every one must think it, to be the fittest to bring before a jury of their country anoffender against themselves, avoiding thereby, what sometimes indeed is unavoidable, but which they wish to avoid whenever it can be done with * 2 Barnard. K. B. 293. Di g. L. L. 125. f Michs. 25. G. 2. K. B. MSS. Dig. L. L. 67. j He was tried before Lord C. J. Lee, and acquitted. § Sir Archibald Macdonald, now Lord Chief Baron of the Court of Bx- chequer. , (*481)349 propriety, the acting both as judges and accuser s, which they must necessarily hâve done, had they resorted to their own powers, which are great and extensive, for the pur- pose of vindicating themselves against insult and contempt, but which, in the présent instance, they hâve wisely for- borne, to exercise, thinking* it better to leave the offender to be dealt with by a fair and impartial Jury.” * Ridgway’s Speeches of the Hon. T. Erskine. Wote.— Scandalous reflections upon the grandees of the realm fall within the division of the subject which has been considered in the last chapter ; but since the proceeding by writ of Scandalum Magnafcum is of a civil as well as of a éliminai nature, the extent of the injury has been treated of in a previous chapter, (VI.) to which the reader is referred.350 (*)CHAPTER XXXIY. Publications against Convenience. Next, every publication is intrinsically illégal, which tends to produce any public inconvenience or calamity. Under this division, those rank the first in respect of the magnitude of their results, which tend to interrupt the good understanding which prevails between this country and others, by malicious reflections upon those who are pos- sessed of high rank and influence in foreign States. Since the natural tendency of these is to involve the govern- ment in a foreign war, their authors hâve, in several in- stances, been punished as oflenders at Common Law.— Thus, in the case* of the King v. D’Eon, an informa- tion was filed against the défendant by the Attorney-ge- neral,f for publishing a libel upon the Count De Guer- chy, who was at that time residing in this kingdom, in the capacity of Ambassador from the court of France. The information charged the défendant with an inten- tion to defame the character and abilities of the Count De (*)Guerchy—to render him ridiculous and contemptible— to arraign his conduct and behaviour, in his character of Ambassador—and to cause it to be believed that he had, af- ter his arrivai in this kingdom, been guilty of unjust, un- warrantable, and oppressive proceedings towards the défend- ant and his friends ; and to insinuate, that he was not fit or qualified to execute the office and functions of Ambassa- dor. The défendant was convicted.—Lord George Gor- * Easter T. 4 G. 3.1764. K. B. MSS. Di g. L. L. 88. t Sir Fletcher Norton. (482) (483)351 don* was found guilty upon an information, for having pub- lished some severe réfactions upon the Queen of France, in which she was represented as the leadér of a faction ; and Mr. Justice Ashhurst, in passing sentence, observedj that unless the authors of such publications were punished, their libeis would be supposed to hâve been made with the connivance of the state.—The défendant, John Yint,f 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 his inconsistency ; he has lately passed an edict, to prohibit the exportation of deals and other naval stores. Inconsé- quence of this ill-judged law, a hundred sail of vessels are likely to return to this country, without their freight,” with intent to traduce the Emperor of Russia, and to interrupt and disturb the friendship subsisting between that country and Great Britain. (*)Jean Peltier was found guilty upon an information charging him with having published a malicious libel, with intent to vilify Napoléon Bonaparte, the Chief Consul of the French Republic, and to excite and provoke the citizens of the said Republic to deprive the said Napoléon Bonaparte of his consular dignity, and to kill and destroy him, and to interrupt the friendship and peace subsisting between our Lord the King and his subjects and the said Napoléon Bona- parte and the French Republic. The most obnoxious passages of the libel were these : “'O ! Eternal disgrâce of France ;—Cæsar, on the banks of the Rubicon, has against him in his quarrel, the Senate, Pompey, and Cato ; and in the plains of Pharsalia, if fortune is unequal, if you miist yield to the destinies, Rome in this sad reverse at least re- mains to avenge you a poignard among the last Romans.” “ As for me, far from envying his (Bonaparte’s) lot, let him name (I consent to it) his worthy successor ; carried on his shield, let him be elected Emperor.” “ Finally, (and Rom- ulus recalls the thing to mind,) I wish that on the morrow he may hâve his apotheosis. Amen !”—Upon the trial, Lord Ellenborough, C. J. referred to the cases of Lord * Hil. 28 Gr. 3. The défendant was sentenced to pay a fine of 500/., to be imprisoned inNewgate for the spaceof two years, and afterwards to give security for his good behaviour for the space of fourteen years. | 40 G. 3. (*484)352 George Gordon and Vint, and said, “ I lay it down as law, that any publication which tends to disgrâce, revile, and de- fame persons of considérable situations of power and digni- ty in foreign countries, may be taken to be, and treated as a libel ; and particularly where it has a tendency to interrupt the amity and peace between the two countries.” (* * * §)By the statute 35 H. 8. c. 14.* it is made felony to dé- claré any false prophecy upon occasion of arms, fields, or letters. By st. 5. Eliz. c. 15. “ If any person advisedly and dis- creetly advance, publish, or set .forth by writing, printing, saying, or any other open speech or deed, to any person or persons, any fond, fantastical, or false prophecy, upon or by the occasion of any arms, fields, beast, badges, or such other like things accustomed in arms, cognizanees, or signets, or upon or by reason of any time, year, or day, narae, bloodshed, or war, to the intent thereby to make any rébellion, insurrection, dissension, loss of life, or other disturbance, within the realm, &c., upon the first conviction, he shall suffer one year imprison ment, and paya fine of 10Z., and for a second offence, shall suffer imprisonment during life, and forfait ail goods and chattels, real and Personal. But it is provided, that no one shall be imprison- ed for any offence againstthe act, unless within six months after the offence committed.f It has been from early times considered as an offence at Common Law, to attempt by means of false rumours to, raise the price of provisions, or other necessaries of life. In 43 Ass4 it was presented that a Lombard did pro- cure to promote and enhance the price of merchandise, and the Lombard demanded judgment of the presentment for two causes—1. That it (*)did not sound in forestal- ling ;—-2. That of his endeavour, or attempt by words, no evil was put in ure, that is, no price was enhanced ; but botli objections were overruled. “Whereby,” says Sir E. Coke,§ “it appears that to attempt by words to en- * See also 3 and 4 Ed. 6. and 7 Ed. 6. t By 23 Eliz. c. 2. it was made felony to cast the nativity of the queen, or to seek to know and set forth how long thedueen shall live, or who shall reign after her decease, or to utter any false prophecies to any such intent, or to wish or desire the death or deprivation of the Ctueen* J P. 38. § 3 Ins 896. (*485) (*486)353 hance the price of merchandise, was punishable by law, and did Sound in forestalment.” And from the same report* it appears, that to attempt by sueh rumours to diminish the priee of any staple coin- modity, to the préjudice of the dealers in general* islike- wise an offence at Common Law ; for it is there said “Knivet reported that certain people came to Coteswold, in Herefordshire, and said, in deceit ofthe people, that there were such wars beyond seas, as no wool could pass or be carried beyond seas, whereby the price of wool was abated, and upon presentment thereof mâde, they appeared, and tipontheir confession, they were put to fine and ransom.” And inf Mich. Term, 39 and 40 Eliz. it was, after con- férence and mature deliberation, resolved by ail the Jus- tices, that every practice or device, by act, conspiracy, words, or news, to enhanee the price of provisions, or other merchandise, was punishable by law. An information! was filed, charging the défendant, that he, intending to enhanee the price of hops, did, at Worcester, in the hearing of divers hop dealers and plantèrs, déclaré, that the then présent stock of hops was nearly exhausted, and would be exhausted before the crop of hops then growing (*)could be brought into the market, and that there would soon be a scarcity of hops, with intent and design, by such rumours and reports, to induce dealers in hops not to carry any to market for sale. When the defeftdant§ was brought up to receive judgment, his counsel objected that the counts charging him with having spread rumours to en- hance the price of hops, did not aver|| that the rumours were false, and that it should at least hâve been stated, that the price of the commodity had, in fact, been raised by the rumours. But there were other counts in the information, charging the défendant with having engrossed large quanti- fies of hops, with intent to prevent the same from being brought to market, and to resell the same at an exorbitant profit, and thereby greatly to enhanee the price of hops ; * 43 Ass. p. 38. f 3 Ins. 196. Bro. Iud. pl. 40. î R. v. Waddington, I E. 143. § He was convicted before Mr. J. Le Blanc, at Worcester, and when brought up to receive sentence, the court, oui of mere indulgence, allowed his counsel to go fully into the case, saying, that if it appeared that judgment ought to be arrested, or a new trial granted, the défendant should not be pre- cluded from the advantage. |[ See Haw. P. C. c. 80. s. 1. 45 (*487)354 and the défendant was adjûdged to pay a fine of 500Z., and to be imprisoned for one month. The court does not, in the above case, appear to hâve given an express opinion upon the indictable quality of the offence described in the two first counts, which consisted in the spreading rumours generally, with intent to enhance the price ; nor was this necessary, since the information con- tained independent charges which were deemed sufficient, and (*)upon which the judgment appears principally to hâve been founded. It was contended by the counsel for the prosecution, that “ the spreading rumours, whether true or false, if done with a mischievous intent, to produce a public détriment, is indictable upon general principles of law, in the same manner as publishing a libel, however true the facts stated may be ; and that in Jolliffe’s case,* the endeavouring to procure certain persons to be appointed overseers, was held criminal, though the criminality consist- ed in the intent only, which was to dérivé a private advan- tage.” It seems, however, to be clear, that no malice will render an act indictable, which is in itself innocent ; the question therefore is, whether the publication of real facts (the knowledge of which may affect the price of provisions or of merchandise) can be considered as detrimental to the community ; if it can, then a mischievous intention (thàt is, milice) in the absence of rebutting evidence, is to be presumed ; if it cannot, no malice can render it criminal. In many cases, the publication of such facts would rather affect the interests of individuals, than those of the commu- nity. If, for instance, a person were truly to publish, that the foreign markets were so glutted with a particular com- modity, that British wares, of the same description, could not be sold there, the report might operate to the immédiate préjudice of the holders of that article ; but the préjudice to the public, namely, their exclusion from the foreign mar- ket, would be attributable (*)purely to the superfluity which prevailed there, and not to the communication made by the défendant. It is said to hâve been resolvèd by àll the Judges, that ail writers of false news'f are indictable and punishable ; and, probably, at this day the fabrication of news likely to produce any public détriment would be con- sidered as criminal. * 4 T. R. 285. t 4 Read. St. L. (*488) (*489) Dig. L. L. 25.355 (*)CHAPTER XXXV. Publications exciting to an illégal Jlct. Las tly, the mischievous qualityof the communication may consist in its tendency to excite an individual to the commission of some illégal act. This offence may consist either in direct solicitation, or in the holding out some indirect but forcible motive tô the com- mission of s uch an act. In the cases of high treason, petit larceny,* and misde- meanors, ail advisors are considered as principals, and are identifiée! with them as to ail penal conséquences. In petit treason, f and félonies above the degree of petit larceny, a procurer by solicitation or advice is punishable as an acces- sory before the fact ; and by many statutes creating new of- fences, counsellors, aiders, and abettors, are subjected to spécifie punishments. And where the solicitation is not foliowed by the actual commission of the offence contemplated, it is perfectly clear that the ad viser is fiable to be| punished for his wil- ful attempt to violate the Jaw, through the agency of ano- ther. (*)And secondly, the holding out any indirect but forci- ble motive, to induce the commission of an illégal act, is in itself indictable.—Thus, it is not only illégal to send a chal- lenge to fight, but even an attempt to provoke§ another to * Hal. P. C. 613. 4 Bl. Comm. 36. fl Hal. P. C. 615. { R. v. Phillips, 6 E. 464, R. v. Southertoîi, 6 E. 126. R. v. Higgins, 2E. 5. § By 22 G. 2. c. 23. If any person, on board the fleet, shall use re- proachful or provoking speeches or gestures, tending to make any quarrel or disturbance, he shall, upon being convicted thereof, suffer such punish- ment as a Court Martial shall impose.” (*490) (*491)356 send such a challenge, is a misdemeanor, since the endeav- our is an act done towards the accomplishment of such crime.* With respect to communications tending to acts of Per- sonal violence, there is an important distinction between words spoken, and written, or printed publications ; the. former are not indictable, though scurrilous, and reflecting upon the character of an individual, and even addressed personally to him, unless theyf amount to a direct solicita- tion to a breach of the peace, as by a challenge to fight.( 158) The défendant:): said to the mayor of Salisbury, “ You, Mr. Mayor, are a rogue and a rascal and itwas held, after great deliberation, that the words were not indictable, since they were not spoken to him in the execution of his office ; that if they had been put into writing, they would hâve constituted a libel, which would hâve supported either an indictment or an action ; but that they were but loose and unmannerly words, like those spoken of an Alderman (*)of Hull—“ When he puts on his gown, Satan enters intoit,” which were adjudged not indictable ; and Holt, C. J. said, that words directly tending to a breach of the peace, may be indictable ; but otherwise, to encourage indictments for words, \yo>uld make them as uncertain as actions for words are. But it seems perfeçtly settled, that any maliciotis defama- tion of any person, expressed in print or in writing, or by means of pictures or signs, and tending to provoke him to anger and acts of violence, or to expose him to public ha- tred, contempt, and ridicule,§ amounts to a libel in the in- dictable sense of the word.(159) And since the reason is, that such publications create ill blood, and manifestly tend to a disturbance of the public peace, the degree of discrédit is immaterial to the essence of the libel, since the law can- not détermine the degree of forbearance which a party re- + 6 E. 464. f 6 Mod. 125. Ld. Ray. 1030. J The Ctueen v. Langley, 6 Mod. 125. § 3 Black. Com. 150. Haw. PI. Gr. c. 73. s. 1. 5 Co. 125. 5 Mod. 165. Salk.418. Str.422, 791. 12 Mod. 221. Ld. Ray.416. iSid. 270. (15$.) See postj note (36) p. 592. (159) See Çommonwealth v. Clapp, 4 Mass. Rep. 168. Per Parsons, Ch. J. People v. Croswell, 3 J. C as. 354. Per Hamilton, argued : sanctioned and ad J 1 ’ 11 i.nrt in the case of Steele v. Southwick, 9 J. R. 214.357 flected upon will exert before he is excited and provoked to acts of outrage, and therefore prohibits equally ail imputa- tions conveyed by such means, and possessing such a ten- dency. The grounds of the distinction between oral and written provocation, are to be sought after in practical wisdom and expérience, rather than in principle, (*)inasmuch as the tendericy to produce illégal violence is oftentimes stronger in the former case than in the latter : for instance, contu- melious and insùlting language is more likely to inflame the party to whom it is applied, to acts of outrage, when uttered publicly in his hearing, than if even the same expressions were to be conveyed to him by a private letter, when the insult would be divested of its main aggravation,—its pub- licity,—and the distance of the offended party from the ag- gressor would allow the irrigation which did ensue an op- portunity to subside, without venting* itself in an act of vio- lence. Since the indictable and actionable qualities of a libel, upon a living individual, seem to hâve been considered as co-extensive,* what has been said in regard to the extent of the remedy by action, may be applied as the measure of criminal liability. An indictmentf also lies for a libel reflecting upon the memory of a person who is dead, if it be pubîished with a male volent purpose to injure his family and posterity, and to expose them to contempt and disgrâce ; for the chiefj: cause of punishing offences of this nature, is their tendency to a breach of the peace ; and although the party be dead at the time of publishing the libel, yet (according to Lord Coke) it stirs up others of the same family, (*)blood, or society, to revenge, and to break the peace.(160) In the case of the King v. Chrichley,§ an information * Skinn. 123. 2 Wils. 204. Com. Dig. tit. Libel, c. 3. Bac. Ab. tit. Slander, 202. 3 Bl. Com. 125. 2 Camp. R. 511. t 5 Co. 125. Haw. PI. Cr. c. 73. s. 1. The King y. Topham, 4 T. R. 126. X Haw. PI. Cr. e. 73. s. 3. 5 Co. 125. § 4 T. R. 129. in the notes. (160) See Commonwealth v. Taylor, 5 Binn. 281. Per Tilghman, Ch. J, Sharff y. Commonwealth, 2 Binn. 514. (*493) (*494)358 was granted against the défendant, for publishing the fol- lowing libel, reflecting upon Sir C. Gaunter Nicoll, Lady Dartmouth’s father, and on the government : “ On Satur- day evening died of the smail pox, Sir C. G. Nicoll, Knight of the most honourable order of the bath, and représentative in Parliament of the borough of Peterborough. He could not be called a friend to his country, for he changed his principles for a red ribband, and voted for that pernicious project, the excise.” But, as was observed by Lord Ken- yon, C. J. in the case of the King v. Topham,* “ To say that the conduct of a dead pèrson can at no time be can- vassed ; to hold that, even after âges are past, the conduct of bad men cannot be contrasted with that of the good, would be to exclude the most useful part of history.” The malicious intention of the défendant, therefore, to injure the family and posterity of the deceased, must be expressly averred and clearly proved. And it is not necessary that the libel should reflect upon the character of any particùlar individual,f provided it im- mediately tend to produce tumult and disorder. An information^: was prayed against the défendant (*)for publishing a paper, containing an account of a murder com- mitted upon a Jewish woman and her child, by certain Jews lately arrived from Portugal, and living near Broad-street, because the child was begotten by a Christian ; and the affi- davit set forth, that several persons mentioned therein, who were recently arrived from Portugal, and lived in Broad- street, had been attacked by multitudes, in various parts of the city, barbarously treated, and threatened with death, in case they were found abroad any more ; and it was ob- jected, that no information could be granted, because it did not appear, in particùlar, who the persons reflected upon were. But by the court, “ Àdmitting that an information for a libel may be improper, yetthe publication of this paper is deservedly punishable in an information for a misdemeanor, and that of the highest kind ; such sort of advertisements necessarily tending to raise tumults and disorder among the people, andinflame them with an universal spirit of barbari- * 4 T. R. 129. t 3 Bae. Abr. 494. 2 Barnard, K.B. 138. 166. î The King v. Osborne, D. L. L. 79. [S. C. 2 Swanst. Rep. 503.] (*495)359 ty, against a whole body of men, as if guilty of crimes scarcely praeticable, and wholly in crédible. ”(161) It may be objected, that when a party is provoked (*)by a libel to acts of violence, the breach of the peace is to be attributed to the hasty temper of the person provoked, and that the violation of good order ought to be visited upon him, and not upon the writer, whose language supplies no justification of the violence committed. The answer seems to be, that though the party violating the peace dérivés no justification from the provocation offered, this circum- stance does not exculpate the original aggressor, since he did that which occasioned the illégal act, and which, calculating upon the infirmities of human temper, was likely to occa- sion it ; the offence was the natural, though the illégal con- séquence of the publication ; the défendant caüsed it to be committed ; and with respect to the public, it is immateriàl whether he directly solicited another to break the law, or effected the same end by means indirect, but equally certain. The principle upon which a party is ruade responsible for an offence committed at his instigation, but by the agency of another, pervades the whole System of our criminal code, and applies strongly to the case of libel ; since no reasonable distinction can be ruade between actual solicita- tion and any other means of procuration known to be equally powerful. An actual breach of the peace, is therefore a conséquence which, upon legal principles, is to be attributed, in some degree, to the author of the libel which excited it, and his attempt to produce disorder is punishable on grounds of the plainest policy, inasmuch as it is wiser to prevent the evil apprehended, by a timely vigour, than to.wait for its maturi- ty- ___________________________________.__________________________ (161) An action for a libel will not lie by an officer of a régiment of mili- tia, for a publication reflecting upon the officers of a régiment, generally ; there being no particular, personal application to the plaintiff, and no alléga- tion of spécial damage. Sumner v. Buel, 12 J. R. 47ô. In this case, Thompson, Ch. J. in delivering the opinion of a majority of the court, says, “ It is a general rule, that no writing whatever, is to be deemed a libel, unless it reflects upon some particular person. (Hawk. P. C. b. 1. ch. 73. sec. 9.) A writing which enveighs against mankind in general, or against a particular order of men, is no libel ; nor is even indictable. It must descend to partieu- lars and individuals, to make it a libel. (Regina v. Aime fy Nott, 3 Salk. 224. S. C. 1 Ld. Raym. 486 ; by the name Rex v.of Orme & Nutt.) (*496)360 (*)CHAPTER XXXVI. Of the Défendantes Malice. To constitute a crime against human laws, a vicious will must concur with an unlawful act ;* and as the union of the défendantes wrongful intention with the plaintiff’s loss, créâtes the title of the latter to damages, so, to render a party criminally responsible, the act obnoxious to the public must resuit from a malicious mind.f As far, therefore, as respects the intention of the party, the offence against the public is identified with the injury to the individual : and the cases differ only in the nature of the mischief, which, in the former, results to the plaintiff, in the latter, to the community ;—the observations, therefore, which hâve been already made upon the nature of malice in its legal sense, the presumptions for and against it, and the evidence relating to it, apply equally to the présent branch of the subject. With respect, then, to the question of malice, the (*) cases falling within the criminal as well as within the civil divi- sion, may be resolved into the three classes already speci- 1. Where the actual intention of the party is immaterial, and the presumption of law is conclusive in favour of the défendant ; as where the publication is made in the regular course of parliamentary or judicial proceedings4 2. Where the presumption is prima facie in favour of the défendant, but liable to be rebutted by proof of express ma- lice. * 4 Bl. Comm. 21. f Haw. c. 73. s. 1. 5 Co. 125. 5 Mod. 165. Salk. 418. 4 Bl. Comm. 125- Str.422. 791. 12 Mod. 221. R. v. Ld. Abingdon, 1 Esp. R. 228. X Vid. supra, c. 10, 11. (*497) (*498)361 3. Where the presumption is against the défendant, and the law, in the absence of any justifying excuse shown by the défendant, collects an evil intention from the evil ten- dency of his act. It has already been seen to which of these divisions the defendant’s case, under its particular circumstances most properly belongs ; and the observations already made are equally applicable to the criminal proceeding, with the fol- lowing exceptions. 1. The truth of a publication, supplies no defence to an information or indictment. The reason why a plaintilF in such case is debarred from recovering a compensation in damages, bas already been considered. He is excluded from the courts by his own demerits ; but to the criminal proceeding, the person libelled is not a party ; no defect, therefore, in his claim, can avert from the offender that pun- ishment which the security of society demands.* (*)Though it has long been settled, that the truth of a libel is no defence under an indictment, it may not be im- proper to offer a few remarks upon a doctrine against which objections hâve been frequently urged. The two essentials to constitute an indictable misde- meanor, are, the mischief resulting, or likely to resuit, to society, from a particular act ; and the malicious intention of the actor, to effeet such mischief; and hence it is, that every wilful attempt or instigation, direct or indirect, to violate the law is considered as criminal. The policy of the rule seems indisputable. No society can tolerate a wilful attempt to break its laws ; and the question is, whether a person who publishes concerning another that which is true, but which is likely to provoke him to commit an illégal act, may not fall within the rule. In the first place, the illégal act resulting from such a pub- lication, that is, the breach of the peace, must be considered in relation to society, as the conséquence of the publisher’s act ; for though the defamation will by no means justify the person defamed in the committing any act of violence, particularly where he has been guilty of that which is im- puted, yet the blâme is at least partially attributable to him * 4 Bl. Com. 151. 5 Rep. 125. 11 Mod. 99. Bac. Ab. tit, Lib. 455. Hob. 253. 3 Salk. 226. Holt. R. 422. Haw. P. C. c. 73. S. 6. 46 (*499)862 who wantonly and maliciously did that which was likely to occasion the illégal conséquence. The right of every person to publish truth in the abstract isclear: but this natural privilège, like ail others, is fiable to be abridged, when the exercise of it becomes pernicious. The law affords raany (*)instances, in which acts in them- selves innocent, are, from some collateral evil accruing to the public, considered as criminal. Thus, the carrying on a particular trade may be, in itself, not only innocent, but necessary ; yet it becomes illégal when attended with cir- cumstances affecting the health and comforts of those who résidé in the neighbourhood. So in the casé of libel, the right to publish the truth in general is plainly distinguisha- ble from the right to publish when the publication is likely to be attended with mischief: in such case the publisher cannot but be considered as the author of those conséquen- ces which, knowing the infirmities of human nature, he caused to exist. Supposing, then, that mischief may resuit from publishing the truth, can such publication be attributed to a malicious disposition to effect such mischief? An illégal act is, in contemplation of law, malicious, when it is effected with a knowledge of the conséquences which are likely to ensue ; since every person must be presumed to hâve had that end in view to which the means he used were adapted. Though the immédiate object, therefore, of the défendant, maÿ be to wound the feelings of an individual, yet, if the obvious tendency of his publication be to exasperate the party reflected on to acts of outrage, he must, in the absence of ail means of justification, be presumed to hâve contem^ plated a violation of the public tranquillity. Upon these principles, as far as regards intention, it is im- material whether the charge imputed be true orfalse ;the mischief is as great in the latter case as in the former, since guilt is at least as prone to (*) revenge as innocence ; and it is clear, that truth as well as falsehood may be converted into the instrument of malice.* These observations apply to cases where the act can be attributed to no motive, but a design to produce misery to the individu al, attended with that crim- inal inattention to the interests of society which constitutes * See Paley’s Moral Philosophy, Ch. on Slander. (*500) (*501)363 malice in its legal sense. Where the défendant can show that he had in view either the interests of society in gen- eral, or the benetit of the individual, however mistaken his zeal may be, that vicious intention is wanting, the addition of which would constitute him a criminal. As far as the convenience and exigencies of society require, every person is justified in publishing the truth ; the prohibition does not extend beyond communications, originating in malice and terminating in mischief. In theory, perhaps, there may be some room for a distinc- tion between cases where the offence imputed by the libel is of an indictable nature, and those where a mere immoral act is charged ; in the former, if the fact be within the know- ledge of the party, heis bound to déclaré it to the proper tri- bunal, for the purposes of justice, and would, in many in- stances, be liable to an indictment for the concealment ; but where the act is of a mere immoral nature, as of ingrati- tude or hypocrisy, no avenue for the disclosure is appoint- ed by the law ; in such case, therefore, it seems more rea- sonable, that the actual misconduct should be made known at the discrétion of the individual acquainted with it. As far as oral (*)communication goes, the privilège is allowed in its fullest latitude ; and though the grounds of the distinction between oral and written publications are not always obvi- ous, the practice of centuries may hâve proved oral commu- nication to be sufficient for the purpose of restrainittg the unprincipled, by the dread of exposure, without extending the impunity to the more deliberate and malicious act of making the same disclosure in writing. But though the truth of a publication (inasmuch as it may eonsist with both the essentials to the offence) cannot con- stitute a distinguishing boundary between criminality and absolute innocence, yet it may materiallÿ affect the mea- sure of punishment. For this purpose the défendant is enti- tled to exhibit the truth of that which he has asserted, up- on* affidavits before the court, and may verify the state- mentby his own oàth—an advantage of which he could not hâve availed himself upon the trial under any circum- stances. Thèse reasons, which hâve been urged as the ground of * Dig. L. L. 16. Bac. Abr. tit. Lib. 456. (*502)364 rejecting evidence of the truth of a libellous charge as a com- plété defence to an indictment or information, apply to cases where the prosecutor is really guilty of the criminal or im- moral act imputed : in other instances, the same princi- pes apply with a still superior force, strengthened by circumstances peculiar to themselves. Thus, where the libel consists in the holding up an in- dividual to ridicule, by exposing some personal deformity, in a lampoon or print, the truth ofthe (*)représentation would certainly aggravate the ridicule, and would by no means lessen the malice of the author.* With respect to libels against religion, morality, or the constitution, the permitting such a defence would be at- tended with conséquences almost too absurd to mention. Suppose a person to publish, that no overruling providence exists ; or that, to break a promise or an oatb, is a virtu- ous act—could the discussion of such questions be tolerated in a court, or brought to issue before a jury ,? or would proof that indécent transactions hâve actually occurred, supply any excuse for the public exhibition of them in a print or a pamphlet ? Where, however, an indictment is expressly framed upon the statutes of Scandalum Magnatum, it may be doubted whether the truth would not supply a defence, since the words false and lies, are used as descriptive of the offence.f And next, it has been seen, that it is a good defence to an action, to show that the défendant, at the time of publication, gave such a description of the author of the slander and the words he used, as would enable the plaintiff to bring bis action. And by the enactments of the statutes concerning Scandalum Magnatum, it appears that no punishment was intended'to be inflicted in case the défendant gave up the author of the false taie, and that tbe (*)imprisonment, even after conviction, was to cease upon the offender’s discovering the first moyer of slander4 It does not, however, appear, that such a defence to an indictment at Common Law has been allowed ; nor * Puta si alterjDœnam delicti sui sustinuerit, aut in vitium naturale objicia- tur, claudus aliquis, luscus, aut gibbosus vocetur yeritatem convicii non ex- cusar© quo mins animo injuriandi, id factum presu matur, contrarii tamen probationem hic admittendam. Yinn. in In. Just. lib. 4. f See 12 Rep. 133. 2Mod. 150. t Vid. supra, 145. (*503) (*504)365 could it, in principle, be admitted,* since the law regards not the truth or falsity of the libel, but only its tendency to provoke to a breach of the peace ; and therefore who was the author seems immaterial, provided the matter published poésess such a tendency : in case, how- ever, the reporter communicating the slander to the pro- secutor, should give up the author, the fact would afford some reason to infer, that the communication was made with a good intention, and did not proceed from malice. * If a highwayman shall at the gallows arraign the justice of the law, and ôf those who condcmned him, he who publishes this shall not go unpunish- ed. 4 Reap. St. Law, 154. D. L. L. 23.366 (*)CHAPTER XXXVII. Of the Défendant9s Jlct. The plaintiff, to entitle himself to damages in a civil action, must, as has been seen, show a publication made by the défendant, with a wrongful intention ; and whatever has been said upon that subject, applies equally to the crim- inal proceeding, with this addition, that the sending of a libel to the individual reflected on, without exposing the contents to a third person, is a sufficient publication to sup- port an indictment, on account of its tendency* to provoke that individual to commit a breach of the peace.(162) Thus far is clear, that any publication of a libel, with a knowledgef of its contents, is an act which renders that party criminally liable. Upon this branch of the subject, it remains to be inquired, whether the offence may not be completed by some act (*) short of a publication. It may be convenient, for the sake of clearness, first, to consider the different ways in which a man may be instrumental to a libel ; and next, how far that instrumentality, in its different degrees, is in a legal view criminal. A person may become instrumental, lst. By furnishing ideas. By committing them to paper or print. 3d. By presërving a libel. 4th. By exposing or repeating it. These seem to comprehend ail the varieties of which the case is capable, since a. person who procures any of these * 1 Will. Saun. 132. n. 2. R. v. Cater, 4 Esp. 117. 5 Mod. 163. 12 Co. 35. 1 Hob. 62.215. f 5 Rpp, 125. (162) See Lyle v. Clason, 1 C aines, 583. Per Curiarn, (*505) (*506)367 to be done, is in law considered as the actor ; and the copy- ing of a libel falls within the second description. In the fourth case, the acts described amount ta an actual publica- tion, of whose criminal nature there is no doubt, and which may, for the présent, be considered as out of the question ; and with regard to the lst, a person either suggests the mat- ter to another, for the purpose of committing it to writing, or writes it himself : in the first instance, he may be consid- ered as having published the libel to the writer ; if he Write it himself, he falls within the 2d description ; and, therefore, ali the predicaments, exclusive of publication, seem confined to the committing of libellons matter to writing, and to the keeping of such libels in possession. It will next be considered how far these acts are crimi- nal. In the fifth report De Libellis Famosis, the 4th resolution, after describing the different species of libels, immediately prôceeds to point out the different modes of publication ; and then observes, “It (*)was resolved in the Star Cham- ber, in Halliwood’s case, that if one find a libel (and would keep himself out of danger,) if it be composed against a pri- vate man, the finder either may burn it, or presently deliver it to a Magistrale ; but if it concern a Magistrate or other public person, the finder ought presently to deliver it to a Magistrate.” It does not appear clear, whether this proce- dure was prescribed as a strict legal or merely as a moral duty and matter of prudence, since the phrase, “ifhe would keep himself out of danger,” is abundantly ambigu- ous. This doubt, however, is in some degree removed by reference to the civil law, whence the doctrine is said to hâve been derived ; according to which it seems, the finder of a lïbellus famosus was not punishable for the mere keep- ing of it in possession, but for the improper publication of it. Si quis famosum libellum sive domi sive in publico vel in quocunque loco ignarus offenderit, aut discerpat priusquam aller inveniat, aut nulli confiteatur inventum ; nam quicun- que obtuleret inventum, certum est ipsum reum ex lege re- tinendum, nisi prodiderit auctorem ; nec evasurum pœnas hu jusmodi criminibus constitutas, si proditus fuerit cuiquain retulisse quod legérit.* * Theod. Cod. Lib. 9. tit. 34. (*507)368 By the edicts of the Emperors Valentinian and Va- lens : “ Si quis famosum libellum ignarus répererit,* aut cor- rumpat priusquam alter inveniat, aut nulli confiteatür in- ventum. Si vero non statim easdem chartulas corruperit vel igné consumpserit, sed (*)earum vim manifestaverit, sci- ât se quod auctorem hujusmodi delicti capitali sententiæ sub- jugandum.” Againinthe Codex Justinianus de famosisli- bellis, “ Famosis Jibellis si quis scripserit quod pertineat ad injuriam altériuSjf de qua est publica accusatio et pœna capitalis, non tantum in auctorem famosi libelli, sed etiam in eum qui invenit nec combussit sed evulgavit ; quia iste auctor præsumitur esse libelli, qui eum sparsit in vulgus non prodi- to auctore.” Hence itmay be collected, that the finder of a libel was not punishable for the mere keeping of it in custody, but for its subséquent publication ; and therefore it seems lhat the passage in the resolution cited, was intended rather as a cau- tion against the effects of a publication, which a party risk- ed by keeping the libel in possession, than a déclaration that the keeping of it in possession was in itself a temporal crime. With respect to the Star-Chamber practice, that Court does not appear to hâve ever punished for the mere posses- sion of a libel ; on the contrary, as will afterwards be notic- éd, their jurisdiction was considered as doubtful, even where there h ad been a publication by sending a libel to the party defamed,—a doubt which never could hâve been entertain- ed, had the power of that Court to punish for the mere pos- session been considered as clearly established. But this of- fence, if it ever existed as such against the law of this coun- try, probably did not survive the Court which created it. (*) An information^: was exhibited against the défendant, for causing to be framed, printed, and published, a scanda- lous libel. Upon evidence it appeared, that two printed li- bels had been found at the lodgings of the défendant, upon warrants from the principal Secretary of State to search there. The opinion of the Court was, that this was no crime within thè information, though he gave no account * Cod. lib- 9. tit. 36. i Vent. 31. E. 21 C. 2. (*508) (*509) f Cod. lib. 9. tit. 36. 15 Vin. Ab. 89. pl. 6. Dig. L. L. 19369 how.they came there ; and that the having a libel in pos- session without delivering it to a magistrate, was punisha- ble in the Star-chamber only. ïn the subséquent case of the King v. Beare, Lord Holt, C. J. is reported to hâve said, that the collecting and transcribing of libels,* for the pur- pose of publishing lhem, is criminal, though no publica- tion should ever take place ; since men ought not to be al- lowed to hâve such evil instruments in their keeping. But in another report of the sa me case, the défendant having been found guilty of writing &nà collecting certain libels, it was said, that the collecting had been better out of the case ;f and it is clear that judgment was given on the ground that the défendant wrote the original libel, since though Lord Holt intimated that the bare copying of a libel was crimi- nal, he said there was no necessity for the opinion, because the défendant had been found guilty of writing the original. | Upon the different reports of tins case Ld. Cambden re- marked : “ If ail this be law, and I hâve no (*)right at pré- sent to deny it, whenever a favourite libel is published, the whole kingdom in a month or two becomes criminal, and it would be difficult to find one innocent jury amongst so many millions of offenders.”§ With respect to the bare fact of committing libellous mat- ter to print or writing, the nature of the act appears much more doubtful ; since though it has been expressly decided, that the bare act of writing, without publication, is crimi- nal at Common Law, the grounds of that détermination afford îoom for doubt. Under the jurisdiction of the Court of Star-chamber, some publication appears to bave been held essential to the completion of the offence ; since, even in cases where libels had been sent to the individuals libelled, it was doubted whether the Court had jurisdiction,'—a question which never could hâve been raised, had the mere act of writing been sufficient to complété the offence. Thus, in the case|| of Dr. Edwards and Dr. Wooton, the letter had been written to Dr. Edwards himself, and it was said, that the défendant should be punished, (although it was solely writ to the plaintiff without any other publication,) * Cartti. 409. Holt. R. 422. f Salk.417. Ld. Ray. 4L4. t 2 Salk. 419. § 11 St. Tr. 322. || 12 Co. 35. 5 J. 1. 47 (*510)370 in the Star-chamber, for that it was an offence to the King, and a great motive to revenge. And the same queltion occurred in the case of Barrow v. Llewellin,* where the letter had been sent sealed to the party, as also in the case of Sir Baptist Hicks ;f (*)and no instance appears, in which the Star-chamber punished for a libel without some publi- cation. In the case of Lewis Pickeringl in the Star-chamber, the défendant confessed the publishing as well as the composing of the libel ; and in the resolutions which are subjoined to the case, no hint is given that the mere making of a libel without a publication would be punishable in that Court ; on the contrary, the reasons for punishing the offence of libel- ling are expounded, and aresuch as can apply to those cases ohly in which a libel has been actually published : and in the 4th résolution, after the explanation given of the different kinds of libels, the various modes of publication are imme- diately specified. In Lamb’s case§ the bill was exhibited against the de- fendants for the publication of two libels ; and it was re- solved, that “every one who shall be convicted in the sàid case, either ought to be a contriver of the libel, or a pro- curer of the contriving of it, or a malicious publisher of it, knowing it to be a libel the resolution then goes on to ex- pound, what shall amount to a publication, and afterward repeats, that every one who shall be convicted, ought to be the contriver, procurer, or publisher of it, knowing it to be a libel. Upon the face of this resolution it appears doubtful, whether the contriver and procurer were considered as sev- erally punishable for their acts, though no publication should take place ; or whether the resolution does not suppose, in the first place, that the offence has (*)been completed by a publication, and then proceeds to define what degree of agency shall render any party concerned responsible for the whole effect produced. In favour of the former con- struction it appears, that the actors are separately and dis- junctively enumerated as liable to be convicted ; and this interprétation was adopted by Lord Holt. In support of the latter construction, it may be observed, that the words, “ every one who shall be convicted in the said case,” refer * 1 Hob. 62. 13 J. 1. f Hob. 215. J5 Co. 123. 3 J. 1. §9Rep. 59. 8 J. 1. (*511) (*512)371 immediately to the case of the défendants, who were pro- secuted for publishing two libels ; that in the subséquent part of the resolution it is said, “If the défendant write a copy of a libel, and do not publish it to others, it is no pub- lication ;” which affords some reason to infer, that a publi- cation was deemed in ail cases neeessary before any convic- tion could take place ; since the passage, if understood in thig sense, that a person who commits a libel to wiiting is not punishable, unless he afterwards publish it, is sensible and intelligible ; but if, on the other hand, the construction be this, that a person who writes a libel, but does not pub- lish it, is not punishable as the publisher, but is nevertheless liable as the contriver, as was contended for in the case King v. Beere,—then the passage is a piece of idle tauto- logy, and amounts to no more than this, that a person, who does not publish a libel which he has written, is not guilty of a publication. The resolution afterward proceeds to say, “but it is great evidence, that he published it, when he, knowing it to be a libel, writeth a copy of it.” Upon which it may be observed, that the resorting to presumptive (*)evidence, by making the act of writing proof of publica- tion, would be nugatory, if that act of itself constituted a distinct and substantive offence. Samuel Paine, a minister, was tried upon an information,* setting forth that he was the composer, author, and publish- er of a malicious libel against the late Queen Mary, styled “ Her Epitaph.” The Jury found, by way of spécial verdict, that a certain person, to them unknown, did pronounce, dic- tate, and repeat the words contained in the libel which the défendant did write ; and if that will make him guilty of the composing and making of the libel, then they find him guil- ty, and as to the publication, they find him not guilty. Af- ter argument the Court observed, “The making of a libel is an offence, though never published ; and if one dictate and another write, both are guilty of making it ; to what v purpose should any one write or copy after another, but to show his approbation of the contents of a libel, and the bet- ter to enable him to keep it in his memory, and repeat the contents of it to others.” The matter was, however, ad- * 5 Mod. 163. 1 Salk. 281. Comb, 358. Carth. 405. 1 Ld. Ray. 729. Holt. 294. (*513)372 journed, and it does not appear that any judgment was given. The défendant Beere* was found guilty of writing and col- lecting) but acquitted of the making and composing of seve- ral libels stated in the indictment. Upon motion in arrest of judgment, Holt C. J. said, “ Before I corne to the objections against the verdict, I shall consider whether it be not élimi- nai to (*)write a libel, although a man be not the composer or contriver thereof.” The learnéd Judge observed, that it is the putting of words into writing, which is the essence of the offence ; for the party is not guilty, unless he put the words into writing ; and that in ail cases where a man does an act, which act causes the thing to be what it is, such an one is to be considered the doer of it ; that in ail lower of- fences procurers are principals, so that if A. hold B. whilst C. beats him, A. is guilty of the battery ; that Lamb’s case was t© be expounded by the same case in Moor,f in which it was reported to hâve been resolved, that the writer of a libel is, in law, the contriver ; but that in Lamb’s case the question was not concerning the writing or making, but about the publication thereof and it was held, that the writ- ing of a copy of a libel, as indeed the writing of the origin- al libel itself, is no publication thereof, but only an evidence of publication ; that the question was not how far the writ- ing of a libel was criminal, but whether the writing of a copy be a publication, which indeed it is not ; that the case of John De Northampton is apposite, who was charged with writing only, without any mention made of publication, and who confessed the writing only. The learned Judge also ex- pressed his opinion, that the copying of a libel was a libel, because it comprehends ail that is necessary to make it a libel, the same scandalous matter, and the same mischiévous conséquences ; since it is by this means perpetuated, and may corne to the hands of other men, and (*)be published after the death of the copier ; and that if men might take copies of them with impunity, then the printing of them would be no offence, and then farewell to Government. Turton and Rokeby, Justices, were of the same opinion, and referred to several cases,:}: to prove that writing a libel without publishing it, was punishable in the Star-chamber. * Ld. Ray. 417. Carth. 409. 12 Mod. 219. 2 Salk. 417. t 813. X Hob.62.215.12Co.35. (*514) (*515)373 The parallel drawn by Lord Holt, in the above case seems objectionable, since it assumes the offence to hâve been completed. IF A. hold B. whilst C. beats him, A. is guilty of the beating, but the offence, that is, the battery, here is completed ; to suppose then, that the case in ques- tion anàlogous to it is to assume that the offence of libelling is complété without a publication ; the question was not whether an aider or abettor to an offence actually committed was punishable as a principal, but whether any offence had in fact been consumated, or the whole rested in mere intent and préparation, as if A. had supplied C. with a stick for the purpose of beating B., but no battery had actually taken place. Neither do the cases relied upon vappear applicable : in that of John de Northampton* it is stated, that the letter was written to John Ferrers, one of the King’s counsel ; and the confession runs thüs : “ Et quia prœdictus Johannes cog- noscit dictam literam per se scriptam Roberto de Ferrers, fyc. now if “ written to” merely imported the address of the letter, which ne ver passed from the défendant, there was no occasion to confess the writing of it to Robert (*)de Ferrers/ and the very saine terms “ written to55 are used by Sir E. Coke, in his 12th Report, to imply a sending as well as writing. The cases citedby Turton and Rokeby,f Justices, are inapplicable ; since in those instances there was a publication of the libel to the party defamed. Knell^: was tried upon an information charging him with having printed and published a libel, entitled “ Mist’s Week- ly Journal.” It was proved that the défendant was a prin- ter’s servant, and his business was to préparé the type for printing off, which busines was called composing for the press ; that the défendant and another composed together the libel in question, taking the alternate columns. For the défendant it was objected, 1. that since the défendant took a distinct part, that which he composed could not bear the construction put upon the whole ; and 2dly, that since he composed only, he could not be found guilty of the printing wherewith he v^as charged. It was answered, that in mis- demeanors, an accessory in part is a principal in the whole, * 3 Ins. 174. t Hob. 62. 215. 12 Co. 35. î Mil. 3 G. 9. Barnard. K. B. 305. D. L. L. 25. (*516)374 and, therefore, as the défendant assisted in the composing, a circumstance essential to the printing, he, by that act, made himself concerned in the whole ; that composing was taking a copy in types, which would make the défendant a publisher, since it had often been determined that the taking of a copy of a libel was an act of publication. But the Chief Justice directed the Jury to acquit the défendant of (*)the publication, and if they believed the evidence, to find him guilty of the printing, which they did accordingly.* Upon the whole, whatever doubt may exist as to the crim- inal nature of the act where it is confined to the mere writing, printing, or preserving of a libel, it seems perfectly clear that every person who maliciously lends his aid to the construc- tion of a libel, subsequently published, or who contributes to the publication ofone already made, with a knowledge ofits contents, is indictable as a principal for the whole mischief produced. And according to the doctrine laid down in Lamb’s case,f where a libel has been published, proof that the défendant committed it to writing, or, byparity of reasoning, did any other act contributing to iis existence, is great evidence that he published it, unless he can satisfactorily explain the motive of his act. * The défendant was afterwards sentenced to stand upon the pillory twice,. and to be kept to hard labour in Bridewell for the spaee of six months. D* L. L. 124. T. Carter was convicted and punished for a similar offence. 9. St. Tr. Co. (*517)375 (*)CHAPTER XXXVIII. Proceedings against Offenders. The proceedings against offenders are either summary, as by their immédiate appréhension and imprisonment ; by at- tatchment, by binding over to the good behaviour ; or, in the more usuah mode, by information ôr indictment. The sum- mary processs is in general founded upon contemptuous lan- guage and reflections applied to those who présidé in courts of justice and their proceedings ; and such contempts are either direct, whére a judge or magistrate is openly insulted in the execution of his office, or consequential, where the offender, by speaking or writing contemptuously of the court, or its judges in their judicial capacity, reflects upon the au- thority by which they were appointed, and créâtes a préju- dice against the administration of justice. And first, where the insult is offered in the face of the court by the use of con- tumelious language, demonstrating the want of that respect and regard which is essential to the préservation of its au- thority, the offender, it is said, may be instantly apprehended, (*)fined, or imprisoned, àt the discrétion of the judge, with- out further examination.* This doctrine appears to extend to ail cases where con- temptuous words are spoken in the presence of a magistrate in the actual discharge of his duty. As if a man should say to a justice of the peace in the execution of his office, “ You are a roguef and a liar,” or tell the judge of a Court * Cro. Eliz. 78. 2 Roll. Ab. 78. fStr. 420. Ow. 113. Mo. 470. 4 Bl. Comm. 286. Staun. P. C. 73. b. Cro. El. 581. (*518) (*519)376 Leet that he is a fool,* or is forsworn,f or say—“ If I can- not hâve justice here, I will havej: it elsêwhere.” And though the judge may elect to proceed in this summary mode, yet, if he does not, the offender is liable to an indict- ment, since, where ver a justice may commit for a contempt, the party may be indicted for the misdemeanor.§ Where the contempt is not offered immediately in the face of the court, but consists in insolent comments upon the court or its proceedings, or in the indécent publication of matters still pending, the effect of which may be to cre- ate préjudice and partiality, and thereby to hinder the fair administration of justice, the proceeding is by attachment, which is a process from a Court of Record, awarded by the (*justices at their discrétion, upon a suggestion, or upon their own knowledge. ||(163) It may be considered here, from what courts, for what words, and upon what suggestions, an attachment issues. It appears, generally, that an attachment may be granted by any of the superior courts of Westminster Hall against any persons guilty of contempts against them. When a par- ty, not présent in court, publishes any contemptuous expres- sions against the court or its proceedings, the court, will, upon an (*) affidavit of the fact make a rule upon him to show cause why an attachment should not be granted against him ; and in some cases, where the offence is of a very flagrant nature, will grant an attachment in the first instance. Üpon a rule grantedagainst the défendant Wiatt, to show cause why an attachment should not issue against him for publishing a libel on the Court of King’s Bench, the défendant showed by affidavit that his fault was not wilful, but merely through ignorance, that he had the libel from one Crownfield, a printer in Cambridge ; that it was in Latin, a language which the défendant did not understand, and that he did not know who was the author, otherwise than by a letter which he received from * Cro. Eliz. 78. t 2 Roll. Ab. 78. J 1 Sid. 144. 1 Keb. 508. § Str. 420. || 2 Haw. 213. vid. Wiis. 300. ir 8 Mod. 123. > (163) People v. Freer, 1 C aines, 485, 518. Respub. v. Passmore, 3 Yeates, 441. Respub. v. Oswald, 1 Dali. 319. Hoillingsworth v. Duane, Wallace, 77. (*520) (*521)377 the printer, and which was affixed to the affidavit, by which letter it appeared that Dr. Middleton was the au- thor. On this it was moved, that the mie should be dis- charged ; but the rule was continued on the défendant until he made out his allégation against the printer, who was therefore joined in the rule, that both of them might be before the court. In the next term, Dr. Middleton* appeared, and confessed that he was the author of the book ; the rule was then dischârged against the publisher and printer, and the dôctor was committed until further considération* After a few days confinement he was brought into court, fined 50Z., and bound to his good behaviour for a year. (*)A rulèfwas granted to * show cause why an attach- ment should not issue against Elizabeth Mayer and Dowling, for publishing a libel on the proceedings of the court in the trial of Lady Lawley. Elizabeth Mayer produced an affidavit, stating, that her husband kept a pamphlet shop, that in his absence Vaughan came to the shop and asked for Lady Lawley’s trial, that she did not know that it was in the shop, but searching, found it, and refused to sell it to Vaughan, but permitted him to read it* The court said it was béyond âll question that attachments had been granted in such cases, and par- ticularly alluded to Dr. Middleton’s case. The court in general agreed to discharge the rule as to her,(164) and said they could not make the rule absolute as to Dowling, because there was no affidavit of service. A rule having been:}: obtained to show cause why an in- formation should not be granted, tlie défendant on being served with the rule showed his disregard of it in very contemptuous language. Upon a motion for an attachaient, grounded upon this contempt, Northy, Attorney-general, insisted that he ought to be first heard to sbow cause against it ; but tbe court said, “ He shall answer it in cus- tody, for it is to no purpose to serve him with a second * Font. R. 201. f Mich. 8 G. 2. 1732. 2 Barnard. 43. K. B. J 1 Salk. 84. (164) In proceedings for contempt, the intent of a publication is not a justification, if it be, in the opinion of the court, a contempt against the court. People y. Freer, 1 Cainês, 518. 48 (*522)378 rule who has slighted and despised the first ; it would be to expose the court to further contempt.” (*)Ànd where the court apprehend that the attachaient will be forcibly resisted, they will order the Sheriff of the county* to take with hirn a force sufficient for its due exe- cution. But it seems that the court will not grant an at- tachaient inf the first instance, unless the words be sworn to by two witnesses, sinee otherwise it would be in the power of one hardy man to hinder another of any opportu- nity of defending himself béfore he was deprived of his lib- erty ; and when contemptuous words are spoken of the court, the rule for attachaient is granted in the first in- stance ; but where they are spoken of its process, a rule to show cause:): only ; and the court will punish for contemp- tuous words spoken on the delivery of a declaration§ in ejectment. * When the party has been brought into court, he is either committed, in order to answer interrogatories, or is permit- ted to enter into a fecognizance with two sureties, in such sum as the court shall direct, to appear and make answer upon oath to such interrogatories|| as shall be exhibited against him. And it is said,^[ that the party cannot confess the con- tempt and throw himself upon the mercy of the court, ex- cept in cases of rescue and of contempts committed in the face of the court. If the party be discharged upon his re- cognizance** to answer interrogatories, and none be exhi- bited within four days after entering into such recognizance, the court (*)will discharge it upon motion ; but if no such motion be made, the court will compel him to answer inter- rogatories exhibited after the four days. Upon these inter- rogatories ex aminations are taken, and it is referred to the Master of the Crown Office to make his report ; the party ff is then either acquitted or adjudged to be in contempt. If the party, in his answer, purge himself from the charge * 1 Str. 185. f 1 Str. 185. 3 At. 219. Say. Rep, 114. t Tidd. 428. vid. Str. 185. 1068. § Str. 567. (| Haw. P. C. c. 22. s. 1. Barnard. K. B. 58. H 1 Bl. 649. 6. vide 4 Bl. Comra. 284. ** Haw. P. C. c. 22. s. 1. 5 T. R. 362. ffB.R.H.23. (*523) (*524) '■379 upon oath, though he is liable to a prosecution for the per- jury,* if he has sworn falsely, he must nevertheless be ac- quittée! of the contempt, and his answer cannotf be dis- proved by adverse and contradictory affidavits. Next, by requiring sureties of the peace, or for the good behaviour of the party.—-It seems agreed, that the publica- tion of a libel, does not amount to a breach of the peace, but rests in tendency only. In Dalton’s Justice,| a libel is defined as a thing tending to the breach of the peace ; in Sir Baptist Hicks’s§ case, it is called a provocation to a breach of the peace ; and in the King|| v. Summers, it was held to be cognizable before Jus- tices, because it tended to a breach of the peace; and in Hawkins’s Pleas of the Crown, and Sir William Black- stone’s Commentâmes,** a libel in the criminal sense is also defined by its tendency. In the case of the Kin-g v. Wilkes, the court of Common Pleasff gave a decided opinion to the same effect. And L. C. J. Pratt observed, “ I cannot find that a libeller is bound to find surety of the peace in any book whatever, nor (*)ever was in any case but one, viz.—the case of the seven Bishops, where three Judges said, that surety of the peace was required in the case of libel : Judge Powell, the only honest man of the four Judges, dissented ; and I am bold to be of his opinion, and to say, that the case is not law. Upon the whole, it is absurd to require surety of the peace in the case of a libeller.” And it was held in the above case, that though surety of the peace might be re- quired in the case of libel, it could not exclude the privilège of a member of either House of Parliament, who is entitled to privilège from arrest, in ail cases except treason, felony? and actual breach of the peace ; and the décision of the court in the proceeding against the seven Bishops, who were committed to the Tower for not entering into recog- nizances after having published an alleged libel, in their pétition to the King, was strongly reprobated.(l 65) But * 6 Mod. 73. t 4 Bl. Comm. 288. î 289. § Hob. 224. j|Lev. 139. ITc.73. s. 3. ** 4 Bl. C. 150. ft 2 Wils. 150. (165) See Commonwealth v. Dames, IBinn. 97. lJBinn. 98. n. Commonwealth v, Cobbett, 3 Dali. 467. Commomoealth v. Daane » (*535)380 it has been the practice, from very early times, to require gecurity for the good behaviour from persons publishing contumelious and disrespectful words concerning ministers and officers of justice, and their proceedings. It appears from the 3d Institute,* * * § ** that in the reign (*)of Edward the 3d, John de Northampton, an Attorney of the JGng’s Bench, was committed to the custody of the Marshal, for having written a letter reflecting on the conduct of the Justices ; and that he afterwards found six mainpernors for his good behaviour. And it seçms that sureties for the good behaviour may be requlred from any personf who applies contemptuous or disrespectful language to any Judge, Justice of the Peace, Mayor, or other civil Magistrate, though he be not in the actual execution of his duty,f and though the words hâve no relation to his office. And that the rule extends to general words of dispar- agement spoken of such Magistrates in their absence ; + but Lord Holt, C. J. intimated, that this ought not to be done by the offended Justice, but by one of his brethren.§ And the same learned Judge, in the Queen v. Langley,|| after observing that binding to the good behaviour was sufficient to secure the authority of Mayors, added, that it must be done instantly, according to Dr. Bonham’s^f case. It seems, however, from the general current of decisions upon this point, which are very perplexed and contradictory, that the words must either hâve been spoken in the.présence of the Magistrate ; or if in his absence, hâve in some way affected him in his office. In other cases it might not be prudent (*)in a Magistrate to commit for want of sureties, since he does it at his péril, the case of commitment must be expressed with certainty upon the face of the warrant and in case it should prove insufficient, he would be fiable to an action for false imprisonment. But it seems perfectly clear, that for unmannerlyft ex- pressions, used in the face of a Court of Justice, though * 174. t Cro.El. 78. Salk. 697. Haw, P. C. c.6l. s. 2. 6 Mod. 124. Holt. 654. {3tr. 420. ' î Cro. El. 78. 1 Lev. 52. s. 2. s. 3. 11 Mod. 117, Cro, Eliz. 689. contra. § 12 Mod. 514. || 6 Mod. 124. 1F Stiles. 251. ** Per Walmesly, J., Dean’s case, Cro, El. 689. tf 1 Lev. 107. 1 Keb, 558, (*526) (*527)381 not applied to the Court or its proceedings, or for words spoken for the purpose of deterring an inferior officer, as a Constable, from the execution* of his office, or abusing him while discharging his duty, the offender may be bound to his good behaviour. With regard to mere rash, quarrelsome, uncivil words, in general, it seems that sureties cannot be demanded from the speaker, unless they either amount to a direct solicita- tion to break the peace or scandalise the government, by abusing those who are intrusted by it with the administra- tion of justice ; or be uttered with intent to deter an officer from the execution of his duty.f It has been already seen, that for a libel in general, sureties for the peace are not de- mandable ; but where a letter contains a direct challenge, the same security for the good behaviour may be required as if the words had been spoken. (*)It is said, a recognizance to keep the peace may be forieited by mere words, but they must directly tend to a breach of the peace, as by a challenge to light in the party’s presence4(166) * Haw. P, C. c. 61. s. 2, 3. t Haw. P. C. c. 61. s. 3. Cro. Car. 498, 499. Cro. El. 286. Pal. 126.' I 4Burn’s Jus. 353. (166) See Respub. v. Çobbttt, 3 Yeates, 93. (*528)382 (*)CHAPTER XXXIX. Proceeding by Information. With the exception of those cases where a défendant has been guilty of a contempt, no punishment can be inflicted upon him for any malicious publication, unless he shall hâve been previously convicted of the fact upon the oath of twelve Jurors. There are two modes, by either of which the matter may be subjected to their verdict by an infor- mation, exhibited in the name of the King, or by the finding of a bill by a Grand Jury. (*)Informations are of two descriptions, they are either filed by the Attorney-General as the immédiate officer of the crown, or by the Master of the Crown Office upon the complaint of a private individual. The objects of those informations which are filed by the Attorney-general, are those offences which manifestly tend to excite and produce some great public mischief ; but in what cases it may be necessary to call in aid this process is a matter resting in the discrétion of that officer, whose duly it is, as the immé- diate agent of the crown, to bring under the cognizance of Note. As to the great antiquity and acknowledged legality of the pro- ceeding by information se© the argument of Sir Bartholomew Shower, 1 Show. Rep. 106. 4B1. Comm. 305. Whence it appears to hâve been as ancient as the law itself. To introduce any discussion upoii the subject of informations wouldbe inconsistent with the object of this treatise ; since, in the first place, informations are, in point of law, no more conneeted with the subject of libel than they are with any other misdemeanor ; and in the second, no doubt can possibly rest upon the legality of a practice which has prevailed for centuries, and been sanctioned by at least two acts of the legis* lature. 4 and ô W. and M. c, 18. 43 G. 3. c. 58. (*529) (*530)383 the Court ail offences and abuses which are of so dangerous a nature as to render immédiate attention necessary. In case of libels this power has been exercised where they tend to subvert religion or morality ; to excite discon- tent against the Constitution, the King, or his Goverament ; to involve the country in foreign wars, or to excite particular classes of people to acts of tumult and outrage ; but it has not been usual for the Attorney-general to interfère where the libel has affected a private individual only* With respect to the other species of information, which are sometimes granted by the Court of King’s Bench at the instance of a private person : (*)These were formerly filed at the suggestion of the ap- plicant by the Master of the Crown Office, and at the dis- crétion of that officer, without any direct application to the Court ; but the practice was put an end to by st. 4 & 5 W. & M. c. 18. which enacts, that the Clerk of the Crown shall not file any information without an express direction from the Court of King’s Bench. It may be proper to ad- duce a few instances, to show the general principles by which the Judges of the Court of King’s Bench hâve been guided in the exercise of this branch of their jurisdiction, and to refer to the régulations which they hâve thought fit to prescribe to relators requesting their interposition. In the case* of the King v. Stables, an information was granted against the défendant for having publishedin a news- paper, called the York Journal, that “ Richard Thompson, an Alderman of York, and a Justice of the Peace, was scandalously guilty of telling a lie in divers companies, viz. that the said Staples had asked Mr. Thompson pardon for publishing in the same newspaper that he Mr. Thompson was married to one Mrs. W.” and upon granting the infor- mation, Page J. observed that the applying of such words to a Magistrate was an aggravation. The défendant Sharpef published in a newspaper an affi- davit of bastardy, which he stated to hâve been sworn be- fore Sir William Billers, a Magistrate, by a woman, without its having been read by her ; and the Court on granting the information were of opinion, that the publication of the affi- davits was (*)punishable, though no scandalous reflections t Andr. 384. the King v. Sharpe. (*531) (*532) * And. 228. Dig. L. L. 80-384 were made upon the case, especially as they tended highly to defame a Magistrate. The défendant,* in a conversation about a warrant which had been granted by Mr. Kent, a Justice of the peace, asked if Mr. Kent was a sworn Justice, and being answered that he was, replied, “ If he is a sworn Justice, he is a rogue and a foresworn rogue but the Court refused an information, say in g, it is not the same insult and contempt as if spoken to him in the execution of hîs office, which would make it a matter indictable. So where the defend- antf said of a Justice of the Peace, “ He is an old rogue for sending his warrant to mej” the Court refused an in- formation leaving it to the party to proceed by indictment, Where the libel imputed to a naval* commander the want of courage, knowledge, resolution, and veracity ; to a peer,§ that he acted improperly as President of a Court Martial, and that he had been guilty of perjury, the Court granted informations. The defendant|| published in a newspaper, entitled “ The Gazetteer,” the following libel on the Earl of Clanricarde, whose Countess, to whom he had been some time married, was then living, “ Last night the Right Hon- ourable the Earl of Clanricarde was married, at St. Mary’s churçh, to Madame Carolina, a celebrated dancer belonging to the theatre at Smock-alley and last Satuvday they appeared in (* §)the boxes at Crow-street Theatre : she had jewels on computed at upwards of 3000Z.” An information was granted. So where the libelimputed treasonable designs to a nobleman, an information was granted. And the Court will grant informations without regard to the rank** or dignity of the parties traduced, whenever their immédiate interférence appears necessary for the purposes of justice. The libel complained of charged several Jews, lately arrived fromff Portugal, with the mürder of a Jewish woman and her child, because the father of it was a Christian, and thereby exposed them to the fury of the populace : an infor- mation was granted. An information was exhibited against the défendant * The King v. Pocock. Str. 1157. f R.v. Lee, 12 Mod. 514. J Trin. 32. G. 2. the King v. Dr. Smollet. § The King v. Philip Thicknesse, Esq. JEïil 3. G. 3 D.L. L. 86. 1} Tr. T. 1 Geo. 3. Dig. L.L. 83. V Doug. 387. ** Doug. 387. K. v. Bâte, tf Bac. Ab. tit. Lib.494. (*533)385 Brown for printing and publishing in a newspaper, called “ The Royal Chronicle,” a libel* * * § entitled, “ An authentic narrative of several particulars relating to the death of Miss Frances Lynes, whose ghost is supposed to hâve haunted a house in Cocklane, West Smithfield, for many nightspast,55 tending to traduce and vilify the réputation of one William Kent, and to represent and cause it to be believed, that the said William Kent had, by artful means and circumstances, obtained and procured the last will and testament of the said Frances Lynes, spinster, since deceased, to be made, and unjustly to cause the validity of the said will to be call- ed in question, and aîso to raise groundless suspicions con- cerning the death of the said Frances Lynes ; and also to cause a false and scandalous (*) report raised and propagat- ed by means of public newspapers, that the spirit or ghost of the said Frances Lynes haunted the house of one Par- sons in Cock-lane, to be believed and credited in order to injure and oppress the said William Kent. Mr. Willy Sutton was tried for the murder of Miss Bell, at the Old Bailey, on which occasion his innocence appear- ed so clear, that the Jury interfered before the learned Judge, who presided, had begun to sum up the evidence. An information was afterwards granted against Thomas Holland for writing a libel on Sutton, in a pamphlet enti- tled “ A most circumstantial account of that unfortunate young lady, Miss Bell, otherwise Sharpe.” When a motion^: was made for an information against the défendant for publishing redections upon the African Com- pany in one of the newspapers, by charging them with hav- ing supported their trade by treachery and fraud, the Court refused to interfère, considering the matter nothing morethan a dispute upon a matter of trade ; but the Court granted a rule to show cause why an information shoùld not be granted for a libel against the New-York Buildings5 Company, charging them with raising the value of their stock by getting 100,000/. under§ the crédit of their seal. But it seems, that in general, the imputation must be of a personal and criminal nature to induce the (*) Court to in- * E. T. 2 Geo. 3 D. L. L. 84. f Dig. L. L. 82. East. 7. 1 G. 3. R. y. Holland, t The King v. Roberts. Dig. L. L. 89. 2 G. 2. 1729. § 2 Barnara, K. B. 114. R, v. Nutt. D. L. L. 78. 49 (*534) (*535)386 terfere, and that it is not sufficient that it tends to lessen a man* * * § in his trade. In the case of the King v. Roberts, an information was refused against the. defendantf for having published in a newspaper, that Ward’s pills and drops had done great mis- chief in twelve different cases, and that they were a com- pound of poison and antimony. And in general where there is reason to suppose from the circumstances under which the party published, that the act did not proceed from a mere malicious intention, the Court will not interfère by granting an information. The défendant:}: advertised, that one Maddox, an apothe- cary, had personated Dr. Crow, a physician, and taken his fees, and an information was refused, the apothecary not pretending to deny the charge. When a man advertised in a public newspaper, that his wife had eloped from him, and cautioned ail persons against trusting her, an information for a libel being moved for, it was denied, because it was the only way§ the husband could take to secure himself. It Was advertised in one of the newspapers,|| that Lady Mordington kept an assemblyin Moorfields, upon which Lord Mordington advertised, that the person calling herself Lady Mordington was an impostrix, and that there was no such person, except (*)his wife, who always lived with him. Upon motion for an information it was refused by the Court, since the term impostrix was properly applied to one assum- ing the title without any right. So where the imputation is continued in a pétition drawn up for the pur pose of obtaining redress for an in jury, and not with an intention to asperse the prosecutor, the Court will not grant an information, though the publication impute fraud to the prosecutor, since it is no more than is alleged in every bill in Chancery. The défendant^ complained in a writing, directed to Gen- eral Wills and the four principal ofîicers of the Guards, in * Andr. 229. 2 Barnard, K. B. 183. Dig. L. L. 90. c. 3. Bac. Ab. 492. f Dig. L. L. 90. Bac. Ab. tit. Lib. 492. t R. v.Bickerton, Str. 498. R. v. Webster, 3 T. R. 388. Dougl. 270,371. § R. v. Enes. Andr. 229. D. L. L. 89. Il R. y. Jenneaur, Easter, 8 G. 2., Bac. Ab. tit. Lib. 492. IT Andr. 229. 3 Bac. Ab. tit. Lib. 492. (*S36)387 order to be presented to the King, that Captain Çarr, after ’inducing him to part with a warrant for some money due to him from Government, under the pretence of procuring payment/or him, received the money, and refused to pay it to the défendant. Upon motion for an information, the Court held that the pétition was no libel. Miss Mary Jerome,* a Quaker, residing at Nottingham, having acted in disobedience to the rules prescribed by the sect of which she was a member, by frequenting places of public diversion, going into mourning for the death of a re- lation, and by other transgressions of a similar nature, the so- ciety, after many fruitless remonstrances and other useless attempts to reclaim her, proceeded at last in the customa- ry way to pronounce the sentence of expulsion, which, hav- ing been approved of at a monthly (*)meeting, was afterwards read by the défendant, Francis Hart, as clerk of their meeting. The sentence, after charging Miss Jerome with having imbibed erroneous notions contrary to Scripture doc- trine, and having acted in various parts of her conduct very inconsistently with a life of self-denial, and of having neg- lected to attend the meetings for divine worship, and reciting the fruitless attempts of the society to reclaim her from error, and to bring her to the acknowledgment of truth, both in judgment and practice, proceeded to déclaré her no longer in unity with the society. Miss Jerome, being ac- quainted with this proceeding, sent her maid-servant to the défendant for a copy of the sentence, which he transcribed and enclosed to her under cover ; but upon application to the Court for an information against the défendant, they refused even a rule to show cause* Next, as the rules prescribed to those who apply to the Court for leave to file criminal informations. In general the applicant must waive his right of action ;f and this is an advantage which the défendant dérivés from this mode of proceeding; for, if convicted under an indictment, the prosecutor would still be at liberty to bring his action to re- cover damages. Where, however, the Court, on hearing the whole matter, are of opinion that it is a proper subject for an action, they will give the party leave to bring it. J t 2 T. R. 198. (*Ô37) * 2 Burn’s Eçclesiastical Law, 779. Dig. L. L. 39. X Ibid.388 The Court* will not grant an information, unless (*)the application be made recently after the cause of complaint shall hâve arisen. The application must be accompanied with affidavits, sta- ting the circumstances of the case : these ought not to be entitled, and if they are, cannot be read : those produced, on showing cause, mayf or may not be entitled ; but ail affidavits, after the rule is made absolute, must be entitled. :{: On a motion for an information against A. an affidavit, in a motion against B., cannot be read, since the person who made it would not be liable to an indictment for perjury, though it should be false.§ But in the case of the King v. Joliffe,|| a criminal information having been granted against the défendant, he, before the trial at Nisi Prius, distributed hand bills in the assize town, vindicating his own conduct, and reflecting upon the prosecutor’s. This matter being disclosed to the Judge at Nisi Prius, was held a sufficient ground to put off the trial ; and that affidavit having been returned to the court of King’s Bench, another information was granted on it against the défendant ; the affidavit taken at Nisi Prius being considered as taken under the authority of the Court above. The affidavit should set forth the libel, its application, and the faet of publication by the person against whom the information is prayed. And where the application of the libellous matter is indif- ferent, the Court has refused to grant the information, say- ing, that they required a seeming and (*)apparent applica- tion to be made,^[ A. stated in his affidavit, that B. had brought him a challenge from C., and that B. had refused to make affidavit that C. had sentit; But" the Court held this evidence insufficient to grant a rule nisi for a criminal information against** C. It has frequentlyff been deeided, that it is neçessary%r the party praying an information to produce an exculpatory af- fidavit, denying the truth of the charge, since though the truth be no ground of justification on indictment for a libel, yet it is a sufficient reason why the Court should not inter- * Bac. Ab. tit, libel, 492. t 1 Str. 704. Andr. 313. t 6 T. R 60. §11 Mod. 141. IIT. R. 2864. VjEitzgibb. 57. pl. 7. D. L. L. 97. Bac. Ab. tit. Lib.493. £_**R. y. Willet, 6 T.R. 294. tt 498. Andr. 229. 3 Bac, Ab. tit. Lib. 492. Barnard, K. B. 13. Doug. 284. P (*538) (*539)389 fere in an extraordinary way. But though the Court, in gen- eral, require that the affidavit shall directly* and pointedly aver the prosecutor’s innocence of the charge, the rule admits of some exceptions : as where the party charged is abroad, and then the person making the application in his be- half is expected to go as far in his affidavit as the nature of the case admits of, by swearing to letters or other intelligence within his reach.f So, where the charge is general,^ no exculpatory affidavit is required, since it would be absurd to require a man to swear that he was not a traitor or a thief : neither is it ne^ cessary where the party is accu sed of having used criminal language in parliament, since by the express provision of the (*)Bill of Rights, what passes there cannot be questioned elsewhere.§ Where a libel stated that the Duke of Athol was held in such general abhorrence in the Isle of Man, that if he should obtain an act, then depending in Parliament, it would occa- sion || a revoit, the Court held, that no affidavit from the Duke was necessary. After the rule to show cause has been granted upon the prosecutor’s affidavits, it seems that affidavits in confirmation may be produced ; but that a supplementary affidavit, if introductory of new matter, is not admissible : but if the new affidavit be partly confirmatory and partly consist of new matter, the Court will not wholly reject it, but distin- guish between^f what is new and what is confirmatory. Though the affidavits of the relator should be contradicted by those of the défendant, in some circumstances, the Court will nevertheless grant the information, if strong probable ground be laid.** The defendantf f showed for cause against a rule for an in- formation, that the charge of perjury on which the motion was founded was true ; but Sir J. Pratt, C. J. said, “ In ail cases, informations for libels go, unless you can show the court some probable cause for them to believe you did not publish it. Now, if you had denied it, it would hâve signifi- ed nothing ; for then, affidavit stands against affidavit ; there- * R. v. Miles, Doug. 283. f R. v. Bâte, Doug, 387. I Ibid. § 1 W. and M. sess. 2. c. 2. art. 9. || Doug. 387. in the note. IT The King v. Kinaston, 2 Kel. 178. Dig. L. L.55. ** Doug. 387. ff The King v. Dormer Barnard, K. B. 13 Dig. L. L. 77. (*540)390 fore, the information shall go, that the fact may be tried.” And Fortescue, J. said, “ It (* * * §)would be a strange thing, if a man should be allowed to justify when an information is prayed against him, and should not be allowed to justify in the information itself when it is gone.” The prosecutor* founded his application upon an affidavit stating, that the défendant confessed to him the publication of the libel ; on the other hand it was shown, that the de- fendant never made any such confession, yet, since the fact of publication was not denied, the information was granted. By a rule E. T. 5 G. 2.—Where a person has obtained a rule nisi for a criminal information, and upon showing cause, the rule is discharged, the party whof made the motion shall pay the 'costs. When an information is filed by leave of the Court, it is provided by St. 4 & 5 W. c. 18. that where the défendant is acquitted, the Court is authorized to award costs to the défendant, unless the Judge shall, at the trial, certify that there was reasonable cause. But it has been held compul- sory on the Court to grant costs to the défendant in case of his acquittai, and no certificate’s having been granted. The certificate must be granted at the trial, and it is afterward too late to inquire whether there was probable cause for the prosecution4 The process which has been issued in case of libel has been either against the person of the offender or his papers. 1. Against the person. (*)The défendant,§ Derby, having been committed upon the warrant of a Secretary of State, for publishing a sedi- tious libel called the Observator, No. 74, was brought before Chief Justice Parker, by habeas corpus, and by him dis- charged upon entering into a recognizance to appear on the first day of term. Upon that day the défendant took seve- ral exceptions to the'commit ment, and moved to be dis- charged, insisting, principally, that the commitment pre- vious to indictment, presentment, and conviction for the of- fence imputed to him, was illégal and contrary to St. 25. E. * R. v* Sharpe, Andr. 384. f But this has been held discretionary. 2 Roi. 61. pi. 8. t R. v. Woodfall, 2 Str. 1131. Dig. L. h. 98. § R. v. Derby Fortescue, 140. Dig. L. L. 31. (*541) (*542) Dig. L. L. 97.391 3vc. 4 ; but the Court held that he was not entitled to his discharge. John WiJbes* was committed upon a Secretary of.State’s warrant for writing a seditious libel, entitled “ The North Briton,” No. 45. He was afterward brought up by habeas corpus into the Court of Common Pleas, and beingf privi- leged as a member of the House of Commons, was discharg- ed without bail. In the above case| the Court considered the warrant of a Secretary of State to be of the same force with that of a Jus- tice of the Peace, and that neither a Secretary nor Justice ought to issue a warrant upon his own private knowledge ; but that it was unnecessary to state upon the face of the warrant (*)the evidence upon which it was granted, or even to State in the warrant that it was granted upon any charge made. And in the same case it was held, that the words contained in the warrant for being the au- thor and publisher of a most infamous and seditious li- bel, entitled “ The North Briton,” was a sufficient descrip- tion of the offence, since it was known specifically by that name. In Leach’s case§ the warrant from the Secretary of State was couched in the following ter ms : “ These are, in his Majesty’s name, to authorize and require you (the mes- sengers) taking a constable to your assistance, to make a strict and diligent search for the authors, printers, and publishers of a seditious and treasonable paper, entitled The North Briton, No. 45, and them, or any of them, havingfound, to apprehend and seize, together with their papers, and bring in safe custody before me, to be ex- amined concerning the promises, and further dealt with according to law.” Th v ^ - (*)[ 12 ] P. 173.—“ The defendant’s malice is iinmaterial,” &c. ; So where the plaintif? procures the publication of that on which the corn- plaint is founded. See 3 B. & P. 594. 5 Esp. R. 15. 1 T. R. 110. [ is i. . : ;■ - P. 178.—“A man may justify in an action for a libel.”r A similar opinion was alsô .expressed by Lord Ellenborough, G. J. in the case of Plunkett v. Cobbett, May 1804. [5 Esp. Rep. 136.] [14 ] P. 174.—“Thejustification must be pleaded and proceed with great précision,” &c. \ See Bell v. Byrne, 13 East, 554. It' was there held that an allégation in the plea, that “ the plaintif? had been confined in England jon a charge of high treason,” was not supported’ by proof that the plaintif! had been ap- prehended on a warrant from the Duke of Portland, one of the Secretaries of State, on suspicion of high treason. See also R. v. Lofeild, D. L. L. 78. supra p. 228. • • • [ 15 ] P. 180.—“ If he had been convicted and pardoned afterwards,” &c. In Searle y. Williams, Hob. 288, Lord Hobart held, that “ for an accu- sation reflecting upon anymanfor ari offence for which he has been indicted, Convicted, and had his clergy allowed, an action lies as if he had been ac- quitted from it,” And the same learned Judge also held, that though the statüte 18 Eliz. c. 7. requifed a burning in the hand previous to the prisoner’s discharge ; yet, that if he had his clergy he would be entitled to ull the ben- , efit of the statute, though he should not be burntln the hand. But it was laid down by Ld. C. J. Trebÿ and his bréthren, dh the trial of the Earl of Warwick for the murder of Mr. Coote (St. Tr. 11 W. 3.) that when the (*588)425 prisoner is liable to burning in the h and, the mere allowance of his clergy, without burning in the hand, will not restore the party to his crédit. See also Lord Castlemaine’s case, 3 St. Tr. 47. But it has been said, that it is sufficient to fproduce the record whereby clergy was granted, without proving an actual burning. Com. Dig. tit. Testmoigne A. 4. A general pardon after outlawry for felony will not restore crédit to the ofFender, 3St.Tr.47. And it has been said, that a pardon after a conviction for perjury will in no case restore the ofFender to crédit, 1 Vent. 349. ISid. 52. But by 5 Eliz. c. 9. the disability to give evidenceis part of the judgment, and on that account, according to Holt, C. J. (R. v, Crosby, Salk. 689.) cannot be removed by a subséquent pardon. See Co. Ent. 368. Rast. 86. [ 16 3 P. 182.—“ No member of either house,” &c. The St. 4 H. 8. c. 8. protecting certain persona from ail suits, &c. ; for any (*)bill, speaking, or reasoning concerning parliament was held by ail the judgesto be a partieular law. 5 Car. Rush, 662. but the contrary was de- clared in parliament. Cro. Car. 604. By a resolution of the Commons, 19 J. 1. no member shall be molested for any thing said or done in parliament, except by the house. See also Cro. Car. 604. Rush. 662, 663. St. 17 C. 2. 1. By St. 1 W. and M. 2. s. 2. it is declarèd, that freedom of speech and debate, or proceedings in parliament, ought not to be impeached or questioned in any court or place out of parlia- ment. tm P. 183.—“ The same rule appliesto judges,” &e. “ With regard to judges and jurors the law gives crédit to what they do, and therefore there must always, in what they do, be cause for it ; the pre- sumption of law is, that judges and jurors do nothing maliciously,” per Eyre Baron. 1 T. R. 503* I IS .] P. 194.—“Which the usual course ofjudicial proceeding does not war- rant,” &c. In the case of R. v. Salisbury, 1 Ld. Ray. 341. it was held by Holt, C. J. that if a man prefer a scandalous pétition to the House of Lords, or make an affidavit containing scandai against J. S. in B. R. he cannot justify- the publication of this, butit will bean ofFençe indictable, because it tends to * breach ofthepeace. 54 (*589)426 [ 19 ] P. 231.—“They were spoken by the défendant under a belief of the fact,” &c. But the opinion of the défendant that the plaintiff was guilty, will not jus- tifyàn extra-judiciai eharge. Plunkettv. Powell, Cro. Car. 52. [ 2° 3 P. 264.—“ Publication,” &c. If the plaintiff aver that the hearers understood the words in a particular sense, he will bè bound to prove it at the trial. 6 East, 470. [91] P. 271.—“The stateffiant of the words must correspond with the publication to be proved,” &c. Bell averred that Byrne printed and Published, in t{ie Morning Post, the following libel concerning the plaintiff as purporting to be a letter written from A. to R. O’Connor : “ I hâve sold ail my property to B., yet it may still go on in my name, and the rents are to be transmitted to H. Bell, Esq* Charterdiouse-Square. Mr.Bell (meaning the plaintif!) has been for some time past confined in England on a charge of high-treason.” Upon the trial it appeared that the paragraph in question had been published by the défendant in his newspaper of the lôthof May, 1810, and that it purported to be a State- ment of a speech delivered by the Attorney-General for Ireland in the Irish Houseof Commons on (*)the 19th of Feb.1799, in the course of which several letters were read by him. The défendant objected that the words, “Mr. Bell has been for some time past confined in England on a charge of high trea- son,” did not cons titute part of the letter alleged to hâve been read by the Attorney-general, but were published as mere comment by him after reading the letter, and were therefore improperly described in the déclaration, as pur- porting to be part of the letter. And the Court of King’s Bench, upon a mo- tion to set aside the verdict for the plaintiff, and enter a nonsuit, were of opinion, that the misdescription was fatal, and that the défendant should hâve been described as professing to publish a speech of the Attorney-gene- ral for Ireland, in which was contained, &c. [ 22 ] P. 313,—“ Description of spécial character,” &c. The plaintiff declared as proprietor, editor, and publisher of a certain newspaper, he proved, that he was the proprietor and publisher, but not the editor, and the variance was considered as fatal. Heriot v. Stuart, 1 Esp.437. It is unnecessary to aver, that the plaintiff qualified himself to act in the character in which he sues, in compliance with any particular statute. See Hartley v Herring, 8. T. R. 131. (*590) &427 [23 J P, 326.--“ Déclaration, damage,” &c. If the plaintiff once recovef he cannot afterwards maintain an action for any spécial damage subsequently resulting from the same words. B. N. P. 7. Tamen qu. 2 Mod. 151. contra. Where the words are actionable, spécial damage, though ayerred, need not be proved, Cook v. Field. 3 Esp. R. 133. E 24 ] P. 327,—“ Defendant’s plea,” &c. A plea of justification will sometimes cure a defective déclaration. The words were, “ He is forsworn,” and there was no. colloquium to con- nect thçm with a judicial oath, but the plea averred them to hâve been spok- en in reference to a judicial oath, and thereby' cured the defect. Cro. Car. 288. [ 25 ] P. 341.—“ The défendant must in his plea charge hira with spécifie instan- ces,” &c. À défendant is not at libertÿ to charge the plaintiff with swindling, unless he can prove spécifie instances, 1T.|R. 748. So in Holmes v. Catesby, 1 Taunt. R. 543, where the libel chargedthe plaintiff, an attorney with general misconduct, such as négligence, falsehood, prévarication, &c. a plea repeating the same general charges, without specifying any particular instances of misconduct, was upondemurrer held to be insufficient. (*)[ 26 J P. 369.—“ Liability of booksellers,” &c. In the case of R. v. Walter, 3 Esp. 21, the libel was contained in a news* paper of which the défendant was the proprietor. He proved that he resided in the country, and took no share in the management of the paper; but Ld. Kenyon, C. J. held, that the proprietor of a newspaperis answerable criminally as well as civilly for the misconduct of his servants in managing the paper, and observed that this was the opinion of Lord Haie, Justice Powell, and Mr. Justice Foster. IJpon the trial of an information for publishing a seditious libel, evidence was admitted, that the servant, in the defendant’s shop, wore a cap with the words “liberty and equality” upon it. R. v. Holt, 5 T. R. 436. [27] P. 398.—“ Evidence of malice,” &c. So in Tate v. Humphreys, 2 Camp. 73. in an action for words of perjury, the plaintiff was permitted to give in evidence a bill of indietment which hâd been subsequently preferred against him by the défendant. See also (*591)428 Carr v, Hood, 1 Camp. 354. and supra, p. 639. R. v. Bail, 1 Camp. 324. Butin the case of Finnerty v. Tipper, 2 Camp. 72. Sir J. Mansfield, C. J. held, that libels published since that on which the action is founded are not admissible in evidence unless they refer to the same subject matter. [28] P. 402.—See B.N. P. 14. [29] P. 405.—“ Having referred to,” &c. The defendant’s counsel is entitled to read to the Jury spéculative opin- ions which hâve been published, and which relate to the matter in question, but they cannot be read to prove any fact, unless afterwards offered in ev- idence. 5 Esp. 138. The défendant, under an indictment, is not at liberty to prove that other persons before that time had published similar libels without being prosecut- ed, least a person should be deemed guilty of having published a libel with- out having had an opportunity of defending himself. 5 T. R. 436. [ 30 ] P. 412.*—a Evidence for the défendant,” &c. The défendant may prove in mitigation of damages, though not in bar of the action, that the plaintiff has published libels against him, Finnerty v. Tipper, 2 Camp. 77. [ 31 ] P. 444.—St. 1 E. 6. c. 1. By this statute the justices at Sessions are authorized to issue a writ to the Bishop of the diocess to attend the ses- sions, either (*)in person or by his deputy, “ sufficienter eruditus,” to inquire into the offence committed against the sacrament. And, by the same statute, the défendant is allowed to purge or try his innocency, by wit- nesses equal in number and honesty to those who déposé against him. I 32 ] IP. 447.—“ Publications subversive of morality,” &c. Within this division fall the offences of profane cursing and swearing, but since the legal prohibitions relating to these are well known, they hâve been omittéd, and the reader is referred toBurn’s Justice, tit. Swearing. [ 33 ] P. 476.—“ No indictment lies for words spoken either of or to inferior ma- gistrates, unless,” &c. 1 See R. v. Wrightson, Salk. 697. Ld. Ray. 153, 1030. Holt, R. 354. 364, o Mod. 203. The Ctueen v. Nun. . 10 Mod. 186. 11 Mod. 166. 12Mod. 98, 514. R. v. Walden. 414. (*592)429 Lord Holt, Chief Justice held, thatthough an insolent witness might be committed by the Court for a conterapt, he could not be indicted. 7 Mod. 28. But see Str. 420. [34] P. 477.—See also the case of R. v. Smith, who instructed Stephen Col- ledgeto say, on his triai at Oxford, that “ Government might as well hâve hanged him at Tyburn, as hecame by as brought him thither to murder him with a little more formality.” Skinn. 124. C 35 3 P. 486.—“ By the St. 23. Eliz. c. 2. it was made felony to cast the nativity of the dueen. The taking a portrait of her was also forbidden by proclama- tion.” [36] P. 491.—“ Unless they amount to a direct breach of the peace, as by a challenge to fight,” &c. The terms liar and rogue are not indictable when spoken, because (as is said) they do not immediately tend to a breach of the peace, 4 Ins. 181. Notwithstanding this authority, it would not be easy to select two other words in the language which do so efficaciously tend to a breach of the peace, or which hâve, in fact, been so frequently the forerunners of blows, as the two alluded to. The reason for tolerating such oral but tempting incite- ments to violence seemstobe the well-grounded appréhension, that, to sub- ject the speakers of abusive words to punishment, would be to chérish a spirit of petty litigation, the inconvenience of which would outweigh the mischief intended to be remedied. The experiment was made with respect to actions (vid. p. 22,) but the Judges were quickly induced to abandon the rule they had laid down, which does not seem everto hâve been extended in the same latitude to the criminal ofîence ; and Lord (*)Holt observed, that to encourage indictments for words would render them as uncertain as actions for words are. See p. 648. ’ By St. 9. Ann. c. 14.1. 8. in case any person shall challenge another, or provoke him to fight, on aecount of money won at play, he shall, upon conviction, forfeit ail his goods and chattels and personal estate whatsoever, and shall suffer imprisonment for two years. See Haw. P. C.b. 1. c. 72. s. 42. [37] P. 494.—“ On the memory of one dead,” &c. See also R. v. Walter, 3 Esp. 21. (*593)430 [38] P. 495.—“ Upon the character of any particular individual.” An indictment fora libel on several persons, to the jurors unknown, is bad. R. v. Orme (or Aime) and Nut. Ld. Ray. 486.* 3. Salk. 224. But where a libel reflects upon one of a spécifie body, without naming him, the publisher may be indicted for a libel upon the whole. R. v. Jenour, 7 Mod. 400. And an information has been granted for charging one of several Trustées with a breach of private trust. R • v, Griffin and others. Rep» Temp. H aw. 39. [ 39 ] P. 506.—“ The keeping of such libels in possession,” &c. Where a libel is found in a man’s own custody, but exposed, as on a shelf jn a bookseller’s shop, the owner is guilty of a publication. 12 Vin. Ab, 229. 4 Read, St.L. 155. [40] P. 538.—“ Application for an information,” &c. When the same libel reflects on several, it is not necessary that ail should join in the application, or that the names of ail should be specified, since the conviction upon one information would be a bar to any other, it being one single offence, though every person injured would seyerally be entitled to maintain an action. R. v. Griffin, Rep. Temp. Hardwicke, 39, E 41 ] P. 538,--The applicant must waivehis right of action,” &c,_ The party may be put to his élection before the information is granted ; after the granting of an information, it is of course to stay the proceedings in an action for the same cause. 2 T. R. 198. [42] P. 540.—“Upon a warrant from a Secretary of State,” &e. In the case of the King v. Kendal and Roe, Salk. 347. the Court held, that Secretaries of State might commit as conservators of the peace at Common Law, (*)and that the commitment to a messenger was good, and a lawful custody ; for they would intend jt only to carry him to jail. But the party, in that case, was committed on a charge of treason. [ 43 ] P. 541.—“ But by the resolutions of Both Houses of Parliament,” &c. Journal of the Lords, Die Martis, 29 Novembris, 1763. The 3d Resolu- tion of the House of Commons was read j Resolved bythe Commons in (*594)431 Parliament assembled, that privilège of parliament does not extend to the case of writing and publishing séditions libels, nor ought to be allowed to obstruct the ordinary course of the laws in the speedy and effectuai prose- cution of so heinous and dangerous an ofîence; and it being moved to agréé with the Gommons in the said resolution, it was, after a long debate, resolved in the affirmative. [44] P. 042.—“ The single point decided was,” &c; But Lord Mansfield, C; J. expressed himself in strong terms againstthe legality of general warrants, and cited the opinions of Wilmot, Yates, and Aston, Justices, in support of his own. 11 St, Tr. 312. [45 ] P. 549.—“ Form of information or indictment.” Where two persons concur in the same illégal act, they may be included in the same indictment, In the case of R. v. Benfield and Sanders, 2 Burr. 980. it was held, that an information lay against two for singing a libellous song on A. and B., which first abused A. and then B. And it was said, that had the défendants süng separate stanzas, the one reflecting on A. and the other on B,, the of- fence would still hâve been entire. A libel upon one of a body of persons without naming him, is a libel up- on the whole, and may be so described. The défendant published the fol- lowing advertisement in a newspaper : “ Whereas an East India Director has raised the price of green tea to an extravagant rate, the same gentle- man being also concerned with the Swedish East India Company ; the Eng- lish proprietors hope he willfind some measure to raise bohea tea in Swe- den, that the Company may hâve an opportunity to ship off some of their bad bohea tea, instead of having it burnt as usual.” Upon motion for an information, Lee, C. J. observed, “ Where a paper is published, equally re- flecting upon anumber of people, itreflects upon ail, and readers, according tô their different opinions, may apply it so,” Ri v. Jenour, 7 Mod. 400.INDEX. [The figures refer to the wiginal pages, as numbered at the bottorn.] A. ABILITY : charging the want of, p. 116. ABUSE : mere words of not actionable, p. 31, 86. uor indictable, p. 491. ACTION : forslander, grounds of, p. 13, 24, 569. ADJECTIVE : words, p. 63, 64, 68. AFFIDAVITS : in aggravation, p. 574. in mitigation, p. 575. order of reading, p. 577. see attachment, information, &c. AGGRAVATION: evidence in, p. 402. affidavits in, p. 574. AMBIGUITY : different kinds of, p. 44. explained by circumstances, p. 69. APPLICATION: of the words to the plaintiff, how collected, p. 94, &c. verdict, how far conclusive, p. 95. where a nickname is used, p. 95. ARREST: of judgment. See judgment. ATTACHMENT : what, p. 519, 520. whence it issues, p. 520. for what offencès, p. 519, 520. on what evidence granted, p. 522. when granted in the first instance, p* 520, 522, 523. proceedings upon, p. 524. in default of recognizance the party is committed, p. 523. interrogatories, p. 523. time allowed for exhibiting, p. 523. party may purge himself upon oath, p. 524. 55434 INDEX. in what cases allowed to confess the contempt in the first in- stance, p. 523. ATTEMPT: to commit an illégal act, charge of, when actionable, p. 30, 36, 37, 38, 88, &c. when an indictable ofFence, p. 491. See Solicitation. ATTORNEY: words of, p. 112, 115, 116. proof of plaintiff’s being, p. 386. AVERMENT: of extrinsic circumstances, when necessary, p. 292, 309. introduction of useless ones préjudiciai, p. 309. and sometimes fatal, p. 310. See colloquium, déclaration, innuendo, &c. B. BAIL: not requirable in common actions for slander, p. 243. has been denied in scan. mag. p. 243. affidavit necessary, p. 244. BANKRUPTCY: words imputing, p. 117, 341. BARRETRY: charge of, p. 38. BARRISTER: words of, p. 112. how described, p. 313. when he may refuse to give evidence, p. 412. see Counsellor. BASTARDY : words of, p. 122. BAWDY-HOUSE : imputation of keeping, p. 36. BISHOP : words of, p. 111. writ to by justices at sessions, p. 600. BLASPHEMY : See Religion. BOOK OF COMMON PRAYER : words in dérogation of, p. 420. BOOKSELLERS : liability of, p. 370, 591. BRANDED: charge of having been, p. 84. BRIBERY: charge of, p. 35. an ofFence at common law, p. 35.INDEX. 435 c. CARICATURE: p. 142. injunction to restrain exhibition of, p. 143. liability of the publisher of, ib. CARPENTER: words concerning, p. 118. CERTAINTY : degree of, formerly required, p. 69,70. where the words impute crime, p. 42. CHARACTER : caution to be observed in the description of, p. 312, 590. title to, need not be pleaded, p. 313. averment of, p. 313, 399. when laid in aggravation, p. 326. CHATTEL: slander of, p. 119. CHEATING : words charging, p. 75. CHURCHWARDEN : words of, p. 119. CLAIM OF TITLE: how used in defence, p. 338. CLERGYMEN : words concerning, p. 93. delivered by in preaching, p. 208. CLIPPING MO NE Y: charge of, p. 81. COINING : charge of, p. 19. COLLECTING: of libels, p. 513. See Possession. COLLOQUIUM : ancient practice as to, p. 300. nature and use of the averment, p. 290, 301. the want of not supplied by an innuendo, p. 302. must extend to the whole prefatory matter, p. 293. averment that the words were spoken de querente. when necessary, p. 290. words spoken to the plaintiff, p. 284. where the person is pointed out by the words, p. 285. where they can apply to one only, p. 285. when they may be applied to several, p. 287. where the plaintiff’s name is mentioned, p. 289. where the words are actionable from extrinsic circumstances, p. 290.436 INDEX. in what cases de querente .suffieient without a colloquium, p. 291. COMM1TMENT : summary, when inflicted, p. 519. COMMUNICATION: law 6f in this country contains little of legislative enactment, p. 580. COMPARISON: words of, p. 58, 60. CONFESSION : effect of, p. 572. CONFIDENTIAL : communication privileged, p. 210. CONSTABLE: proof of party being, p. 387. CONSTITUTION: libels relating to, p. 452, 453, 454. descent of the crown, p. 452. seulement of the crown, p. 455. révolution, p. 455. king’s title, p. 452. nature and extent of the offence, p. 456. CONSTRUCTION : rules of, p. 44, 47. words to be understood in their common acceptation, p. 49. may be explained by circumstances, p. 87. by context, p. 86, 87. by the cause or occasion of speaking them, p. 87. by jurors, p. 52. by the court after verdict, p. 50, &c. 416. CONTEXT: may explain actionable words, p. 86. CONTINUANCE IN OFFICE, &c. when intended, p. 314. CONVICTION: . words charging, p. 83. CORRUPTION: charge of, p. ,34, 35. in former situation, p. 105. in public trust, p. 35. in office, p. 102. COSTS: St. 21 J. 1. c. 16. p. 420. doesnot extend to scan. mag. p. 420. nor to actions founded on spécial damage, p. 420. nor to cases of libel, p. 420.INDEX. 437 but applies where actionable words produce spécial damage, p. 421. inconvenience of this rule, p. 421. actionable words joined in déclaration with a distinct injury, p. 421. spécial damage laid referring to ail the counts, p. 422. damages found under a writ of inquiry, p. 422. certificate of judge under 22 and 23 C. 2. c. 9. p. 422. justification does not entitle to full costs, p. 423. COUNSELLOR: words spoken by, when actionable, p. 207, 209. COURT: Earl Marshals, before whom held, p. 443. of honour, attempt by to hold plea of words, p. 432; inferior encroachments by, how restrained, p. 433. contempts of. See Attachment, Justice, Judg.es, &c. COZENING : charge of, p. 75. CREDIT : words affecting, p. 110—117. CRIME: action for imputing the commission of, p. 12. words imputing, why actionable without spécial damage, p. 69. place the party in jeopardy, p. 17. disgrâce him in society, p. 17, 18. ancient rule, p. 586. words imputing, actionable, though not endangering the party in law, p. 18, 19, 586. after pardon for the offence, p. 19. where actionable, must impute a temporal offence, p. 30, 33. punishable in the temporal courts, p. 30, 41, 42. penalty merely pecuniary, p. 42. general rule, p. 41, 42. certainty requisite, p. 43, 44. 1. must impute an act, p. 57, 58, 586. by what words an act may be imputed, p. 58, &c. 2. of a criminal nature, p. 58. - criminal quality how collected, p. 68. 3. to the plaintiff, p. 58. application of the charge how collected, p. 93. propriety of limiting such actions, p. 42. CRITICISM : how far privileged, p. 232. liberty of does not extend to personal reflections, p. 235, 236. nor to misrepresentations of facts, p. 235. CRITIQUE: upon a newspaper, p. 258. cursing and swearing, p. 592.438 INDEX. D. DAMAGE: nature of in case of slander, p. 12. when presümed, p. 17. advantages of this presumption, p. 15, 581. spécial, what amounts to, p. 157. prévention of sale, p. 323.. expenses of civil suit, p. 159, 160. the bringing the plaintifT’s title into litigation, p. 159. hindrance from preferment, p. 160. loss of hospitable entertainment, p. 169. loss of marriage, p. 161, 162, 587. loss of voluntary donations, p. 169. loss of customers, p. 166. expense of justification from extra-judicial charge, p. 157, 158. mere appréhensions of loss insufficient, p. 167. female charged with incontinence required to prove spécial damage, p. 164. insufiiciency of the reasons for this rule, p. 165. spécial damage, how connected with the words, p. 167. must be the natural and immédiate conséquence, p. 168. non-performance of contract not a spécial damage, p. 169. spécial damage subsequently resulting from the same words, p. 170, 592. where the words are actionable need not be proved, p. 311,592. statement of when it is a mere presumption of law, p. 321. spécial damage must be stated, p. 322, 402. how pleaded, p. 322. when generally, p. 324. actionable words are spoken within a private jurisdiction, p. 324. the wantof spécial damage may be pleaded, p. 337. damages not in the nature of punishment, p. 162. nor awarded with a view to reformation, p. 163. DEAD : person, libel on the memory of, p. 493, 593. DECLARATION: in case of slander or libel, p. 263. in what it consists, p. 263. of the venue, p. 245. parties, p. 250. inducement of good character, p. 263. not traversable, p. 264. sometimes improper, p. 264.INDEX. 439 averments, p. 263. - of publication, p. 263. statement of the words, p. 267. See Statement, Variance, &c. colloquium, p. 284. See Colloquium. innuendo, p. 295. See Innuendo. averments of extrinsic facts, p. 304. when necessary, p. 304. advantages of a technical statement, p. 302. DEPOSITIONS : before magistrates, when evidence, p. 572. DEFENDANTS: joinder of in a déclaration, p. 261. in an indictment, p. 592. E. EFFIGY: burning in, p. 154. EMPLOYMENT: words concerning plaintiff’s, p. 111, 112. nature of, p. 114. degree of préjudice, p. 114. EVIDENCE: how farit must correspond with the déclaration, p. 350. of publication necessary before the libel is read, p. 35 i. Handwriting, Publication, Character, &c. &c. EXCLAMATION; words of, p. 58, 61. EXCOMMUNICATION : imputation of, p. 25. disabilities resulting from, p. 27. EXCULPATORY: averment, p. 317. formerly required, p. 317, 318. affidavits. See Information. EXTORTION : charge of, p. 106. See F. FALSE: claim, when actionable, p. 205, 206. rumours, p. 485. See Forestalment. witness, liability of, p. 186. FELONY: charge of, p. 72. formerly consisted in intent, coupled with an overt act, p. 86, 87.INDEX. 440 FINDER OF LIBEL : doctrine of civil law as to, 507, 508. whether criminal for mere keeping in possession, p. 506. FOREIGN: language, libel written in, p. 85, 308. averments necessary, p. 86, 308. State, libel against, p. 482. FORESTALMENT : raising price of provisions by false rumours, p. 487, 488. FORGERY: charge of, p. 32, 48, 74. FORNICATION: charge,*of, p. 25. FORSWEARÎNG ; words imputing, p. 21, 47, 77, 78, 85. averments necessary, p. 340, 389. FRAUD: charge of secreting a will, p. 21. FREE DISCUSSION: benefits of, p. 2, 3. a restraint upon the vicious, p* 2. abuse of, p. 4. press, advantages of, p. 5, 6. distinguished from an open press, p. 6. FRIENDLY COMMUNICATIONS: privileged, p. 221. • G. GAZETTE : admissible in evidence, p. 572. GENERAL: issue, evidence under. in civil action, p. 382* in case of indictment, p. 549. warrants, illegality of, p. 544, 591. GOVERNMENT: publications against, p. 469. considered as contempts against the king, p. 469. privilège of freemen to represent abuses and grievances, p. 470. libel on government, in what the offence consista, p. 471. malice essential to it, p. 471. instances, p. 472, tendency whether a question of law or fact, p. 552. essence of a libel, in what it consists, p. 552. charge of having written one actionable, p. 36. when paroï evidence may be given of its contents, p. 383. contained in unstamped newspaper may be given in evidence, p. 383. LIBELLER : not civilly responsible without a publication, p. 264. and (semble) not criminally responsible without a publication, p. 506. ,446 INDEX. LIBERTY: of the press, in what it consista, p. how secured by the laws of England, p. 583. excellence of the mode in which the guilt of a libeller is ascertained, p. 583. LIMITATION : of actions for words, p. 347. mode of computing in different actions, p. 347. * plea of the statute, p. 347. of suits in the spiritual court, p. 431. L1YELIHOOD : * words affecting the means of, p. 106. LOSS: nature of to ground an action upon, p. 9. ' M. ' MAGISTRATES : contempts against. « Sée Justices. MAINSWORN : charge of being, p. 85. MAINTENANCE : words charging, p. 38. MAL A: prohibita : p. 31. MALICE : ' ex malitia, legal import of thé words* p. 319. distinction betwéen the legal and thesmoral rtieaifing of the term, p. 172. is essential to civil réspOnsibility, p. 208, 237, 240. is éither express or implied, p. 206. presumption of is 1. conclusive in favour of the défendant, p. 173. 2. prima facie in favour of the défendant, p. 201.' 3. prima facie against the défendant, p. 241. is immaterial where thé imputation is true, p. 173. MALICE: ^ where thé publication is made in the course of parliamentary or judicial proceeding, p. 173. where such proceedings are faithfully reported, p. 173. where the publication is procured by artifice, p. 169, 588. the piresumption is in favour of the défendant where he claims an interest, p. 201. givès the plaintiff a ground of action against another, p. 218. or acts in the discharge of any public or privàte duty, p. 223.INDEX. 447 the presumption is against the défendant where his publication is detrimental and motive unexplained, p, 240. may consist in â wanton; disregard of the interests of others, . p. 241. ,: .. the great essential to criminal liability, p. 491, 495, 581. against society may consist in a wanton inattention to its in- terests, p. 499. but the presumption may be rebutted by showing that thé de- fendant had a legitimate object, p. 499. averment of in a déclaration, p. 316. in an indictment, p. 317. emdence of, different présomptions of law as to, p. 397, proof of express malice, p. 397, 398. what is évidence to prove malice, p, 398, 592, other actionable words, p. 398. deliberate sale of similar papers, p. 399. by servant in action for false character, p. 399, 400. circumstances stated in déclaration to show malice must be proved, p. 320. ' MÀRKIAGE : v loss oft a temporal damage, p. 164, 165, 589. how stated, p. 323. ' MARSHAL: Earl Court of, p. 432. MASS : , - charge of going to, p. 38. MEMBER OF PARLIAMENT : words of, p. 106, 586. ^ privilège of, p. 525, 591. as towhathe may be examined, p. 412. MERCHANT: words of, p. 117. MIDWIFE ; words of, p. 107, 116. MIRACLES OF JESUS CHRIST : libels against, p. 438. MISPRISION OF FELONY : charge of, p. 57. . MISDEMEANOR : charge of, p. 30, 32, &c. - MITIGATION: of damages, evidence in, p. 403, 592, 593. source whence the calumny was derived, p. 405. cause of suspicion, p. 405, 406. badness of plaintiff’s former character, p. 407. whether particulàr facts tending to show the plaintiff’s guilt are admissible, p. 409.450 INDEX. non damnificatus bad, p. 339. of minority, p. 339. what must be pleaded. truth of the words, p. 181. of justification ground on the truth, p. 341, 592. must correspond with the charge contained in the déclara- tion, p. 341. must be pleaded and proved withgreat précision, p. 179,589. of justification in general, must confess the words, p. 328. must answer fhe whole publication complained of, p. 344, 345. of statute of limitations, p. 347. joinder of different pleas, p. 348. POLICY : publications contrary to, p. 482. POSSESSION OF LIBEL : whether an indictable offence, p. 509, 592. POWER : words imputing, p. 65. PRESÜMPTION OF LAW : when conclusive for the défendant, p. 172. prima facie infavour of the défendant, p. 201. prima facie against the défendant, p. 401. PRIVILEGE : of parliament, p. 183, 541, 592. PROCESS: summary, on what founded, p. 518. seizure of papers, p. 544, declared illégal, p. 548. against the person, p. 540. commitment by secretary of State, p. 540. general warrants, p. 542. declared illégal, p. 542. Lord Marisfield’s opinion, p. 593. against a défendant on an indictment or information under 43 Geo. 3. c. 58. s. 1. p. 542. PROCURER : of publication, p. 370. evidence of procurement, p. 371. PROFESSION : words relating to, p. 100. PROFESSIONAL DUTY : when it will justify a publication, p. 206. PROHIBITION : writ of, on what grounded, p. 424. to spiritual court, when granted, p. 424. where offence imputed is not of spiritual cognizance, p. 425. though imputed to an ecclesiastic, p. 429.I INDEX. 451 where the same words are of both spiritual and temporal cognizance, p. 429. where they are of temporal cognizance from a particular custom, p. 429. does not lie, where words of spiritual cognizance are coupled with mere terms of abuse, p. 426. though followed by spécial damage, p. 427. time of moving in, p. 433. PROPHECIES : false, p. 485. PROSECUTOR : not compellable to restore the libel, p. 573. PROVOCATION : to break the peace, p. 491. where oral not indictable, unless it amount to a challenge, p. 491. reason for this distinction, p. 595. PUBLIC : amusement, slander of, p. 120. PUBLICATION : fact of, p. 350. evidence of, p. 351. postmark on a letter, p. 372. direct or indirect, p. 351. by proof of handwriting, p. 352. what necessary to support an action, p. 171. by agent, how proved, p. 366, 373. by a bookseller, p. 367, 368, 369, 370. by newspaper, p. 376. writer, 38 Geo. 3. c. 77. evidence under the statute, p. 381, 382, ‘383. averment of publication, p. 264. where words hâve been published in a foreign language, p. 267. when inadvertent not criminal, p. 241. PUBLIC LICENSER : objections against, p. 5, 6. Dr. Johnson’s opinion, p. 5. PUNISHMENT : p. 577. R. RECEIVING : stolen goods, charge of, p. 37, 93. REGRATING : charge of, p. 29. RELIGION : libel on, p. 435.452 INDEX. extent of the offence, p. 440. why the temporal courts interfère, p. 436. a malicious intention essential to the offence against, p. 440 REPLICATION : nsual one, p. 349. a pardon, p. 349. containing exceptions, how pleaded, p. 350. in what cases will not entitle the party to sue, p. 350. REPUTATION : pecuniary value of, p. K REVIEWERS: how far privileged, p. 232. ROBBERY î charge of, p. 75, 93. ROGUE: charge of being, p. 21. S. SCANDALUM MAGNATUM : offence of, p. 155. ground of the proeçeding, p. 155. parties entitled to, p. 155, 159, 160. by what words supported, p. 155. construction of the sjtatutes, p. 160, 161, 162. extent of the remedy under the statute, p. 158. baron of the exchequer within the statute, p. 159. whether peeress entitled to sue, p. 159. peer of Scotland entitled, p. 159. forin of declaring, p. 315. whether the défendant may justify, p. 178, 503 . SCHOOLMASTER : words concerning, p. 107. SECRETARY OF STATE: commitment of, p. 593. SCIENTER : cannot be traversed in pleading, p. 338. SERVANT: action by, p. 108, 115, 223. must prove express malice, p. 224, 225, 229. reason of this, p. 229. See Malice. SKILL : words reflecting on, p. 110, 116. SKIMMINGTON : riding, p. 153, 588. SLANDER: increase of actions for, p. 13. uncertainty of former i ules relating to, p. 13,\&c.INDEX. 453 SOLICITATION : to commit an illégal act, charge of, p. 22, 32, 88, 89, 91. such solicitation an indictable offence, p. 490. procurera by solicitation, when principals, p. 490. when accessories, p. 490. challenge on account of money won at play, p. 593. SPECIAL CHARACTER: how acquired, p. 339. how described, p. 384. how proved, p. 384. SPIRITUAL OFFENCE : charge of, p. 23, 24, 26. courts, juridiction of, p. 424. no suit in spécial court can be maintained on an indictment, p. 431. STARCHAMBER: doctrine ofin case of libel, p. 507, 508. required proof of publication, p. 511. STATE OFFENCES : to be proved by the usual rules of evidence, p. 358. STATEMENT : of the words in a déclaration or indictment. the identical words must be set out, p. 266. though formerly set out in Latin, p. 267. must now be stated in the original language, p. 267, 274. insufficient to describe their effect, p. 268. distinction as to statement under an ad tenorem, and under an inter alia, p. 268. the setting them out, with the addition of vel hiis similia in- sufficient, p. 270. must correspond with the publication proved, p. 271. whether an English translation of foreign words necessary, p. 274. See Variance. SURETIES : whether libellers in general can be required to find surety of thepeace, p. 524. for the good behaviour when requirable, p. 524, 526. words of absent magistrate, p. 527. party should be bound without delay, p. 527. extent of the doctrine, p. 528. form of the commitment for want of sureties, p. 528. for mere words of abuse sureties not demandable, p. 528. when demandable where no person in office is reflected on, p. 528. STEALING : charge of, p. 49, 79, 80.INDEX. 454 STOCKBROKER: words of, p. 177. SUBORNATION : of perjury, charge of, p. 75, 93. SURPLUSAGE: when an averment considered as, p. 384. SUSPICION : words of, p. 58, 60. however strong, will not amount to a justification, p. 180. nor will common famé, p. 180. SWINDLER: p. 23. T. THIEF: charge of being a, p. 49, 50, 75, 79. TRADER: words of, p. 113, 117. imputing dishonesty, p. 113. words afïecting crédit, formerly not actionable, unless they imported bankruptcy, p. 324. TREASON : words imputing, actionable, p. 32, though no act be charged, p. 57. overt act of, words spoken formerly, held to amount to, p. 457. the doctrine questioned, p. 458. words joined to an overt may explain it, p. 459. written or printed publications, p. 459. by writing against the king’s title, p. 468. described by 36 G. 3. c. 7. p. 468. TRESPASS: charge of, p. 16, 17, 39. TRIAL: for the criminal ofFence, p. 551. offence as stated on the record of what compounded, p. 551. TRINITY : offences against the, p. 438. profanation of, in stage play or interlude, p. 445. déniai of, p. 445. TRUTH: of the matter published. why a bar to damages, p. 175. Sir W. Blackstone’s doctrine considered, p. 175. whether a bar to an action for scan. mag. p. 179. not admissible in evidence unless pleaded, p. 328. formerly admitted where the charge was précisé, p. 329. general rule, p. 330.INDEX. 455 allowed where assertions of the defendant’s are proved to show malice, p. 412. justification allowed in action by person eharged as acces- sory after the acquittai of the principal, p. 179. allowed against plaintifF after his acquittai, p. 179. plaintif? may be put upon his trial on such an issue found against him without the finding of a grand jury, p. 179. plea of. See Plea. Justification, no bar to an indictment, p. 496. ground of rejecting such a justification, p. 497. indictable misdemeanor, what essential to, p. 497. the publication of what is true may produce mischief, p. 499. the truth of a publication not the test of malice against so- ciety, p. 499. reasons for admitting in evidence stronger where the alleged libel charges a more immoral act, p. 500. in case of immoral publications the objections against admit- ting more forcible, p. 501, 502. y. VARIANCES : different kinds of, p. 274. words set out “ juxta tenorem,” in hæc verba, or under an “ inter alia,” &c. p. 276. where {t ténor” is used a literal variance not fatal, p. 277. mode of setting out passages not continuous, p. 278. alteration of a single letter when fatal, p. 279. Lord Mansfield’s dictum as to variance, p. 279. VENIRE ; whence awarded formerly in case of a local justification, p. 247. reason for this peculiar to the case of libel, p. 247. law altered by statut es 16 and 17 C. 2. and 4 Anne, p. 248. ' construction of these, p. 249. VENUE : in civil action, p. 245. when changeable, p. 245, 246. in scan. inag. p. 246. W. WARRANT : See Process. WATCHMAKER : words of, p. 116. WHORE : when the term is actionable, p. 23, 25, 68.448 INDEX. MITIOR SENSUS : exploded doctrine of, p. 45, 46* 47, 51, 55. . reason why the doctrine prevailed, p. 52. MONEY: won at play, challenge, on account of, p. 59£. MORALITY : publications against, p. 447. are punishable in the temporal courts, p. 447. extëntof the ofFence, p. 450. MIJRDER: charge of, p. 72. where the person alleged to hâve been murdered still livës, p. 72, 73. oblique charge of, p. 82. MURDERER: p. 75. N. NEGATIVE: in what. cases a party may be put to prove, p. 394. NEGLIGENCE : defendant’s liabilily for damage resülting from, p. 241. libel exposed from, p. 241. NEW ASSIGNMENT : when necessary, p. 350. NEWSPAPER: slander concerning, p. 120. NEW TRIAL: when granted, p. 413. time of moving for, p. 573. °. OFFICE: words relating to extentof the action, p. 1071 charge of inability in, p. 102, 104. of corruption in, p. 103, 112. confidential distinction between reflections on integrity and ability, p. 102. grôunds of. the action, p. 10 ï. OPINION: words of, p. 58. v p*'. PARDON: when it excludes a plea of justification, p. 180, 589.INDEX. 449 after a conviction for perjury will not restore crédit, p. 181, 590. PARLIAMENT : libel on the houses of, p. 478. privilèges of, p. 182, 183, 478. words of member, p. 106. petitioners to, privileged, p. 186. PARSON: words concerning, p. 313. PARTIES : plaintiffs, when two or more may join, p. 250. when separate actions mnst be brought, p. 251. words spoken of husband and wife, p. 251. actionable words of the wife with, with spécial damages to the husband, p. 251, 252. husband should sue alone for spécial damage, p. 260. the right to sue for the actionable words would survive to the wife, p. 260. défendants, joinder of, p. 261. words by husband and wife, p. 261, 262. joinder of parties in the same indictment, p. 592. PAWNBEOKER: words concerning, p. 119. PEACE OFFICER : proof of person’s being one, p. 387. PEACE, PUBLIC: in what it consists, p. 634, 635. what constitutes an offence agàinst it, p. 634. PEERS: words concerning, p. 157, 160. See Scan. Mag. PENTATEUCH: libel on, p. 440. PERJURY: charge of, p. 32, 54, 75. PHYSICIAN: p. 106, 115. description of, in déclaration, p. 312. proof of plaintiif’s being, p. 386, 388. PICKING A POCKET : charge of, p. 50, 75. PLACE : of speaking words, when material, p. 326. PLAGUE: words imputing infection .with, p. 98. PLEA: / t f: what may be pleaded, p. 334. ^ may explain the meaning of the words, p. 337. ^ show no damage sustained, p. 337, % 57 '%