THE
LAW OF LITERATURE
REVIEWING
THE LAWS OF LITERARY PROPERTY IN MANUSCRIPTS; BOOKS,
LECTURES, DRAMATIC AND MUSICAL COMPOSITIONS; WORKS
OF ART, NEWSPAPERS, PERIODICALS, &C.; COPYRIGHT
TRANSFERS, AND COPYRIGHT AND PIRACY;
LIBEL AND CONTEMPT OF COURT
BY LITERARY MATTER,
ETC.'WITH AN APPENDIX OF THE AMERICAN, ENGLISH, FRENCH, AND
GERMAN STATUTES OF COPYRIGHT
BY
-AMES APPLETON MORGAN, M.A.
OF THE NEW YORK BAR
IN  TWO VOLUMES
VOL. I
NEWT YORK
JAMES COCKCROFT & COMPANY
1875




Entered, according to act of Congress, in the year I875,
By JAMES APPLETON MORGAN,
In the office of the Librarian of Congress, at Washington..
TOBITT & BUNCE,
Printers and Stereotypers,
i31 William Street.




TO
A- W'  O
IN LOVE
AND
GRATITUDE.








PREFACE.
FOR thirty-eight years, since Mr. Curtis's scholarly volume,
published in I837, no textual work on the American law of
copyright has made its appearance in the United States. And
although, since then, the importance of the subject has grown
-as it must continue to grow-commensurately and parallel
with the growth and importance of literature and the multiplication of books, the department of Copyright does not,
even to-day, make a large appearance in our Digests.
The reason why this is so, doubtless lies in the fact that
comparatively few Copyright cases, in our courts, get beyond
a hearing, in the first instance, at a special term or in chambers-they either proceeding at once therefrom to settlement
by the parties themselves, or being abandoned by the pursuers. If the manager of a theater, for example, who has expended large sums to mount a dral;:>atic production upon his
stage, should be served —upon the threshold of its production-with a temporary injunction, and an order to show
cause why such injunction should not be made final, he will
hardly keep his properties unemployed and his actors idle,
to carry the case to the Court of Appeals, or to Washington,
before presenting his-play. If he cannot raise the injunction




vi                    PREFA CE.
at special term, the next day, he must settle the difficulty the
best way he can; and if he does raise it, the pursuit is generally withdrawn. So, likewise, the publisher of a book, whose
first sale is interrupted, is generally very loath to abide the
dignified and long-drawn leisure of the Law. As chamber
and special term hearings, therefore, are reported but rarely,
the great majority of these cases do not get into the volumes
of reports, and thence into the Digests. Many of them do
not even find their way into the newspapers. But all the
more, instead of all the less, does this seem to demonstrate
the importance of interests too vital for courts beyond, and which must be settled at first hand, by a single
judge; and to prove that there is room for a work like the
present.
I am aware that the style I have chosen for this inquiry
is an innovation, upon this side of the Atlantic. In the
preface to an English work, edited by me, some time
ago, I ventured to remark that "there is a wide dissimilarity between the American and the English systems of;cgal text-writing. While the plan of the American writer
has invariably been to consider, in his text, only principles
and rules,-connecting them. with the cases in which they
have been enunciated by foot-note reference,-the English
method is to give, in the body of the text, a sort of running
history of the cases themselves, their dicta, rulings, and progress-not unfrequently, even, of the argument, objections,
and strategy of counsel,-trusting to the detailed and discursive report itself, to develop the principles and rules for
which he is seeking.  Neither plan is without its excellences, nor quite without its faults. The American un



PREFA CE.                     vii.doubtedly produces, from a literary point of view, the more
rounded and finished essay.  But the student is possibly
in danger of being led along by the author's own reasoning
-or learning, or by his own ideas as to what the law is or
-ought to be.  The English method, though prolix and
-inartificial, is, at all events, accurate and reliable, since the
student is safe to find out, therefrom, exactly what the law is,
and what the precedents which courts are likely to follow."
At the risk, then, of being " prolix and inartificial," I have,
in the following pages, followed the English plan. It is at
least a question whether literary merit is any merit at all in
-a legal work-whether, even, it is not a positive demerit; at
-all events, if it be accurate and reliable, the lawyer and the
-student will pardon a lack of unity and style.
There is a vast temptation to the writer of a work upon
Literary Property, to allow himself to be led aside by the
fascination of the subject; to be dazzled by the  great
names that glow and sparkle under his pen.  The first
-great case of copyright involved the proprietorship of the
assigns of the poet Thompson in his own poems; in its
discussion sat Lords Mansfield, De Grey, Aston, Willes, and
Yates, and therein Lord Camden delivered his famous argument. Greater than Thompson Milton, Johnson, Byron,
Shelley, Southey, Walter Scott, and Dickens-have been
litigants, either personally or through their representatives,
in like causes. The History of Clarendon, and the Letters.of Chesterfield in England, and-in our own country-the
letters of Washington and the Commentaries of Story,
have come before the courts for protection; while for the last
and most generous encouragement which the British parlia



~viii                 PREFA CE.
ment ever extended to its authors, Wordsworth was a petitioner, and Talford a debater.
I have felt the temptation, and have so far yielded, that,.
in the pages which follow, much that is historical will be
found commingled with the technical; but I have tried to,
remember that I was writing a practical book for a practical
profession, and to limit myself to the usefulness of the sub —
ject.
A greater or less security in their literary property is nowaccorded to authors, by the laws of every civilized nation..
Both in the United States and England, equity is now
prompt to interfere in cases of infringement, while in France.
(and possibly elsewhere) piracy is a misdemeanor cognizable
by the police, and the culprit who steals a poem or a drama,
has his case attended to as briskly as his confrere who rifles.
a pocket, the consequence being, in that happy country, that
authors-while they have fewer precedents in their favorthan with us-have much more protection. It is remarkable
that, of all these civilized nations, the United States is the
only one which has not bestowed upon the author a pro —
prietorship over his own productions for at least his own.
lifetime,-be that lifetime longer or shorter,-but has limited it, absolutely, to a certain term of years. The reason,
for this policy is not so evident. It is certainly difficult to
see the justice of a measure which denies to one's old age
the profits of the labor of his earlier years —which, in thenoble words of Talford, " Gives a bounty to haste, and informs the laborious student —who would wear away his
strength to complete some work which the world will not
willingly let die —that the more of his life he devotes to its




PREFA CE.                      ix
perfection, the more limited shall be his interest in its
fruits."  Of a similar provision in the English law —one
which, owing to his efforts, has long since disappeared-the
sergeant continued: "It stops the progress of remuneration
at the moment it is most needed; and when the benignity
of nature would extract from her last calamity a means of
support and comfort to the survivors-at the moment when
his name is invested with the solemn interest of the grave —
when his eccentricities or frailties excite a smile or a shrug
no longer —when the last seal is set upon his earthly course,
and his works assume their place among the classics of his
country-your, law declares that his works shall become
your property, and you requite him by seizing the patrimony of his children." But the time of a wider appreciation and favor to authors is at hand. It is believed that the
courts of the United States have gone further than those
of any other country in securing to alien authors their
common-law rights (such as they happened to be) in their
own compositions. It is to be hoped she may yet-in her
statutes-be as generous to her own.
I have expressed myself, in the second volume of this work,
as unreservedly in favor of an International Copyright, and
given some reasons why, as it seems to me, such a measure is
demanded, not only by all justice-which scarcely anybody
can be found to deny-but by all expediency, as well.
I am very far from wishing to be understood as saying
that it is an expediency merely for the authors, or merely for
the literature of the country. Years ago, Thomas Hood
declared " that America, in the absence of an international
Copyright, can never possess a native literature, has been




X                        PREFA CE.
foretold by the second-sighted on either side of the Atlantic."*  But that negative prophecy does not appear to be
on its way to a fulfillment.  It seems to me, rather, that —
in a large sense-the interest of the consumers, of the
readers-of the people-demand it, and that whatever is the
interest of the people, must ultimately and triumphantly
prevail. As it stands now, the public-the readers of Great
Britain and the United States-are obliged, practically, to
pay for the manufacture of a book twice before they can
have the opportunity to read it once; a vast and unnecessary burden that is daily making itself felt and realized.
But it is perhaps superfluous to say more.  As sure as it
is that birds and bards will sing, that authors will write, and
that readers will read, until the end of time, so sure is it that
one day-come it soon or later-Statutes of Copyright will
be as broad as the world.
AMay x, 1875,
229 BROADWAY, NEW YORK.
* "Copy Right and Copy Wrong." Letter X. Hood's Choice Works (New
York, I856.) Vol. I. p. I15. And see a similar remark quoted by Mr. Emerson
in his " English Traits." " So long as you (America) deny us (England) copyright, we shall have the teaching of you."-p. 32.




CONTENTS OF VOLUME I.
INTRODUCTORY.
PAGE
Intellectual property must find its origin in natural law,    I
Natural law-what is-......    I
Definition of property,...... 
Property may exist in whatever is capable of occupancy,    2
Difficulty of defining an occupancy in ideas,..    2
Lord Camden's difficulties,.....       6
Right of an author to dispose of his literary property for
gain, never doubted,......   12
The author's twofold right,...                 6
Division of the subject,.....   i
BOOK I.
IN WHAT AND IN WHOM PROPERTY IN LITERARY COMPOSITION MAY EXIST.
CHAPTER I.
OF INNOCENCE.
Convenience a cardinal principle of the common law,   21
Upon the ground of convenience to the state-the law
will refuse to recognize property in things immoral,   21
Especially a literary property,....   2
Reasons why this policy of the law appeals particularly
to  authors,........   2r




xii                    CONTENTS.
PAGE
Discrimination between lawful and unlawful publications, in respect to innocence, not a statutory one,  22
Doctrine of innocence mainly a negative one,..   23
Exists only in published works,....        25
No property by common law in non-innocent matter,   26
Public libels seditious,......         26
Christianity parcel of the law of England,.. 32-41
of the United States,....  41-45
Examples of works not innocent at common law,        47-84
Works seditiously libelous,.....        57
obscene,........   77
immoral,.......  78-84
Distinction between works that harmfully, and those
that innocently deceive the public,... 85-86
Libels on public personages in the nature of seditious
libels,.........      86
Recapitulation,.......       90
CHAPTER  II.
OF LIBEL.
Roman law of,.                                     91-221
Difference between libel and slander,...       92
Other forms of language,......   93
Difficulties in defining the word,....     94
Punishment for libel,.. 95-97
Example of a libel being deliberately chosen as a means
of promoting public interests,....   96
Various submitted definitions,.....       97
Law of libel a positive one, contemplating both civil
and criminal remedies,.....    I03
Nothing in nature which cannot be converted into an
instrument of mischief,...  Io4
Scandalumn magnatum, none in the United States,.  I07
Tendency of all laws to become complex and unwieldy,..                            io8
An examination of the jus et norma loquendi imposed
upon courts in construing the law of libel,..    Io
The law regards reputation as capital,...     I2
General rule as to damage by libel,....   I3




CONTENTS.                          xiii
PAGE
Examples,.. II3-II 7
Star-chamber maxim, " the greater the truth, the greater
the libel," no longer governing,.      II7-Ii8
Variance between words and facts,...     8 —I22
If material part not proved,.      22
What will not justify a libel-That it is a repetition of a
former libel,                                          123
Libel true in part and false in part,                  125-126
What is meant by " the truth" of a libel,..   28
Belief in the truth of a libel —How far a defense,          I29
Suspicion-no justification,.3I
Mitiori sensu, former policy of the law to construe all
words in,.......      132
Greater or less degree of truth in a libel,                 I33
Innuendoes,.....                        I35
Malice,                                                I38-I40
Words sounding in disability,....      141
Slanderous words of a lawyer,...  I43
Attacks upon persons of a particular calling, generally,   144
Open and general charges,.     5o
Charge of having committed a crime,...    2-I57
Or of having an evil disease,                               153
Slander by way of joke,....                    63
Libel by initials, or in bad spelling,                      165
By asking a question,                                       i66
By pictures,..67
Charge of " heartlessness,"                                 169
Court will inform itself of local and other meanings attached to words,                                        170 I7
Libel by analogies, implied or expressed,                   171
Or by comparison,                                           172
Preposterous charges, when not libelous,                    173
Libels on the dead,                                         I74
Publishing obituary notice of one yet alive,.   I76
Libels on things,.......     176
Criticism on a literary production,. I79
Giving details to a newspaper reporter,         1. 82
Matter received from another,...             I93
Libel by letter,.......     I94
By postal cards,....   20I
By theatrical representation,                               202




xiv                     CONIENTS.
PAGE
Libel by a corporation,...              203
Privileged publications,..                           204
Letter to a superior officer libeling a subordinate,      210o
By a mercantile agency,.....                       220
By publishing report of a coroner's inquest,..  211
Statements concerning candidates for office,..     211
Instances of privileged cases,.....  215
By advertisement for evidence of the marriage of a certain person,.......                 219
Justification of,........  221
Evidence of provocation of,.....                 221
CHAPTER III.
OF CONTEMPT OF COURT.
Source of judicature,.....  223.
Courts must maintain the respect of society,..     224
Doctrine, of appeals to authors,....  224.
First division-Two principal sorts of contempt of court,  225
Rule founded in the reason of the common law,..    22
Not contrary to its spirit,....                        226
Origin of power to imprison for,....  227
Theory of contempts,.. 227-235
Second division-Four methods of committing contempt of court by written matter,...  236
By statement reflecting on an officer of the court,.   236
By libel of the judge,.......  238
Objections to committing for,....                    240
Publication pending a suit,....  245
Foreign matter in an entry on a docket,...   243
Threatening letters to judges, witnesses, solicitors, or
jurymen,......                              244
Protest of counsel against the presiding of a certain
judge,........                                246
Writing a letter to a judge to influence his decision,   ~247
Letter written by an attorney in his private capacity,.   247
Reflecting on a king's counsel,...  248
Inclosin:; a bank note to a judge,....        248
By attempting to influence public opinion,...  254
Advertisement offering a reward for evidence,..       256




CONTENTS.                         xv
PAGE
The liberty of the press,.                           25 7-286
Contempt of court by a pamphlet,....          285
Insinuations may be contemptuous,....  286
Contempt by members of a municipal corporation,.         286
By the common council of New York city,...  287
As to publication of the reports of a court,. 288-292
Theory of,.......   288-292
Enactment of Congress as to contempt,...         290
Misrepresenting decisions of a court,....  292
Contempt of legislative bodies,.. 293-303
By the members themselves,..                            299
Respect of courts,......                 303
Sentiment of the courts,.....  303
CHAPTER 1V.
OF  ORIGINALITY.
The question of originality the last question the law will
ask-not the first,......    306
The question not without its difficulties,...  3o06
Originality exists independent of possession or of statutory formalities,.......    306
A legal, not a popular signification of originality must
be sought,........  307
Dr. Johnson's statement,.....    308
Homer, Horace, Cicero, and Milton, imitators,..  309
So Shakespeare, Byron, and Tennyson,...    3Io
The legal definition,.......  3Io
Who is an author,.....                  3I3
Analogy drawn from legal reports...  35
Property exists in three-kinds of authors,.
Definition of an author,......  3 I9
Of a compiler,........    319
Translator,.........  320
The law recognizes but two great classes of productions
-original and secondary,.....    320
Valuable work of a translator,...  32I
[ho is an author under the United States statute,.    323
An author must be able to identify his labor,.   324-327




xvi                    CONTENTS.
PAGE
The law does not require that the subject-matter be new,.  325
The rule illustrated as to a manual of legal forms,       333
A- to a directory,...      334-345
map,.........  334
guide book,....    335
Rule as to quotation,...          336
As to abridgments,.....    338
Legal abridgments,.....  339
What will be a proper abridgment,..           340
A mere selection is not an abridgment,...   341-344
The rule as to quotations,......    342
In musical productions,       ~.....  342
Directories,.........    345
What use a second compiler may make of the labors of
a former,.........  347
Difference between a compilation and an abridgment,.........  350
Same principle applied to cartoons,...            358
School and college text-books,.....  358
Dramatist who borrows incidents,                          364
Translations,.........  365
Doctrine of literary accession,..... 365, 369
Analogy between patents and copyright,...  37I
Proprietary copyright,......    374
What will constitute a new  edition of a book-discussed,......                      375
BOOK II.
OF PROPERTY IN  LITERARY  COMPOSITION BEFORE
PUBLICATION.
CHAPTER I.
OF MANUSCRIPTS.
Manuscript the first tangible form which literary property assumes,.......    381
Difference between a manuscript and a book,.   38I-383




CONTENTS.                        xvii
PAGE
Printing not the only form of publication of literary
matter,.........  383
The law particularly watchful over the literary property of an author,.......  384
So, too, over the property of an artist,...    385
Manuscripts protected in the United States by statute,.  385
An author's right to the contents of his manuscript
ceases upon his dedication of them to the public,.  389
Parting with the manual possession of a manuscript
will not be such a dedication,.            392
Nor the delivery of its contents by oxfurd of mouth,.    393
Nor by translation, summary, abridgment, or review,.  399
But a prior publication by the author himself, in a
foreign country or at home, without a copyright,
may be a dedication,......  406
Dramatic manuscripts,......    407
The public exhibition of a painting not a dedication of
it to the public,.....              407
What will amount to the dedication of a dramatic composition,........ 409-413
Of an engraving of a picture,.                   4I3
Doctrine of literary accessions as applied to manuscripts,........  4 5
Manuscript going through the press is at the owner's
risk,.......                     415
Of letters,....    416
Early instances of letter-writing,.                    429
A letter an object of property,.....    443
A receiver of letters has no right to publish them,.   444
General and special property therein,..          445
Of what control the receiver of letters has over them,.  448
Rights of the sender,.                                 45 
The plibW;Xhing of private letters an offense against
pubiic policy,...    42
Forner rule as to literary character of letters,.     453
now entirely abandoned,... 455-458
T2he receiver's property in a letter-discussed,.   459-467
I o  rufle of literary accessions applicable to letters,.  467
]' camatic manuscripts,.....            469
tiu) post-office-its origin,....            470
in modern times,.                 480




xviii                  CONTENTS.
PAGE
The post-office-in England,......  48T
in the colonies,.                      484
under the Confederacy,.                484
under Washington,.                     485
Present postal regulations,.....  487
The post-office a part of the government, and not privately liable to individuals,....       5o8
Doctrine of innocence as applied to postal matters,.    5Io
As applied to telegraph companies,...   5 I-513












T H E
LAWNN OF LITERATURE,
INTRODUCTORY.
I ITELLECTUAL Property-that is, the proper, y existing in Thought, Expression, Sentiment
and Language, —in like manner with all other sorts
and kinds of property, must find its origin in
-Natural Law v.
As to what is Natural Law, learned men have,differed widely. Some have defined it to be the
primal will of the Creator,' while others claim that it
is nothing more than the tacit consent of mankind.'
But as to its being the source of this right of prop-,erty for which we are seeking, all appear to be finally
agreed.
2. Property may be defined as anything which is
not common to all mankind: which belongs to a less
number of individuals than the whole human family,
and which may be transmitted and set over at will by
its owner or owners, to others, who would, in their:turn, become its owners and possessors.
3. This property may exist in whatever is CAPABLE
OF OCCUPATION; the surface of the globe, and everything
upon it which it is possible to occupy, is, therefore, a
2 Kent Com. 320.
2 Grotius Droit de la Guerre (ed. Basle, I846), liv. 2, ch. 2,
~ Io, to-m. i. Puffendorf, i. 404; Vat. i. T.
I




2           LA W  OF LITERA TURE.
egitimate subject of property. That surface itself,
consisting of solid earth, or rock, or mould, or shifting
sands, may be divided up into parcels and become the
property of individuals, together with such sheets or
portions of water as are included in the boundaries
thereof. But the ocean cannot be occupied. No
boundaries other than its own can ever be given to
it. No limits or marks of proprietorship can ever be
fixed or impressed upon its surface. Neither are the
air, or the light, or the warmth of the sun, capable of
occupation (although the right to enjoy them by
means of windows or apertures is often the subject of
municipal or personal right or license, just as
human life and liberty itself, is sometimes taken or
restrained by the law of the land or the policy of
States); and so the ocean, the air, the light, the
warmth of the sun, can never be the subjects of
property.
4. Up to this point, a definition of property has
not been either difficult or obscure. When we encounter, however, a claim to a property in ideas, and
sentiments, and expressions, clothed in language,(which appears to be as much the common highway
of the thoughts, as the ocean is the common highway
of the commerce of nations),-it is necessary to pause
and inquire whether that claim can be established
under the rule that we have laid down. If it can be,
then the right of Literary Property can be easily
demonstrated. If it cannot be, then the right must
fall.
"Occupancy," says Blackstone,' "is the taking
possession of those things which before belonged to
nobody. This is the true ground and foundation of
all property,.... of holding those things in severCom. ii. 257.




INTROD UCTORY.                     3
alty, which by the law of nature, unqualified by that
of society, were common to all mankind. But when
once it was agreed that everything capable of ownership should have an owner, natural reason suggested
that he who could first declare his intention of appropriating the thing to his own use, and-in consequence
of such intention actually took it into possession,
should thereby gain the absolute property of it;
according to that rule of the law of nations, recognized by the laws of Rome, quod nullims est, id
rationze naturali occupanti concedilur."'  And, after
proceeding to examine in detail the various kinds of
title by occupancy, the great commentator arrives at
the very species of property we are considering, and
says: 2 "There is still another species of property
which (if it subsists by the common law3), being
grounded on labor and invention, is more properly
reducible to the head of occupancy than any other;
since the right of occupancy itself is supposed by Mr.
Locke4 and many others,5 to be founded on the personal labor of the occupant. And this is the right'Fl. xli. I, 3.' Com. ii. 405.'The doubt expressed by Blackstone, was in deference to
the two great literary property discussions in the House of
Lords and elsewhere, which at the time this lecture was
written, agitated all England, embalmed in the two causes
celebres of Millar v. Taylor and Donaldson v. Becket (to which
we shall have occasion to make constant reference in these
pages), and in the great learning and eminence of the judges
therein concerned.
4 On Govt. part 2, ch. 5. The labor of a man's body, and the
work of his hands, we may say are properly his. Whatsoever,
then, he removes out of the state that nature hath provided,
and left in it, he hath mixed his labor with, and joined to it
something that is his own, and thereby makes it his property. But see the force of this reasoning doubted by Christian, note to Blackstone, ii. p. 8.'B1. Com. ii. 8; B1. Com. ii. 3-8, 258.




4           LA W  OF LLTERA TURE.
which an author may be supposed to have in his own
original literary composition, so that no other person
without his lave may publish or make profit of the
copies. When a man, by the exertion of his rational
powers, has produced an original work, he seems to
have clearly a right to dispose of that identical work
as he pleases, and any attempt to vary the disposition
he has made of it, appears to be an invasion of that
right."
What can be more emphatically a man's own than
his own ideas? If anything is peculiarly and particularly his, it would seem that these must be. If there
is anything in which others cannot, from the nature
of things, share, would it not seem to be the creation
of a man's own brain?  "True," the answer to this
might well be, " but to claim a property in anything,
you have already stated that you must be able to set
bounds to it; to occupy it, to set up distinguishable
and proprietary marks. Now, ideas are not capable
of visible possession.   They have no visible corporeal surface upon which to erect landmarks and
limits. Their existence is in the boundless mind
of man. They are incapable of acquisition, possession, or enjoyment, save by mental apprehension and
mental retention.   And  once communicated  to
others, how can you enforce, even if you had been
able to subject them to, proprietary rights? How
can you force those who receive them from you to
forget them as fast as received? You may teachyou may force a man to remember. How will you
teach or force him to forget?1
IWhen Simonicles offered to instruct Themistocles in an
art to improve the memory: " I had rather," replied Themistocles, "be taught how to forget. Things I am most unwilling
to remember, these I have no power to forget." P1. 3.




INTR OD UC TOR Y.                 5
To this, as we shall see further on, the rejoinder
will most likely be, that as soon as the ideas are
written down or printed in words, the words become
the bounds, and the landmarks, and the warning to
trespassers. If they are written upon a manuscript,
the manuscript is the author's, and a property in him.
If they are printed and published, the purchaser of a
copy of the book, though he owns the corporeal thing
which he has purchased, has no right to multiply
copies of the ideas therein contained, to the injury
of the author who wrote it.'
5. But conceding even to Blackstone's high authority, that ideas can be the subject of occupancy, a
fresh difficulty arises. Admitting the right of a property in every individual in his own thoughts, while
they continue and remain locked up in his own brain
and in his own mind, does not the author, by imparting those ideas to his neighbors through the medium
of the several forms of publication in his power, relinquish his own exclusive occupancy and give
them the right (as he certainly does the means) to
enter in and possess as tenants in common with himself? How can he expect, after he has induced them
to read his sentiments in his book; to hear his
opinions as he pronounces them from the rostrum, or
to view his conceptions of beauty or of nature, as he
spreads them upon canvas before their eyes, that he
shall still be alone and single in the possession of his
The questions as to the rights of owners of a manuscript
as contradistinguised from the rights of the purchaser of a
book, will be treated in their place, further on. It is only
necessary to notice here, that while the purchaser of a manuscript is generally supposed to have the right to publish its
contents, whether copyrighted or uncopyrighted, the purchaser
of a published book if uncopyrighted, may print its contents,
but if copyrighted he may not.




6.          LA W  OF  LITERA TURE.
own sentiments, opinions, or conceptions?  Has he
not had his choice between abandoning them, and
keeping them to himself? Is it consistent that a
man should scatter coins among an eager and scrambling crowd, and at the same moment proclaim, with
uplifted voice, that they are his, and a warning to
those who touch them? It is the answer to these
and the like questions that has been attempted in the
following pages.
Without going into the nice and somewhat finical
questions' suggested by Lord Camden in his famous
argument against literary property: without asking
whether if, when published, a purchaser can lend his'" When published, can the purchaser lend his book to his
friend? Can he let it out for hire, as the circulating libraries
do? Can he enter it as common stock in a literary club, as is
done in the country? May he transcribe it for charity? Then
what part of the work is exempt from this desultory claim?
Does it lie in the sentiments, the language and style,. or the
paper? If in the sentiments or language, no one can translate or abridge them. Locke's Essay might, perhaps, be put
into other expressions, or newly methodized, and all the
original system and ideas be retained. These questions show
how the argument counteracts itself, how the subject of it
shifts, and becomes public in one sense, and private in
another; and they are all new to the common law, which
leaves us perfectly in the dark about their solution."
"And how are the judges, without a rule or guide, to
determine them when they arise, whose books and studies
afford no more light upon the subject than the common understandings of the parties themselves? What diversity of
judgments! what confusion in opinion must they fall into!
without a trace or line of law to direct their determination!
What a code of law yet remains for their ingenuity to furnish,
and could they all agree in it, it would not be law at last, but
legislation.
" But it is said that it would be contrary to the ideas of
private justice, moral fitness, and public convenience, not to
adopt this new system. But who has a right to decide these
new cases, if there is no other rule to measure by but moral
fitness and equitable right? Not the judges of the common




INVTR OD UC TORY.                    7
book to a friend,-can he let it out for hire? can
he transcribe it for charity? is there any implied
contract between the person who sells, and the person
law, I am sure. Their business is to tell the suitor how the
law stands-not how it ought to be; otherwise each judge
would have a distinct tribunal in his own breast, the decisions
of which would be irregular and uncertain, and various as the
minds and tempers of mankind. As it is, we find they do not
always agree; but what would it be where the rule of right
would always be the private opinion of the judge, as to the
moral fitness and convenience of the claim? Caprice, selfinterest, vanity, would by turns hold the scale of justice, and
the law of property be indeed most vague and arbitrary. That
excellent judge, Lord Chief Justice Lee, used always to ask
the counsel, after his argument was over,'Have you any
case?' I hope judges will always copy the example, and
never pretend to decide upon a claim of property without
attending to the old black letter of our law, without founding
their judgment upon some solid written authority, preserved
in their books, or in judicial records. In this case I know
there is none such to be produced."-I7 Parl. Hist. 998, 999.
"No man has a right to give an author's thoughts to the
world, or to propagate their publication beyond the point to
which he has given consent. His reputation is concerned,
and he has a right to defend it. This is natural justice, and
dictated by reason; consequently, as Lex est ratio sunmma, que
jubet gquo sunt utilia et necessaria et contrari'a prohibit (Co. Lit.
319, 6; Jenk. Cent. 117), we may obviously assume that,
though copyright as a species of property, was, in a strictly
accurate sense, known to the common-law, yet, " the novelty
of the question did not bar it of the common-law remedy and
protection " (4 Burr. 2345). lNihil quod est contra rationera est.iciturn (Co. Lit. 97, 6). Son le ley donc.chose la ces done remedie
a venir a ceo (2 Roll. R. I7). In nova casu, novurm remiedizm
*acpponendum est (2 Inst. 3). Distinct properties were not adjusted at the same time and by one single act, but by successive degrees, according as either the condition of things
or the number and genius of men seemed to require. When
once established, the same law which pointed out and settled
the line of demarkation commands the observance of everything that may be conductive to the end for which these
various boundaries were erected. " Negquauarm antem omnes
res," says Puffendorf (De Jure nat. et gen., lib. iv., civ., s. 14,
s. 6), "statim  ab initio huniani gencris, aut, ubique, Zocorum ex




8            J5LA W  OF  LI TERA TURE.
who buys a printed copy of a book? etc.,-it is,
apprehended that a clue to the whole difficulty will
be found in the simple consideration - founded
in the same natural law, or, at least, in (what
we have seen has been considered by some to,
be the same thing) the common consent of mankindthat property is support, income, means of livelihood;.
that by a man's property he must subsist, and that
from it he must produce his living, and the living of
those for whom the law has decreed he must provide.
6. For property, again, is capital. One man's capital may be in a certain number of acres or feet of
the earth's surface. Another's may be in houses, or
ships, or shares of stock, or money.  A  blacksmith's
capital may consist in the strength of his arm; a
dancer's, in the lightness of his limbs and feet; a contortionist's, in the suppleness of his joints and frame;
a scrivener's, in the nimbleness of his fingers; a musician's, in the acuteness of his ear. Would it not be
unjust and a hardship to decree that because the capital of still another citizen was in brains, that therefore he should be deprived of the living which is to
be earned by all of these?
Lord Camden, indeed, in the argument 1 to which
definito aliquo pracepto Juris naturalis debuerunt proprietatem  subire; sed hec est introdulcta, prout par mortalium id reqztirere visafuit."-Copinger on Copyright, p. 3.
1 Delivered in the House of Lords, in answer to Lord Mansfield, in Millar v. Taylor: " If, then, there be no foundation
of right for this perpetuity by the positive laws of the land, it
will, I believe, find as little claim to encouragement, upon
public principles of sound policy or good sense. If there be
anything in the world common to all mankind, science and
learning are, in their nature, ptublici juris, and they ought to
be as free and general as air or water. They forget their
Creator, as well as their fellow-creatures, who wish to
monopolize his noblest gifts and greatest benefits  Why did
we enter into society at all but to enlighten one another's




IN TRODUCTORY.                      9
allusion has been made, disclaimed, with aristocratic
bitterness, the idea that any one worthy to write at
all, should write for bread.  " Glory," he exclaimed,
minds, and improve our faculties for the common welfare of
the species? Those great men, those favored mortals, those
sublime spirits, who share that ray of divinity which we call
genius, are intrusted by Providenee with the delegated power
of imparting to their fellow-creatures that instruction which
ITeaven meant for universal benefit; they must not be niggards to the world, or hoard up for themselves the common
stock. We know what was the punishment of him who hid
his talent, and Providence has taken care that there shall not
be wanting the noblest motives and incentives for men of
genius to communicate to the world those truths and discoveries which are nothing if uncommunicated. Knowledge
has no value or use for the solitary owner; to be enjoyed, it
must be communicated.' Scire tuum nihil est, nisi te scire eoc
sciat alter.' Glory is the reward of science, and those who
deserve it scorn all meaner views. I speak not of the scrib
blers for bread, who tease the press with their wretched productions; fourteen years is too long a privilege for their
perishable trash. It was not for gain, that Bacon, Newton,
Milton, Locke instructed and delighted the world; it would
be unworthy such men to traffic with a dirty bookseller for so
much a sheet of a letter-press. When the bookseller offered
Milton five pounds for his Paradise Lost, he did not reject
it and commit his poem to the flames, nor did he accept the
miserable pittance as the reward of his labor. He knew that
the real price of his work was immortality, and that posterity
would pay it. Some authors are as careless about profit as
others are rapacious of it; and what a situation would the
public be in with regard to literature, if there were no means
of compelling a second impression of a useful work to be put
forth, or wait till a wife or children are to be provided for by
the sale of an edition! All our learning will be locked up in
the hands of the Tonsons and the Lintons of the age, who
will set what price upon it their avarice chooses to demand,
till the public become as much their slaves, as their own
hackney compilers are."-I7 Parl. Hist. 999, Iooo.
Lord Camden, however, seems to have been wrong in his
facts. It seems that it was only for an immediate payment of five
pounds (in those days not such a very inconsiderable sum,
either), that Milton sold his copy to Samuel Simmons in
i667. The agreement with Simmons besides entitled him to




To           LA W  OF  LITERA TURE.," is the reward of science, and those who deserve it,
scorn all meaner views." But, unfortunately for Lord
Camden, among the class whom he designated as
a payment of five pounds more when thirteen hundred copies
should be sold of the first edition; of the like sum after the
same number of the second edition; and of another five
pounds after the same sale of the third edition. The number,of each edition was not to exceed fifteen hundred copies. In
two years, Milton appears to have signed a receipt on the 26th
of April, I669, for the second payment.  The second edition
was not printed till i674, and Milton did not live to re*ceive his third payment.  The third edition was published in i678; and his widow agreed with Simmons to
receive eight pounds for her right, as appears by her receipt,
dated December 2I, i68o; and she gave him a general release,
April 29, 168I. Simmons sold the copyright to one Braba-,son Aylner for twenty-five pounds, and Aylner sold it in
i633 to the publisher Johnson, who appears to have excited
his Lordship's displeasure (Todd's Life of Milton, 193-I95.
London, 1826.).  In commenting on these facts, Mr. Curtis,
in his valuable work on Copyright (Boston, I847, p. 63),
remarks with great propriety, " It thus appears that the poet
was very careful to assert his full right of property, as he and
others understood it at the time, and to make it available to
his family. The amount which he chose to receive, compared
with the real value of the poem, measured by a modern
standard, seems very trifling. But as such rights were estimated then, and considering that the poem gained slowly
upon the attention of his own age, it was not a grossly
inadequate price. When it had been published fourteen years.and upwards, the copyright between one bookseller and
another brought only twenty-five pounds. Yet its value could
not have been affected by any apprehension at the time of this
sale that it was not protected by common law.  Such a notion
had not then arisen: and long after, viz., in I739, Lord Hardwicke protected by injunction, the title of Tonson, derived
under the assignment made by the poet in i667.  Doubtless
Milton did not write his grand poem for money; but we have
seen that he supposed the right of exclusive property in
authors was acknowledged by the law of his country, and he
took pains practically to assert the right in his own case. It
seems to me by no means a wild conjecture that he did this
for the sake of example, as well as in order to preserve his
reputation, by keeping the control of his own poem."




V TROD UC TOR Y.                  I I
"scribblers for bread," the greatest names in literature,
and the profoundest benefactors of their race, have
been numbered.  The literature of the world has
been written in garrets, no doubt; but to a noble
mind, the poverty of a man of letters would seem  an
argument the more, instead of an argument the less,
for protecting him in the possession of his own,
however small and meager. Lord Camden appears
to have been one of those who would have given
more abundantly to him that had already, and from
him that had not, have taken away even that he
had!
7. Assuming, then, that the author's means of support is in the employment of the capital which he
possesses in his own brain, we purpose devoting the
following pages to a consideration of the means by
which the law will permit him to make that capital
available for the purpose. For it is the policy of the
law to encourage every man to provide his own livelihood, and not to become a burden upon his neighbors, or upon the State.2'If any author does write " for glory," it probably is the writer
of a legal text book, since, it seems, that a law writer is not to be
considered an authority in his own lifetime. (Reg. v. Son, 2
Den. C. C. 475; 6 Cox's. C. C. I; i6 Jur. 746; I4 Eng. Law
& Eq. R. 556; i Ben. & H. Lead GCas. 400; 3 Bing. 259; Reg.
v. Drury, 3 Cox's C. C. Ist Rep. Eng. Corn. Law Commissioners.) So, unless he write for purely literary purposes, he
may be supposed to speak to posterity alone!
M General convenience is a principle of legal judgment.
(4 Durn. & E. 243, 245; I Taunt. 366; i Eden, 230; i W. B1.
I66; 3 Barn. & Cr. i56.) Non solam quod licet, sed quid est.onvcniens est considerandunm.  (Co. Lit. 660.)  Convenience
may be used, " not indeed so as to control the law, but as a
guide in doubtful cases, and upon untrodden ground." (King
v. St. Catherine's Hall, 4 Durn. & E. 233. Sadgrove v. Kirby,
6 Id. 483.) Argumentum ab in convenientiplurimun valet in lege.
(Co. Lit. 66a.)  The argument of inconvenience is, under




12           LA W   OF  LITERA TURE.
8. The right of property is a right dual in its
nature.  It is the right of the owner of possessionsfirst, to use and enjoy the thing possessed, unrestrictedly and indefinitely (subject only to the maxim
sic ztere2), and secondly, to prevent and exclude
others from  the use of it without his license;' and
this dual right continues in the owner, until he shall
voluntarily alienate and part with his possession.
The possessor of literary property' enjoys this
two-fold right in common with the possessor of each
and every other sort of property. Nor will the law
attempt any discrimination between his case, and the
case of any other owner of chattels. It does, indeed
-as seems necessary from the peculiar nature of the
thing to be protected-ordain distinct and particular
methods to be observed in securing it; but the right
many circumstances, allowed to avail to this extent, that the
law will sooner suffer a private mischief than a public inconvenience.  Lex cetz'us ltoerare veelt priva/ztmn danvzum qn am
publicum malzvm. (Co. Lit. I52, c., and see Ram's Science of
Legal Judgment, pp. I I-I I 7.)
1 Traites de Legislation (Dumont), 95.
Sic u/ere luo ut aLienvu  non ledas (9 Rep. 59; Broom. Log.
Max. 328). See, however, this maxim doubted in Bonomi v.
Backhouse (27 L. J., N. S.; 388 Q. B).
3 Austin Jur. iii. i9.
4 "There is still another species of property which (if it
subsists by the common law), being grounded on labor and
invention, is more properly reducible to the head of occupancy than any other; since the right of occupancy itself is
supposed by Mr. Locke (on Govt., part 2, ch. 5) to be founded
on the personal labor of the occupant. And this is the right
which an author may be supposed to have in his own original
literary composition; so that no other person, without his
leave, may publish or make profit out of the copies. When a
man, by the exertion of his rational powers, has produced an
original work, he seems to have clearly a right to dispose of
that identical work as he pleases, and any attempt to vary the
disposition he has made of it, appears to be an invasion of
that right." —i Black. Com. p. 405.




IN TROD UC TOR Y.                 13
to own and to dispose of literary property for value,
seems never to have been doubted or denied.
9. The first recorded sale of intellectual property
was by Homer, who delivered his Tliad at feasts and
celebrations, for his own support; receiving, probably,
in those early days, not money, but food and
presents.
This right of authors to the profit arising from the
sale of their original labor, is of frequent mention by
the classic writers. Juvenal, lamenting at the same
time the impecuniosity of his craft, and the nonlucrative character of literary fame, alludes to it:
"' Sed, quum fregit subsellia versu
Esurit, intactum Paridi; Nisi vendat Agave."'
So Martial,' Sunt quidam, qui me dicunt non esse Poetam
Sed, que me vendit, bibliopola putat." 
So also,
" Constabit nummis quatuor emta tibi
Quatuor est nimium; poterit constare duobus
Et faciet lucrum bibliopola Tryphon." S
And again,
"Exigis, ut donem nostros tibi, Quincte, libellos
Non habeo, sed habet bibliopola Tryphon.
2Es dabo pro nugis, et emam tua carmina sanus?
Non, inquis, faciam tam fatue: nec ego! "4
Juvenal, Sat. vii. 86. " But, while the very benches groan
under the applause with which his verses are received, he will
starve unless he sells to Paris his as yet unpublished Agave."
2 Martial, Epig. xiv. 194 [I92 in Ed. Paris, 1754, and see Id.
lib. i. Ii7 (II8)]. " There are some who say that I am not a
poet; but the bookseller who sells me, thinks I am."
3 Martial, Epig. xiii. 3. " The whole multitude of presents
contained in this little book will cost you, if you purchase it,
four small coins. If four is too much, perhaps you may get
it for two; and the bookseller, Trypho, will even then make
a profit."
Martial, Epig. iv. 72. "You beg me, Quintus, to present




14          LAW   OF  LITERATURE.
But the songs of Homer were written only in his:
memory; while  those  published works to which
Martial and Juvenal allude so much later, were only
themselves neatly-copied manuscripts, written upon
one side' of slips of parchment, and wound upon
smooth sticks for preservation.
While literary matter was preserved  by such
methods as these, copyright acts were unnecessary.
It was only when the invention of printing made a
multiplication of copies of the author's work practica —
ble and profitable, that statutory forms and observances became necessary. Such statutes coming to
aid the unwritten law, in protecting-not a peculiar
right-but a peculiar kind of thing possessed.
Literary property is a property in ideas; and the
sole right of their author to their use and enjoyment,
it was the intent and spirit of the Roman Law,' as
well as it is of the common and statute law, to recognize not only, but to make absolute and secure.
I0. "Si in char/zis membranisse tuzs carmen ve/
hisloriam, ve? oraiotzzem Tzi/zus scriyzserit, hzajus corporis non Titius sed tI dominus esse videris," said the
Institutes,' and ever since, all arguments in support
of the rights of learned men in their works, havebeen heard, as Lord Kenyon said they always must
be  heard, "with  great favor by men  of liberal
minds."
To make the laws of recognition of literary prop —
you my works. I have not a copy; but the bookseller,
Trypho, has. Am I going to give money for trifles, and buyyour verses while in my sober senses? I shall not do anything so ridiculous. Nor shall I."'Hor. Sat. i. Io, 72.
Inst. 2, I.. And so by decreeing to whom sentiments
should belong, the Institutes recognized a property in such
sentiments. 27 1. R. 627.




INTROD UC TOR Y.                  I 
erty available, then, it becomes necessary, from the
nature of things, that these ideas should be put into
some tangible and material form.'
The law can not deal with purely invisible mat —
ters.  It can enforce, indeed, the subject's right to
walk in the public streets, or over the King's highway; but only inasmuch as-though the franchise is
immaterial-the street and the highway are material
and tangible, so that the law can exercise its jurisdiction over them in ren, if necessary, in enforcing that
franchise. And so, when an author's ideas are written
down upon a substantial substance, or a visible, tangible
surface, the law will, from that instant, recognize and
protect them, and whether the idea so written down
be in the form of a manuscript, a drawing, a book, a
plan, or a picture, it will equally decree that its author
and originator shall thenceforth deal with it as he
pleases, to the exclusion of all others, until he voluntarily parts with his title so to do.
I I. It seems, on the other hand, that the law will
make no effort to take cognizance of any ownership
in ideas not written down, or otherwise embodied in
material form.' Were the blind father of poetry wandering in our streets to-day, chanting his divine songs,
It is a well known and established maxim, which I apprehend holds as true now as it did two thousand years ago, that
nothing can be the object of property which has not a corporeal existence. Per YATES, J., in Millar v. Taylor, 4 Burr.
263I.
2 Among the many intricate and interesting questions which
a student of the law of literature can foresee in the future
dealing of courts therewith, is the right- if any - of an
ex temjpore speaker (for instance) to restrain the publication of
his efforts. Such protection would be, indeed, but a step in
advance of the present position of courts, which have latterly,
as will been further on in these pages, gone to great lengths
to protect authors in their properties.




i6          LA tLAW  OF  LITERA TURE.
the law could not secure any by-stander who had
listened to them, from chanting them over again himself, for hire.  Nay, more, it has been held that the
law will not protect ideas or sentiments, even after
they have once been written down, from being carried and conveyed-so that they be not carried and
conveyed in some material form-to the use of others
not their proprietors. Thus, it has been said that the
law will not interfere to prevent an author's ideas
from being transported in the memory of one who
has heard them repeated; should their author, or
another, have announced or repeated them in conversation or by natural speech.' It is not that the right
of the individual to his own thoughts or conceptions
is not the same in one case as in the other: the difference would appear to arise solely from the. impossibility of protection, for the law is a practical science,
and recognizes no right which it cannot enforce or
protect.  For it is one of its maxims that iifrjs uzbi
remnediZm.2
I2. The twofold right of an author to his literary
property,' consisting, I. in his right to publish, and
2. in his right to enjoy, we have said is the same as
his right to any other possible possession. There is,
however, one difference; from grounds of public
policy, which is the supremest law, it would appear that
the right to enjoy has been limited by the statute as
to duration and time.4'Coleman v. Wathen, 5 T. R. 245. Wallack v. Williams,
Sp. T. N. Y. Sup. Court, i867 (unreported, but see post
chapter on Dramatic Copyright); Palmer v. De  Witt, 7 Amer.
480; 47 N. Y. 532.
2 Broom. Leg. Max. i8o.
Copyright is not of a simple, but a complex nature,
involving two conditions: one of publication, the other of
exclusion. Prince Albert v. Strange, 2 DeG. & Sm. 674.
Vide chapter on Copyright.  Subject to certain copy



IV TROD UC TOR Y.'7
For it would seem that, just as the owner of lands
and houses pays to the state a certain percentage
of their value, as his contribution to the wealth and
power of the government whose protection he enjoys;
so is it but fitting that after the author shall have
enriched himself from  the store of his own culture
and thought, that culture and thought should pass
into the general fund of the culture of the commonwealth and enrich the stores of art and learning of
his mother land, to which, as the Greek poet said, he
owes the whole honor of his rearing.'
For the writings of an author belong to the history
of his race-to the history of the thought and culture
and speculation of his country; and even though his.
own self-love or vanity might lead him to suppress
what to his maturer judgment appears crude or feeble,
or though time or circumstance may have led him to
alter his views and opinions,' neither his contemporaries nor posterity will be interested other than in
his work as a part of those common intellectual stores
which they have inherited as citizens of the same
soil.
right, deemed sufficient to encourage genius and learning,
n. published book is the heritage of the public, and can
not be taken from them by the author himself.  Letters on
Literary Copyright, Hotten, p. I I4.
Euripides.
"Glory is the reward of science, and those who deserve it
scorn all meaner views....  It was not for gain that
Bacon, Newton, Milton, and Locke instructed and delighted
the world. When the bookseller offered Milton five pounds
for his Paradise Lost, he did not reject it and commit his
poem to the flames, nor did he accept the miserable pittance
as the reward of his labor; he knew that the real price of his
work was immortality, and that posterity would pay it."Lord Camden's Argument against Literary Property.
2 See the case of Southey v. Sherwood, 2 Meriv. 434, where
the poet sought to restrain the publication of one of his
2




I8s         LA ~LAW  OF  LITERA TURE.
I3. In the examination of this right to literary
property as affected or controlled by this public policy
of limitation, it appears convenient to inquire first, in
what and in whom the ownership of literary matter
may exist at all, and, having settled that, to proceed
to observe the simple division of the subject intoI. Property in literary composition before publication; and
II. Property in literary composition after publication.
With the single exception which obtains in the
case of literary productions whose sole value would
seem to arise from the power of their author to
prevent their appearance in print,-(as, for instance,
lectures, plays, songs, &c.),-it will be found that the
right to such property before and up to publication,
mainly exists by common law; and that, upon and
after publication there arises by virtue of statute, a new
earliest manuscripts upon the ground that his own opinions
and tastes had changed since preparing it.  And see Mr.
Hotten's fourth letter to Earl Stanhope, "Lord Macauley
and the Pirates," in which he concludes: " Lord Eldon, for
example, in the case of Gee v. Pritchard,'repudiated, and
that most distinctly, any notion of interference by the court
of chancery with a publication, simply because it might
wound feelings,' and as Mr. Phillips says (Law of Copyright,
p. 36):'It seems abundantly clear that except upon the
ground of property or of breach of contract or trust, an
English court of law or equity will not give relief in the case
of an unauthorized publication.' The reason of this, of course,
is, that private feelings, however commendable in individuals,
ought not to be permitted to interfere with public rights. With
so many motives for suppression and modification of by-gone
speeches, as every active statesman must experience in later
years, it is indeed intelligible enough why so few of such
publications are issued. It might even be argued that the
author of such speeches is himself the worst person to be
allowed to revise them, for the reason that the motives for
tampering with their historical truth and accuracy are presumptively stronger in him than in any other person."




INTR OD UC TOR Y.                 Ig
form of right, which, while neither extinguishing nor
impairing the right in remv of the author in the
unpublished book or manuscript, operates, when invoked, to protect his title in the sentiments, ideas,
and expressions which they contain, in their circulation beyond his manual reach, after they have been
given to the world.
The right by statute is called COPYRIGHT.
I4. Statutes of copyright do not grant monopolies;
-they are only protectory legislation against trespass on
the rights of authors. " Not that," as a layman' has
well said, " writers are a more important body than
many others, but because it gives the state more
trouble to keep thieves off their productions than off
those of other skilled laborers; and also because it'It was held, formerly, in Millar v. Taylor (in R. B. Pasch,
1759), that an exclusive and permanent copyright, in authors,
existed by the common law; but afterwards, in Donaldson v.
Becket (before the House of Lords, 22d Feb., I774), it was
held to exist only by statute and during the statutory period!(i B1. Com. 405,,id. Jeffreys v. Boosey, 44 L. Gas. 815; 3 C.
L. R. 625; I Jur. N. S. 615; 24 L. J. Exch. 8I). The right
and property of an author or a composer of any work, whether,of literature, art, or science, in such work, unpublished or
kept for his private use or pleasure, entitle him to withhold
the same altogether, or so far as he may please, from the
knowledge of others, and the court of chancery will interfere
to prevent the invasion of this right by the publication of a
catalogue containing a description of such work (Prince
Albert v. Strange, I Mac. & I. 25; I H. & S. I; 13 Jur. iog;
i8 L. J. Chanc. I20; vid. also, Broom. Leg. Max. 326).
The property of an author in an unpublished work exists
independently of the statute (Southey v. Sherwood, 2 Mer..435; S. P. Tonson v. Collins, i W. B1. 30I; Palmer v. De
Witt, 7 Amer. 480; 47 N. Y. 532).
The right to own his (an author's) property is fromn com-,mon law; the right to multiply copies is conferred by statute.        The right of property in literary matter has
never been and never can be impaired by the passage of copyright laws (Palmer v. DeWitt, 9 Amer. 480; 47 N. Y. 532).




20         LAW  OF LITERA TURE.
needs a superior intelligence to see that ideas and
woven words can be made property, and that they
must be, or else their authors outlawed, degraded, and
starved, and the community suffer in the end."1
Mr. Charles Reade-" The Eighth Commandment," p. 7.




BOOK I.
IN WHAT AND IN WHOM PROPERTY IN LITERARY COMPOSITION MAY EXIST.
CHAPTER I.
OF  INNOCENCE.
I5. THE great exception which arises to this right,of property which we have been considering, is that
it will not be protected by law, in things not innocent
in their nature.
It is a cardinal principle of the common law that:nizhil quod es  i4nconveniens est lici'tm,' or, as Lord
Truro stated  it, "No  subject can  lawfully do that
which has a tendency to be injurious to the public
good, which may be termed, as it sometimes has been,'the policy of the law,' "" 2 and therefore the law, ever:solicitous for the moral as well as the physical safety
of its subjects, will refuse its protection to a vicious,
immoral, or otherwise harmful publication.
i6. It seems particularly fitting that the author
1 Co. Lit. 66 a; 97, I78 a; 258, 6; Broom Leg. Max. 328.'This doctrine certainly needs some qualification, and a quali-fication, perhaps, receives from  that learned writer (Coke)
when he says: " Qud est inconveniens non permnissumn est in lege.
An argument ab inconvenienti is forcible in law. Argumentum
ab inconvenienti est validurn in lege, quia lex non permittet aliquod
inconveniens."  Id.; and see Ram's Science of Legal Judgment, Am. ed., p. 114, ante, p. II, note 2.
s Egerton v. Brownlow (4 H. L. Cas. I96).




22          LAW   OF  LITERA URE.             [CH. 
should regard with careful circumspection this policy
and doctrine of the law. On its part that law has,
given him  the power of speaking to an audience
bounded only by the limits of the language itself; and,,
at the same time, of retaining his hold upon the
words and thoughts which have floated so far beyond
him. It asks on his part, in return, that he use not
this vast power and influence to the injury and harm
of his fellow-citizens.
By common law, then, there can be no literary
property in compositions which are not innocent in
their nature, and the first test, to be applied to the literary or scientific matter in inquiring whether or not
it can be the subject of ownership is, is it innocent?
I7. The discrimination between lawful and un —
lawful publications in respect to innocence, has never
been made a statutory one. None of the English or
American copyright statutes expressly enact anything
of the sort, or make any allusion whatever to the:
moral character of the subject-matter of a book. But
over and above them the doctrine of public policy
and of common law prevails; and the courts of the
land have power over works injurious or dangerous to
the public good, after their copyright, as well as before;.
over the registered and copyrighted volume, as well
as over the written manuscript. And this is one case,
at least, in which statutes have not interfered with
the conditions of literary ownership at common law.''The element of innocence is peculiar to common-lawcountries. Its consideration does not enter into the copyright jurisprudence of France. All works in that country
are equal before the law, without reference to their character
(Renouard Droits des Auteurs, tom. 2, p. 94). And yet, in no
country is the censorship of the press so watchful and exacting, and nowhere does the punishment for seditious or quasi'
seditious utterance in print meet such swift and rigorous.
punishment as in France.




CH. I.]         OF  INNOCENCE.                  23
This doctrine of innocence is mainly a negative
one, however, and its enforcement by courts will
be mainly in the negative form of a refusal to recognize, and not of an absolute sequestration or condemnation of the improper composition. In the case,
as we shall presently see, of works so bestial and
obscene that there can be no possible doubt in the
mind of a decent person as to their disgusting nature,
the police regulation of the community will itself
take cognizance to suppress and destroy; but such
proceedings are statutory, and will not detain us here.
Such matter cannot well be literary, and therefore
cannot claim treatment in these pages.
I8. Owing to this negative nature of its supervision,
it may, and doubtless often does happen, that Equity
stands by with folded hands and silently regards the
publication of injurious and non-innocent matter,
mischievous in its tendencies and dangerous to the
public morals and the public peace. So, too, a man
might build a nuisance upon his land, or circulate
representations or statements which might induce
two of his neighbors to quarrel. In either case the
law might be blind and silent as to the irregularity
from the necessity of the case, or the impossibility of
interference, or in pursuance of a policy above the
individual. But it would be very rash and unsafe
to conclude from its silence that it would interfere
positively to protect the wrong-doer in his wrong.
The effect of the attitude of courts of equity
to matters of this nature is to throw the burden of
proof-where the burden ought always to be, in cases
of denial of any right of property presumably established by law upon the party intruding; in this case,
upon the party defending the piracy or denying
his liability for the piracy of a composition. It




24          LA W  OF  LITERA TURE.            ECH. I.
is for him to establish clearly that, notwithstanding
a prima facie title by copyright in the complainant,
there is no title in him, in reality, by reason of the
dangerous character or tendencies of the book.
"The soundness of this general principle," says
Mr. Justice STORY,1 can hardly admit of question.'The chief embarrassment and difficulty lie in the
application of it to particular cases. If a court of
equity, under color of its general authority, is to enter
upon all the moral, theological, metaphysical, and political inquiries which in the past times have given
rise to so many controversies, and in the future may
well be supposed to provoke many heated discussions;
and if it is to decide dogmatically upon the character
and bearing of such discussions, and the rights of
authors growing  out of them; it is obvious that
an absolute power is conferred over the subject of
literary property, which may sap the very foundations
on which it rests; and retard, if not entirely suppress,
the means of arriving at physical as well as at metaphysical truths. Thus, for example, a judge who
should happen to believe that the immateriality of the
soul, as well as its immortality, was a doctrine clearly
revealed in the scriptures (a point upon which very
learned and pious minds have been greatly divided),
would deem any work anti-christian which should
profess to deny that point, and would refuse an injunction to protect it. So, while a judge who should
be a Trinitarian, might most conscientiously decide
against granting an injunction in favor of our author,
enforcing  Unitarian views, while another judge of
opposite opinions might not hesitate to grant it."
Great care is, therefore, to be observed in the
application of this rule of the law. "In equity," says
i 2 Eq. Jur. ~ 936, n. 2.




CH. 1.3          OF  INNOCENCE.                    25
Curtis,' "The sounder rule would be to refuse no
-injunction when the book is not illegal'upon
the face of it."' "And we think that both law
and equity in this country would require the mischievous and harmful character of a book to be proved
with unmistakable clearness, before they would refuse
-to interfere in cases of piracy or infringement. The
burden of such proof will always be upon the infringer,;and he cannot be relieved of it by any disposition on
the part of the court to apply its own private opinions, doctrines, beliefs, or standards, to the publication
before it."  Prima facie, the copyright confers title,
and the burden is on the other side to show clearly
that, notwithstanding the copy, there is an intrinsic
defect in the title.2
19. It is submitted, however, that this principle
is to be applied only to published works. An immoral
or dangerous manuscript in the hands of its author is
not an instrument of evil to the state, and dangerous
to its morals or its peace,3 and its character cannot be
pleaded as against the right of its owner to be protected in its possession.  Where  the famous  Dr.
Priestly brought an action for the loss of certain
manuscripts, by the riotous proceedings of a mob at
Birmingham, although it was alleged (but not proved)
-that the contents of these manuscripts were injurious
to the government of the state, the court appears
-to have virtually held that the plaintiff was seeking
damages only for what might have been a source of
Curtis on Copyright, p. I65.
2 Id., p. i66. And generally upon this subject see Am.
Quarterly Review, April i822; 6 Petersdorff's Abridg. 560,
5 6 I.
3 Curtis on Copyright, p. i6o. Southey v. Sherwood, 2
Meriv. 434. And see Dr. Priestly's Case, cited in Wolcott v.
Walker, 7 Ves. r, and Shortt. L. L. p. 4.




26          LA W  OF  LITERA TURE.            [CH. I.
profit to him, like any other property. However,
there is a difficulty in this case which the traditional
reports do not help us in solving. It would seem that
the owner of matter libellous to an individual, at
least, will only be protected in his ownership by law, to
the extent in which the matter contains innocent
ingredients. So in the case where an artist exhibited
to the public, for money, a picture, called " Beauty
and the Beast," but which appeared to be a scandalous libel upon a gentleman and his wife, the defendant having destroyed the picture by cutting it in
pieces, and plaintiff having brought suit thereupon for
damages, Lord Ellenborough instructed the jury
to award the plaintiff merely the value of the canvas
and paint of the picture, and to disregard any other
value which it might possess.'
20. Any public libel is a seditious publication,
and, therefore, not innocent, and not entitled to the
protection of courts.  So a libel upon public justice,
said Lord Ellenborough in Hine v. Dale.' "If the
1Wolcott Du Bost v. Beresford, 2 Camp. 5II.
Iline v. Dale, 2 Camp. 27 (note), was an action for pirating
the words of a song called " Abraham Newland," published
on a single sheet of paper. It appeared that the song, though
pretending to be a panegyric upon money, was in reality a
libel upon the administration of British justice, and its object and tendency, not to satirize folly, but to excite the
people against the law, as was supposed to be apparent from
a single verse:
"The world is inclined
To think justice blind;
Yet what of all that,
She will blink like a bat,
At the sight of friend Abraham Newland.
Oh, Abraham Newland, magical Abraham Newland!
Though justice'tis known,
Can see through a stone,
She can't see through Abraham Newland! "




CH. I.]          OF  INNOCENCE.                    27
composition appeared upon the face of it to be a
libel, so gross as to affect the public morals, I should
advise the jury to give no damages. I know the court
of chancery on such an occasion would grant no
injunction.'
2I. The rule in England is uniform, that the law
will not class as innocent, works " contrary to religion
and truth,"' and a court of equity refused an injunction
to restrain infringement of the copyright of a work as
to which it appeared doubtful as to whether it did or
did " not intend to impugn the doctrine of the Scriptures."3  But it does not seem probable that courts in
the United States would carry the doctrine to this
extent.
The test as to whether or not a work is innocent,
was held by Lord Eldon to be "the possibility of
making it the foundation of a successful action at
law."'  "If the  doctrine," said  his lordship, "of
Chief Justice Eyre' is right,-and I think it is,1The author or publisher of a work of a libelous or of an
immoral tendency can have no property in it.  Stockdale v.
Onwhyn, 7 D. & R. 625; 5 B. & C. I73; 2 C. &P. I63. No
action can be maintained for pirating a work which professes
to be an account of the amours of a courtesan; and it is no
answer to the objection that the party is also a wrong-doer in
publishing it, and that he ought not therefore to set up its immorality.-Id.
2 Fisher's Digest of English Patent, Trademark, and Copyright Cases, art. Copyright.
3 Lawrence v. Smith, Jacob. 47I.
4 Southey v. Sherwood, I Meriv. 437.
5 In the case of Dr. Priestly (cited Walcott v. Walker, 7
Ves. I), on the trial of an action brought by him against a.
hundred, to recover damages sustained by him in consequence of the riotous proceedings of a mob at Birmingham,
amongst other property alleged by him to be destroyed,
he asked for compensation for certain unpublished MSS. It
was alleged, in defense, that the plaintiff was in the habit of
publishing works injurious to the government of the state




.28         LA W  OF  LITERA TURE.            [CH. I.
that publications may be of such a nature that the
author can maintain no action at law, it is not the
business of this court, even upon the submission in
the answer (defendants had admitted the piracy of
one edition) to decree either an injunction or an
account of the profit of works of such a nature, that
the author can maintain no action at law for the
invasion of that which he calls his property, but which
the policy of the law will not suffer him to consider
his property. If this publication is an innocent one,
I apprehend that I am authorized by decided cases to
say, that —whether the author did or did not intend to
make a profit by its publication-he has a right to an
injunction to prevent any other person from publishing it." "If, on the other hand, this is not an innocent
publication, in such a sense that an action would not
lie in case of its having been published by the author.and subsequently pirated, I apprehend that this
court will not grant an injunction." And the same
learned judge observes elsewhere:' "This court interferes by injunction; but not in cases where an action
cannot be maintained."
22. And not only will equity refuse protection to
such works of harmful and immoral tendency, but it
will go further, and decline to take any cognizance,of them whatever, treating them precisely as if they,did not exist. So, when one pirates and prints a
book which should never have been printed at all,
no protection will be given from, or action for, the
2
piracy.
but no evidence was produced to that effect. The lord chief
justice observed that, if such evidence had been produced, he
should have held it fit to be received as against the claim
made by the plaintiff.'Lawrence v. Smith, I Jacob. 472.
2Walcott v. Walker, 7 Ves. I; Southey v. Sherwood, 2




CH. I.]           OF  IVNNOCENCE.                     29,
The effect of chancery refusing an injunction, may
be, indeed, to render still more unlimited the piracy;:
but, although such would probably be the case, it is,
clear that chancery is powerless in the matter.'
" For," said Lord Eldon, "this court has no jurisdic —
tion in matters of crime."' It has been said that, if
Meriv. 435; Clark v. Freeman, II Beav. II7, Ii9; and vidt.
remarks of Cairns, J., in Maxwell v. Hogg, L. R., 2 Ch., app.
3i0; i6 L. T. N. S. I30; 36 L. J., 438 Ch.; and of Malin, V.
C., in Springhead Spinning Co. v. Riley, L. R., 6 Eq. 56I;.
19 L. T. N. S. 65; 37 L. J., 889 Ch.
Lawrence v. Smith, Jacob, 47I.
I Lord Chancellor Macclesfield, in Burnett v. Chetwood,
(cited from MS. in note to Southey v. Sherwood, 2 Meriv..
438), seems to have taken a different view of the province of
courts of equity in dealing with books of this character, hold —
ing " that the court of chancery had a superintendence overall books, and might, in a summary way, restrain the printing
or publishing of any that contained reflections on religion ormorality," and granting an injunction to restrain the publica —
tion of the translations of two Latin works, "Archaeologia
Philosophica," and " De Statu Mortuorum et Resurgentium,"
written by Dr. Burnett, on the sole ground that " inasmuch as.
the book contained to his (the chancellor's) knowledge (he
having read it in his study) strange notions, intended to be
concealed from the vulgar in the Latin language-in which
language it could not do much hurt, the learned being better
able to jtudge of it-it was proper to grant an injunction to the
printing and publishing it in English."  Lord Ellenborough,.
in dealing with the case of a libelous picture, in Du Bost v.
Beresford, 2 Camp. 51I, said that, "upon an application to
the lord chancellor, he would have granted an injunction
against its exhibition."  This dictum of Lord Ellenborough
seems to have excited the editor of Howell's State Trials,.
who says (vol. xx., p. 799): "I have been informed, by very
high authority, that the promulgation of this doctrine, relating'
to the lord chancellor's injunction, excited great astonishment in the minds of all the practitioners in the courts of
equity; and I had apprehended that this must have happened,.
since, I believe, there tis not to be found in the books any
decision or any dictum posterior to the days of the star
chamber, from which such doctrine can be deduced, either
directly, or by inference or analogy; unless, indeed, we are



30           LA W   OF  LITERA TJR.E.            [CH. I.
the injunction be refused, it has the effect of increasing the number of copies. The answer to that
is, I have nothing to do with it as a crime. The
question relates only to a civil right of property.
If the one party has that right, the other must not
invade it; if he has not that right, the court cannot
give him the consequences that belong to it.
In the much quoted case of Southey v. Sherwood,'
where the poet Southey sought to restrain the publication of his poem, "Wat Tyler," which had lain
for twenty-three years in manuscript in the printer's
hands, until he himself had forgotten its existence,
the same rule prevailed, and the poem being held of
too libelous a nature to merit protection, an injunction was refused.2
23. There seems, however, to be one exception, if
it be an exception, to this rule: and that is, if it appears that the publication will tend to the destruction
to except the proceedings of Lord Ellenborough's predecessors-Scroggs, and his associates-in the case of Henry Care,
in which case'ordinatuin est 9uod liber intitulat,' The Weekly
Packet of Advice from Rome, or the History of Popery,'non
ulterims inprimatur vel pubi'caltm per aliquam jersonam quamcunguse.'" The editor might have found another precedent for
what so surprised him, in Burnett v. Chetwood, cited ante.
12 Meriv. 435.
2 To the same effect was the ruling in Stockdale v. Onwhyn
(7 D. & R. 625). In that case an action was brought in the
court of king's bench, in i826, to protect a certain volume,
entitled, "Memoirs of Harriet Wilson," which, on examination, appeared to be a history of the life and amours of a
courtesan, containing anecdotes either libeling or ridiculing
the various persons with whom she professed to have communication. "The ground of this action," said Holroyd, J.,
" if any, must be that the defendant has worked an injury to
the plaintiff's exclusive right of publishing the book in question. Now, it is criminal in him to publish such a book.
Then he has no right to publish it; and having no right, he
has sustained no injury, and has no ground of action."




CI. I.]           OF  INNOCENCE.                     31
or deterioration of other property, courts of equity
will for the protection of such other property, take
jurisdiction to restrain the publication.'
Neither will equity regard as innocent, and interfere to protect obscene books, or theatrical exhibitions,
immoral and prurient in their character, even if copyrighted according to the prescribed formula.2 And
so where a spectacle styled the " Black Rook" was
shown unmistakably to be an infringement upon a
previously composed spectacle, "The Black Crook,"
it appearing that the latter was a notoriously immoral
and prurient production, equity refused its protection.
So it will be seen further on, when we come to
treat of personal libels by newspapers, and their right
to comment upon matters of public interest, that the
law will not regard as innocent an undue haste to
publish or to comment upon charges made against a
citizen before they are proved, though the editors
or newspaper proprietors will be allowed every
opportunity to show an absence of malice or a misinformation as to the authority of the proceeding.3
And so also a publication in a suit reflecting on a
court engaged in trying a suit, or upon the witnesses,
parties, or jurors, will be construed as non-innocent,
or, as this particular form of non-innocence is called,
"a contempt of court." 4' Springfield Spinning Co. v. Riley, L. R. 551; I9 L. T. N.
S. 64; 37 L. J., 889 Ch.
2 Martinetti v. Maguire, Deady's R. 2I6. See this case
treated supra in the chapter on dramatic copyright.
Ackerman v. Jones, 37 N. Y. Sup. Ct. (J. & S.) 42.
Hollingsworth v. Duane, Wall. 77, o02; Bronson's Case,
I2 Johns. (N. Y.) 460; S. P. Respublica v. Passmore, 3 Yeates
(Pa.), 408; Same v. Oswald, I Dal. 3I9. But see Exp. Ilickey,
12 Miss. (4 Sm. & M.) 751; Stuart v. People, 4 111. (3 Scam.)
395; Matter of Bergh, i6 Abb. Pr. N. S. post, " Contempt of
court."




32           LA IW  OF  LITERA TURE.           [CH. Is
24. In England, works "subversive of religious.
truth," "hostile to natural and revealed religion," oi
"impugning the doctrine of the immateriality of the
soul," have been declared to be the reverse of innocent.'
To the latter extent it is hardly to be expected that the
law  of innocence would be carried in this country,
where the largest liberty of thought and expression
is supposed to obtain.
25. "To say religion is a cheat," said the court in;
one case,2 " is to desolve all those obligations wherebycivil societies are preserved. Christianity is parcel of
the laws of England, and therefore, to reproach the'The cases of Lawrence v. Smith (7 Jacob. 47I), and of
Murray v. Benlow (cited in Shortt L. Lit., p. 8), exhibit the
extent to which the question of innocence in a work may be
carried. In the former case, Lord Eldon dissolved an injunction to hinder the publication of a pirated edition of certain
"Lectures on Physiology, Zoology, and the Natural History
of Man," on the ground that the lectures could not be the
subject of copyright, as they contained several passages hostile.
to natural and revealed religion, impugning the doctrines
of the immateriality and immortality of the soul. " Looking,"'
said he, "at the general tenor of the work, and at many particular parts of it; recollecting that the immortality of the
soul is one of the doctrines of Scripture; considering that the
law does not protect those who contradict the Scriptures; and
entertaining a doubt-I think a rational doubt-whether this.
book does not violate that law, I cannot continue the injunction. The plaintiff may bring an action, and when that is
decided he may apply again." In Murray v. Benlow (February, I822), the same lord chancellor refuised to enjoin the
publication of a pirated edition of Lord Byron's " Cain," on
the ground of a doubt whether the poem was not intended to.
bring into discredit that portion of Scripture to which it
relates. In I823, again, Leach, V. C., dissolved an injunction to prevent publication of pirated portions of Lord Byron's
"Don Juan," on similar grounds.
2 I Rex v. Taylor, Vent. 293; 3 Keb. Rep. 607; vid. 4 B1.
Com. 287. This view of the matter is put broadly by Michaelis,,
quoted 2 Stark. (2nd edit.) I3I. He says: " On God's account,.
then, punishments for blasphemies are not necessary; but.




ICH. I.]          OF  IZNNOCENCE.                    33
Christian religion is to speak in subversion of the
law."' 
26. With regard to absolute blasphemy, however,
the case is different, and the law in this country, equally
with the English, recognizes blasphemy as an offense;
-not only against good manners and good morals, but
-against the public weal as well.
"Whether the  principle," says  Bishop,2 "upon
which this doctrine rests, is that they (blasphemy,and profane swearing) tend to undermine Christianity,
which is a part of our law,' or that they disturb the
peace and corrupt the morals of the community, is
"a question not fully settled. Perhaps we may even
-take another view, namely, that reverence toward God
and religion-Christianity being our form of religion
-is essential to man, who is injured in his nature and
being, when  this  reverence  is impaired; or, still:another view, that these offenses so shock his purer
and higher sensibilities as to create an injury to him
against which he needs protection, precisely as against
an assault. Probably these several considerations,
perhaps they are necessary for the sake of our neighbor, who,
if he believes in a God, or holds his religion, whether true or
false, to be true, always feels himself extremely scandalized
by them. Nor-is it only blasphemy against the true God that
ought to be punished; but even that against false gods, supposed saints, and fictitious religion, whenever they happen to
be the gods, saints, and religion of the people." Shortt. L.
Lit. 298.
1 Vid. Patterson's Case, I Brown, 627.
2 I Crim. Law, vol. ii., ~ 87.
Blackstone (4 Com. 287) describes the offense of blasphemy as consisting in a denial of the being or providence
of the Almighty; or in contumelious reproaches of our Lord.and Saviour, Christ; or in profane scoffing at the holy Scripture, or exposing it to contempt and ridicule, for Christianity
is part of the laws of England.  Vis., also, Rex v. Taylor, z
Vent. 293; 3 Kebl. R. 607.
3




34           LA W  OF  LITERA TURE.            [CH. r.
and some others also, may each be deemed to enter
more or less into the policy of the law."
27. The English law against blasphemy is verysevere, and the makers and publishers of works con —
strued to be blasphemous in their nature, are criminally dealt with.'
In Rex v. Woolsten (Str. 834), relating to a book designed
to show that the Christian miracles were not to be taken in a.
literal but an allegorical sense, the court would not suffer it
to be debated whether to write against Christianity in general
was not an offense punishable in the temporal courts at com —
mon law. They laid stress on the word " general," and stated
that they did not intend to include disputes between learned
men upon particular controverted points. Raymond, Ch. J.,.
in delivering the judgment of the court, said: " I would have
it taken notice of that we do not meddle with any differences.
of opinion, and that we interpose only where the very root of
Christianity itself is struck at," which the court considered tobe done in the book in question.
In Rex v. Williams, the defendant was convicted of having,
published a blasphemous libel, called " Paine's Age of
Reason," which denied the authority of the Old and New
Testaments, asserted that reason was the only guide by which
the conduct of men ought to be directed, and ridiculed the
prophets, Jesus Christ, his disciples, and the Scriptures.
Ashurst, J., in that case remarked that, "although theAlmighty did not require the aid of human tribunals to vindicate his precepts, it was nevertheless fit to show our abhorrence of such wicked doctrines, which were not only an
offense against God, but against all law and government,..
from their direct tendency to dissolve all the bonds and obligations of civil society. It was upon this ground that theChristian religion constituted part of the law of the land.
But if the name of our Redeemer was suffered to be traduced,
and his holy religion treated with contempt, the solemnity of
an oath, on which the due administration of justice depended,
would be destroyed, and the law be stripped of one of its.
principal sanctions-the dread of future punishment; " which
seems to be a very concise statement of the reason and policyof the law on this subject.
It is a blasphemous libel to represent by a published writing
that Jesus Christ is an impostor, the Christian religion a merefable, and those who believe in it infidels to God (Rex v..




CH. I.]           OF  INNOCENCE.                       35
"With  us, however, the law  is more tolerant,"
said Kent, J., in the case of The People v. Ruggles.''After conviction we must intend that the words
Eaton, 3I Howell's St. Tr. 927. Eaton was sentenced, by
Lord Ellenborough, to be imprisoned for eighteen months in
Newgate, and to stand in the pillory between the hours of
twelve and two, once within a month), or that Jesus Christ
was an impostor, a murderer, and a fanatic (Rex v. Waddington, I B. & C. 26). It has been held to be a blasphemous libel
to publish anything which tends to question or cast disgrace
upon the Old Testament alone; for (as was said in Reg. v.
Hetherington, 5 Jur. 529) the Old Testament is so connected
with the New, that a reflection on the one is a reflection on
the other also.
Viad., also, I7 D. & R. 629; Poplett v. Stockdale, Ry. &
M. 337.
In addition to the doctrines of the common law relating to
blasphemous libels, there are some express enactments of the
legislature on the subject. Several of the old statutory provisions have been repealed, but the following still remain in
force:
i Edw. 6, ch. I, enacts that persons reviling the sacrament
of the Lord's Supper by contemptuous words or otherwise,
shall be punished by fine and imprisonment.
I Eliz. ch. 2, enacts that if any minister shall speak anything in derogation of the book of Common Prayer, he shall,
if not beneficed, be imprisoned one year for the first offense,
and for life for the second; and if he be beneficed, shall for
the first offense be imprisoned six months, and forfeit a year's
value of his benefice; for the second, 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 that if any person whatsoever shall in plays, songs, or
other open words, speak anything in derogation, depraving,
or despising of the said book, &c., he shall forfeit for the first
offense, one hundred marks; for the second, four hundred;
and for the third, shall forfeit all his goods and chattels, and
suffer imprisonment for life.
The most important of the statutes now in force is the 9 &
Io Will. III., ch. 32. It enacts that if any person educated in
or having made profession of the Christian religion, shall by
writing, printing, teaching, or advised speaking, deny any
8 Johns. 292.




36           LAW   OF  LITERA TURE.               [CH. I.
were uttered in a wanton manner, and, as they
evidently import, with a wicked and malicious disposition, and not in a serious discussion upon any
controverted point in religion. The language was
blasphemous, not only in a popular, but in a legal
sense; for blasphemy, according to the most precise
definitions, consists in maliciously reviling God or
one of the persons of the holy Trinity to be God (repealed by
53 Geo. III., ch. i6o, ~ 2, " so far as the same relates to persons
denying as therein mentioned respecting the holy Trinity "),
or assert or maintain that there are more gods than one, or
deny the Christian religion to be true, or the holy Scriptures
to be of divine authority, he shall, upon the first offense, 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 imprisonment without bail for three years. But
the person convicted for a first offense is to be discharged
from  all penalties and disabilities for that offense, if he
renounce his error in open court within four months after
conviction. Information of an offense against the act must
be given within four days after it has been committed, and
the prosecution must be within three months after such
information.
There is no recorded instance of a prosecution under
this act.
This statute has not altered the common law on the subject
of blasphemous libels, but has only introduced certain peculiar disabilities cumulative upon the penalties previously
inflicted by the common law (Rex. v. Carlisle, 3 B. & Ald. I6I;
Rex. v. Williams, 26 How. St. Tr. 656; 2 Str. 884), for it is a
general rule that, where an offense is already punishable by a
common-law  proceeding, a statute providing a particular
punishment for it does not exclude the common-law punishment, but only supplies an alternative or a cumulative one.(Rex v. Robinson, i Burr. 799).
Neither, it seems, does the 53 Geo. ITI., ch. i6o, alter the
common-law doctrine as to blasphemous libels; it only
removes the penalties imposed by 9 & io Will. III., ch. 32,
upon persons denying the Trinity, and extends to them the
benefit of the Toleration Act of I Will. & M., sess. i, ch. I8.Shortt, L. Lit. 3or, 302.




CH. I.]           OF  INNOCENCE.                     37
religion, and this was reviling Christianity through its
author. The jury have passed upon the intent or
quo azimzo, and if those words spoken, in any case,
will amount to a misdemeanor the indictment is good..... The free, equal, and undisturbed enjoyment
of religious opinion, whatever it may be, and free and
decent discussions on any religious subject, are
granted and secured; but to revile, with malicious
and blasphemous contempt, the religion professed by
almost the whole community, is an abuse of that
right."
1In Rex v. Waddington (I B. & C. 26), where the libel
stated that Jesus Christ was an impostor, and a murderer in
principle, and a fanatic-the defendant, in moving for a new
trial, urged that the lord chief justice had misdirected the jury
by stating that any publication in which the divinity of Jesus
Christ was denied was an unlawful libel; and he argued that,
since the 53 Geo. III., ch. i6o, the denying one of the persons
of the Trinity to be God was no offense, and consequently
that a publication in support of such a position was not a
libel. The court of king's bench unanimously refused a rule
for a new trial, and held that the publication was a blasphemous libel.  Best, J., said: "The 53 Geo. III., ch. I6o,
has made no alteration in the common law relative to libel.
If, previous to the passing of that statute, it would have been
a libel to deny, in any printed work, the divinity of the second
person in the Trinity, the same publication would be a libel
now. The 53 Geo. III., ch. I6o, as its title expresses, is an
act to relieve persons, who impugn the doctrine of the Trinity,
from certain penalties. If we look at the body of the act, to
see from what penalties such persons are relieved, we find
that they are the penalties from which the I Will. & M., sess.
I, ch. i8, exempted all Protestant Dissenters, except such as
denied the Trinity, and the penalties or disabilities which the
9 & io Will. III., ch. 32, imposed on those who denied the
Trinity. The I Will. & M., sess. I, ch. I8, is, as it has been
usually called, an act of toleration, or one which allows Dissenters to worship God in the mode that is agreeable to their
religious opinions, and exempts them from punishment for
non-attendance at the Established Church, and non-conformity
to its rights. The legislature, in passing that act, only thought




38           LAW  OF  LITERA TURE.               [CH. I.
The rule was laid down, as follows, by Duncan, J., in
Updegarth v. Commonwealth:' " No author or printer
who fairly and conscientiously promulgates opinions
with whose truth he is impressed, for the benefit of
others, is answerable as a criminal. A malicious and
mischievous intention is, in such a case, the broad
boundary between right and wrong; it is to be
collected from the offensive levity, scurrilous and
opprobrious language, and other circumstances,
whether the act of the party was malicious."
of easing the consciences of Dissenters, and not of allowing
them to attempt to weaken the faith of the members of the
Church."
From the fact that a particular form of the Christian religion is established here by law, this consequence follows:
that a person may, without being liable to prosecution for it,
attack Judaism, or Mohammedanism, or even any sect of the
Christian religion, except the established religion of the
country; and the only reason, says Alderson, B. (Reg. v.
Gathercole, 2 Lewin, 254), why the latter is in a different
situation from the others is, " because it is the form established
by law, and is therefore a part of the constitution of the
country.  In like manner, and for the same reason, any
general attack on Christianity is the subject of criminal prosecution, because Christianity is the established religion of the
country" (vid., also, Cowan v. Milbourn, i6 L. T. N. S. 29o;
36 Q. J. I24; L. Rep., 2 Ex. 233).
How far, then, is liberty of discussion allowed on questions
relating to the fundamental doctrines of religion? or, is the
expression of all views adverse to those now received, prohibited and punishable? Would the law now make no distinction in favor of the fair and temperate expression of
opinions sincerely entertained? It is by no means easy to
give an answer, for there is no reported English case in which
the question has been fairly raised and broadly dealt with.
Malice is a necessary ingredient in the crime; and were it
not that our law implies malice wherever anything unlawful
is done willfully or intentionally, whatever the motive which
prompted the action, this consideration might help us to a
conclusion. As the law stands, it throws no light upon the
subject.-Shortt, L. Lit. 302-304.
1 Ii Serg. & R. 394.




CH. 1.]           OF  IN NOCENCE.                   39
" Still," says Bishop,' in commenting on the above,
"' one who should utter words or sentiments calculated,
according to common judgment, to corrupt the
public morals, or to shock the sensibilities of mankind in a Christian community, would, doubtless, not
be permitted to excuse himself under the plea of
conscientious conviction."
28. The doctrine that Christianity is parcel of the
common law, began with the Dome-Book of Alfred,
which sets forth at once, as the law of the realm, the
ten commandments, accompanied by many Mosaic
precepts. After quoting the canons of the apostolical
~council at Jerusalem, Alfred cites the injunction, " As
ye would that men should do unto you, do ye also
to them;" adding, "from  this one doom, a man may
remember that he judge every one righteously: he
need  heed  no  other doom  book."2  Lord  Coke
affirmed it, and Blackstone' and Lord Mansfield:asserted it after him.4  But in the United  States,
Crim. Law, 93. The proposed criminal code of the State.of New York, art. 31, extracting a definition from existing
-common-law decisions, describes blasphemy as consisting in'wantonly uttering or publishing words, casting contumacious reproach or profane ridicule upon God, Jesus Christ,
the Holy Ghost, the holy Scriptures, or the Christian religion;" and art. 32 adds:' If it appears, beyond reasonable
doubt, that the words complained of were used in the course.of serious discussion, and with intent to make known or
recommend opinions entertained by the accused, such words,are not blasphemy."
2 Blackstone quotes the Dome-Book as extant so late as the
reign of Edward IV.
" 4 B1. Com. 63.
4 See also Rex v. Taylor, Vent. 293; 3 Keble, 621; Tre-.mayne's Pleas of the Crown, 226; East P. C., ch. I, ~ 33;
Rex v. Carlisle, 3 B. & Ald. i6i; Rex v. Aiwood, Cro. Jac.
42i; Rex v. Williams, 26 Howell St. Tr. 654; Rex v. White,
Leach, 430; Rex v. Webster, Fitzg. 64; 2 Str. 834; Reg. v.
Gathercole, 2 Lewin C. C. 237; Reg. v. Hetherington, 5 Jur.




40           LAW   OF  LITERA TURE.             [CH. IL
unless, perhaps, we except the colony of New England, which resolved at a "general court, October
25th, I639,..... the worde of God shall be the
onely  rule  to  be attended  vnto  in ordering  the
affayres of government in this plantatio," no statute
has expressly re-enacted the principle, though that.
it is part of the spirit of the written, as well as of:
the common law  of this country we think, we shall
be able to show.
29. In The People v. Ruggles,, Kent, J., declared
that "blasphemy against God, and contumelious reproaches and profane ridicule of Christ or the holy
scriptures, are offenses punishable at the common law,.
whether uttered by words or writings....  Such offenses have always been considered independent of any
religious establishment or the rights of the church,"'
continued the chancellor, "and why should not the~
language contained  in the indictment be still an
offense with us? There is nothing in our manners or
institutions which has prevented the application or
the necessity of this part of the common law.  We
stand equally in need now as formerly of all that
moral discipline, and of those principles of virtuewhich help to bind society together. The people
of this state, in common with the people of this;.
country, profess the general doctrines of Christianity,
529, Q. B.; Rex v. Paine, I East P. C. 5; Bish. Cr. Law, ~~
945, 947; 2 Id. ~ 87; Holt on Libel, 32; Mence on Libel,.
i. 303.
a3 Johns. 29I. In this case it was held that wantonly,
wickedly, and maliciously uttering the following words:'" Jesus Christ was a bastard, and his mother must be a whore,".
was a public offense, punishable by the common law of the
State of New York.  See Emlyn's preface to the State
Trials, 8; Whitlock's Speech, 2 State Trials, 273; Rex v.
Wool.ston, Str. 834; Fitz. 64; Taylor's Case, I Vent. 293;;
Keb. 607.




CH. I.]         OF INNOCENCE.                   41
as the rule of their faith  and  practice; and to
scandalize the author of these doctrines, is not only,
in a religious point of view, extremely impious, but,
even in respect to the obligations due to society, is a
gross violation of decency and good order. Nothing
could be more offensive to the virtuous part of the
community, or more injurious to the tender morals
of the young, than to declare such profanity lawful.
It would go to confound all distinction between things
sacred and profane; for, to use the words of one
of the greatest oracles of common wisdom,'Profane
scoffing doth by little and little, deface the reverence for religion," things which corrupt moral sentiment, as obscene actions, prints, and words,... have
upon the same principle been held indictable, and
shall we form an exception in these particulars to
the rest of the civilized world? No government
among any of the polished nations of antiquity, and
none of the institutions of modern Europe (a single
and monitory case excepted) ever hazarded such a
bold experiment upon the solidity of public morals,
as to permit, with impunity and under the sanction
of their tribunals, the general religion of the community to be openly insulted and defamed. The very
idea of jurisprudence, with the ancient law-givers and
philosophers, embraced the religion of the country,
jurisprudentha  est diviznarun aat7ue humcanarvm
rerum no'lilia." 2
30. The principle as laid down on this high authority undoubtedly is, that while in the United States
every shade of religious belief is protected, yet the spirit
of the law will not permit, upon grounds of public
policy, that Christianity should be scandalized openly
Lord Bacon's Works, ii., 29T, 503.
2 Dig. 6i, io, 2; Civ. De Legibus, 62,Jpassim.




42         LA W  OF LITERATURE.           [CH. I.
and wantonly. For the Christian religion is one whose
influence upon the public peace and security, and
upon good order and commercial and municipal
prosperity, is marked and salutary. One of its prime
injunctions is a perfect allegiance and obedience to
the state, and the only instance in history in which a
premium upon its neglect not only, but upon its open
and wanton insult and abuse, was followed by that
carnival of blood and anarchy at which the world
has not yet ceased to shudder-the first French
Revolution. The morals and the manners of good
society have come to be very deeply imbedded in
religion, and while the law of the United States takes
to itself no scrutiny as to things spiritual, prescribes
no creed, and holds no theory of a life beyond the
present, it will not discourage man in the belief of a
religion which teaches morality, sobriety, patriotism
and obedience to the law of the land. Nor can it be
doubted that the same protection would be extended
to any body of believers. And a man who should
intrude upon a community of worshippers of any
creed, and openly and wantonly attack their tenets,
would undoubtedly be punished. Nearly every state
in the Union has its statute making the Christian
sabbath a day of rest from business cares and pursuits; which protect public worshippers from disturbance, and many go further and make profane
swearing a misdemeanor.'  And this, we may be
assured, not from any wish to dictate to the conscience
of the citizen, but to encourage order and to promote the public peace. To this extent it may well
be said that Christianity is parcel of our common
law.
The statutes of the United States certainly do not
Laws of N Y. 2 R. S. (5th ed.), vol. ii., pp. 935, 936, 937.




CH. I.]          OF  INNOCENCE.                   43
discourage morality. "I suppose," says Deady, J.,'
" that it is both proper and constitutional for congress
so to legislate as to encourage virtue and to discourage immorality. Congress in exercising its powers
to establish a uniform  rule of naturalization,2 has
always discriminated in favor of morality, by providing that on the hearing of the application for citizenship, the applicant must prove that for five years
prior to such application he has behaved as a man of
good moral character."'
And the learned judge might have added that
the same spirit is indicated by congress, in the statutes
which enact, that any person who, within the jurisdiction of the United States," sells, or lends, or gives away,
or in any manner exhibits, or offers to sell, or to lend, or
to give away, or in any manner to exhibit, or otherwise
publishes or offers to publish in any manner, or has in
his possession for any such purpose, any obscene book,
pamphlet, paper, writing, advertisement, circular, print,
picture, material, or any cast, instrument, or other
article of an immoral nature, or any drug or medicine.or who causes to be written or printed
any card, circular, book, pamphlet, advertisement, or
notice of any kind, stating when, where, how, or of
whom, or by what means"... such articles may be
purchased, or who " manufactures, draws, or prints, or
in anywise makes any of such articles, shall be imprisoned at hard labor in the penitentiary for not less
than six months nor more than five years for each
offense, or fined not less than one hundred dollars, nor
more than two thousand dollars, &c.,4 and further by
1 Martinelli v. Maguire, I Deady, 2i6.
2Con. Art. i, ~ 8, subd. 4.
8 2 Stat. 154.
4 Revision of 1873-74, ~ 5389.




44           LAW   OF  LITERATURE.               [CH. I.
imposing a fine and imprisonment upon the aiding
or abetting by any of its officers of the use of the
general post office for circulating any obscene or indecent publications, representations, or articles of
indecent or immoral use or tendency;' and prohibiting by the like penalties the importation 2 and deposit
in the mail' of such and similar matter.
And, again, in every court of justice in the land
oaths are administered upon the holy scriptures;
either by kissing, or laying the hand upon the gospels or upon some other portion (as in the case
of HIebrews). Are we not, then, at liberty to conclude that words, writings, and actions, which would
tend to undermine the authority and vilify the
sanctity of those pages, would attack the regard for
the sacredness of an oath, without which no legal
formality is complete, and so strike at the very root
of our jurisprudence? Such acts, words, and writings
it seems to us, are, and must be, inconsistent with
public peace, order, and safety.
In so far, then, as Christianity in its popular
sense, as contradistinguished from barbarism or
heathenism,-in  so far and in such  sense  as the
United States is reckoned  among  Christian rather
than among the heathen nations of the globe-we
submit that Christianity is "parcel of our common
law."
"Christianity, as it has been asserted, is now in a
modified sense the religion of this state " (New Yoork),
said Duer, J.4 " It is so, as a part of that common law'Revision of 1873-74, ~ I785; 3 March, i873, ch. 258, ~ 4,
vol. I7, p. 599.
2 Id., ~~ 2941, 2942.
2 Id., ~ 3893.
4 Andrew v. N. Y. Bible, &c., Society, 4 SandE. I56; and see
People v. Ruggles, 8 Johns. 290.




'CH. I.]         OF  INNOCENCE.                  45
which our ancestors introduced, and we have retained
the maxim that Christianity is part and parcel of the
common law, has been frequently repeated by judges
and text writers, but few have chosen to examine its
truth or attempt to explain its meaning. We have,
however, the high authority of Lord Mansfield.and
of his successor,' for stating as its true and only sense,
that the law will. not permit the essential truths of
revealed religion to be ridiculed and reviled. In
other words, that blasphemy is an indictible offense
at common law. The truth of the maxim, in this very
partial and limited sense, may be admitted. But if
we attempt to extend its application, we shall find
ourselves obliged to confess that it is unmeaning and
untrue.  If Christianity is a municipal law in the
proper sense of the term, as it must be if a part of the
common law, every person is liable to be punished
by the civil law who refuses to embrace its doctrines
and follow its precepts; and if it must be conceded
that in this sense the maxim is untrue, it ceases to be
intelligible. Since a law without a sanction is an
absurdity to logic and a nullity in fact."
In concluding our examination of whether and to
what extent "Christianity is parcel of the common
law of the United States," we cannot do better than
adopt and make our own the words of Chancellor
Kent in the case we have been considering,' believing
that what he finds in this case and in the contemplation of the constitution of the state of New York,
will be found to be within the spirit of the unwritten
law of the nation at large.
The free, equal, and undisturbed enjoyment of'Lord Campbell. Judge Duer here refers to Campbell's
Lives of Chief Justices, vol. 2, p. 513.
2 People v. Ruggles, 8 Johns. 29I.




46           LA W  OF  LITERA TURE.
religious opinion, whatever it may be, and free and
decent discussions on any religious subject, is granted
and secured; but to revile with malicious and blasphemous contempt, the religion professed by almost
the whole community, is an abuse of that right..... We are not to be restrained from animadversion upon offenses against public decency, merely
because there may be barbarous nations whose sense of
shame would not be affected by what we should con —
sider the most audacious outrages upon decorum.
It is sufficient that the common-law checks upon
words and actions dangerous to the public welfare
apply to our case, and are suited to the condition of
this and every other people whose manners are
refined, and whose morals have been elevated and
inspired with a more enlarged benevolence by means
of the Christian religion.'
3I. The policy of the law is not to forcibly prevent one from owning property not innocent in its nature, but to refuse to encourage, by its protection, the
circulation of that property. The law will not break
open a man's private house and forcibly capture and
destroy an obscene picture which he may happen to
own; but if he keep a collection of obscene pictures
for the purposes of trade, from which he sells to
persons of depraved tastes, he is violating the laws of
the United States, and the law  will break up his'The doctrine, however, has not commanded the full assent
of many learned minds. It was disputed by Jefferson (letter
to Cartwright, 9 Am. Jurist; Life and Letters of Joseph
Story, vol. i., pp. 430-434; vol. ii., pp. 8, 462-464), and by
Webster and Sergeant (see their arguments in the Girard Will
Case). See, generally, as to the doctrine, Lindenmuller v.
The People, 33 Barb. 548; Bedford Charity, 2 Swans. 527;.
Da Costa v. Paz, 2 Swans. 420 n.; Att'y-Gen'l v. Pearson, 3.
Mer. 399; Andrew v. N. Y. Bible & Prayer Book Soc., 4
Sandf. I57.




OF INNOCENCE.                  47
business, seize his collection, and proceed to punish
him by fine and imprisonment. There is a provision
in the United States postal laws which forbids the
circulation of such wares through the mails, and,
besides making the property liable to confiscation,
renders the party circulating the injurious matter
liable to indictment.
So, again, while the law will not break open a
man's doors and seize an obscene manuscript, known
to be in his possession, it will not encourage him to
print and circulate the contents of that manuscript.
Neither, perhaps, will the law regard as innocent a
picture not harmful in itself which its owner pretends
to have been produced by a spiritual or supernatural
process. In I869, one William  H. Mumler, in the
city of New York, publicly advertised to the effect
that he would take photographs which should not
only be life-like representations of the sitter, but
should contain in shadow the ghostly form of some
departed friend or relative of the sitter, as it alleged
that friend or relative was really beside him, only
unseen to the carnal eye. The gist of the fraud here
was, evidently, not the taking of the picture, or the
production of the chemical or mechanical effect of
a shadow upon the camera; nor perhaps the assertion that an actual spiritual presence accompanied
the sitter (for that there are or are not spiritual
presences about us continually, is a matter of fact concerning which men cannot reason from any data known
to the law, and hence it cannot hear the opinion of
experts upon the subject, nor form any conclusions
of its own), but, it is submitted, the pretense that the
operator and his camera were different from other
operators and cameras, inasmuch as they had a connection with the spirit world. It was for obtaining




48           LAW OF LITERA TURE.
money under false pretenses, therefore, that the prosecution by the people against Mumler proceeded.''As the only case of the kind which is known to have
arisen, it is remarkable that " The People v. Mumler " should
never have been reported-the only record of it extant being
the argument of Mr. Elbridge T. Gerry, for the People, from
which we draw the facts as follows:
The prisoner, William H. Mumler, stood charged by the
People-First: With having, by false pretenses, defrauded
one Joseph H. Tooker out of, and of having obtained from
him the sum of ten dollars, lawful money. Second: Of having,
by means of gross frauds and cheats, practiced habitually upon
the public for the purpose and with the result of obtaining
sums of money from credulous persons. Third: With stealing, taking, and carrying away by trick or device, the sum
aforesaid from said Tooker, and other similar sums from other
persons.
The facts upon which the charge of false pretenses was
based, wereFirst: A statement made by the prisoner "that he was a
spiritual medium; that he produced spirit likenesses; that no
other person could take such wonderful pictures; that the
pictures were not the result of a trick or deception;" coupled
with the exhibition of a picture with a faint outline of another
form than that of the sitter, and a further assertion by the
prisoner " that he (Tooker) would come to recognize the face
as that of some relative or friend."  Second: A previous payment of two dollars, by Tooker, on the strength of a previous
similar statement made by one Guay, who acted as agent for
the prisoner; and a subsequent payment by him of eight dollars on the strength of the prisoner's statement, and on the
furnishing of certain photographs purporting to be of spirit
forms, and on receiving a printed book containing an additional statement by the prisoner, over his signature, and
designed to further induce a belief that the indistinct form on
the picture was not produced by mechanical or natural means.
Third: A discovery by Tooker, after parting with his money,
that the photographs were ordinary photographs, and that all
the forms on them were produced by mechanical means.
Mumler's answer alleged:
1. That there is no trick, fraud, or deception in what are
called spirit pictures by the accused.
II. That in order to produce those pictures, nothing tmre
is done or used by him than by ordinary photographers in




CH. I.]           OF  INNOCENCE.                      49
32. In one of the latest English cases involving
this doctrine of non-innocence, the question arose
producing their pictures, than mere resting his hand on the
camera.
III. That the spirit-pictures coming or abstaining from
coming is in no respect subject to his control or volition.
IV. That the process of taking them has been again and
again carefully scrutinized and watched in its every step by
men of intelligence, and by those skilled in the art of photography, whereby it has been ascertained, beyond doubt, that
there is no deception or fraud about it.
V. That there has been produced, on the same plate with
the picture of a living person, the picture or ghost-like image
of persons who have died, which have been recognized as
likenesses of such persons by those who knew them in life.
VI. That this has been done in cases where there was no
likeness or picture in existence of such deceased person, and
whom the operator had never seen or heard of.
VII. That it is now some twelve or fourteen years since
these spirit-pictures were first heard of in this country; that
within the last four or five years the taking of these pictures
has been publicly heard of and known in Boston, and there
frequently investigated with the utmost care and scrutiny;
and that, simultaneously with their production in New York,
they have been produced in Paris, and in.Poughkeepsie,
Waterville, and Buffalo, in this State.
VIII. That in the various attempts to imitate these pictures,
and which some photographers claim are the same thing,
there are essential points of difference, plainly to be discovered by the practical or the discerning eye, and which
distinguish the genuine from the false, and which cannot be
produced by the imitator.
IX. That the accused does not know and never has pretended
to know by what power or process, other than that of producing
an ordinary photograph, these spirit-pictures are produced.
That he has often solicited and obtained the closest scrutiny
by men more capable than himself of understanding the process,
and he is now at all times ready and willing to have his work
scrutinized and watched in the most critical manner. And to
that end he invites an investigation by a delegation of the most
expert and experienced photographers in town, and pledges
himself to afford the fullest opportunity therefor.
X. That there are a great many intelligent men and women,
who, after a careful investigation, are firm believers that the
4




50           LA W   OF  LITERA TURE.            [CH. IL
whether a breach of contract to let rooms for the
purpose of delivering lectures could be justified on
pictures are truly likenesses of the spirits of the departed, and
that he and such believers are of opinion that the taking of
these pictures is a new feature in photography, yet in its
infancy, surely but gradually and slowly progressing to
greater perfection in the future, requiring for such perfection
time and a scientific knowledge of the power that is operating.
William P. Slee, who watched the camera during Mumler's
operations, testified that he looked into the camera, and
observed that Mumler kept his hand on it while the process
was going on, and that he put the cloth over his head before he
put the slide in with the plate. He proved exhibits Nos. I to
9 for the People, and admitted they could all be done by
mechanical means.
William Guay, a partner of Mumler's, proved that a great
many persons called to have their photographs taken with
these " spirit" forms, and paid their money for that purpose;
admitted that the ghost might have been produced by means
within the camera; that Mrs. Mumler was always present on
these occasions; and that he was allotted by Mumler " to stay
on the second floor to carry on the business on systematic rules
and principles generally."
Hon. John W. Edmonds, ex-judge of the N. Y. supreme
court, and all during his life a firm believer in and advocate
of spiritualism, testified that he went to this gallery of Mumler's on a preconcerted notice. He knew nothing of photography; that he paid ten dollars for the first, and five dollars.
for the second sitting, and went away satisfied; but said, " I do
not say that they (the shadowy forms alleged) are produced by
spiritual means."
William Gurney, a photographer, testified that he saw Mumler have his hand on the camera, but could not discover the
trick; that he has been a photographer for twenty-eight years;
and that it was not possible to produce such an object except
from outside the instrument.
Mr. Snodgrass-or alias James R. Gilmore, alias "Edmund
Kirke "-testified that he called on the prisoner; that he sat
twice, but the pictures were not distinct. Rockwood, a photographer of large experience, testified that he had produced
similar "ghosts" in different ways; and that although not
exactly a "spiritual" process, there was -certainly something
remarkable about it.




CH. I.]           OF  INNOCENCE.                      5t
the ground that the lectures to be delivered were of a
blasphemous and illegal nature, some of them being
Elmer Terry testified that he went there expressly to get a
picture of the spirit of a deceased friend. He paid his money
in advance, on the statement that he would be furnished with
such a picture, and he paid afterwards when he thought he had
it. He recognized the "spirit" of a four-year-old boy, who
died twenty years ago, and he recognized the picture of Miss
Frances Catlin, whose portrait he had seen only four days
before this photograph was taken.
Jacob Kingsland testified that he recognized the likeness of
Miss Catlin, but could not speak positively of the children.
Paul Bremond testified that he was a believer in "spirits,"
and was so fifteen years ago, when he used to hear the voices,
and that he recognized the "ghosts" that Mumler photographed as likenesses of the departed. He particularly recognized " Elizabeth Trapp."
David A. Hopkins testified that he paid his money and
watched the prisoner. He went to Mumler for a " spirit"
photograph, and identified one of the "ghosts" as that of a
lady deceased.
William W. Silver testified that he was a believer in the
supernatural; that Mumler closed the slide on every occasion
when a spirit appeared; and that he watched Mumler's process
without detecting any trick.
Mrs. Luthera C. Reeves testified that she went with her
nephew, Mr. Welling; sat for a portrait; that she identified
a " spirit " apparition thereupon as her son, by the length of
his ears!
Samuel R. Fanshawe testified that he went there and saw
Mrs. Mumler, and announced that he was a skeptic. After
having notified them in advance that he meant to find out the
trick, he sat for a picture, upon which the shadowy forms
appeared, and recognized the ghosts of his mother and son,
although they were so indistinct that it was almost impossible
to recognize any shade at all.
Charles F. Livermore testified that he sat five times, and a
ghostly picture, which he recognized as his wife's picture,
finally appeared. Three different pictures were produced by
him in evidence.
Mrs.- Ann F. Ingalls recognized in a photograph her mother,
son, and brother, all of whom died long before.
A pamphlet issued by Mumler was produced and read in
evidence, as follows:




52           LA W   OF  LITERA TURE.             [CH. I.
advertised as follows: "The Character and Teachings
of Christ: the former defective, the latter misleading:
" My object in placing this little pamphlet before the public,
is to give to those who have not heard, a few of the incidents
and investigations on the advent of this new and beautiful
phase of spiritual manifestations. It is now some eight years
since I commenced to take these remarkable pictures; and
thousands, embracing as they do scientific men, photographers,
judges, lawyers, doctors, ministers, and in fact all grades of
society, can bear testimony to the truthful likeness of their
spirit friends they have received through my mediumistic
power. What joy to the troubled heart! What balm to the
aching breast! What peace and comfort to the weary soul!
to know that our friends who have passed away can return and
give us unmistakable evidence of a life hereafter-that they are
with us, and seize with avidity every opportunity to make
themselves known; but alas! in many instances, that old door
of sectarianism has closed against them, and prevents their
entering once more the portals of their loved ones and be identified. But, thank God, the old door is fast going to decay;
it begins to squeak on its rusty and time-worn hinges; its panels
are penetrated by the worm-holes of many ages, through which
the bright, effulgent rays of the spiritual sun begin to shine;
and in a short time it will totter and tumble to the earth.
Boston has been the field of my labors, most of the time, since
I commenced taking these wonderful pictures, where I have
been visited by people from all parts of the Union; but at the
earnest solicitation of many friends, I have concluded to make
a tour through the principal cities of the United States, that all
may avail themselves of this opportunity to obtain a likeness
of their loved ones. I am often asked,'Are there no other
mediums for this phase of spiritual manifestations?' I answer,
there are a number, now, in the United States and Europe, that
are taking them with more or less success, and there are hundreds of photographers who have taken what I call an approximation to the spirit form. If they will but look carefully at
some of their cards or negatives, they will see a semi-indefinite
form. To those who find these forms on their negatives, no
matter how vague or indistinct, let me assure you that you are
capable of becoming a medium for this beautiful manifestation,
if you will but give the proper time and attention to your own
development. Let me entreat you to persevere, throw aside
all skepticism, sit as often as you can with some good medium
for development, and I hope the time is not far distant when I




CH. I.]          OF  IzNNOCENCE.                  53
The Bible shown to be no more inspired than any
other book," &c.; the court of exchequer, without
any reference to the motives which prompted the
delivery of the lectures, held that a publication of
the doctrines stated in the advertisements referred to,
was blasphemy, and, therefore, the breach of contract was justifiable.' An indictment setting forth
certain passages from  the poem  of "'Queen Mab,"
and a passage in prose from the notes thereto; a
work described in the indictment as a "scandalous,
impious, profane, and malicious libel of and concerning the Christian religion, and of and concerning
the holy scriptures, and of and concerning almighty
God, in  which  were  contained  certain  passages
charged as blasphemous;" Sergeant (afterwards Mr.
Justice) Talfourd, himself a poet, addressed the jury
for the defense, in a noble speech, in which he asked,
whether it could be blasphemy in the publisher to
present to the world, or rather to the calm, the
laborious, the patient searchers after wisdom  and
beauty, who alone would peruse the volume, the
awful mistakes, the  mighty struggles, the strange
depressions, and the imperfect victories of such a
spirit as Shelley's, because the picture has some
passages of frightful gloom? " In the wise and just
dispensations of providence," said the accomplished
advocate, in a passage which we may be excused for
quoting, " great powers are often found associated with
shall have hundreds of co-workers in this beautiful spirit
photography.            Yours, truly,
"VWM. H. MUMLER."
Mr. Gerry appeared for the prosecution; but the defendant,
Mumler, was ultimately discharged, upon other grounds than
those taken by the learned counsel.'Cowan v. Milbourn, L. R., 2 Eq. 230; 36 L. JO I24; i6
L. T. N. S. 230.




54          LAW  OF LITERA TURE.            [CH. 1.
weakness or with sorrow; but when these are not
blended with the intellectual greatness they countervail, but merely affect the personal fortunes of their
possessors, as when a sanguine temperament leads
into vicious excesses, there is no more propriety in
unveiling the truth, because it is truth, than in exhibiting the details of some physical disease. But when
the greatness of the poet's intellect contains within
itself the elements of tumult and disorder; when the
appreciation of the genius in all its divine relations
and all its human lapses depends on a view of the
entire picture, must it be withheld?  It is not sinful
elysium, full of lascivious blandishments, but a
heaving chaos of mighty elements, that the publisher
of the early productions of Shelley unveils. In such a
case, the more awful the alienation, the more pregnant
with good will be the lesson. Shall this life, fevered
with beauty, restless with inspiration, be hidden?
or, wanting its first blind but gigantic efforts, be
falsely because partially revealed? If to trace back
the stream  of genius, from  its greatest and most
unearthly breadth to its remotest fountain, is one of
the most interesting and instructive objects of
philosophic research; shall we-when we have followed that of Shelley through its majestic windings,
beneath the solemn gloom of'The Cenci,' through
the glory-tinged expanses of'The Revolt of Islam,'
amidst the dream-like haziness of' Prometheus' —be
forbidden to ascend with painful steps its narrowing
course to its farthest spring, because black rocks may
encircle the spot whence it rushes into day, and
demon shapes, frightful but powerless for harm,
may gleam'and frown on us beside it?" It was urged
also that the poem of "(Queen Mab" was presented
with the distinct statement that Shelley himself, in




CH. I.]         OF INNOCENCE.                   53
mature life, departed from its offensive dogmas; that
it was accompanied by his own letter, in which he
expresses his wish for its suppression; that, therefore,
it was not given as containing his deliberate assertions, but only as a feature in the development of his
intellectual character. Was it not "antidote enough
to the poison of a pretended atheism, that the poet,
who is supposed to-day to deny Deity, finds Deity in
all things?"
Lord Denman, however, told the jury that he and
they "were bound to take the law as it had been
handed down to them. The only question for their
consideration was, whether, in their opinion, the work,
which had been made the subject of prosecution,
deserved the imputations that were cast upon it by
the indictment, and whether the publisher had sent it
forth deliberately into the world, knowing its character to be such. The purpose of the passage cited
in'Queen Mab' was, he thought, to. cast reproach
and insult upon what, in christian minds, were the
peculiar objects of veneration; it was not, however,
sufficient that mere passages of an offensive character should exist in a work, in order to render the
publication of it an act of criminality; it must appear
that no condemnation of such passages appeared in
the context. It had been said that the extraordinary
poem in question was the production of a mere
youth. Were the lines indicted calculated to shock
the feelings of any christian reader?  Were their
points of offense explained, or was their virus neutralized by any remarks in the margin, by any note
of explanation or apology? If not, they were libels
on God, and indictable."'
1 The jury returned a verdict of guilty; but the prosecutor
abandoned all further proceedings on payment of his costs.




56           LAW   OF  LITERA TURE.              [CH. I.
Still another class of works esteemed not innocent
at common law were publications seditiously libelous
Rex v. Moxon, 2 Mod. State Trials, 362. Blackburn, J., alluding to this case in Reg. v. Hicklin (L. Rep., 3 Q. B. 374), says:
" I hope I may not be understood to agree with what the jury
found, that the publication of'Queen Mab' was sufficient to
make it an indictable offense." For Lord Lyndhurst's view of
the prosecution, see Debates in the House of Lords, for I3th
July, I 857. The prosecutor was HIetherington, who had, a short
time before, been found guilty of publishing certain libels on
the Old Testament (see Reg. v. Hetherington, 5 Jur. 529),.
and his object in instituting the prosecution against Mr. Moxon
is not very clear. His counsel concluded his opening speech
by expressing the satisfaction he should feel if the result of the
trial were to establish that no publication on religion should
be a subject for prosecutions in future (2 Mod. State Trials,,
365); but Mr. Moxon's counsel treated the prosecution as one
prompted solely by an indiscriminate desire, on the part of the
prosecutor, of retaliating on some other person the punishment
which he had himself suffered. And Blackburn, J., says of it:
" I believe, as everybody knows, that it was a prosecution
instituted merely for the purpose of vexation and annoyance "
(Reg. v. Hicklin, L. Rep. 3 Q. B. 374; S. C. 37 L. J. 89, M.
C.; I8 L. T. N. S. 395, nom. Reg. v. The Recorder of Wolverhampton. See also Patterson's Case, I Brown, 627).
Blasphemous publications are punishable either by indictment at common law or by criminal information. Persons.
convicted were formerly compelled to stand in the pillory,.
besides suffering other punishments. The act of 56 Geo. III.,
ch. I38, which abolished the punishment of the pillory in most
cases, provides (sect. 2) that the court may, in all cases where
it was formerly used, pass such sentence of fine or imprisonment, or of both, in lieu of the sentence of pillory, as to it shall
seem most proper.
The punishment by banishment was abolished by I  Geo..
IV. & I Will. IV., ch. 73, ~ I.
The Scotch law is not different from the English law on the
subject of blasphemous libels. An act of 6 Geo. IV., ch. 47,
after reciting the expediency of making the crime punishable
in the same manner as if committed in England, enacted
that any person convicted of blasphemy shall be liable to be
punished only by fine or imprisonment, or both, at the discretion of the court; and that if any person, after being so con



CH. I.]          OF  INNOCENCE.                      57
of the sovereign's royal person, of the parliament, or
the constitution.
While the spirit of the law was to encourage a
certain latitude of political discussion, or the disputations of learned men upon matters and shades of
religious belief, it could not justify a wanton and
gratuitous attack upon christianity in general,' or
upon the king, the government, or the constitution
in general. And so any man might, and still may
victed, shall offend a second time and be convicted, he may be
adjudged, at the discretion of the court, either to suffer the
punishment of fine or imprisonment, or both, or to be banished
from the' United Kingdom, and all other parts of the sovereign's dominions, for such term of years as the court in which
such conviction shall take place shall order; and in case the
person, so adjudged to be banished, shall not depart from the
United Kingdom within thirty days after the pronouncing of
such sentence, for the purpose of going into banishment, he
may be conveyed to such parts out of the dominions of the
sovereign, as the sovereign, by advice of the privy council,.
may direct. If the person sentenced to be banished, after the
end of forty days from the time the sentence has been pronounced, is at large within any part of the United Kingdom,
or any other part of the sovereign's dominions, without some
lawful cause, before the expiration of the term for which the
offender has been adjudged to be banished, every such offender
being so at large and being thereof convicted, shall be transported to such place as the sovereign shall appoint, for any
term not exceeding fourteen years. This statute still remains
in force, with the exception of the provisions as to punishment
by banishment, which are repealed by 7 Will. IV. & I Vict.,
ch. 5. Before the repeal of the acts of i66i, ch. 2I, and I695,
ch. I i, by the 53 Geo. III., ch. i6o, ~ 3, blasphemy was punishable, for the first offense, by public atonement in sackcloth to
the parish where the scandal was committed; for the second
offense, by payment of a fine of a year's rent of his real estate,
and a twentieth part of his personal effects, and by imprisonment till the offender should again make satisfaction to the
parish; for the third offense, with death.-Shortt, L. Lit., pp.
302-3 I I
1Rex. v. Waddington, I B. & C. I26.




58          LAW  OF LITERA TURE.            [CH. I.
fearlessly advance new doctrines of politics, religion,
or morals, providing he does so with proper respect
to the government of his country.
The old law of seditious libel contemplated, first,
words spoken against the sovereign personally;
second, libels on the administration; and, third, libels
on the constitution generally.  Libels upon parliament were ordinarily regarded as analogous to contempts, and will be hereafter treated;' but it may not
be uninteresting to the student of the law of literature to follow briefly the progress of letters as
hampered by the divine right of kings and the sacredness of the state.
That law on the subject of words spoken or
written against the sovereign personally has undergone considerable alteration in more recent times.
An Act of 3 Edw. I, c. 34, provides " that from henceforth none be so hardy to tell or publish any false
news or tales whereby discord, or occasion of discord
or slander may grow  between  the king  and  his
people, or the great men of this realm."  Section I of
6 Anne, c. 7, made it high treason for any person
maliciously, advisedly, and directly, by writing or
printing, to maintain and affirm that the then sovereign was not the lawful and rightful queen of the
realm, or that the pretender had any right or title to
the crown, or that any other person or persons has
or have any right or title to the same, otherwise than
according to the bill of rights, the act of settlement,
and the acts for the union of England and Scotland;
or that the kings or queens of the realm, with and by
the authority of parliament, were not able to make laws
and statutes of sufficient force and validity to limit
and bind the crown, and the descent, limitation,
l Post, chapter on contempt of court.




CH. I.]          OF  INNOCENCE.                  59
inheritance, and government thereof. Words spoken
against the king were, before the time of Charles I.,
held to be treasonable. To accuse the king of
having committed murder,' or to say that a king de
facfo and not de jure was the rightful king,2 was
held to amount to high treason.! But in the case of
Hugh Pine,4 who was accused of having spoken
several disparaging words concerning the king
(Charles I.), the judges resolved " that the speaking
of the words before mentioned, though they were as
wicked as might be, were not treason; that, unless it
were by some particular statute, no words will be
treason."
To charge the king with a personal vice was held
by the judges, upon debate of Peacham's case, not to
be treason.' In that case the accused, a clergyman, was found guilty of treason, in the reign
of Charles I., for certain passages in a sermon
found in his study, which was never preached or
intended  to  be preached.  Many  of the judges,
however, were of opinion that this was not treason, and the prisoner was not executed.6 In the case
of Algernon Sidney, an unpublished paper, forming
part of a theoretical work on government, found in
his house, was given in evidence against him, and the
Chief Justice (Jefferies) in his charge to the jury, insinuated that the doctrines contained in the paper
were treasonable in themselves without reference to
other evidence.7
Juliana Quick's Case, 2I Hen. VI.
2 Germaine's Case, 2 Edw. IV.
a Challercome's Case, cited Cro. Car. I25.
4 Cro. Car. II7, I26.
lb. 126.
s First Discourse of High Treason, ch. I, I99.
79 St. Tr. 889, 893.




60          LA W  OF LITERA TURE.           [CH. I.
The judgment in Sidney's case was reversed by
act of parliament in I689.
Though neither words spoken, nor an unpublished
writing, was held in England to amount to an overt
act of treason, to make good an indictment of
compassing the death of the sovereign, under 25
Edw. 3, c. 2, yet a writing which imports such a
compassing, if it be published, will amount to an
overt act of treason under that statute.'
Apart from statute, all contempts against the
sovereign's person or government, are, according to
the text-books, very highly criminal, and punishable
with fine and imprisonment, by the discretion of the
judges, upon consideration of all the circumstances of
the case. Under this head is ranked contemptuously
speaking of the sovereign, as by cursing him, &c., or
giving out that he wants, wisdom, valor, or steadiness;
or in general, doing anything which may lessen him in
the esteem of his subjects, weaken his government, or
raise jealousies between him and his people.  Stating
or insinuating that he acts from partial or corrupt
motives, or with an intention to favor or oppress any
individual, or class of men, would be a seditious libel;
but not the imputation of honest'error without moral
blame.
It is a criminal libel to publish falsely of the sovereign, as of any other person, that he is insane.3
In a leading case on the subject of seditious libels
in England, defendants were printer and proprietor
of a newspaper. The libel for the publication of which
the criminal information was filed was the following:
"What a crowd of blessings rush upon one's mind
i Williams' Case, 2 Roll. Rep. 88; 2 Inst. I2.
2 Rex v. Lambert, 2 Camp. 402.
a Rex v. Harvey, 2 B. & C. 257.




CH. I.]         OF INNOCENCE.                 6i
that might be bestowed upon the country in the event
of a total change of system! Of all monarchs, indeed, since the Revolution, the successor of George
the Third will have the finest opportunity of becoming nobly popular."'
In I729, an information was filed against John
Clerk, charging him with printing and publishing an
infamous libel called " Mist's Weekly Journal," wherein
the king's title to the crown was openly struck at, his
legitimacy called in question, and the persons of
several of the royal family scandalously traduced under
borrowed names; by representing the late king
(George I.) under the name of Merewits, his present
majesty under that of Esreff, the queen under that of
Sultana; and at the same time drawing a beautiful
character of the Pretender by the name of the Young
Sophi, and setting forth the tyranny and subjection all
Englishmen lay under, by representing them under
the name of the Persians. The charge against the
defendant was for maliciously and traitorously printing
off one of these papers in particular; but the jury
found the defendant guilty.2
A similar information was filed against a compositor named Knell, one of the two servants of Mist, for
printing and publishing the same work. The evidence
being that the defendant and his fellow-servant set up
the type, and that one took one column of it downward and the other the other column upward, the chief
justice directed the jury to acquit the defendant as to
the publication; but, if they believed the evidence, to
find him guilty of the printing; and the jury did so.
An old bed-ridden woman was also indicted for publishing the same libel, she having kept a pamphlet'Rex v. Lambert, 2 Camp. 398
2 Barnardiston's Rep. 304.




62          LA W  OF LITERA TURE.           [CH. I,
shop at which the libel was sold, the shop being
shown to be a mile distant from the house in which
she had for a long time lain bed-ridden.'
In I763, an information was filed against John
Wilkes, for printing and publishing a certain malicious,
seditious, and scandalous libel, intituled " The North
Briton,'} number 45, tending to vilify and traduce the
king and his government, to impeach and disparage
his veracity and honor, and to represent and make it
to be believed that his majesty's most gracious speech
delivered from his throne to the parliament, on the
I9th day of April, I763, contained many falsities and.
gross impositions upon the public, and that his majesty
had suffered the honor of his crown to be sunk and
prostrated, 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;
and to violate and disturb the public tranquillity, good
order, and peace of the kingdom. He was found
guilty, and sentenced to be fined and imprisoned,
George Kearsley was convicted of printing and pub —
lishing, and John Williams of publishing the same
number of "The North Briton."2
In 1848 parliament made it treason to publish or
utter such seditious writings or language as would,
incite the people to disaffection and rebellion.
Everybody may, with impunity, criticise the conduct of the government, provided he does it fairly and
honestly; but imputations of corrupt motives in the
administration of affairs, or other writings calculated'Rex v. Nutt, Id. 306. The attorney-general consented to,
withdraw a juror.
2Dig. L. T. 69, K. B. MSS.
II & I2 Vict., ch. 12.




CH. I.]          OF  INNOCENCE.                     63
to alienate the affections of the people by bringing
the government into disesteem,l or likely to excite
sedition, whether such be the writer's intention or not,
come within the denomination of seditious libels, and
are punished as such.
"It is certain," says Hawkins,2 "that it is a very
high aggravation of a libel that it tends to scandalize
the government by reflecting on those who are entrusted with the administration of public affairs, which
doth not only endanger the public peace, as all other
libels do, by stirring up the parties immediately concerned in it to acts of revenge, but also has a direct
tendency to breed in the people a dislike of their
governors, and incline them to faction and sedition."
"It has been observed," said Lord Ellenborough,3
"that it is the right of the British subject to exhibit
the folly or imbecility of the members of the government.... If, in so doing, individual feelings are
violated, there the line of introduction begins, and the
offense becomes the subject of penal legislation."
" A  writer," says Fitzgerald, J.,4 "may criticise or
censure the conduct of the servants of the crown or
the acts of the government; he can do it freely and
liberally, but it must be without malignity, and not
imputing corrupt or malicious motives. With the
same motives a writer may freely criticise the proceedings of courts of justice and of individual judges
-nay, he is invited to do so, and to do so in a free
and fair and liberal spirit. The law does not seek to
put any narrow construction on the expressions used'Rex v. Burdett, 4 B. & Ald. 13 3; Rex v. Cobbett, 29 How.
St. Tr. 49.
2 P. C., Book i, ch. 28., " Libels," ~ 7.' Rex v. Cobbett, ubi szupra.'Cox. Crim. Cas. 49.




64          LA W  OF LITERA TURE.           [CH. I.
and only interferes when, plainly and deliberately, the
limits are passed of frank and candid and honest
discussion..... There is no sedition in censuring
the servants of the crown, or in just criticism on the
administration of the law, or in seeking redress of
grievances, or in the fair discussion of all party questions."
Many cases have been decided under this head of
the law of libel, but no finer test of what constitutes
the offense can be deduced from  them  than that
the plain intrinsic tendency of the particular publication to produce public disorder, and the malicious
intention of its author must be considered.
In Rex v. Tutchin,' the defendant was charged
with having falsely, seditiously, and scandalously
written, composed, and published a certain false,
malicious, seditious, and scandalous libel, intituled
" The Observator." The information set forth several
passages from  "The  Observator," some of which
lamented the sad state of the country owing to the
influence of French gold on those who had the conduct of affairs; while others complained of the mismanagement of the navy, attributing ignorance and
incapacity to those who had the management of it.
It having been contended on behalf of the defendant
that the publications could not be libels, because they
did not reflect upon particular persons, Lord Holt,
C. J., said to the jury: "This is a very strange
doctrine, to say it is not a libel reflecting on the
government, endeavoring to possess the people that
the government is maladministered by corrupt persons that are employed in such or such stations either
in the navy or army. To say that corrupt officers
are appointed to administer affairs, is certainly a
14 St. Tr. 1095.




'CH. I.]        OF INNOCENCE.                   65
reflection on the government. If people should not
be called to account for possessing the people with
an ill opinion of the government, no government
can subsist,; for it is very necessary for all governments that the people should have a good opinion
of it. And nothing can be worse to any government than to endeavor to procure animosities as to
the mismanagement of it; this has been always
looked upon as a crime, and no government can be
safe without it be punished. Now you are to consider whether these words I have read to you do not
tend to beget an ill opinion of the administration of
the government."
Richard Francklin was tried and convicted in
- 73 I for printing and publishing in " The Craftsman"
a seditious libel, intituled "A Letter from the Hague,"'
wickedly, maliciously, and seditiously contriving and
intending to disturb and disquiet the public peace
and tranquillity of the kingdom, and to bring the
treaty of peace into contempt and disgrace, and also
to detract, scandalize, traduce, and vilify the administration of his majesty's present 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, and to
cause it to be believed that his majesty by the advice
of his said principal officers and ministers intended to
break and violate the said treaty last mentioned, &c.
" Even a private man's character," said Lord Raymond, C. J., " is not to be scandalized, either directly
or indirectly, because there are remedies appointed by
the law in case he has injured any person, without
maliciously scandalizing him in his character; and
9g St. Tr. 626.




66          LAW  OF LITERATURE.             [CH. I.
much less is a magistrate's, minister of state, or other
public person's character to be stained, either directly
or indirectly, because the law hath pointed out
another remedy than publishing libels, if they have
injured any person, either in a public or private
capacity. And the law always punishes libels, even
among private persons, because they flow from malice
and tend to create disturbance, quarrels, and revenge
between them, their families and kindred, and disturb
the public peace; and the law reckons it a greater
offense when the libel is pointed at persons in a
public capacity, as it is a reproach to the government
to have corrupt magistrates, &c., substituted by his
majesty, and tends to sow sedition and disturb the
peace of the kingdom."  And his Lordship refused
to allow the admission of any evidence to prove
that the matters charged in the libels were true.
In I777 an information was filed against John
Horne, charging that the defendant wickedly, maliciously, and seditiously intending, devising, and contriving to stir up and excite discontents and seditions
amongst his majesty's subjects, and to alienate and
withdraw the affection, fidelity, and allegiance of his
majesty's subjects from his said majesty, and to insinuate and cause it to be believed that divers of his
majesty's innocent and deserving subjects had been inhumanly murdered by his said majesty's troops in the
province, colony, or plantation of the Massachusetts
Bay, in New England, in America, belonging to the
crown of Great Britain, and unlawfully and wickedly
to seduce and encourage his said majesty's subjects in
the said province, colony, or plantation to resist and
oppose his majesty's government, &c., did wickedly,.
maliciously, and seditiously write and publish a certain
false, wicked, malicious, scandalous, and seditious libel




CH. I.]        OF INNOCENCE.                  67
of and concerning his said majesty's government and
the employment of his troops. The information was
tried before the Earl of Mansfield by a special jury,
and the defendant was found guilty and sentenced to
pay a fine of /~200 to the king, to be imprisoned for
twelve months and until the fine should be paid, and
to find sureties for his good behavior for three years.'
In I8o4 an information was filed against William
Cobbett, for a libel upon the administration of the Irish
government, and upon the public conduct and charac
ter of the lord-lieutenant and lord-chancellor of Ire
land.  The libel was contained in a letter signed
"Juverna," published in "The Weekly Register," and
the information charged that the defendant, unlawfully
and maliciously devising and intending to move and
incite the liege subjects of the king to hatred and dislike of his majesty's administration and government of
this kingdom, and to insinuate and cause it to be believed that the people of that part of the United
Kingdom of Great Britain and Ireland called Ireland
were oppressed, aggrieved, and injured by our said lord
the king's government of the said part of the United
Kingdom, and to traduce, defame, and vilify the persons employed by our said lord the king, in the administration of the government of the said part of the
said United Kingdom, &c., did unlawfully and mali
ciously print and publish the said libel. Mr. Cobbett
was not the author, but only the publisher of the
letter.
An information was filed in I8I11 against John
Hunt and John Leigh Hunt for printing and publishing in "The Examiner" a libel tending to create disaffection in the army.2
1   St. Tr. 65I; Cowp. Rep. 676.
2 3I How. St. Tr. 408.




68         LA W  OF LITERA TURE.          [CI. I.
In I820 an information was filed against Sir
Francis Burdett, for writing and publishing a certain
scandalous, malicious, and seditious libel of and concerning the government of this realm, and of and concerning the troops of our lord the king, unlawfully
and maliciously devising and intending to raise and
excite discontent, disaffection, and sedition among the
liege subjects of the king, and among the soldiers of
our said lord the king, and to move and excite the
liege subjects of our said lord the king to hatred and
dislike of the government of this realm, and to insinuate and cause it to be believed by the liege subjects
of our said lord the king that divers of the liege subjects of our said lord the king had been inhumanly
cut down, maimed, and killed by certain troops of our
said lord the king at Loughborough, in the county of
Leicester, on the I6th of August, 1819; the libel being contained in an address to the electors of Westminster.' Best, J., told the jury that if the address
was published with the intention alleged in the infor.mation, such intention was to be collected from the
paper itself; unless the import of the paper were explained by the mode of publication or any other circumstances, the paper was a libel. The jury found
the defendant guilty.
A body of police having dispersed an assembly of
people at Birmingham, an indictment for seditious
libel was preferred against the writer and publisher of
certain resolutions agreed to by a body called the
General Convention, condemning the act of the
police as "a wanton, flagrant, and unjust outrage
upon the people of Birmingham by a bloodthirsty
and unconstitutional force from London, acting under
the authority of men who, when out of office, sanc-'4 B. & Aid. 95.




CH. I.]         OF INNVOCEYACE.                 69
tioned and took part in the meetings of the people,
and now, when they share in the public plunder, seek
to keep the people in social slavery and political
degradation;" asserting that the people of Birmingham were " the best judges of their own right to meet
in the'Bullring' or elsewhere, have their own feelings
to consult respecting the outrage given, and are the
best judges of their own power and resources to
obtain justice;" and that the arrest of a particular
individual "affords another convincing proof of the
absence of all justice in England, and clearly shows
that there is no security for life, liberty, or property,
till the people have some control over the laws they
are called upon to obey."'
" With respect to the intent of the defendant," said
the learned judge, " a man must be taken to intend
the natural consequences of what he has done; and
if this paper has a direct tendency to cause unlawful
meetings and disturbances, and to lead to a violation
of the laws, that is sufficient to bring it within
the terms of this indictment, and it is a seditious
libel.
" If it be the highest crime known to our laws to
attempt to subvert by force the constitution and
state, it is certainly a crime, though of inferior magnitude, yet of great enormity, to endeavor to despoil
it of its best support the veneration, esteem, and
affection of the people. It is, therefore, a maxim of
the law of England, flowing by natural consequence
and easy deduction from  the great principle of selfdefense, to-consider as libels and misdemeanors every
species of attack by speaking or writing, the object
of which is wantonly to defame or indecorously to
calumniate that economy, order, and constitution of' RFex v. Collins; Rex v. Lovett, 9 Car. & P. 456.




70          LAW  OF LITERA TURE.            [CH. I.
things which make up the general system of the law
and government of the country."'
" That to accomplish treasonable purposes, and to
delude the weak, the unwary, and the ignorant, no
means can be more effectual than a seditious press.
With such machinery the preachers of sedition can
sow widecast those poisonous doctrines, which, if
unchecked, culminate in insurrection and rebellion..... Words may be of a seditious character,
but they might arise from sudden heat, be heard
only by a few, create no lasting impression, and
differ in malignity and permanent effect from writings."
Criticism on any part of the constitution, made
with a view to bring about improvements in it, are
not interdicted; but attacks calculated to promote
insurrection, and circulate discontent, to degrade and
vilify the constitution, to asperse its justice and anywise impair the exercise of its functions, are termed
seditious libels, and punished as such.
The state of the country and of the public mind
when the publication takes place are material to be
considered in determining whether the libel was published with a seditious intention.
A particular passage in a work may constitute a
seditious libel; but although the jury are to form
their judgment upon the particular passage charged
as such, they may compare it with the whole book,
and see how it is qualified by it. So with regard to
newspaper articles: the jury are to consider, not
isolated passages, but the whole of the articles complained of.
Whether a newspaper article is original or not,
may, however, be a material consideration in
r1  Cox Crim. Cas. 46.




CH. I.1         OF INNOCENCE.                  7r
determining the intention with which it was published.
Williams, a barrister of the Middle Temple, was,
in the seventeenth year of James I., indicted, convicted, and executed for high treason, in writing two
books, the one called " Balaam's Ass," and the other
called " Speculum Regale," in which he predicted that
the king would die in the year I62I.'
One Brewster was indicted and convicted in the
I5th Chas. II., for printing and publishing a libel
called "The Phoenix, or the Solemn League and
Covenant," in which it was declared that a king
abusing his power to the overthrow of religion, laws,
and liberties, may be controlled and opposed; and if
he sii-s himself to overthrow all these by arms, then
they who have the power, as the estates of the land,
may and ought to resist by arms.2
In the 29th Chas. I I. an information was filed
against one Harrison, charging that he, maliciously
and traitorously intending to stir up sedition and to
create a disturbance between the king and his people,
had published, uttered, and proclaimed of and concerning the government and rule of England, and of
and concerning the traitors who adjudged  King
Charles I. to death, that the government of the
kingdom consists of three estates, and that if a
rebellion should happen in the kingdom, unless that
rebellion was against the three estates, it was no
rebellion. The court, supposing that the words did
tend to set on foot that position upon which the
war levied in I64I by the two Houses against the
king, wafs grounded, were much displeased that the
counsel for the defendant would pretend to defend
12 Roll. Rep. 88.
2 Rex v. Brewster, Dig. L. L. 76.




72          LA W  OF LITERA TURE.           [CuI. IL
them, or to put any tolerable sense upon them, and
gave judgment for the king.'
In the 5th Anne, Dr. Brown was convicted, on anr
information, of having published a libel, entitled
"Mercurius Politicus," reflecting on the state and
constitution, as settled at the Revolution, which he
represented  as the "destruction  of the  laws of
England."'
A treatise on hereditary right, by Bedford, was
held to be a libel, though it contained no reflection
upon any part of the then government, in the I2th
Anne.
An information was filed in I754 against Richard
Nutt, for printing and publishing a certain  false,
wicked, scandalous, seditious, and malicious libel,
entitled "The London Evening Post," tending to
represent this kingdom as in a miserable and wretched
state and condition, and with a view to traduce the
" late happy revolution," and to suggest that it was an
unjustifiable and unconstitutional proceeding; and
also to dispute and call in- question the settlement
and limitation of the succession of the crown of this
realm in the present most illustrious family; and
to represent the same as illegal and unwarrantable,
and to make it be believed that the said late most
happy revolution and the settlement of the crown of
this realm as now by law established, had been
attended with fatal and pernicious consequences to
the subjects of this realm. He was found guilty, and
sentenced to the pillory, a fine of five hundred pounds,
and imprisonment in the King's Bench for two
years.
Dr. John Shebbeare waas convicted in I758 of
Rex v. Harrison, 3 Keb. 842; Vent. 324.
2 Rex v. Brown, II Mod. 86.




CH. I.]         OF  INNOCENCE.                 73
printing and publishing a certain false, wicked, scandalous, seditious, and malicious libel, entitled: "A
sixth letter to the people of England, on the progress
of national ruin, in which it is shown that the present
grandeur of France and the calamities of this nation
are owing to the influence of Hanover on the councils
of England;" tending to traduce the Revolution, and
to represent it as the foundation of all those imaginary
evils and calamities which the defendant would falsely
insinuate the subjects of this kingdom did labor under;
and also to asperse the memory of King William IIIo
and of King George I.; and to represent the public
measures which were taken and pursued during the
course of their respective reigns as wicked, corrupt,
and fatal measures to this kingdom; and also to
asperse, scandalize, and vilify the late king and his administration of the government of this kingdom; and
to make it thought that the public affairs of this kingdom were in a most unhappy and declining state; and
that the subjects of this kingdom were unnecessarily
and most intolerably loaded and oppressed with taxes,
debts, and subsidies; and also to insinuate that the
late king had no concern for the people of England,
nor any regard for the interest, honor, or welfare of
this kingdom, but that the treasure and riches of this
kingdom were misapplied, wasted, and dissipated in
support of the electorate of Hanover and his German
dominions.'
Thomas Paine was convicted in I792 upon an information charging him with being the author and
publisher of a seditious libel, the tendency of which
was " to traduce and vilify the late happy Revolution,
the settlement of the crown and regal government, as
by law established, and also the bill of rights, the leg-'Rex v. Shebbeare, Hil. Term, 3I Geo. II., K. B. MSS.




74           LA W  OF  LITERA TURE.             [CH. I.
-islature, government, laws, and parli'ament of this
kingdom."'
John Cuthell, a bookseller, was found guilty in
I799, of publishing a seditious libel written by the
Rev. G. Wakefield, but, on filing an affidavit that he
had no knowledge whatever of the contents or nature,of the book, he was discharged on payment or a fine
of thirty marks.'
33. For many years the history of the English
law is a history of the censorship of the press, exercised by the Star Chamber, and, in a less degree, by:statutes and by courts ever since.
"On  the abolition," says Shortt,4 "of the Star
Chainber, in I64I, the Long Parliament assumed to
itself the jurisdiction exercised by that court, in
matters relating to the press, and passed many
severe  ordinances  in  restraint of  printing.  The
restraints of the press were continued after the
Restoration  by the  Licensing  Act of I3 &  I4
Car. 2, c. 33 ("An act for preventing the frequent
abuses in printing  seditious, treasonable, and  unlicensed books and  pamphlets, and for regulating,of printing and printing presses"). This act interdicted the printing of pamphlets and books except in
London, York, and the Universities; limited the number of master printers to twenty; regulated the number of their presses and apprentices; appointed
licensers, and imposed severe penalties on offenders'Rex v. Paine, 32 Geo. III., K. B. MSS. The defendant,
not appearing to receive the judgment of the court, was,outlawed.
2 Rex v. Cuthell, 27 St. Tr. 642.
The foregoing account of the common-law decisions as to,seditious libel, is epitomized from Mr. Shortt's work, pp. 322344.
4 Law Lit., p. 3I9. In i68o, when the licensing act had ceased,




CH. I.]           OF  INNO CENCE.                    75
against its provisions, and many cruel and ingenious
punishments were inflicted under it. It continued in
force till I679, and in I685 was revived (by I Jac. 2,
C. I7) for seven years.  In I692 it was continued (by
4 Will. &  M. c. 24) until the end of the session of
i693, when its operation ceased, notwithstanding
several attempts to revive it.' The liberty o f the press
dates from that year.
for a time, to operate, the opinion of the judges on the subject
of unlicensed printing was expressed by Chief Justice Scroggs,
in the following manner. At the trial of Benjamin Harris,.a bookseller, for the publication of a libel entitled, "An
Appeal from the Country to the City, for the Preservatiop
of his Majesty's Person, Liberty, Property, and the Protestant
Religion," the chief justice said: " It is not long since that all
the judges met by the king's command —as they did some
time before, too-and they both times declared unanimously
-that all persons that do write or print or sell any pamphlet that is either scandalous to public or private persons,
*such books may be seized, and the person punished by law;
that all books which are scandalous to the government may
be seized, and all persons so exposing them may be punished;
and, further, that all writers of news, though not scandalous,
seditious, or reflective upon the government or the State, yet
if they are writers (as there are few others) of false news,
they are indictable and punishable upon that account" (7 St.'Tr. 929).'"While the abbey was hanging with black for the funeral
of the queen, the Commons came to a vote which, at the time,
attracted little attention, which produced no excitement, which
has been left unnoticed by voluminous annalists, and of which
the history can be but imperfectly traced in the archives of
Parliament, but which has done more for liberty and for
civilization than the great charter or the bill of rights. Early
in the session a select committee had been appointed to ascertain what temporary statutes were about to expire, and to consider which of those statutes it might be expedient to continue.'The report was made; and all the recommendations contained
in that report were adopted, with one exception. Among the
laws which the committee advised the House to renew was the
law which subjected the press to a censorship. The question
was put'that the House do agree with the committee in the




76           LA W   OF  LITERA TURE.             [CH. IO
"The liberty of the press, when rightly understood," says Blackstone,' "consists in laying no previous restraints upon publications, not in freedom from
censure for criminal matter when published."'
That liberty in the United States is practically unlimited and absolute. Such a thing as a prosecution
for seditious libel, at least so far as our knowledge
goes, is, and always appears to have been, utterly unknown. The right of the government, however, to
restrain or punish utterances calculated to diminish its
power or weaken its authority, cannot be supposed,
from the fact of its never having been asserted (except, perhaps, in time of war, when arrests were made
by force of martial law and as a military measure')
not to exist. Not only does such right inhere in the
government by virtue of the common law, but an act
of congress of July I4, I798, makes it an indictable
offense to libel the government, congress, or president
of the United States.
34. It is apprehended, as we have said already, that
the prevention of injurious publications in this country will be directed rather to their sale when published, than to a forbidding of their publication, and
so would fall under the police jurisdiction of the
states themselves, rather than under the copyright jurisdiction of congress. There can Le no property,
resolution that the act entitled an act for preventing abuses in
printing seditious, treasonable, and unlicensed pamphlets, and
for regulating of printing and printing presses, be continued.'
The Speaker pronounced that the'noes' had it; and the' ayes'
did not think fit to divide" (Macaulay, Hist. of Enlg., vol. 4,
p. 540). As to the reasons which induced Parliament to
discontinue the licensing act, see p. 54I of the volume last
referred to.
4 CoGm. (Steph.) 346.
2 Vid. Hallam Const. Hist., vol 3, p. 227 (ed. I832),
e. g., the case of Vallandigham, 1363.




C.I. I.]          OF  IlVN OCENCE.                   77
either literary or otherwise, in such matter. No action
at law would lie for its recovery if withheld, or if lost
by a carrier-and we have already seen that it is a
misdemeanor to deposit it in the post-office. Statutes
forbidding the sale of such productions will probably
be found in most if not all of the states; but even in
their absence, the dealing in this class of publications
would be indictable,' for the circulating of obscene
matter to deprave and corrupt the public morals, is,
indeed, as Lord Campbell characterized it, " an abominable offense,"2 and the jurisdiction of such offenses
having come down from the star chamber through the
ecclesiastical courts,' has finally settled upon the civil
courts as the custodians of the morals of the realm4
or commonwealth.
In treating of obscenity the law encounted a difficulty at the very outset.  It was difficult to draw  a
1"Preserving and keeping in one's possession" obscene
works for the purpose of selling them, is not an indictable
offense. But "obtaining and procuring" them for that purpose is an indictable misdemeanor at common law (Sugdale's
Case, i Dears. C. C. 64). " And this because " —said Campbell,
Ch. J., in that case-" the plaintiff in error may have had the
pictures in his possession with an innocent intention; and
there is no act shown to be done which can be considered as
the first step in the prosecution of a misdemeanor...
Procuring is an overt act, an unlawful step taken in pursuance
of the abominable offense of circulating obscene prints to
deprave and corrupt the public morals.
2Ibid.
3 Hill's Case, 2 Str. 790; Dig. L. L. 6o.
4 Rex v. Curl, 2 Str. 789. One of the members of' the court,
when this case first came before it-Fortesque, J.-was of
opinion that the offense (of having published a base and obscure
libel, entitled, "Venus in the Cloister, or the Nun in her
Smock "), though great, was not punishable by law (lb. 790).
The court, however, upheld the temporal jurisdiction, and
Curl was pilloried for his offense. Since this decision, the
temporal character of the offense has not been doubted.Shortt, L. L. 3I2.




78           LA W  OF  LITERA TURE.            [CH. I.
line between works wholly and designedly obscene and
those obscene only in portions.  The question arose
how large or how small a portion of a work must be
worthy and moral in its character to make it proper
to be promiscuously circulated.  The labors of the
great masters of art, and the writings of the fathers,
and masters of poetry and the drama, might readily be
brought under a too general and comprehensive definition, and thus works good in themselves, and stanard and elevating in their nature, might be interdicted;
while, under a more specific and narrower one, compositions designedly vicious and corrupting in all
their tendencies might avoid the injunction of the law.'
35.  Again, a work written with the laudable intention of reforming abuses, and to expose errors, may
be, from the very nature of the abuses and errors
sought to be reformed, liable to the charge of obscenity.
It is indeed a delicate question, and one that
jurists, legislators, and sociologists have constantly
encountered. The offense is rank, but it would seem
as if any attempt to abate it became, almost at the
outset, ranker than the offense itself. It is an offense of
which the world has not yet learned even to speak, without danger to the very interests it strives to protect.' Hill's Case, 2 Str. 790o. The defendant, in this case, was
indicted for publishing some poems of Lord Rochester's. In
I857, pending the passage of a bill in the English Houseof Lords, relating to obscene productions, Lord Lyndhurst
pointed out this difficulty. "The magistrate," said he, " must
also be satished that the case is a proper one for a prosecu —
tion; so that if indecent passages were taken out of such
authors as Dryden or Pope, he would say:'Although these
are very indecent passages, and ought never to have been
inserted in these works, yet this is not a case for a prosecution'
(Parliamentary Debates, July I3, i857), and accordingly the
words,'proper to be prosecuted as such' (obscene), were.
inserted."-Rex v. Hicklin, L. Rep. 32, B. 371.




CH. I.]         OF INNOOCENCE.                  79
In a recent case,' the test of obscenity was said to
be "whether the tendency of the matter charged as
obscenity is to deprave and corrupt those whose minds
are open to such immoral influences, and into whose
hands a publication of the sort may fall."
This latter was a case where a pamphlet, called
"The Confessional Unmasked; professing to show
the depravity of the Romish priesthood, the iniquity
of the confessional, and the questions put to females
in confession "-containing extracts in Latin, with
translations of the same, from various writers, half the
pamphlet relating to controversial matters, and the
other half being grossly obscene as relating to impure
and filthy acts, words, and deeds-was circulated by
the appellant, a member of "The Protestant Electoral
Union," not for profit or gain, but for the purpose of
exposing what he deemed to be the errors of the
Church of Rome, and particularly the immorality of
the confessional; the pamphlet, in fact, containing a
preface and notes condemnatory of the tenets and
principles of the writers cited from.
The court of queen's bench held that the justices,
were right in ordering a number of copies of the
pamphlet to be seized in the appellant's house, and
destroyed as obscene books under the law.
"I take it," said Cockburn, Ch. J., "that, apart
from the ulterior object which the publisher of this
work had in view, the work itself is, in every sense of
the term, an obscene publication, and that consequently, as the law of England does not allow of any
obscene publication, such publication is indictable.
We have it, therefore, that the publication itself is a
breach of the law. But then it is said for the appel1 Rex v. Hicklin, L. Rep. 32, B. 37I; i8 L. T. N. S. 398; 36
L.J. 9; 8 M. C.




So         LAW  OF LITERA TURE.          [CH. I.
lant:' Yes, but his purpose was not to deprave the
public mind; his purpose was to expose the errors of
the Roman Catholic religion, especially in the matter
of the confessional.' Be it so. The question then
presents itself in this simple form: May you commit
an offense against the law, in order that thereby you
may effect some ulterior object which you have in
view, which may be an honest and even a laudable
one? My answer is, emphatically, no. The law says
you shall not publish an obscene work. An obscene
work is here published; and a work, the obscenity of
which is so clear and decided, that it is impossible to
suppose that the man who published it must not have
known and seen that the effect upon the minds of
many of those into whose hands it would come,
would be of a mischievous and demoralizing character.... I think the old sound and honest mlaxim,
that you shall not do evil that good may come, is
applicable in law as well as in morals; and here we
have a certain and positive evil produced for the purpose of effecting an, uncertain, remote, and very
doubtful good. I think, therefore, the case for the
order is made out; and although I quite concur in
thinking that the motive of the parties who published
this work, however mistaken, was an honest one, yet
I cannot suppose but what they had that intention
which constitutes the criminality of the act; at any
rate, that they knew perfectly well that this work must
have the tendency which, in point of law, makes it an
obscene publication, namely, the tendency to corrupt
the minds and morals of those into whose hands it
might come. The mischief of it, I think, cannot be
exaggerated. But it is not upon that I take my stand
in the judgment I pronounce. I am of opinion, as
the learned recorder has found, that this is an obscene




'C. I.]        OF INNOCENCE.                  8r
publication. I hold that where a man publishes a
work manifestly obscene, he must be taken to have
had the intention which is implied from that act; and
that, as soon as you have an illegal act thus established, yuoad the intention and quoad the act, it does
not lie in the mouth of the man who does it, to say,
Well, I was breaking the law, but I was breaking it
for some wholesome aud salutary purpose.' The law
does not allow that. You must abide by the law, and
if you would accomplish your object, you must do it
in a legal manner, or let it alone; you must not do it
-in a manner which is illegal."
36. We apprehend the rule will be in general
somewhat as follows: Standard works of great literary
value, like the plays of Shakespeare, Jonson, Beaumont
and Fletcher, Congreve or Wycherley, the poems of
Chaucer, Dryden, or Byron, or the prose fiction of
DeFoe, Smollett, or Fielding, manifestly will not be
construed to be obscene productions, although,
whether designedly, or by the fault, the fashions, and
follies of the days when they were composed, all
the works of these writers contain passages which are
in these times-without question, perhaps grossly
immoral and obscene. It is not upon such episodes,that their immortality rests; such passages are the tares
which grow with the wheat, which are to be forgiven
for the sake of the sublime, or brilliant, or epigrammatic character of the composition, ascribing them only
to the manners of his times and to the humanity of the
author. Neither will we prosecute the successful editors
and publishers of these works, nor class the works
themselves as falling under the interdiction of the law.
37. If, however, an editor or publisher should undertake and publish a volume of selections from the
above or like authors, which should contain cx6




82          LAW  OF LITERA TURE.            [CH. I,
elusively their obscene passages and nothing else, so
that every passage or sentiment of literary or epigrammatic merit which has made those writers famousshould be carefully banished, and only the grossly
sensuous or filthy thoughts and sentiments included;
such a volume-we think it cannot be doubted-would
be clearly an obscene publication.  A  publication
might be even made grossly obscene by culling passages wholly from the sacred scriptures, which passages,
standing alone and unrelieved by their natural context, might constitute a work indictable by law.' It
might be objected that such a work would harm nobody; but, on the other hand, there might be many
persons ignorant enough to suppose that the lofty
authority of the source attached itself to garbled
extracts isolated therefrom.
38. The circulation of grossly obscene and filthy
engravings, prints, cuts, photographs, or pictures:
of any kind, is generally  prohibited  by statute,
whether by passing through the mails, or by selling
and vending, or exposing or procuring them to be so
sold or vended. And even if it were not, we think,
undoubtedly, that an authority to check such offenses
contra bones mores exists by common law in all the
courts of criminal jurisdiction. Undoubtedly no copyright' or other property can exist in such productions,
for the law will not protect in one form what it punishes in another.
39. With regard to photographs, prints, or engravings, the of the works old masters, antiques and classical
fragments, a more careful discrimination might be necessary. There must be here, as in the case of the stanMatter of Train, N. Y. General Sessions, I873.
Ia bid.
3 Du Bois v. Beresford, 2 Camp. 5II; 4 B1. Corn. (Steph.)
545; Fores v. Johnes, 4 Esp. 97.




CI. I.]          OF  INNOCE1VCE.                    83
dard writers, a careful discrimination between what is
merely sensual and suggestive (from which, perhaps,
equity might withhold its protection) and that which
is grossly obscene and filthy, the circulation of which
the law might follow with punishment.'
40. There is another character of publications
which the law will not consider as innocent, namely,
those which in their pretensions, titles, or advertisements, deceive, or are calculated to deceive, the
public.
In such cases the publisher of the matter will be
held to obtain, or as seeking to obtain money under
false pretenses, not only in the publication of the work,
but every time a single copy is sold. And he cannot,
therefore, have any copyright in the publication nor
any standing in court to ask protection in the possession of what he has no right to possess.2
This rule was laid down in Wright v. Tallis, by
Tindal, C.J., and as carrying the principle, perhaps, to
its limit, it may be well to examine that case somewhat
in detail. The declaration alleged that before and at the
time of committing the grievances, &c., there was a subsisting copyright in a certain book entitled, " Evening
Devotions; or the worship of God in spirit and in
truth, for every day in the year," from the German,
by C. C. Sturm, author of the " Morning Devotions ";
and that the plaintiff was the proprietor of such copy1 Thus the paintings of " Leda and the Swan," and " Io and
Jupiter," in the Royal Museum at Berlin, and the innumerable Danaes, and other renderings of classical fictions, while
assuredly not modest in their tone, could scarcely be called
obscene. The selection of paintings from the "chamber of
the nymphs," in Pompeii, and the bronzes and statuary from
that city, preserved in the secret chamber of the Royal Museum
at Naples, however, are unquestionably obscene, and seem
to illustrate the distinction endeavored to be indicated above.
" Wright v. Tallis, I C. B. Rep. 893.




84          LA W  OF LITERA TURE.           [CII. I.
right, and had printed divers, to wit, twenty thousand
copies of the said- book, to his own great profit and
advantage. The defendant, however, was enabled to
establish in defense, that the book in question was procured by the complainant to be written by one
Robert Huish, and was not a translation from the
German of C. C. Sturm, whose works were well
known and highly valued. And, on demurrer, it was
held that the work, being a palpable attempt to deceive
the public, no copyright could exist therein, and the
plaintiff could not maintain his action for piracy. The
learned chief justice, however, was careful to discriminate between this case and the others examined in
this chapter, saying: "The cases in which a copyright
has been held not to subject where the work is subversive of good order, morality, or religion, do not, indeed, bear directly on the case before us; but they
have this analogy with the present inquiry, that they
prove that the rule which denies the existence of copyright in those cases, is a rule established for the benefit and protection of the public, and we think the
best protection that the law can afford to the public
against such a fraud as that laid open by this plea, is
to make the practice of it unprofitable to its author."
The case of Lord Byron v. Johnston 1 is a peculiar
one. In that case an injunction was continued by
Lord Eldon, restraining the defendant from publishing a poem as the work of Lord Byron, who was then
abroad, on an affidavit of Lord Byron's agents of circumstances rendering it highly probable that it was
not his work, and the defendant declining to swear
that he believed it was.
4I. There may be, and are, however, innumerable
I 2 Meriv. 29. (See this case, and Harte v. De Witt, treated
post, in the chapter on Piracy.)




CH. I.]            OF  INNOCENCE.                    85
cases of misrepresentation in the authorship of literary
productions, which are entirely innocent, harmless,
and permissible, as not only deceiving nobody, but
adding  as a sort of coup d'eclat  to the interest or
the  success of the  work.  Notable  instances  of
the like are frequent in literature, and should be
carefully discriminated from the rule just laid down.
As where the author of a fiction, for instance, pretends to be the editor of a manuscript that he has discovered in a hidden spot in an old garret or chest of
drawers, or in a cave or the trunk of a tree. Or where
the fiction holds itself out to be a translation, as did
Walpole's Castle of Otranto; or where the form of
letters, passing between imaginary correspondents, or of
statements or affidavits made by them is chosen; or
where the author's name is concealed under a fanciful
or invented nom de plume. There is no serious design,
in any one of these cases, to deceive the purchaser, or
to make gain or profit from him on the false representation. The purchaser probably would not have
been deterred from purchasing at the same price, had
he known or been informed, by the bookseller, that
the name of the author was assumed, and not genuine;
or had known that the work was original, and not
translated.'
If Chatterton had invoked the protection of a'Wright v. Tallis, I C. B. Rep. 893. There is no more
common device of authors than this-certainly none more
harmless, or, we may add, delightful. (See the interesting
treatise of M. Delepierre: "Supercheries Litteraires, Pastiches, Suppositions d'auteur, dans les Lettres et dans les
Arts. Londres: N. Trubner et cie. I872; " and also, "Questions de Litterature Legale,"-Ch. Nodier; "Pastiches et
Imitations, Libres du style de quelques Ecrevains de 17me et
du i8me Siecles,"-L. Chatelaine; "Reflexions sur le Style
Original,"-Marquis de Roure; and "Supercheries Litteraires," by Querard.




86          LA W  OF LITERA TURE.          [CH. I.
court of equity for a copyright in his published works,
who could doubt that it would have been extended
him, since the antique and the literary charm of the
work was his, to whomsoever among imaginary beings
he chose to assign it. Imagine a purchaser, of that
day, bringing back a volume of the " Rowlie Poems"
to his bookseller, and asking a return of his money,
on the ground that it was not a transcription from
old manuscripts of the monk, Thomas Rowlie, but
the original work of a boy-one Thomas Chatterton; or the " Tales of a Grandfather," because they
were written by Walter Scott, and not by Jedediah
Cleishbotham; or" Knickerbocker's History of New
York," because there was no such man as Deidrich
Knickerbocker, but that the whole was a burlesque
and absurdity, proceeding from the brain of one
Washington Irving!
42. By the common law, there is still another
class of works not innocent. It was laid down by
Lord Ellenborough, in the trial of Jean Peltier for a
libel upon Napoleon Bonaparte, first consul of the
French republic, in I803,1 that any publication which
tends to degrade, revile, and defame persons in considerable situations of power and dignity in foreign
countries, may be taken to be and treated as a seditious libel, particularly where it has a tendency to interrupt pacific relations between the two countries.' If
the publication contains a plain and manifest incitement and persuasion, addressed to others, to assassinate and destroy the persons of such magistrates,
as its tendency is to interrupt the public peace, the
libel becomes subversive of government, and assumes
1Rex v. Peltier, 28 Howell's St. Tr., 6I7; and London, M
Peltier, I803.
2 The same appears to be the law in Scotland-vid. Borthwick's Law of Libel, pp. 74, 75.




CH. I.]           OF  INNOCENCE.                     87
a still more  criminal complexion.   It is difficult
to conceive of such a case occurring in the United
States.  It would certainly be an interesting spectacle,
if a foreign power should complain of a libel through
the press of a government which permits herself, her
Xown rulers, statesmen, and machinery of state, to be
criticised, characterized, caricatured, and maligned,
without limit and without protest. Still, it has not
been thought inappropriate, in this connection, to
examine the few instances in which this kind of publication has been condemned.
The information, in I 8o8, against Jean Peltier, was
for publishing matter defamatory of the first consul of
France-a country with whom  England was then at
peace-and containing passages inciting to his assassination.'
Two of these passages were as follows:
"De la France, 6 honte 6ternelle!
Cesar, au bord du Rubicon,
A contre lui, dans sa querelle,
Le Senat, Pompee, et Caton;
Et, dans les plaines de Pharsale,
Si la fortune est inegaleS'il te faut ceder aux destins;
Rome, dans ce revers funestePour te venger, au moins il reste
Un poignard aux derniers Romains."
4I1 est proclame chef et consul pour la vie!
Pour moi, loin qu'a son sort je porte quelqu' envie,
Qu'il nomme, j'y consens, son digne successeur,
Sur le pavois porte qu'on l'elise Empereur!
Enfin, et Romulus nous rappelle la chose,
Je fais vceu-deis demain qu'il ait l'apotheose. Amen."
"Oh! eternal disgrace of France! Caesar, 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 must yield to the destinies, Rome, in this
sad reverse-at least there remains to avenge you a poniard
among the last Romans."   " He is proclaimed chief and




88          LAW  OF  LITERATURE.              [CH. I
Lord Ellenborough, having called the attention of
the jury to these passages, said that it appeared to him
that their aim and tendency was to degrade and.
vilify, to render odious and contemptible, the person
of the first consul in the estimation of the people of
England as well as France, and likewise to excite to
his assassination and destruction. "That appearing
to be the immediate and direct tendency of these publications, I cannot," said his lordship, " in the correct
discharge of my duty, do otherwise than state, that
they are, in point of law, libels. And in the correct
discharge of your duty, I am sure no memory of past
or expectation of future injury, will warp you from the
straight and even course of justice; but your verdict
will mark with reprobation all projects of assassination and murder. Consider, likewise, how dangerous,
projects of this sort may be, if not discountenanced
and discouraged in this country. They may be retaliated on the head of all those whose safety is most
dear to us."
Anterior to this, however, in I764, an information.
had been filed against one D'Eon de Beaumont, a
Frenchman, for a libel upon the then French ambassador, Count de Guerchy. The libel principally consisted of some angry reflections on the public conduct
of the ambassador, charging him with ignorance in his
special capacity, and of having used stratagem to supplant and depreciate the defendant at the court of
consul for life. As for me, far from envying his lot, let him
name-I consent to it-his worthy successor. Carried on the
shield, let him be elected! Finally (and Romulus recalls the
thing to mind), I wish that on the morrow he may have his
apotheosis. Amen." Palm of Nuremburg was court-martialed
and sentenced to be shot, at Brenau, in I807, for writing some
echo verses on Napoleon I. And very poor ones they were,.
too; poor enough to have let the author crawl away-one:
would think.-Morgan's Macaronic Poetry, p. 98.




CH. I.]           OF  INNOCENCE.                    89
Versailles.  After the defendant had been found guilty,
Lord Mansfield observed to the Prussian and other
foreign ambassadors then attending the court, that the
law of England paid a high regard to the function
of ambassadors, and would equally protect them from
all insults, as well on their reputation as their persons
or property.'
Lord George Gordon was convicted, in I787, of
publishing, in a newspaper known as "The Public
Advertiser," certain false, scandalous, malicious, and
defamatory libels on the queen of France, Marie
Antoinette, and on the French ambassador in London, imputing to the former, tyranny and oppression,
and charging the latter with being the tool employed
in carrying them on; and in I 799, John Vint, George
Ross, and John Parry, were tried upon an information
for publishing, in "The Courier" newspaper, the following libel upon the emperor Paul I., of Russia:
"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 now passed an edict prohibiting the exportation of timber, deals, &c. In consequence of that ill1 Rex v. D'Eon, W. Black. Rep. 501, 5I7; Dig. L. L.
74, 75.
2 22 Howell's St. Tr. I75. For the above libel Lord George
Gordon was sentenced to two years' imprisonment in New —
gate (to be computed from the expiration of a three years
imprisonment to which he was sentenced on the same day for
a former libel, which has been noticed), and to a fine of 50oo0;.
and at the expiration of his term of imprisonment, to find
sureties for his good behavior for the space of fourteen years,
himself in Jio,ooo, and two sureties in /2,500. On the I8th
of January, 1793, he was brought into court for the purpose
of being admitted to bail; but being unable to provide the
requisite security, he was remanded to prison, where he:
remained until his death on the Ist of November, I793. —
Shortt, p. 381.




,9o          LAW  OF  LITERA TURE.              [CH. I.
timed law, upwards of one hundred sail of vessels are
likely to return to this kingdom without freights."
Lord Kenyon, Ch. J., told the jury that such a publication, holding up the sovereign of Russia as a tyrant,
and ridiculous over Europe, might tend to his calling
for satisfaction, as for a national affront, if it passed
unreprobated by our government, and in our courts
of justice.'
43. To recapitulate, then: Works not innocent
in their nature-although they come into court and
pray it  cannot receive the recognition of the law
which will give no damages for their piracy, and con-.sequently no protection, through equity, against such
piracy. Works that, in addition to being not innocent, are absolutely and undeniably vicious, monstrous,
and corrupting, by being either outrageously blasphemous, or filthy and obscene, will, as we have
already seen, fall under the attention of the law without soliciting it, and be positively and criminally deal:r
with by the municipal or local authorities-they, and
their authors and publishers and circulators.
44. There remain, still, two other classes of productions, namely, matters libelous (properly so called)
of the individual, which are proceeded against both
civilly and criminally, and matters contemptuous of
courts of justice.  These we propose to consider in
a separate chapter.'27 Howell's St. Tr. 627, 643. The defendants were all
found guilty, and the proprietor of the paper was sentenced to
six months' imprisonment, to pay a fine of;fioo, and to give
security for his good behavior for five years, himself in f5oo,
and two sureties in /250 each. The printer and the publisher
were sentenced to one month's imprisonment.-Ib.




CHAPTER II.
OF LIBEL.
45. IT appears then, that the law, in return for the
protection it extends to authors, requires that they
shall not use their liberty to the hurt of the subject:
and that the literary matter in which their rights are
secured shall be-to begin with-Innocent.  We have
seen, so far, that this innocence must exist: I. in the
Intention (i.e., that it shall not prejudice or imperil the
morals of the community), and II. in Representatation (zie., that it shall not harmfully deceive the
public as to its genuineness or its value).
There is besides a third class of publications so
directly, absolutely, and often maliciously harmful, that
the law will not merely express its disapprobation by
withholding its protection from them, but will interfere directly to shield the party injured, and to punish
the utterers and publishers; whether that party be
an individual, the state, or the community at large.
This class consists of publications Libelous; and
the wrong which they commit is known as libel.
To the Roman law of libel, as applied to literature, Horace makes allusion in one of his satires:
Quinetiam lex
Poenaque lata, malo quae nollet carmine quenquam
Describi. Vertere modum formidine fustis.1
Hor. Sat. ii. " Moreover, it is an extensive law and punishment which will not permit a person to be described in dog



92           LA W   OF  LITERA TURE.             [CH. II.
The Institutes of Justinian defined a libeler to be
"one who shall, to the infamy of another, write, compose, or publish a book, song, or fable, or maliciously
procure any of those acts to be done;" and a distinction was very early taken in the Roman law,
between slander spoken and written.  The  inzjria
verbahis was deemed a much lower degree of injury
than the malum carmen and famosus'libe/us.
This distinction has survived the civil law, and is
the one observed to-day;' slander being a defamation
conveyed by speech, and libel a defamation conveyed
by writing or effigy.2  It follows, therefore, that what
gerel verse. To change the style for fear of a club! " The
punishment at Rome, for slander, by means of defamatory
verses (si quis aliquem publice defamisset, eique adzersos bones
anoros convicizum feicisset vel carmen fainmosum in eum condidisset),
was, beating with a club. Tiberias ordered one whom he
had befriended, and who afterwards wrote defamatory verses
against him, to be thrown from the Tarpeian rock (Dio. lvii.,
22). There was no action for ingratitude among the Romans,
as with the Persians; for, says Seneca, all the courts at Rome'
would scarcely have been sufficient for trying them.
There was something superstitious in the horror with which
the Icelanders regarded a libel; and no offense among them
was more surely or bloodily avenged than the publication of
satirical verses, or the setting up of a " Nid "-that is, an insulting or indecent figure, or a horse's head on a pole on the lands
of another. (See " The Story of Burnt Njal; or, Life in Iceland
at the End of the Tenth Century."  By George W. Dasent,,
D.C.S.) The Russian people "feel corporeal punishment
less sensibly than a verbal insult. This idea has a religious.
foundation. A good Christian cannot admit that the punishment of fustigation, which has been inflicted on the Saviour of
humanity, can be for a man a stain of infamy. He believes.
that a verbal insult affects the immortal part of man; whereas,
a blow only produces suffering in the least noble part of his
being" (Essai sur l'Histoire de la Civilization en Russie. Par
Nicolas de Gerebtzoff.  Paris, I858, vol. ii., p. 575. Westminster Review, January, I864-Art. Russia).
Holt on Libel, p. 21.
2 So, suspending a lamp before the plaintiff's house, intimat



CH. II.]             OF  LIBEL.                     93
may be slanderous only, when spoken or uttered so as
to reach the ear, upon being so published as to reach
the eye, becomes libellous. These two wrongs are so
intermixed that a knowledge of one is necessary to an
understanding of the other, and we have, therefore,
treated them together in this chapter.  To one bearing the above simple distinction in view, no confusion
can possibly arise from such a method, which,
unless we presented a separate treatise upon each, appears to be unavoidable.  It is to be noticed thatt
while libel is, besides being actionable, an indictable
offense,' slander is not criminally cognizable, the party
injured being left to his civil remedy, which, as will be
seen, is ample, and all that he could desire.'
The word defamation, when occurring in this chapter, is to be taken in its ordinary popular signification
of matter tending to injure one's good name, charac
ter, or occupation': and not as intending any allu
sion to the technical and now obsolete crime of defa
mation, which was an ecclesiastical offense, cognizable
only in the ecclesiastical courts,4 such as laying violent
hands on a clerk, or the like.
Satire is a form of speech, which is sometimes,
ing that it was a house of ill-fame, is a libel (Jefferies v. Duncombe, 2 Camp. 3; I1 East, 226).'Bailey v. Dean, 5 Barb. 297.
2 Except in cases of high treason; and we have seen (aitte, p.
76) that, in the United States, in time of war, individuals may
be proceeded against for words spoken, which tend to weaken
the authority of government. In the reign of queen Anne,
words reflecting on a magistrate in the discharge of his duties,
as such, were held indictable; but on account of their seditious
character as against the government, rather than as an offense
against the individual (Reg. v. Langley, 2 Lo. Raym. Io6o;
Holt L. 654).
~ Blackstone, adopted by Webster.
4 Abolished by statutes i8 & I9 Vict., ch. 12.




94           LA W  OF  LITERA TURE.          [CH. IIL
perhaps, permitted to approach the verge of libel, but
which, nevertheless, is to be carefully distinguished
from it: " For," as said Pope, "there is not in the
world a greater error, than that into which fools are
apt to fall into, and knaves with good reason, to encourage; the mistaking of a satirist for a libeler."'
And in  "Joseph Andrews,"' Fielding says:  "The
distinction between the satirist and the libeler is, that
the one speaks of the species, the other of the individual; the one holds the glass to thousands in their
closets, that they may contemplate the deformity, and
thereby endeavor to reduce It, and thus, by private
mortification, avoid public shame.  Thus the satirist
privately corrects the fault, like a parent, while the
libeler mangles the individual like an executioner;"
which perhaps is sufficiently exact to be adopted as
the legal distinction.
46. We have alluded, further on, to the difficulties
experienced in defining the word "libel."   A similar
difficulty did not seem to occur in the case of slander,
that wrong being defined closely by common law. It
consisted in the imputation of:  I. Some temporal
offense for which the party might be indicted and
punished in the temporal courts.  2. An existing
contagious disorder, tending to exclude the party from
society. 3. An unfitness to perform an office or employment of profit, or want of integrity in an office
of honor. 4. Words prejudicing a person in his lu —
g Pope. Anon. Satires andEpistles. Advertisement. Other
forms of speech were formerly brought under the scrutiny of
the law. Thus, scolding often repeated, to the disturbance
of a neighborhood, was indictable (Reg. v. Foxby, 6 Mod.
145). And so profanity, calumny, and perjury, are forms of
offenses by words. As to brawling, see Stephen's Ecclesias —
tical Statutes, p. 336; Jacob's Law Dict., tit. Cuckinstool.
2 Vol. ii., p. 5.




CH. II.]             OF  LIBEL.                     95
crative profession, calling, or trade.  5. Any untrue
words occasioning actual damage.'  It is only with
this slander when written down, and thereby constituted a libel, that the author is concerned, in preparing his labors for publication.
47. The punishment for injuries done by means of
words has at different times varied in severity. Pascal
" charges the Jesuits of his day with sanctioning killing for slander, particularly for slander of one in
1 Hilliard on Torts, ch. 7, ~ 3. The word slander, in former
times, appears to have been synonymous with accused. " But
because some are wrongfully slandered (accused), king Henry I.
ordained that none should be arrested or imprisoned for a
slander (accusation) of mortal offense, before he was thereof
indicted by the oaths of honest men before those who had
authority to take such indictments" (Mirror of Justices, ch.
II, ~ 22). "In this same year the mysseles (lepers) thorowoute Cristendom were slaundered that they had made covenant with Sarasenes for to poison all Christen men" (Capgrave's Chronicle of England, p. i86).
In an address by the dean and chapter of Aberdeen, to
Bishop Gordon, dated January 5, 1558, is the following:
"Dnfirrimis, that my lord bishop cause the kirkmen within
his diocie to reform themselves in all their slanderous manner
of living, and to remove their open concubines, as well great
as small. Secuido, that his lordship will be so good as to show
edificative example-in special, in removing and discharging
himself of the company of the gentlewoman by whom he is
greatly slandered; without the which be done, diverse that
are partners say they cannot accept counsel and correction of
him which will not correct himself," &c., &c.-Reg. Aberd.
6I.
If any slanderously charge another with any false crime
(Ridley's Civil Law, 3I);; and in the statute (3 Edw. I., ch.
34), none are to publish false news whereby slander may
grow between the king and his people (Townshend on Libel
and Slander, p. 6o, note).
"I would not....
Have you so slander any moment's leisure
As to give words or talk with the Lord Hamlet."
(Hamlet, i. 3.)




96          LA EV/ OF  LITERA TURE.         [CH. II.
religious orders, but they held that the killing should
be secret, and not open, to create scandal."' And in
the " Ethica Christiana," 2 published in I 789, "czzm 5ermzissu superiorzvi  " we read that a Christian may, to
prevent a " contlzmeliaa gravis cerloYrovzisa.... ant
calzimmiazz"... murder the " z'n fs'i agg;resorzs auz
calumnzziaoris." " The necessity," says Borthwick,' " of
protecting character by law could not obtrude itself
till society had begun to assume a complicated form.
The earlier days were distinguished by an undiplomatic coarseness of language.   Henry III. (A. D.
I 248) spoke of the aldermen of London as " London
boors;" applied a like epithet to the Bishop of Ely, and
dismissed Bishop Aymer by telling him to " go to the
devil."4 And the action for words, given by the common law, has necessarily varied its penalties with the
customs and habits of men. At the present day: upon
the theory that a man's reputation has a pecuniary
value to him, the penalty inflicted by the law will beprincipally, in the form of a mulcting in damages; orin the case of a libel calculated to interfere with and
provoke a breach of the public peace-a fine and not
immoderate imprisonment.
48. There is but a single known example in
history, of a libel being deliberately chosen as a means
of promoting the public interest and weal.  It seems
that, in the eleventh century, there existed in Denmark a species of libel called " Bersoglisvisur," or freespeaking song. We are told that when king Magnus
gave dissatisfaction to his subjects, a meeting was held,
at which lots were drawn to see which of those
Pascal's Provincial Letters, xiii.
2 By Father Slattler. Paragraphs i889, I89I, I892.
3 On Libel, p. I.
4 Townshend on Libel and Slander, p. 93.




CCH. II.]           OF  LIBEL.                    97
assembled should address one of these songs to the
king.'
49. The first difficulty which confronts us in dealing with the subject of this chapter, arises at the outset, as to a definition. As is the case with most words
(as Dean Trench has pointed out), the tendency of the
word "libel" has been to retrograde, and-from signifying something indifferent or trifling-come to mean
a thing actually bad.
The first meaning of " libellus " or " libel" is evidently "a little book."  At Rome the cards of the races,
with the colors of the horses, were called h'lieli;z', it was
only the 71be1luisfamosus that signified "a little book
giving an ill name."3
And in an early act of parliament4 the word seems
to be used in the sense of a book or pamphlet. The
act reads: "That what person so ever shall make,
write, print, publish, sell, or utter any book, pamphlet,
treatise, ballad, libel, or sheet of news whatsoever, or
cause so to be done, except the same be licensed by
both or either house of parliament," &c.; the word
cannot here mean a defamatory publication, as it is
not to be supposed the parliament would, in any case,
license a defamatory publication. Its present use,
however, is in the sense in which we shall now proceed to its definition. Perhaps there is no single word
in the language, in whose interpretation so many attempts have been made, and which is so generally
conceded to be impossible of exhaustive and sententious definition. As the philosopher said of another
"Det Norske Folkes Historie," Christiania, I852-5; "Den
Danske Erobring of England og Normandict," Copenhagen,
t863; "North British Review," Nov., I863.
Hor. ii., iv.
3 Ainsworth.
4 Of September 30, I647.
7




98            LAW   OF  LITERA TURE.               [CH. II.
matter, "these things do not sum themselves up in
single sentences."' The nearest approach to a sententious definition seems to be found in Wasson v. Walter,2 where the plaintiff, a barrister, defined it as " defaCousin, when asked to state, in a single sentence, the spirit
of German philosophy.
I L. R., iv. Q. B. 93. It is to be observed that no correct,
no logical definition of a libel has ever been given (George
on Libel, I4). A noted peculiarity of the law of libel is itsvagueness and uncertainty (Encyc. Brit., voce Libel). It is
indeed in the very nature of the subject (the law of libel) that
it is extremely difficult to clear it of those popular conceits,
and of that vagueness of generality, which adhere to it as a.
question of political discussion (Holt on Libel, preface).
It is a subject to which I have paid considerable attention;
but, I must freely own, without any success whatever. I hold
it to be hardly possible to define libels by which guilt may be
incurred as tending to a breach of the peace, to other proceedings of a violent nature,.... and to a variety of other heads.
Any definitions that I have ever seen given had one or
other of two faults,.... they were either so vague as not to
specify or define anything, or.... they were only rendered
particular and definite by omitting some species of libel....
which ought to have been comprehended.....  I have never
yet seen, or been able myself to hit upon, anything like a
definition of libel.... which possessed the requisites of a
definition; and I cannot help thinking that the difficulty is not
accidental, but essentially inherent in the nature of the subj-ect.      The Latin of libel is not li'bellus, but libelhes famosus.       Libel then means, in its original, not " little book,"'
but "a defamatory little book.".... Libel is an offense of
a somewhat vague description, but sufficiently known in law,
and, perhaps, as well defined as assaults and some others; and
I do not believe, from all the experience I have had, that in
practice any considerable difficulty is felt on account of its
indistinctness (Lord Lyndhurst's Report of House of Lords
on Defamation and Libel, July, I843).
A bad word in circulation — Vox semel emissa nunquam reverlit. Obl. 4.
A libel is a malicious publication, tending to the disrepute
of an individual, the breach of the peace, the seditious violation
of the good order of government (Capel Loft's Essay on
Libels, edit. I 7 85, p. 6).




CH. II.]             OF  LIBEL.                       99
mation without legal excuse;" while Jeremy  Bentham appears to have defined it, simply as " anything
A libel is any published defamation (American Encyclopedia-Libel).
It is not infamous matter or words which make a libel; for,
if a man speak such words, unless they are written, he is not
guilty of the making of a libel; writing is of the essence of a
libel (Ld. Raym. 416). The words most nearly synonymous
to the word libeling, are defaming, disparaging, aspersing,
slandering (George on Libel, pp. 35, 36, 4I).
A libel is a contumely or reproach, published to the defamation of the government, of a magistrate, or of a private
person (Comyn's Digest).
Everything written of another, holding him up to scorn and
ridicule, and calculated to provoke a breach of the peace, is a
libel (Torrance v. Hurst, Walker, 403; Newbraugh v. Curry,
Wright, 47; White v. Nicholls, 3 How. U. S. 266; Armentrout
v. Moranda, 8 Blackf. 426; Dexter v. Spear, 4 Mason, I15).
Defamatory words, written and published (Maunder).
A libel has been usually treated of as scandal, written or
expressed by symbols. Libel may be said to be a technical
word, deriving its meaning rather from its use than its etymology (Russell's Crimes, edit. i8,9, p. 308).
In a strict sense it is taken for a malicious defamation:
expressed either in printing or writing; in a larger sense, the
notion of libel may be applied to any defamation whatsoever,
expressed either by signs or pictures, as by affixing up ai gallows at a man's door, or by painting him in a shameful and
ignominious manner (Hawkins' P1. Cr.).
Libel, a criminous report of any man cast abroad, or otherwise unlawfully published in writing; but then, for difference
sake, it is called an infamous libel-famosus libel/us (Minshcei:
A Guide into the Tongues, &c. London, I627).
Written or printed slanders are libels (Bouvier).
Libel, a word which has many different meanings, but is
chiefly known in this country as the name of a department of
the law, which, from incidental circumstances, has come to
include the naturally distinct heads of written slander, sedition, and outrage against religion (Encyc. Brit.-Libel).
Everything, therefore, written of another, which holds him
up to scorn and ridicule, that might reasonably-that is,
according to our natural passions-be considered as provoking
him to a breach of the peace, is a libel (Holt, Libel, 215,
233).  This agrees with his (Holt's) two preceding defini



I00          LA W   OF  LITERATURE.              [CH. I.
of which one thinks proper to complain." But these,
as will be seen, are neither exhaustive nor exclusive
of the subject.
tions, and with the common acceptation of the term libel, by
making it essential that the subject or object of the attack
should be some person or persons; but it disagrees with them,
by introducing the tendency to provoke a breach of the peace.
It follows that, if this be a correct definition, the other two
must be defective; because, in one of them, the tendency, or,
as is there said, the intent, to provoke is required only in cases
where the object of the slander is a deceased person, and in that
from Lord Coke it is wholly omitted. On the other hand, if
the two former definitions be correct, the third must necessarily
be inaccurate; for an accurate definition is one which neither
omits what is' essential, nor admits what is superfluous.....
And it is to be further observed that the third definition disagrees with the two former, and the common acceptation of the
term libel, not only by introducing the intent or the tendency
to provoke, but by leaving out the falsehood and malice. For
libel, in common acceptation, signifies written slander; and
the term slander, and all its synonyms, as defamation, detraction, calumny-even without the epithets malicious and injurious-imply falsehood and malice (IMIence's Law of Libel,
vol. I, p. 120; Law Times, Rep. N. S. 604; Townshend on
Slander and Libel, p. 74).
A censorious or ridiculing writing, picture, or sign, made
with a mischievous and malicious intent towards government, magistrates, or individuals (per Hamilton, arg. People
v. Crosswell, 3 Johns. C. 354; Steele v. Southwick, 9 Johns.
214; Cooper v. Greeley, i Den. 347).' A libel is a malicious publication in printing, writing,
signs, or pictures, imputing to another something which has a
tendency to injure his reputation; to disgrace or to degrade
him in society, and lower him in the esteem and the opinion
of the world; or to bring him into public hatred, contempt, or
ridicule (State v. Jeandell, 5 Harring. [Del.] 475).
A malicious publication expressed either in printing or
writing, or by signs and pictures, tending either to blacken
the memory of one dead, or the reputation of one who is alive,
and expose him to public hatred, contempt, or ridicule (Commonwealth v. Clapp, 4 Mass. i63, i68; per Ch. J. Parsons,
Root v. King, 7 Cow. 613).
A libel is a censorious or ridiculing writing, picture, or




ClI. II.]            OF  LI/BEL.                    IOI
"The greater portion of all law business," says the
late Dr. Lieber, in his admirable and invaluable treatise
on " Civil Liberty," " arises from  the impossibility of
giving an absolute definition of things not absolute in
themselves."' Without, however, attempting one that
shall be exhaustive, and referring the student to the
notes, where the attempts of various authorities have
been quoted, we may state, generally, that a libel is
any slanderous publication in writing or printing, or
expressed by signs,' pictures, effigies, or other fixed representation to the eye, tending to asperse the repusign, made with a mnischievous intent (The State v. Farley, 4
_Cord, 317).
That tends to injure one's reputation in the common estimation of mankind, to throw contumely or reflect shame and disgrace upon him, or hold him up as an object of hatred, scorn,
ridicule, and contempt, although it imputes no crime liable to
be punished with infamy, or to prejudice him in his employment (I Hilliard on Torts, ch. 7, ~ I3).
We define slander and libel as wrongs occasioned by language or effigy; that is to say, slander is a wrong occasioned
by speech, and libel is a wrong occasioned by writing or
effigy (Townshend on Slander and Libel, p. 770).
" Nothing," says Dean Trench, " is harder than a definition.
While, on the one hand, there is, for the most part, no easier
task than to detect a fault or a flaw in the definition of those
who have gone before us, nothing, on the other hand, is more
difficult than to propose one of our own which shall not also
present a vulnerable side."
2 A definition, in order to satisfy the requisites of a good
logical definition, ought not only to be sufficiently precise, so
that it should take in nothing except what was intended to be
specified, but also sufficiently comprehensive to omit nothing
which ought to be included. I have never yet seen, nor been
able, myself, to hit upon anything like a definition of libel, or
even of sedition, which possessed those requisites of a definition; and I cannot help thinking that the difficulty is not accidental, but essentially inherent in the nature of the subjectmatter (Lord Lyndhurst; and see Burrill's Law Dict., voce
Definition, and 2 Wooddes. Lect. I96).




I02          LA W   OF  LITERATURE.               [CH. II.
tation of the living, or the memory of the dead,' that
is published without lawful justification or excuse,'
whatever the intention of the publisher may be.?
Broom. Leg Max. The full definition of a libel includes
defamation by signs (Fray v. Fray, 17 C. B. N. S. 603 [II2 E.
C. L. R.]; Cox v. Lee, L. R. 4, Ex. 284; Walker v. Brogden,
I9 C. B. N. S. 65 [II5 E. C. L. R.] ).
Vid. Civil Code of the state of New York, R 29.
The intention of the writer or publisher of the defamatory
matter is wholly immaterial, except so far as it may affect the
amount of damages which a jury will award. "Everything
printed or written," says Parke, B., "which reflects on the
character of another, and is published without lawful justification or excuse, is a libel, whatever the intention may have
been" (Bayliss v. Lawrence, i i A. & El. 924).
A judge who, in an action of libel, left it to the jury to say
whether the defendant intended by his publication to injure
the plaintiff, was held to have wrongly directed them. "If the
tendency of the publication," said Littledale, J., " was injurious
to the plaintiff, then the law will presume that the defendant,
by publishing it, intended to produce that injury which it was
calculated to effect. If it had that tendency, there can be no
doubt it was a libel."  "The judge," said Lord Tenterden,
Ch. J., "ought not to have left it as a question to the jury
whether the defendant intended to injure the plaintiff; for
every man must be presumed to intend the natural and
ordinary consequences of his own act" (Haire v. Wilson, 9 B.
& C. 643; Darby v. Ouseley, I H. & N. 9; 25 L. J. 23o Ex.;
Fisher v. Clement, io B. & C. 472; Dubost v. Beresford, 2
Camp. N. P. C. 5II).
Bacon's Abrdt., tit. Libel. "In a larger sense, the notion of
a libel may be applied to any defamation whatever, as by fixing
a gallows against a man's door, or by painting him in a shameful and obnoxious manner " (Pleas of the Crown, 8th ed., 542).
" So where an artist, whose sitter had refused to pay for a portrait of himself, added asses' ears to the head, and exposed it
to public view, it was held libel" (Mazzara's Case, N. Y. Sessions, I8 7).
2 Gathercole v. Miall, 15 M. & WV. 32I1; Digby v. Thompson,
4 B. & Ald. 821 (24 E. C. L. R.); Bloodworth v. Gray, 8 Scott
N. R. 9; Pemberton v. Calls, io Q. B. 46I (59 E. C. L. R.).
1 O'Brien v. Clement, 15 MI. & W. 437; O'Brien v. Bryant,
15 M. & W. I68; Darby v. Ouseley, i H. & N. i.




CH. II.]             OF  LIBEL.                     I03
50. Not only will the common law  restrain the"
dissemination of such libellous matter by injunction,
and allow to the party injured his action for damages
sustained  by reason thereof, but it may, and often
does, also proceed criminally against the offender, for
his offense against the state.'
Sampson was careful to inquire the law, before he
committed himself:
" Abram. —Do you bite your thumb at us, sir?
" Sampson.-Is the law on our side if I say-ay?
" Gregor}. —No.
" Sampson.-No, sir; I do not bite my thumb at
you, sir, but I bite my thumb."2
And it is well that the writer should clearly comprehend the law and the definition of slander, before
he sends his manuscript to his publisher. For libel is
slander written or printed; and while the law sometimes hesitates to find premeditation and malice in the
spoken word, it cannot forbear to recognize deliberation in the work printed and published and given to
the world.''The action for slander was one of the inferior actions of
which the early English courts of Piepoudre had jurisdiction (Jacobs' Law Dict., tit. Court of Piepoudres). Slander is
not, like libel, an indictable offense (Bailey v. Dean, 5 Barb.
297). Nor is a single precedent of any criminal proceeding
for unwritten imputations upon the characters of individuals,
to be found, except in cases of high treason,.... and it must
have been as constituting rather an offense against the government, than an injury to the individual, and being, therefore,
seditious, that words reflecting on a magistrate in the immediate execution of his office were for the first time in the reign.of Queen Anne held to be indictable (Reg. v. Langley, 2 Ld.
Raym. Io6o; Holt R. 654). But I am not aware that Mr.
Starkie has adverted to this case, or to the'doctrine which is
laid down in it (i Mence on Libel, go).
2 Romeo & Juliet, i. i.
It seems to have generally been-though perhaps questioned in later cases (see remarks of Mansfield, Ch. J., in




104          LA W   OF  LITERA TURE.            [CH. II.
5I. "There is nothing in nature," said a learned
judge,' "but may be an instrument of mischief," and
any vehicle in which thought may be expressed, if that
thought be defamatory of an individual, may become a
means of injury, and, therefore, libelous. Thus, words
spoken, written,' printed, marked, or formed with pen
or pencil, graver, stylus, or set up in type, or formed
in or with any material or pigment, as lead,' chalk, ink,
paint, or on any surface or substance such as parchment, paper, cloth, wood, or any metal, such as copper
or steel, or on stone, or on a wall, or post, or tree, may
become libelous.  And so, too, may be any picture,
statue, or any gesture, sound,4 such as ringing bells,
firing guns, beating drums, clapping hands, hooting,'
or sign, which it is possible for human ingenuity to
conceive of or express.'
The conceiving of a thought injurious to one's
neighbor, the law cannot reach. The act of commuThorley v. Lord Kerry, 4 Taunt. 364, and of Best, Ch. J., in
Tuam v. Robinson, 5 Bing. 51; Holt's Law of Libel, p. 75;
Penal Code of N. Y., ~ 309; Fisher v. Clement, io B. & C.
472) —the policy of the law to regard with much greater
leniency slanderous and defamatory words spoken in the heat
of passion, than slanderous and defamatory words which are
written down in black and white; for the writing of such
words implies deliberation and malice in the writer.
Pratt, Ch. J., in Chapman v. Pickersgill; 2 Wils. I45.'Sanderson v. Jackson, 2 Bos. & Pul. 238; Henshaw v.
Foster, Pick. 3i8.
Geary v. Physic, 5 B. & C.238; Classon v.Bailey, 2 Johns. 484.
4 Austin v. Culpepper, Skin. 123; Show. 314.
5 Martin v. Nutkin, 2 P. Wms. 266; Soltan v. De Held, 2
Sim. N. S. I33; i6 Jur. 326; First Bap. Ch. v. Sch. R. R. Co.,
5 Barb. 79; Tarleton v. McGawley, Peake's Cas. 205; Moshier
v. Utica & Sch. R. R. Co., 8 Barb. 427; Cole v. Fisher, II
Mass. I37; Loubz v. Hafner, i Dev. i85; Gregory v. Brunswick, 6 M. & G. 953; Trustees, &c., v. Utica, &c., 6 Barb. 313;
Davidson v. Isham, I Stock. I86.
6 Bouvier's Law Dict., title, Effigy.




CH. II.]             OF  LIBEL.                    o05
nicating that thought, however, by any of the above
means, the law can reach, and will punish.
On the trial of Algernon Sidney, the prisoner inquired, "And is writing an act?" to which Lord Jeffries
replied: "Yes, it is agere."    So any representation,
even if that representation be conveyed in the exercise of one's legitimate duty and calling, if its effect
be to raise a presumption or create an impression injurious to another's reputation in his business or social
relation, if the impression be erroneous in fact, will be
defamatory and actionable. So where a banker, having sufficient funds in hand belonging to his customer,
dishonors that customer's check, he is liable to an action for damages.2   And where a notary protested a
note for non-payment, without having previously presented the note to and demanded payment of the
maker, he was held liable in an action for the damage
thereby occasioned to the reputation of the maker.3
Or any act otherwise legitimate or permissible under
the circumstances, which happens to convey an erroneous impression as to the business or social standing
of another. So where defendants, by causing p!-intiff's goods to be seized on an unfounded claim  for
debt, occasioned his customers to think him insolvent,4
and in trespass for breaking and entering plaintiff's
dwelling, upon false charge of having stolen property
concealed therein, per qziod she was injured in her
credit, it was held that the jury might give damages as
aggravated by the false charge."
I Townshend on Slander and Libel, p. 58; Scribere est agere.
People v. Rathbun, I Wend. 509, 540; Robinson v. Marchant, 7 Q. B. 9I8; and see Marzetti v. Williams, I B. & A. 4I5.
2 Robinson v. Merchant, 7 Q. B. 918; and see Marzetti v.
Williams, i B. & A. 4I5.
3 Townshend on Slander and Libel, p. 58.
Brewer v. Day, I  M. & W. 625.' Bracegirdle v. Oxford, 2 Maule & Selw. 77. (See Jeffries




io6          LA W  OF  LITERA TURE.            [CH. II.
These are all acts which tend to raise scandal...
by which one is affronted in public' as to his business
standing. The law will also protect social standing.
So where a woman, "maliciously intending to marry
the plaintiff, did often affirm that she was sole and unmarried., and importuned et streznue zinzuisivi the plaintiff to marry her; to which affirmation he gave credit,
and married her, when in acto she was wife of the defendant, so that the plaintiff was much troubled in
mind, and put to great charges, and damnified in his
reputation," an action against the woman and her real
husband was held to lie.'
Words occasioning any particular loss by preferv. Duncombe, ii East, 226; Spall v. Massey, 2 Stark. Cas.
559.) Perhaps the most ingenious method by which a legitimate and ordinary transaction was ever employed to communicate a libel, is that mentioned by Hazlitt, in his " Essay on
Wills" (see " London Quarterly Review," October, i86o): 4 "A
wealthy nobleman hit upon a still more culpable device fot
securing posthumous ignominy. He gave one lady of rank a
legacy,'by way of compensation for injury he feared he had
done her fair fame'; a large sum to the daughter of another, a
married woman,'from a strong conviction that he was the
father'; and so on, through half a dozen more items of the
sort, each leveled at the reputation of some one from whom he
had suffered a repulse-the whole being nullified (without
being erased) by a codicil." A court of probate, however,
would probably order the omission of such offensive matter
-from the record (Re Honywood, Law Rep. II., Prob. & Div.
251; Re Wartnaby, I Rob. Ecc. 423; Curtis v. Curtis, 3 Add.
33; Marsh v. Marsh, I Sw. & Tr. 528). And an attorney's
bill may be so worded as to be libelous:  Where defendant
delivered a bill headed, "Relative to your defalcations," which
phrase was repeated in several parts of the bill; in an action
for libel thereby, it was claimed that the bill, having been delivered under a judge's order, was a legal proceeding, and
privileged, but it was ruled otherwise, and plaintiff had a verdict (Bruton v. Downes, I Fost. & F. 668).
Jacob's Law Dict., tit. Scandal.
Beaumont v. Reeve, 8 Adol. & Ell. 483; i Siderfin, 375.




CH. II.]             OF  LIBEL.                      10o7
ment in marriage,' or service,' or by disinheritance,'
will be especially actionable.4   Formerly  the condition in life of the person spoken of, materially
affected the construction, and words concerning " great
men of the realm" were actionable, which would not
have been, if published concerning private persons.
Such words constituted scanzdaluzn magnatzm.   In
the United States no such distinction of persons exists.5
But where the plaintiff alleged that in consequence of the
words he (the plaintiff) refused to marry his betrothed, and
so he lost his marriage-it was held that, under the circumstances, no special damage was shown (Carter v. Smith, Vin.:abr. Act. for Words, D. a. I2; Reston v. Pomfreicht, Cro.
Eliz. 639; Shepherd v. Wakeman, Sid. 79; Anon., Mar. 2,
Wicks v. Shepherd, Cro. Car. 155; Nelson v. Stapz, Cro. Jac..422; Southold v. Johnston, Cro. Car. 269; Moody v. Baker, 5
Cow. 35 I.
2 Swadling v. Tarpley, app. to Townshend on Slander and
Libel, 2d ed.; Knight v. Gibbs, 3 Nev. & M. 46i; i Adol. &
L. 43.
3 See, however, a case where the plaintiff alleged that, by
reason of the publication, he had incurred the ill-will of his
mother-in-law, who had previously promised him /Jioo, and
it was held that no cause of action was shown (Harris v.
Porter, Curt. I).
Where plaintiff alleged that she was a single woman, and:chaste, and that her mother meant to give her fI55o, and her
brother /CIoo, and that, by reason of the defendant's charging
her with incontinence, they did not give her these sums, it was
doubted if the action was maintainable (Bracebridge v. Watson, Lily. Ent. 6i; and see Townshend on Slander and Libel,
~~ I98-205).
Or which occasion any particular damage (Introduction to
the Law Relative to Trials at Visi Przius. By a Learned
Judge [Lord Bathurst]. Vol. I., p. 3).
5 Townshend on Slander and Libel, ~ I38; Barrington on
Penal Statutes; 3 Reeve's Hist. of the Common Law. (See
note to ~ I82). Secundem gradum dz'itlalts, &c., was the rule
of the Roman law, and is the rule in Scotland and France
(Borthwick on Libel, I76, 177 n., Inst. Lib. IV., tit. 4; Code
Criminel, tit. iii, art. I; Black. Corn., bk. iii. ch. 7, ~ 5; Selwy's
N. P. 1155.




io8         LA W   OF  LITERA TURE.           [CH. IIL
No man has a prerogative right to the protection' of
his standing, but all must show damage thereto alike.
52. It is the tendency of a law, however simple
in its spirit and nature, and however easily recognized
its principles and rules, to become, through long and
constant interpretation, complex and unwieldy.  In
no case is this more thoroughly exemplified than in
the law of slander and libel, or as it might be very
properly styled, "the law of words."  Starting with
the simple rule, which we shall have occasion many
times to reiterate in this chapter, that a man's reputation
for a general fitness to move in the society to which
his birth, or fortune, or manners, or education may
entitle him, or for skill, reliability, knowledge, or proficiency in his profession (if a professional man), or
for capital and resources in his business (if, for instance, a banker or merchant), or for chastity, sobriety,,
and good moral character (if a clergyman),2 or for experience in any of these walks of life, is his property
as much as his estates, or his family, or his chattels:
that law has become in time so embarrassed and overburdened, with interpretation and illustration, as to be
cumbersome, awkward, and troublesome almost beyond expression.
53. From the necessities of its nature and existence, the law lets no reported case perish from its
memory, but keeps each one as a precedent; meanwhile, the world moves. New civilizations engraft
themselves upon the old.  New  standards of conduct and intercourse arise.  Religion, politics, social
and municipal regulations, the mutations of art and
See Townshend on Slander and Libel, ~ 39 I-417.'But see Gallevey v. Marshall, 9 Ex. 294; Breeze v. Saris,
23 Up. Can. Q. B. 94, which appear to hold that continence
and chastity may not be a sine gqa non to the standing of a
minister of the gospel.




CH. II.]             OF  LIBEL.                    I09
traffic, all combine to render what was proper, improper; and what was lawful, infamous. With all this
change the law advances.  While she clings to what
she has said, she never fetters herself by her own utterances to do wrong or injustice,l and so if we were to
attempt to draw the law of libel from the books of
cases, we should, after an almost interminable and
laborious investigation, be forced to the conclusion
that every case was " a law unto itself." This confusion
will be found to arise from three great causes: first,
from the delicate nature of the thing to be protected;
secondly, from  the  mutations of society and  the
dilemma of courts, who, clinging to the maxim  of
slare decisis,-let the decision stand,-and  striving
ing, as they are bound to do, rather to reconcile than
to overrule, find themselves, while obliged to recognize the precedent, obliged, as well, to do justice between man and man; and thirdly, from the wonderfully
rapid changes in the meaning of words and phrases,
which imposes upon courts the necessity of being not
only expounders of the law, of society, of religion, of
trade, of domestic relations, and of all human contracts, but actually of grammar, rhetoric, philology,
and of the exact significances of dialect, patois, argots,
and vernacular speech.   It is not impossible  to
imagine, that from these complications may have
arisen the difficulties experienced in defining the term
"libel," to which allusion has been made.
Reputation is only a bubble at best, and often the
1 To accommodate the law to the altered state of society is
laid down as one of the obligations of judges (Dwarris on
Statutes, 792; Raun's Legal Judgment, 22). The rule stare
deczsis is one of the most sacred of the law (Per Buller, J., T
East, 495; Ram's Legal Judgment, 234). But while it is
dangerous to depart from it, the rule will generally be that
given in the text. Id. I97, 202, 23I, 234, 235, 413, 423.




IIO         L AW   OF  LITERA TURE.           [CH. II.
over-sensitive party who fancies himself libeled, is put
in the position of him-as the old maxim hath it" gui excusal, and-at the same time-accusal," for, as
Iago says in the play, " You have lost no reputation
at all, unless you repute yourself such a loser." 
54. This Jzus el norma loTyend'i of which courts.
will take judicial cognizance, impose upon it a finerdiscrimination than may, perhaps, be looked for in so
ponderous a digest as the law of libel. It was held in
some of the older cases that "adjective words," or
"words spoken adjectively," would not be actionable,
but Lord Coke expressed himself as of the opinion
that " sometimes adjectives will maintain an action;" 2
(the distinction possibly being that words imputing
mere inclination or intention are not actionable, but
only those imputing an act.3) So, again: a distinction
was made between the conjunctions "and " and " for":
thus, to say "thou art a thief, for thou hast stolen"
(such a thing, as a tree, which could not be felony),
and the saying, " thou art a thief, and hast stolen " such
a thing-in the former case, the subsequent words show
the reason of calling the plaintiff a thief, and that no
felonious imputation was meant; but in the latter, the
action lies for calling him a thief; and the addition,
"thou hast stolen," is another distinct sentence by it —
self, and not the reason of the former speech, nor any
diminution thereof.
1Othello, ii. 3.
2 4 Coke, I9. And see Killick v. Barnes, 2 Bullst. I38;
Ld. Raym. 236; Gulford's Case, 2 Rolle R. 7I; Ward v.
Thorne, Cro. Eliz. I7I; Booth v. Leach, Lev. go; Selby v.
Carryer, 2 Bullst. 260; Vin. Abr. Act for Words, i a. 4.' Townshend on Slander & Libel, ~ i65; 3 Id. ~ i86; Cro.
Jac. II4; Bull. N. P. 5; Hob. 77, Io6; Cro. Eliz. 857; Browl.
2; Godb. 24I; Hard. 7; All. 3I; Sty. 66; I Starkie on Slan —
der, 99. This distinction was questioned by Holt, Ch. J,.




CH. II.]            OF  LIBEL.                   III
In one case' it is said that to call a man "cuckold"
is not an ecclesiastical slander, but to call him " wittol"
is, for "wittol" imports his knowledge and consent;
but as it readily appears, these decisions are more
curious than valuable at the present day.
55. The profession of the law, then, more than any
other possible profession, necessitates a wide and
vastly liberal education; and while the physician
studies chemistry and medicine, the engineer mechanics, and the writer philology; the lawyer, who
does not study all of these, if not in bulk at the outset, at least more or less in the course of his experience at the bar, will be a practitioner of very little
value to his clients.
One who will examine thoroughly the law of libel,
as laid down in the books, cannot fail to be impressed
with the vast and incredible number of words and
phrases which, in the course of six hundred years,
courts have been called upon to interpret, either by
taking judicial cognizance of their meaning, and pronouncing them to be " English ": or by summoning
testimony and hearing argument, thereupon fixing
their meaning definitely and beyond dispute.
The utter inadequacy, therefore, of a single chapter to satisfactorily treat of "the law of words,"
will be readily appreciated. A  library would be adequate to the task: nor is such a task necessary to our
purpose. One who would sit down, patiently, to comBaker v. Pierce, 6 Mod, 23, where it is said and and for have
the same meaning. And see Lewis v. Acton, Yelv. 34; Vin.
Abr. Act for Words, P. a. 2.
Smith v. WTood, 2 Salk. 692. A cuckold was a man whose
wife was false to his bed (Swift). A wittol was a man who
knew of his wife's infidelity, and submitted to it-a tame
cuckold (Shakespeare). "Wittol-cuckold. The devil himself
hath not such a name" (Merry Wives of Windsor, ii. 2).




112          LAW   OF  LITERATURE.             [CH. II.
pile a dictionary, drawn from the reports since the
Year Books, of words passed upon by courts, would
find, at the close of his labors, that his unabridged
folios were, after all, more curious than valuable; teeming, indeed, with whimsicalities, but of very  little
practical value.  What will be attempted in this chapter is, therefore, to proceed, by means of comment and
illustration, to spread before the writer who would
produce a work that shall be entitled to a copyright
at the hands of the law-and to the protection of the
law for that copyright after it shall have been secured
-the general body of the law, regulating the doing of
injury by the use of words.
560 The law, then, regards a man's reputation as a
sort of capital to be employed by him in earning his
living, and as a resource for enjoying the social intercourse of his peers. In the enjoyment of his good
name, therefore, the law  will protect him.  " Men's
reputations," said Lord Bacon, " are tender things, and
ought to be like Christ's coat, without seam,'...
who can see worse days than he that, yet living, doth
follow the funeral of his reputation? " But, in order to
protect this reputation (the law, being as we have seen,
a practical science, recognizing nothing which it cannot
guard and protect'), it is necessary that what some
have called "a fiction"' should be raised: namely,'Charge against Lumsden.
2Azte, p. 15.
s Townshend on Slander and Libel, p. 105. "I am not certain," says Lord Kames, "that in England any verbal injury
is actionable, except such as may be attended with pecuniary
loss or damage. If not, we in Scotland are more delicate.
Scandal, or any imputation upon a man's good name, may be
sued before the commissaries, even when the scandal is of such
a nature that it cannot be the occasion of any pecuniary loss.
It is sufficient to say, I am hurt in my character" (Historical
Law Tracts, p. 225).




'CH. II.]            OF  LIBEL.                   I 13
that the value of a man's reputation can be estimated
in dollars and cents. Pecuniary damages, therefore, be-.comes the gist of the civil action for libel and slander.
The Roman law made personal contumely and insult the essence of the offense of slander: thus a most
essential and characteristic distinction between the law
of England and that of Rome, and of those countries
which have adopted the civil law, arises:... "For
the law of England has from  very distant times considered the temporal injury to a man's estate, and not
the contumely or insult of the agent as the ground of
compelling reparation in damages."' "There must be
some certain or probable temporal loss or damage, to
make words actionable." 2 "The principle on which this
species of action (action for saying orally plaintiff, an
innkeeper, was a bankrupt) is, that the slander has the
effect of producing temporal damage to the party
complaining." To maintain the action there must be
injury to the plaintiff.3
" Reputation or fame is under the protection of the
law, because all persons have an interest in their good
name, and scandal and defamation are injurious to it,
though defamatory words are not actionable otherwise
than as they are a damage to the estate of the person
injured."4 Reputation is property.5
57.  It was laid down in Onslow v. Horne,6 "that
words are actionable when spoken of one in an office
Starkie on Slander, Am. ed., vii.
2 Onslow v. Horne, 3 Wils. I77; Holt v. Scholefield, 6 T
R. 69,
3 Whittaker v. Bradley, 7 D. & R. 649.
4 Maitland v. Goldney, 2 East, 426; Lowe v. Harwood, Cro
Car. I40 S. C.; Palmer, 520; Ley, 82.
5 Townshend on Slander and Libel, Io04; 2 Wood's Inst.,927; Foulger v. Newcomb, 2 L. R. Ex. 330.
6 Dixon v. Holden, 7 L. R. Eq. 492.
8




II4          LAW   OF  LITERATURE.             [CH. II.
of profit, which may probably occasion the loss of his
office, or when spoken of persons touching their respective professions, trades, and business, and do or
may probably tend to their damage;" or, again: " if
the words may be of probable ill consequence to a
person in a trade, a profession, or an office."
The rule, as thus expressed, is, according to Bayley,
B., objectionable, the words " probably " and " probable " being too indefinite and loose, and-unless considered as equivalent to " having a natural tendency to,"
and confined within the limits of showing the want
of some necessary qualification, or some misconduct in
the office-not warranted by the authorities.  "Every
authority," he says, "which I have been able to find,
either shows the want of some general requisite, as
honesty, capacity, fidelity, &c., or connects the imputation with the plaintiff's office, trade, or business."2
The law is the same in the case of imputations
made against a member of any of the professions,
having a tendency to injure him in respect thereof,
whether the imputation be want of integrity or want
of ability, unless, indeed, it be held that want of integrity cannot injure him in his business, or profession.!
And, as with one holding an office, so with one practicing or exercising any lawful profession, occupation,
trade, or business, however humble.4 It was once held
W. Black. 753.
2 Lumby v. Allday, I Cr. & Jer. 305.
8 Pecuniary damage is the gist of the actions of libel or of
slander (Townshend on Libel and Slander, ch. iv. —" Gist of
the action ").
4 Bellamy v. Burch, i6 M. & W. 590; Sellars v. Killew, 7
Dowl. & R. I2I; 4 B. & C. 55; Morris v. Langdale, 2 Bos. &
Pul. 284; Whitaker v. Bradley, 7 D. & R. 649; S. C., Whittington v. Gladwin, 5 B. & C. i80; 2 Car. & P. 146; Gates v.
Bowker, 8 Vt. (3 Wash.) 23; Ostrom v. Calkins, 5 Wend. 264;
Carpenter v. Dennis, 3 Sandf. 305; Jones v. Joice, Vin. Abr.




CH. II.]             OF  LIBEL.                    II5
that "a tinker or a peddler was a rogue by statute,"'
but the rule has disappeared, and every man has a right
to earn his bread by honest labor.'  So it is actionable
to accuse an auctioneer of dishonesty,' or a merchant
with swindling,4 or to insinuate that he is' or was' a
bankrupt, or that he is " in trouble" in such a way as
to effect his commercial standing;' or that his cheques
were dishonored,"8 or that a banker has suspended.'
And an action will lie for saying of a schoolmaster,
"He has no knowledge in grammar or in the Latin
tongue, nor knows how to educate his scholars in the
Latin tongue" (with an allegation of loss of scholars 0),
or " put not your son to him, for he will come away
as very a dunce" as he went;" or, of a shoemaker, that
Act. for Words, U. a 7; Southam v. Allen, Raym. 23I; Alexander v. Angle, I Cr. & J. I43; I Starkie on Slander, I28;
Cooke on Defam. 2I; Terry v. Hooper, Lev. II5; Rex v. Ld.
Cochrane, 3 Maule & S. Io; Sinclair v. Charles Phillipe, 2 B.
& P. 363; Morris v. Langdale, 2 Bos. & Pul. 284.
Cockaine v. Hopkins, 2 Lev. 2I4.
2 Thomas v. Jackson, 3 Bing. I04; io Moore, 425; Odiorne
v. Bacon, 6 Cush. I85; Gay v. Horner, I3 Pick. 535; Ludwell
v. Hole, 2 Ld. Raym. I417; Davis v. Miller, 2 Strange, II69;
Obaugh v. Finn, 4 Pike, IIO; Boydell v. Jones, 4 M. & W.
446; 7 Dowl. (P. C.) 2IO; Baboneau v. Farrell, I5 C. B. 360;
Bryant v. Loxton, ii Moore, 344; Davis v. Davis, I Nott &
McCord, 290; Chipman v. Cook, 2 Tyler, 456; Rush v. Cavenaugh, 2 Barr. 187; Brown v. Mims, 2 Rep. Con. Ct. 235;
Foot v. Brown, 8 Johns. 64; Riggs v. Deniston, 3 Johns. Cas.
198; Sempsey v. Levy, 2 Jur. 776; Fowles v. Bowen, 30 N. Y.
24; Greenfield's Case, Mar. 82; I Vin. Abr. 465, pl. I9.' Ramsdale v. Greenacre, I F. & F. 6I; Bryant v. Loxton,
I  Moore, 344.
4 Herr v. Bamburg, Io How. Pr. I28.
5 Stanley v. Obarton, Cro. Eliz. 268.
6 Hull v. Smith, I M. & S. 287.
Sewall v. Catlin, 3 Wend. 29I.
8 Rollin v. Steward, I4 C. B. 595.
9 Semble, in Foster v. Lawson, 3 Bing. 452
~0 London v. Eastgate, 2 Roll. R. 72.
" Hetley, 7 I.




ii6          LAW   OF  LITERATURE.             [CH. II.
he is a " cobbler; "' or of a watchmaker that he " does
not know how to make a good watch; "2 and so it was
held actionable to say of a bishop that he is bankrupt3
or a wicked man,4 or to charge a clergyman with having
come into his pulpit in a towering passion;5 or with
having, by personal invectives from the pulpit against a
young lady of spotless reputation, caused a misunderstanding in his congregation;' that he preaches lies in
the pulpit;7 he made a seditious sermon,8 he hath two
wives,9 he is a drunkard,10 or incontinent,11 or guilty of
incest,l2 or he has a bastard,'3 or he is a perjured priest,'4,or that he has desecrated his church;15 but in all cases
there must appear to be some special damage; the law
will not give a remedy for mere sensitive or outraged
feeling.?6
I Mod ig; Vin. Abr. Act for Words (Va.), i6.
2 Redman v. Pyne, i Mod. 19.
Holt on Libel, 233, note. This appears to be an exception to the general principle, for that a bishop were bankrupt
would not injure him in his calling, as if he were a banker;
but the word " bankrupt " appears always to have been a word
of reproach; Hull v. Smith, I M. & S. 287.
"Bas.-Why dost thou whet thy knife so earnestly?
"Shy.-To cut the forfeiture from that bankrupt there."
(Merchant of Venice, iv. I.)
Holt on Libel. Id.
b Walker v. Brogden, I9 C. B. N. 3, 65.
s Edwards v. Bell, 8 Moore, 467.' Drake v. Drake, Sty. 363; Crandel v. Walden, 3 Lev. 17.
8 Phillips v. Badley, 4 Rep. I9 (a).
9 Nicholson v. Lynes, Cro. Eliz. 94.
10 McMillan v. Birch, I Binn, I78; Chaddock v. Briggs, 13
Mass. 248.
n Demarest v. Haring, 6 Cow. (N. Y.) 76; but see Gallewey v. Marshall, 9 Ex. 294.
12 Staers v. Gardner, 6 Up. Can. Q. B. R. O. S. 512.
3 Payne v. Beaumorris, Lev. 248.
14 Hogg. v. Vaughan, Sty. 6.
"Kelly v. Sherlock, L. R. i, Q. B. 686.
16 Terwilliger v. Wands, I7 N. Y. 54; Wilson v. Goit, 17




CH. II.]            OF  LIBEL.                      IIy
58. There was an old maxim, born of the star
chamber, and of the days when men were punished
for libels contained in sealed letters, that " the greater
the truth the greater the libel." That maxim, as it has
been  said, "disappeared very reluctantly  from  the
statute books."'  Prior to the statute of Anne in
I 706, there is no record of a plea of truth in an action
for slander or libel,2 though, until 1835, the truth was
admitted in mitigation under the general issue of not
guilty.3  But it is now generally conceded that in civil
actions the truth of the alleged libel is a defense.4
N. Y. 442; Alsop v. Alsop, 5 Hurl. & Nor. 534; Bedell v.
Powell, I3 Barb. I83. These decisions overrule Brandt v.
Towsley, I3 Wend. 253; Fuller v. Fenner, i6 Barb. 333;
Olmstead v. Brown, T2 Barb. 657; Underhill v. Welton, 32
Verm. (3 Shaw) 40.
"I am quite clear that the truth ought not to be made
decisive (as a defense) either in civil or criminal proceedings;
for cases may be put where the truth, instead of being a justi
fication, would not even be any mitigation; nay, where it
would be an aggravation (Lord Brougham, Evidence, Rep. of
House of Lords on Libel, &c., July, I843); and in the same
report see the opinions of other lawyers and judges to the
same effect; and see 2 Kent's Com. 25; Borthwick on Libel
252; 29 Parl. Htist. 575; Preliminary Discourse to Starkie on
Slander, xliv.
2 Townshend on Slander and Libel, ~ 2II.
9 Ib.
Townshend on Slander and Libel, ~ 73; X Starkie on
Libel, 9; Maitland v. Goldney, 2 East, 426; Perry v. Mann, I
Rhode Island, 263; Root v. King, 7 Cow. 6i3, and 4 Wend.
II3; I Stark. on Sland. 229; Lake v. Hutton, Hob. 253;
I'Anson v. Stuart, I T. R. 748; Underwood v. Parkes, Str.
1200; Manning v. Clement, 7 Bing. 367; 2 Greenl. Ev. ~ 424;
Andrews v. Van Deuser, xI Johns. 38; Van Ankin v. Westfall, I4 Johns. 233; Shephard v. Merrill, I3 Johns. 475; Snyder
v. Andrews, 6 Barb. 23; Wagner v. Holbrunner, 7 Gill, 296;
Smith v. Smith, 8 Ired. 29; Kelly v. Dillon, 5 Porter [Ind.],
426; Else v. Evans, Anthon N. P. 23; Burns v. Webb, I Tyler,
I7; Samuel v. Bond, Litt. Sel. Cas. x58; Treat v. Browning,
4 Conn. 408; Bisbey v. Shaw, I2 N. Y. 67; Sheahan v. Collins,




1I8          LAW   OF  LITERA TURE.             [CH. II.
The truth of an alleged libel is a complete defense
to an action therefor,' "not," said Littleton, "because it
negatives the charged malice, for a person may wrongfully or maliciously utter slanderous matter, though true
(and thereby subject himself to an indictment), but because it shows that the plaintiff is not entitled to recover damages; for the law will not permit a man to
recover damages in respect of an injury to a character
which he either does not or ought not to possess.2
If the libel be false, however, it will be no justification that the writer believed bona fice in its truth,
though the fact may be taken in mitigation of damages.3
59. The question of variance is one which properly
arises in considering the pleadings in an action for libel,
or the proof upon the trial. The purposes of this chapter
are to consider the means of avoiding, rather than of conducting a lawsuit upon the subject; but its scope might
well include a few illustrations of what will and what
will not justify certain spoken and written statements.
In the case of Spencer v. Southwick,4 the declaration charged that, by hypocritical cant, etc., plaintiff
20 Ill. 325; Haws v. Stanford, 4 Sneed, 520; Arrington v.
Jones. 9 Port. I39; Douge v. Pearce, I3 Ala. I27; Kay v.
Fredrigal, 3 Barr, 22I; Thompson v. Bowers, i Doug. 321;
Taylor v. Robinson, 29 Maine [I6 Shep.], 323; Teagle v.
Deboy, 8 Blackf. I34; Wagstaff v. Ashton, I Harring. 503;
Bodwell v. Swan, 3 Pick. 376; Alderman v. French, I Pick. I;
Updegrove v. Zimmerman, I3 Penn. 6I9; Scott v. McKinnish,
I5 Ala. 662; Eagan v. Gantt, I McMullan, 468; Rumsey v.
Webb, i Car. & M. I04; Sidgreaves v. Myatt, 22 Ala. 617).
1B1. Com. 342 vid. Borthwick I90 —95.
2 McPherson v. Daniel, io B. & C.272, vzid. Anon, ii Mod.
99; Cockayne v. Hodgkisson, 5 C. & P. 548; Weaver v.
Lloyd, 2 B. & C. 678; Tighe v. Cooker, 7 El. & B. 639; Beggs
v. Great Eastern Ry. Co. i8 L. T. N. S. 482.
3 Campbell v. Spottiswoode, 8 B. & S. 769, 8 L. T. N. S. 201;
32 L,. J. I85; Reade v. Sweetzer, 6 Abb. (Pr.) N. S. p. 9 (note)
4 II Johns. 573, reversing io Johns. 259.




CH. II.]            OF  LIBEL.                    I9
and his associates effected the incorporation of the
Manhattan Bank, in the city of New York, in which
plaintiff was interested to the extent of several thousand dollars; that plaintiff, as a member of the
senate, advocated the bill, entitled " an act for supplying
the city of New York with pure and wholesome
water," knowing that it contained a clause authorizing
the company to carry on banking business, and that
the other members of the legislature were ignorant of
that fact, &c. It was held in justification that the
plaintiff was a senator on 2nd April, 1798; that
such a law was passed: that  at the time of passing
said law (Ist April, 1798)-plaintiff, as senator, advocated the bill, knowing at the time that it contained
such clause, &c.; and that a large majority of the
members of the legislature were ignorant of that fact,
&c.; and that, at the time and place first above mentioned, plaintiff held, and was owner of a large portion of the stock created by the said law, to wit, five
thousand dollars.
A charge of stealing a pot and waiter, is not justified by proof of stealing a waistcoat pattern.' Nor
of stealing a dollar from A., by proof of stealing a
dollar from B.2  Proof of a forgery amounting to $8o
is not a justification of a charge of forgery to the
amount of $250.' Nor is a charge that the plaintiff
carried on smuggling as a business, justified by proof
of a single act of smuggling;4 nor of smuggling
during the war by showing a smuggling before the
war.5  A charge that plaintiff, a counsellor-at-law, had
Eastland v. Caldwell, 2 Bibb. 21.
2 Self v. Gardner, 15 Miss 480.
Stiles v. Comstock, 9 How. Pr. 44.'Andrews v. Van Deuzer, I  Johns. 38.
Id.




120          LAW  OF  LITERA TURE.             [CH. If
offered himself as a witness to divulge secrets of hisclient, is not justified by the fact that, in a private conversation out of court, the plaintiff disclosed a secret
of his client, nor by the fact that plaintiff offered himself as a witness to divulge matters not privileged, communicated to him by his client;' or that an attorney
had been struck from the rolls, by showing that he'vas:.
suspended for two years.2 A charge that a minister of
the gospel has asserted that the blood of Christ had.
no more to do with our salvation than the blood of a.
hog, is not justified by the fact that plaintiff had denied
the divinity of Christ and the doctrine of the atonement; and asserted that Christ was a creature, a perfect
man, but that there was no more virtue in his blood
than that of any creature.' A charge that a diplomatic minister had traitorously betrayed the secrets of
his own government, is not justified by the fact that the
plaintiff disclosed the instructions given to him as such
minister, although coupled with the fact that he was
censured by his government for making such disclosures.4 The charge must be accurate in all its details;,
thus, where the libel charged that the plaintiff had
been tried for murder in a duel, and that "he spent
nearly the whole of the night preceding the duel in
practicing pistol firing," held, that, to justify, it must be
shown not only that the plaintiff had been tried formurder, but that he spent nearly the whole of the
night preceding the duel in practicing pistol firing.5
And a charge of stealing " hogs" is not justified by
proof that plaintiff stole one " hog."6
Riggs v. Denniston, 3 John. Cas. I98.
2 Blake v. Stevens, 4 Fost & F. 432.
Skinner v. Grant, I2 Vt. 456.
4 Ginet v. Mitchell, 7 Johns. I20.
Clarkson v. Lawson, 6 Bing. 206, 587.
Swan v. Rary, 3 Blackf. 298. And see generally as to




CH. II.]              OF  LIBEL.                      121
"I recollect," said Crompton, J.,' "being satisfied,
early in my professional life, that I could justify calling
a man a'rugged Russian bear,' by showing that his
manners were rough." But when the charge is that a
plaintiff " bolted " it is not a justification to show that
he " quitted,"2 and the charge must be directly met and
not argumentatively or by inference.'
what will or will not justify an injurious statement. Fidler
v. Delavan, 20 Wend. 57; Riggs v. Denniston, 3 Johns. Cas.
I98; McNally v. Oldham, i6 Ir. Com. Law, 298; 8 Law Times,
N. S. 604; Sanford v. Gaddis, I3 Ill. 329; Clarke v. Taylor, 4
Bing. N. C. 654; Wilson v. Nations, 5 Yerg. 211; Morrison v.
Harmer, 3 Bing. N. C. 758; 5 S. C. 4Io; Edwards v. Bell, I
Bing. 403; Moore v. Terrell, I N. & M. 559; Cooper v. Lawson, I Per. & D. I5; Clark v. Taylor, 2 Bing. N. C. 654; Morrison v. Harmer, 3 Bing. N. C. 759; 5 Scott, 4Io; Barrows v.
Carpenter, i Cliff, 204; Cook v. Tribune Asso. 5 Bl. C. C.
352.
Tighe v. Cooper, 2I Jur. 716; 7 Ell. & BI. 6I9.
2O'Brien v. Bryant, i6 M. & W. i68; 4 D. & L. 341; i6
Law Jour. Rep. 77, Ex. And see Wachter v. Quenzer, 29 N.
V. 547; Ede v. Scott, 7 Ir. L. R. N. S. 607; Watkin v. Hall,
Law Rep. III. Q. B. 396.
Fidler v. Delavan, 20 Wend. 57; Mountney v. Watton, 2
B. & Ad. 673; Weaver v. Lloyd, 2 B. & C. 678; 4 D. & R. 230;
Bissell v. Cornell, 24 Wend. 354; Stillwell v. Barter, I9 Wend.
478'; Torrey v. Field, ro Vt. 353; Crump v. Adney, I Cr. &
M. 362; Burford v. Wible, 32 Penn. 95; Wilson v. Beighler,
4 Iowa, 427; Van Derveer v. Sutphin, 5 Ohio N. S. 293;
Morrow v. McGaver, I Ir. C. L. 569; Powers v. Skinner, i
Wend. 451; Cooper v. Barber, 24 Wend. I05; McKinly v.
Rob. 20 J ohns. 35 r; Skinner v. Grant, i2 Vt. 466; Gregory v.
Atkins, 42 Id. 237; Ormsby v. Douglass, 2 Abb. Pr. 407; 37
N. Y. 377. Fero v. Rusc6e, 4 N. Y. i65; Wakley v. Cooke,
4 Exch. 5 I'; Odiorne v. Bacon, 6 Cush. i85; Holton v.
Muzzy, 30 Vt. 365; Ricke v. Stanley, 6 Blackf. i69; Sharp v.
Stephenson, 12 Ired. 348; Walters v. Smoot, ii Ired, 3I5;
Pallet u. Sargent, 36 N. H. 496; Randall v. Holsenbake, 3
Hill, So. Car. I75; Ridley v. Perry, 4 Shepl. 2I; Smithies v.
Harrison, I Ld. Raym. 727; Talmadge v. Baker, 22 Wis. 624;
Stow v. Converse, 4 Conn. 17; Torrey v. Field, io Vt. 353;
Andrews v. Van Deuzer, II Johns. 38; Smith v. Buckecker, 4
Rawle, 295.




I22           LAW   OF'LITERA TURE.             LCH. II.
60o. And if the libelous words impute a felony,
it will be no justification of the libel to prove facts
sufficient to raise a suspicion merely.1
6I.  If any material part of the defamatory matter
fails to be proved, the publication is a libel.2
Where the declaration stated that the defendant, intending to cause it to be believed that the plaintiff was guilty of
feloniously stealing a horse, published a libel concerning him,
which was headed " Horse-stealer," and alleged that the plaintiff had been taken up, on suspicion of having stolen a horse,
by a constable who was informed that " such a character " was
at a certain public-house; the libel then going on to state the
circumstances of suspicion against the plaintiff, and alleging
finally that having obtained permission to go out of the constable's sight, he had made his escape, but was retaken and
confined in jail for examination; innuendo that the plaintiff
was guily of stealing a horse: it was held that a plea setting
out the several circumstances related in the libel, and justifying all the parts of it, except the words " Horse-stealer," was
not a sufficient justification of the libel-Mountney v. Walton,
2 B. & Ad. 673.  Vid. also Chalmers v. Shackell, 6 C. & P.
475.
Compare, however, a case -where the alleged libel, contained in a letter addressed to a person who employed the
plaintiff as cashier, was, " I conceive there is nothing too base
for him to be guilty of;" a plea alleging that the plaintiff
signed and- delivered to the defendant an I. O. U., and afterwards, on having sight thereof, falsely and fraudulently asserted' that the signature was not his, and averring that the.alleged libel was written and published solely in reference to
this transaction, was held to be a sufficient justification. Tighe
v. Cooper, 7 E. & B. 639, 26 L. J. 2i5 QJ. B.
2 Thus, if a libel imputes to a person that he has been
guilty of murder in killing his opponent in a duel, and alleges
further that the duel was supposed to have been fought under
circumstances revolting to the ordinary notions of honor (it
being suggested that the plaintiff had spent the.whole of the
night preceding the duel in practicing pistol firing), it is not.a sufficient defense to prove merely that the plaintiff had killed
his antagonist, and had been tried for murder and acquitted.
"When an action is brought for a libel," said Maule, J., in
this case, "to make a good plea to the whole charge, the
defendant must justify everything that the libel contains which




CH. II.]              OF  LIBEL.                     123
62.  Nor is it a justification of a libel that it is
only a repetition of one already and previously published.
In  the Earl of Northampton case, in the star
chamber,' A. D. 1613, it was laid down that it would
be a defense to an action for words, to show that the
defendant repeated them, and that they were not
original with him. The rule was allowed to stand in
this condition until in I769.  Lord Kenyon, in a case
before him,2 added the qualification that,(to justify the
publication, the defendant must, at the time thereof
have mentioned the name of the previous publisher,
and that it would not be sufficient to mention it for
the first time in his plea. In I805, this was further,qualified 3 by asserting that, if the prior publisher had
retracted the slander to the knowledge of the defendant, the latter would not be excused by mentioning
his authority.
In this country, in certain States, the mention of
the authority was never considered a defense, but only
is injurious to the plaintiff. If the libel charges the commission of several crimes, or the commission of a crime in
a particular manner, the plea must justify the charge as to the
number of crimes, or the manner of committing the crime.
If the crime is charged with circumstances of aggravation as
here, the plea is clearly bad if it omit to justify that..... If
the libel had imputed murder simn5Zicizer, it would have been
enough to show in the plea that the plaintiff had committed
murder. But if the libel goes further, and states something
besides, which is injurious to the plaintiff's character, it is
clear upon every principle of the law of libel, that that must
be justified as well as the rest, or the defense fails." Helsham
v. Blackwood, II C. B. I28, 20 L. J. I87 C. P. Vide also Clarkson v. Lawson, 6 Bing. 266; Clark v. Taylor, 2 Bing. N. C.
654; 3 Scott, 95.
1 2 Rep. I32; Moore, 821. See Crawford v. Middleton,
z Lev. 82.
2 Davis v. Lewis, 7 T. R. I7.'In Woodnoth v. Meadows, 5 East, 463.




124          L LAW   OF  LITERATURE.            [CH. IIL
as going in mitigation' or as rebutting an inference of
malice;2 while in others it has been held to be a justification.'
But giving the name of an authority appears never
to have been considered a justification of a libel,4 even
though the first publisher were the plaintiff himself.5
1 As in Connecticut, Leister v. Smith, 2 Root, 24. But
see Austin v. Hanchett, Id. 148; Treat v. Browning, 4 Conn.
408. In Pennsylvania, Kennedy v. Gregory, i Ben. 90o, (n).
New Jersey, Cook v. Barkley, I Penn. N. J. R. I69. Mississippi, Jarnigan v. Fleming, 43 Mis. 7II.
2Benns v. McCorcle, 2 P. A. Brown, 79; Hirsh v. Ringwalt, 3 Yeates, 508.
3 Abrams v. Smith, 8 Blackf. 95; Haynes v. Leland, 29 Me.
233; Jones v. Chapman, 5 Blackf 88; Crane v. Douglass, 2
Id. 85. See generally, Mapes v. Weeks, 4 Wend. 659; Austin
v. Hanchett, 2 Root, I48; Skinner v. Grant, I2 Vt. 456; Scott
v. Peebles, 2 Sme. & M. 546; Gilman v. Lowell, I Amer. Mead.
Cas. 202, n.; 2 Greenl. Ev. ~ 424, n.; Cummerford v. McAvoy, 15 Ill. 3II; Johnston v. Lance, 7 Iredell, 448; Kelly v.
Dillon, 5 Ind. (Porter), 426; Trabue v. Mayo, 3 Dana, 138;
Robinson v. Harvey, 5 Monr. 519; Parker v. McQueen, 8 B.
Monr. i6. Miller v. Kerr, 2 McCord, 285; Church v. Bridgeman, 6 Miss. 90o. And see Easterwood v. Quin, 2 Brevard,
64; Smith v. Stewart, 5 Barr. 372; Sexton v. Todd, Wright
(Ohio), 317; Haine v. Welling, 7 Ham. 253; Farr v. Roscoe, 9
Mich. 353; Brooks v. Bryan, Wright, 760.
Runkle v. Meyers, 3 Yeates, 5i8; Dole v. Lyon, io Johns.
447; Larkins v. Tarter, 3 Sneed, 68i; Miles v. Spencer, I Holt,.
N. P. 533; Lewis v. Walter, 4 B. & Ald. 605; Chevalier v.
Brush, Anthon's Law Student, i86; Mapes v. Weeks, 4 Wend.
659; Inman v. Foster, 8 Id. 602; Hotchkiss v. Oliphant, 2 Hill,.
5I0. And see Johnston v. Laud, 7 Iredell, 448; Dole v. Lyon,
io Johns. 447; Clarkson v. McCarty, 5 Blackf. 574; Moberly
v. Preston, 8 Mis. 462; Romayne v. Duane, 3 Wash. C. C. 246;
State v. Butman, 15 La. An. i66; McGregor v. Thwaites, 3 B.
& C. 24; 4 D. & R. 695; De Crespigny v. Wellesly, 5 Bing.
392; Bennett v. Bennett, 6 C. & P. 588; Fidman v. Linslie, io
Exch. 63; Saus v. Joerris, I4 Wis. 663; Cook v. Ward, 6 Bing.
409; Abshire v. Cline, 3 Ind. II5.'Abshire v. Cline, 3 Ind. II5; Cook v. Ward, 6 Bing.
409.




CH. II.]             OF  LIBEL.                    125
63. A defamatory publication, true in part and
false in part, will be held libelous as to the part which
is false.'
So where the libel alleged that the plaintiff, a
proctor, had been suspended from practice three times
for extortion, a plea in justification which alleged only
one suspension, was held bad. It was urged on behalf
of the defendant in this case, that it was sufficient if
the sting and substance of the libel were answered by
the plea, and that the discredit attaching to a single
suspension from office, was not substantially aggravated by a repetion of similar reproof; but the court
did not agree that a man's character would not fall
into lower discredit by the imputation of repeated
offenses, than by the imputation of one only; and held
that the plea fell within that class which, professing to
justify the whole of the libel, in effect justifying only
a part, are therefore bad.2
1 Mountney v. Walton, 2 B. & Ad. 673. Vid. also Chalmers v. Shackell, 6 C. & P. 475.
2 Shortt, L. Lit., p. 393; Campbell v. Spottiswoode, 3 B. &
S. 769.
And where the libel consisted of a paragraph published in
a newspaper, stating, in substance, that the plaintiff was a
confederate of blacklegs; that he had sought admission into a
yacht club; that he gave an entertainment in the expectation
of being elected, but was blackballed, and the next morning
bolted, and some of the tradesmen of the town had to lament
the fashionable character of his entertainment-a plea of justification, which, after alleging facts to show that the plaintiff
was the confederate of persons who had been guilty of cheating at cards, and the facts of his giving an entertainment, and
being blackballed, &c., stated " that on the following morning
he quitted the town and neighborhood, leaving divers of the
tradesmen, to whom he owed money, unpaid," was held bad,
because the quitting might be innocent and without any intention to defraud. "The libel, as stated in the declaration,"
said Parke, B., " imputes to the plaintiff a fraudulent evasion
of his creditors, he being unable to pay them. The plea does




I26         LA W   OF  LITERATURE.            [CH. II.
64. But on the other hand, if the truth of the
substantial imputation contained in the libel be proved,.
the justification need not extend also to every epithet
or term of general abuse which may be found in the
description or statement of the imputation, and which
contains no ground of charge substantially distinct in.
its nature or character, from that which forms the main
charge or gist of the libel.'
not meet that; for the plaintiff might be unable to pay without
being guilty of fraud, as imputed by the word'bolting,' used
in the libel. That expression charged the plaintiff with going
away suddenly from Plymouth, leaving debts unpaid, and
under such circumstances that the creditors could not find
him, and therefore means more than the mere' quitting,' which
is stated in the plea. That would be an innocent departure,.
and consistent with proof that he went out of town for a day,
but afterwards returned and paid his debts" (O'Brien v.
Bryant, I6 M. & W. i68).
See also Wadsworth v. Bentley (23 L. J. 3 Q. B.), where
the declaration in an action of slander alleged that the defendant spoke of the plaintiff, in the way of his trade, the words,.
"He cheated me "; "He is a thief, and robbed me of iloo ";
and contained an averment of special damage, and the defendant pleaded a former judgment recovered for the same
grievances. The record of the previous action showed the:
slanderous words to have been: " That thief is a villain, a
scoundrel, and a rascal, and I can prove him a thief at any
moment "; and it neither alleged that the words were spoken
of the plaintiff in the way of his trade, nor contained an averment of special damage. This was held to be no bar to the
action. "' I cannot think," said Crompton, J., "that the cause
of action in that record, which contains words charging the
plaintiff with felony, is the same cause of action as that in the
present declaration, which imputes a charge against the plaintiff as a trader."
Morrison v. Harmer, 3 Bing. N. C. 76; 4 Scott, 933. So,.
in an action for libeling the plaintiffs in their business of
sellers of medicine, by publishing that the defendants claimed
" the merit of having crushed the self-styled hygeist system of
wholesale poisoning, since they commenced exposing the
homicidal tricks of those impudent and ignorant scamps who,
had the audacity to pretend to cure all diseases with one kind:




CH. II.]              OF  LIBEL.                       127
65. " Our laws," said the court in a late case,1 "allow
a man to speak  the truth, even if it be done ma —
of pill;" and that " several of the rot-gut rascals had been convicted of manslaughter, and fined and imprisoned for killing
people with enormous doses of their universal vegetable boluses," &c.; the defendants pleaded a justification of the libel
on the ground of truth, but did not justify the expressions
"scamps " and "rascals;" and they proved at the trial that
two persons had died in consequence of taking large quantities of the plaintiff's pills, and that the parties who had administered the pills were tried, convicted, and imprisoned for
manslaughter. The defense, after verdict, was held sufficient,
though the plea contained no justification of the expressions
"scamps " and " rascals," and though it had not been proved
that the defendants had "completely crushed the self-styled
hygeist system of wholesale poisoning."
As to the objection grounded on the non-justification of
the words " scamps " and "rascals," the court said: " It must
be admitted that if these terms of invective and reproach contain any ground of charge or imputation against the plaintiffs,.
substantially distinct in its nature or character from that which
forms the main charge or gist of the libel, and the truth of
which has been justified by the plea, the consequence contended for on the part of the plaintiffs would justly follow, for
the plea upon that supposition would not contain an answer
to so much of the declaration as by the commencement of the
plea it expressly undertakes to justify. The main charge against
the plaintiffs in the libel is, that they were the compounders and
sellers of pills of a poisonous and deleterious nature; and themain and principal allegation in the plea of justification is,'that
the pills sold by the plaintiffs, when administered and taken in
the doses and quantities suggested and recommended by them,
were of a highly dangerous, deadly, and poisonous nature, and
in the highest degree injurious to the stomachs and bowels of
persons using and taking the same.' The question therefore
1Baum v. Clause, 5 Hill, I99, and see Foss v. Hildreth,
9 Allen, 76.
By the Code Napoleon, in cases of libel, the defendant was.
not allowed to adduce proof of his asseverations. This law
was repeated by the National Assembly in I78I, but only so
far as libels against Government functionaries are concerned.
A writer libeling a private person is still denied the privilege
of proving that his libel is truth.




128          LA II  01   L1TERA TURE.          [CH. II.
liciously."  "But that truth " (says Mr. Townshend, in
his valuable essay), " which is admitted as a defense, is
the truth of the defamatory matter, in substance and
in fact; and in the sense in which it was used, and was
intended to be understood.  If A. says of X. that he
is a thief, and C. publishes that A. said X. was a thief,
in a certain sense C. would publish the truth, but not
in the sense which would constitute a defense; C.'s
publication would, in fact, be but a repetition of A.'s
words, which, as we have seen, would not be a defense.
The truth, which in such a case would amount to a
defense, would be that X. was a thief.  Again: if A.,
speaking ironically, says of X. that he is, an honest
man, meaning and conveying the idea that X. is a dishonest man, it would not be a justification of these
is, whether the terms of abuse which have been above referred
to, carry the matter any further than this, the main charge.
The words themselves, in their vulgar use, convey no other
meaning than that of general reproach and invective; and we
can only discover whether they have any particular meaning
in this libel by referring to the context of the libel and to the
allegations on the record. As to the word'scamps,' the plaintiffs themselves have given the meaning to it; for they allege
in their declaration that it is intended to be applied to them' in the way of their aforesaid trade, business, and occupation;'
that is, as vendors of the pills, the making and selling of
which by the plaintiffs is the main imputation against them.
And the word' rascals' is associated with an epithet or adjunct which appears to confine its general abusive quality to a
description and designation of the persons who have been occupied in administering the pills spoken of in the libel, of
whom two have been convicted of manslaughter. We cannot, therefore, understand these words, however offensive, as
containing any charge different and distinct from. that of which
the truth has been justified in the first plea; and we are not
aware of any authority by which it is determined that the
justification of the truth of the substantial imputation contained in a libel is not sufficient, unless it extends also to
every epithet or term of general abuse which may be found in
the description or statement of such imputation."




CH. II.]             OF  LIBEL.                     I29
words to allege that it was true X. was an honest man;
but, to constitute a defense, the allegation required
would be, that it was true X. was a dishonest man."1
66. A mere belief in the truth of the matter published, however honestly that belief may be entertained,
will not, of itself, constitute any defense.2 The question of belief, it is evident, will mainly present itself
in considering the intent with which a publication is
made, as to whether that intent be or be not malicious; and the principles which will govern courts
are most safely drawn from the reported cases.
The question as to how far a belief in the truth of
statements made, relieves the publisher from the re1 Essay upon Slander and Libel, 7 ~ 2II.
2 Townshend on Slander and Libel, ~ 216. A defendant
can not justify a charge of theft by showing that he has just
grounds for believing the plaintiff dishonest. (Woodruff v.
Richardson, 20 Conn. 238.) The publication in a newspaper
of rumors is not justified, but may be mitigated, by the fact
that such rumors existed. (Skinner v. Powers, i Wend. 45I,
~ 4II,J ost.) In mitigation of damages, in an action for libel,
defendant was allowed to show that he copied the statement
from another newspaper (Saunders v. Mills, 6 Bing. 213; 3 M.
& P. 520). And that he had omitted many of its parts reflecting on the plaintiff (Creevy v. Carr, 7 C. & P. 64. And see
Darbey v. Ousely, I Hurl & N. i; Campbell v. Spottiswoode,
3 Best & Smith, 769; 8 Law Times Rep. N. S. 20o; and see
Moore v. Stevenson, 27 Conn. I4; Woodruff v. Richardson,
20 Conn. 238; Fry v. Bennett, 3 Bosw. 200; Smart v. Blanchard, 42 N. Hamp. i37; Ker.r v. Force, 3 Cr. C. C. 8; Watson v. Moore, 2 Cush. I33; Hotchkiss v. Porter, 30 Conn. 31I4;
Gilmer v. Ewbank, 13 Ill. 27i; Duncan v. Brown, I5 B. Monr.
i86; Grimes v. Coyle, 6 Monr. 30o; Huson v. Dale, 19
Mich. 35; Farr v. Rusco, 9 Mich. 353; Long v. Brougher, 5
Watts, 399; Smith v. Luckecker, 4 Rawle, 295; Powell v.
Plunkett, Cro. Car. 52; Moyer v. Pine, 4 Mich. 409; Hutt. 13;
Bridg. 62; Brownlow, 2; Holt v. Parsons, 23 Tex. 9).
3 As-it is submitted-will also the nice and accurate
questions as to what will constitute publication of a libel. See
Townshend on Slander and Libel p. 78, et see.
9




130         LAW  OF LITERA TURE.           [Cul. II.
sponsibility for making them; a question intricate in
itself, but rendered still more involved by considerations as to how far the persons to whom the statements are uttered, believe in the truth, we are forced
to admit, after all the years during which the law has
been engaged in its discussion, must be solved anew
with and according to the circumstances of each recurring case.1  The law has never been able to lay
down an infallible or invariable rule. While an
action of slander would perhaps be influenced by the
fact that the slanderous words were not credited
by any one hearing them-the main question will
Nevertheless be-the intent of the person speaking
them.
Nor is it necessary to be finical as to the exact
legal meaning of the word intent. The law generally
will construe it in its popular sense of intention, motive, animus. As to the word malice, however, there
may be a legal significance, not recognized in the
popular definition; though Daly, Ch. J., in a late case
seemed to hold that there was none. "I apprehend," said
he," that there is no ground for distinguishing between
the legal and the popular sense of the word, and that
it means, in its legal sense, exactly what it means in its
popular sense, namely, a mischievous design or intent
to do an injury to an individual, or to the public."2
The law presumes, from the act, an intent to bring
about its consequences; "to denominate this intent
malice, or malice in law, when it may have arisen from
a good motive, the defendant believing what he alleges to be true, is to employ the word malice in a
1 Knight v. Gibbs, 3 Nev. & M. 467; i Adol. & El. 43;
Gillett v. Bullivant, 7 L T. 490; Wilson v. Gait, I7 N. Y.
445.
2 Viele v. Gray, Io Abb. Pr. R. 5; i8 How Pr. R. 550.




CH. II.]             OF  LIBEL.                     I3'
sense neither justified by its etymology, its ordinary
meaning, nor its previous legal signification."1
But a difference is made by Sir Thomas Moore
between ma/liz''a and malevolenzia.2
However honestly the party who publishes a libel
believes it to be true, if it is untrue in fact, the law implies malice, unless the occasion justifies the act; and
whether the occasion justifies the act, is a question of
law for the court.3
No suspicion, however strong, will justify a man
in aspersing his neighbor,4 nor can a defendant show
that the aspersion had been for years generally credited,5 or that a near relative (e.g. a sister) of the plaintiff believed herguilty.6 Common fame even will not
justify an extra judicial charge.' Though a bona fide
belief in the truth of statements made will sometimes
be allowed to mitigate damages.8 Recantation also is
sometimes allowed to go in mitigation of damages.9
1 In Viele v. Gray, io Abb. Pr. 5; i8 How. Pr. 550.
2 I7 Howell's St. Tr. 43, 63. (See also his remarks upon
the introduction of the words Falso et maiZiose into indictments for libel [I Id. 30; 6 Id. III3] ).
Darby v. Ouseley, I Hurl & N. I.
Powell v. Plunkett, Cro. Car. 5 2; Moyer v. Pine; 4 Mich.
409.
6 Long v. Brougher, 5 Watts, 437.
6 Smith v. Buckecker, 4 Rawle, 295.
Hutt, I3; Brownlow, 2; Bridg. 62.
8 Farr v. Rusco, 9 Mich. 353; Huson v. Dale, I9 Mich. 35,
overruling Thompson v. Bowers, I Douglass, 32I.
9 Perret v. New Orleans Times Newspaper, 25 La. An. I70.
(See this question discussed post, in chapter on newspapers.)
" In Dicas v. Lawson " (Id.), says Alderson, B., " I directed
the jury to look to the whole of the publication, to see whether
it was calculated to injure the plaintiff's character.  The
publication there complained of, was the report of a trial in
which there were strong observations on the character of the
plaintiff, but in which the plaintiff had recovered a verdict for.~3o. It was said that the report was libelous, because it set




132          LA TV  OF  LITERA TURE.           [CIi. II.
It was formerly the policy of the law  to construe all words iZn mitiori seizsu.l  The old judges
abounded in such maxims as "where words are ambiguous, so as they may be expounded in good or ill
part, no action lies, for they shall be expounded in the
best sense." 2 " The law strains not to hurt but to heal."'Where words are indifferent and discouraged the
action of slander by all sorts of evasions, and the like." 
67. But the rule, mii/ori sense, was held by Lord
Ellenborough5 in I807, to have been long superseded, and courts will now construe words in thc
forth the charge made on the trial against the plaintiff. I left
it to the jury to say whether, taking the whole of the publication together, they thought it likely to depreciate his character. The jury thought not; and on application for a new
trial, this court (exchequer) approved of my direction."
1 King v. Bagg. Cro. Jac. 33I; Holland v. Stoner, Id. 315.
2 Anon. Cro. Eliz. 672.'Coote v. Gilbert Hob, 77 pl. Ioo.' Per Gibson, J., Bash v. Sommer, 20 Pa. St. 159. See Harrison v. Thornborough, io Mod. I96.  " We will not give
more favor unto actions on the case for words than of necessity we ought to do, where the words are not apparently
scandalous, these actions being now too frequent." (Coke, C.
J., Crofts v. Brown, 3 Bulst. I67.) In Aslop v. Aslop (5 Hurl.
& N. 534), the court says actions for slander are not to be
encouraged; nor is the spirit wanting in the later decisions
in this country; see Bennett v. Williamson (4 Sandf. 67),
where it is said: "The law of libel ought to be considered
and is in its spirit a benevolent and salutary provision for
the peace and security of the community, but it can not redress every injury sustained by a breach of morals or of good
manners. We may not approve of the taste of publications
such as is set forth in the declaration in this case. We may
lament the existence of a disposition to make private character too much the subject of comment and abuse without having it in our power through the instrumentality of the law to
arrest the evil;" and in Dollaway v. Turrell (26 Wend. 397),
the action for libel is designated as a sordid action.
~ Roberts v. Camden, 9 East, 96; Cf. Woolnoth v. Mead
ows, 5 East. 463; Somers v. House, Holt Rep. 39.




CH. II.]             OF  LIBEL.                     133
plain and popular sense in which the rest of the world
naturally understands them.' The language will be
equally libelous if grammatical or ungrammatical;2
whether positive or insinuating;' whether mispelled,4
ironical,5 figurative,6 or allegorical, or if expressed in
the form of a question.
68. Truth being a defense, it follows that a greater
or less degree of truth in the alleged libel, may be
pleaded in mitigation of damages. Thus, it would be
a mitigation of the offense, to show such facts as
establish a ground of suspicion, not amounting to
actual proof of the charge,7 or as tend to a proof of
the charge, although falling short of it.8 Not only'Button v. Hayward, 8 Mod. 24; Rex v. Horne, 2 Cowp.
672; Rex v. Watson, 2 T. R. 2c6; Fisher v. Clement, io B. &
C. 472; Roberts v. Camden, 9 East, 93; Wakley v. Healey, 7
Com. B. 591; Ogden v. Riley, 2 Green, I86; Duncan v. Brown,
I5 B. Monr. i86; Fallenstein v. Boothe, I3 Mo. R. 427; Demarest v. Haring, 6 Cow. 76; Pike v. Van Wormer, 6 How.
Pr. R. 99; Backus v. Richardson, 5 Johns. 476; Gibson, J.,
Bash v. Sommer, 20 Penn. St. R. 59; Harrison v. Thornborough, io Mod. i96; Le Fance v. Malcomson, i H. L. Cas.
664.
2 Shortt, L. Lit. 385.
Rex v. Edgar, 2 Sess. Cas. 29; 5 Bac. Abr. tit. Libel,
I99.
4 Hob. 215; II Mod. 86; Boydell v. ones, 4 M. & W.
446~
5 Hoar v. Silverlock, I2 Q. B. 624, 632; Wood a ideout, 4 F. & F. 202.
-Guthercole's Case, 2 Lew. C. C. 255; Cf. Hunt v. Thimblethorpe, Moo. 4i8; I Vin. Ab. 429; Earl of Northampton's
Case, 12 Rep. I34; Delany v. Jones, 4 Esp. C. I9i; Woolnoth
v. Meadows, 5 East, 463; Hemming v. Power, io M. & W.
564.' Wagner v. Holbrunner, 7 Gill, 296. That is, a suspicion
of the truth; for if the matter is false, no suspicion, however
strong, will avail, as will be presently seen.
8 Snyder v. Andrews, 6 Barb. 43; Scott v. McKinnish, 15
Ala. 662; Bisbey v. Shaw, I2 N. Y. 67. Evidence of general
bad character may be admitted under the general issue (Smith




134          LA W  OF  LITERA TURE.            [CH. II.
against actual words, but against implications and
innuendoes, it behoves the writer to guard. It is not
at all unfrequent, that one uttering words innocent in
themselves, might be able, by implication, to make them
really injurious, and against this innuendo, as well as
against the words themselves, the law will protect the
citizen.  As, for instance, where the defendant wrote
in a letter: " I have reason to suppose that many of
the flowers of which I have been robbed, are growing
upon your premises" (thereby meaning that the plaintiff had been guilty of larceny, and had stolen from
the defendant certain plants, roots, and flowers of the
defendant, and had unlawfully disposed of them to P.,
and unlawfully placed them in P.'s garden). The previous part of the letter stated that the plaintiff, whom
P. had taken into his employ as a gardener, had been
in the defendant's employ in the same capacity, and
had been discharged for dishonesty; held, on error,
v. Smith, 8 Ired. 29; Taylor v. Richardson, 29 Maine, 323).
An action of slander for charging a man with having the
venereal disease, and, with that disease upon him, contracting
marriage, and communicating that disease to his wife, cannot
be maintained, if the plaintiff immediately after his marriage
had the disease in fact, even by proof that his wife, whom he
married without knowing that she had the disease, communicated it to him (Golderman v. Stearns, 7 Gray, i8i). In
slander for calling plaintiff a whore,. the words were laid to
have been spoken in I842; plea, that plaintiff, while unmarried, in i834, had carnal connection with one A. Replication,
that plaintiff, at the time mentioned in the plea, was betrothed
to said A.; that afterwards she was lawfully married to him;
that she lived with him a virtuous life until August, i836,
when he died; and that she had ever since continued to live
in innocent and virtuous widowhood.  Held, on general
demurrer, that the replication was insufficient (Alcorn v.
Hooker, 7 Blackf. 58). Where the charge is of a crime of
which the plaintiff was convicted, it is no answer to a plea of
the truth of the charge, that the plaintiff was pardoned (Baum
v. Clause, 5 Hill, I96; Townshend on Slander and Libel, note,
p. 328).




CH. II.]             OF  LIBEL.                    I35
that the innuendo was not too large.  Of course, the
innuendo, like the word, or act, or effigy, must be construed by the circumstances of each particular case,
but against it the writer will do well to guard.
69. The word" innuendo," in its legal sense, signifies something which avers the intendment or meaning of language published.' That is to say: that, while
ordinarily, as we have seen, words will be construed
1And as to innuendo generally, and example, see Gardner v. Williams, 2 Cr. M. & R. 78; 3 Dowl. Pra. Gas. 796; i
M. & W. 245; Rex v. Horne, 2 Cowper, 688; Reg. v. Virrier,
4 Per. & D. I6I; I Stark. Sland. 418; Rex v. Greepe, 2 Salk.
5I3; i Ld. Raym. 256; I2 Mod. I39; I Saund. 243; Van
Vechten v. Hopkins, 5 Johns. 220; McClaughry v. Wetmore,
6 Id. 83; Thomas v. Croswell, i Id. 27I; Weed v. Bibbins,
32 Barb. 315; Parham v. Nethersole, Yelv. 2I; Cramer v.
Noonan, 4 Wis. 23I; Stevens v. Handley, Wright (Ohio), I23.
Where the charge was that plaintiff was a "bunter," without
any innuendo to explain the meaning of that term, the court
on the trial refused to receive evidence of the meaning, and
plaintiff was nonsuited (Rawlings v. Norbury, I Fost. & F.
174; Worth v. Butler, 7 Blackf. 25I; Watson v. Nicholas, 6
Humph. I74). The office of the innuendo is to explain doubtful words or phrases, and annex to them their proper meaning. It can not extend their sense beyond their usual and
natural import, unless something is put upon the record by
way of introductory matter with which they can be connected.
In such case, words which are equivocal or ambiguous, or fall
short, in their natural sense, of importing any libelous charge,
may have fixed to them a meaning, certain and defamatory,
extending beyond their ordinary import (Beardley v. Tappan,
I Blatchf. C. C. 588). And to the like effect, see Dorsey v.
Whipps, 8 Gill, 457; Nichols v. Packard, i6 Vt. 83; Patterson v. Edwards, 2 Gilman, 720; Andrews v. Woodmansee, I5
Wend. 232; Taylor v. Kneeland, i Douglass, 67; Gosling v.
Morgan, 32 Penn. St. R. 273; State v. Henderson, I Richardson, I79; Caverley v. Caverley, 3 Up. Can. Rep. 338, 0. S.;
Van Vechten v. Hopkins, 5 Johns. 2II; Caldwell v. Abbey,
Hardin, 529; McCuen v. Ludlam, 2 Harr. i2; Beswick v.
Chappel, 8 Monr. 486; Penaway v. Coyne, Chand. (Wis.) 2I4;
Vaughan v. Havens, 8 Johns. Io9; Gompertz v. Levy, i Perr,
a Dav. 214; Dodge v. Lacey, 2 Carter (Ind.) 212.




136          LA hW  OF  LITERA TURE.           [CH. II.
by courts in the plain and popular sense in which the
rest of the world naturally understand them,' in that
natural and ordinary meaning and acceptation which
the world gives them. However general the language
of a defamatory publication may be, if its application
"An innuendo means nothing more than the words'id
est,''scibicet,' or'meaning,' or' aforesaid,' as explanatory of a.
matter sufficiently expressed before. It is in the nature of a
prz&iact. It may serve for an explanation, to point a meaning
where there is precedent matter, expressed or necessarily
understood or known, but never to establish a new charge.
It may apply what is already expressed, but cannot add to,.
nor enlarge, nor change, the sense of the previous words. If
the words before the innuendo do not sound in slander, no
meaning produced by the innuendo will make the action
maintainable, for it is not the nature of an innuendo to beget
an action.  An innuendo helps nothing, unless the words
precedent have a violent presumption of the innuendo. The
business of an innuendo is, by a reference to preceding matter
to fix more precisely the meaning. The office of an innuendo
is to explain, not to extend, what has gone before; and it cannot enlarge the meaning of words, unless it be connected with
some matter of fact expressly averred." The innuendo "is,
only a link to attach together facts already known to the
court" (Townshend on Slander and Libel, p. 527).'Roberts v. Camden, 7 East, 93; Tenterden, Ch. J., Har —
vey v. French, I Cr. & M. ii; Bonyon v. Trotter, Sty. 23I;
Woolnoth v. Meadows, 5 East, 463; Spencer v. Southwick, i I
Johns. 579; Pratt, Ch. J., Button v. Heyward, 8 Mod. 24;.
Fallenstein v. Boothe, 13 Mis. 427; Ogden v. Riley, 2
Green, i86; Duncan v. Brown, I5 B. Monr. i86; Hancock v.
Stephens, i I Humph. 507; their most obvious meaning, Hogg
v. Wilson, I N. & M. 216; or Thirman v. Mathews, I Stew.
384; Hogg v. Dorrah, 2 Port. 212; Dorland v. Patterson, 23
Wend. 422; Butterfield v. Buffam, 9 N. Hamp. 156; McGowan.
v. Manifee, 7 Monr. 314; Demarest v. Haring, 6 Cow. 76; Truman v. Taylor, 4 Iowa, 424; Wright v. Paige, 36 Barb. 438;
S. C., on appeal, 3 Trans. App. I34; I Starkie on Slander, 60;
Pike v. Van Wormer, 6 How. Pr. R. 99; Dias v. Short, i6 id.
322; Walrath v. Nellis, I7 Id. 72; Hughley v. Hughley, z
Bailey, 592; Tuttle v. Bishop, 30 Conn. 80; Carroll v. White,
33 Barb. 6i8; Somers v. House, Holt, 39.




CH. II.]           OF LIBEL.                   I37
to a particular individual or individuals can be generally recognized or perceived, it is a libel on him or
them. It is not necessary that its object be described
in any express form of words, but only so that it is
known whom they are, " and if those who must be
acquainted with the circumstances connected with the
party described, may also come to the same conclusion, and may have no doubt that the writer of the
libel intended to mean those individuals; it would be
opening a very wide door to defamation, if parties
suffering all the inconvenience of being libeled, were
not permitted to have that protection which the law
affords. If they are so described that they are known
to all their neighbors as being the parties alluded to;
and if they are able to prove, to the satisfaction of a
jury, that the party writing the libel did intend to
allude to them, it would be unfortunate to find the
law in a state which would prevent the party being
protected against such libels."  "Whether a man,"
said Lord Campbell, "is called by one name, or
whether he is called by another, or whether he is described by a pretended description of a class to which
he is known to belong, if those who look on know
well who is aimed at, the very same injury is inflicted;
the very same thing is in fact done, as would be done
if his name and Christian name were ten times repeated."'
Neither is the rule as to malice an inflexible one.
When malice is said to be the gist of an action for
libel, the legal import of the word must be borne
in mind.
" Malice," said Lord Campbell,2 "in the legal acceptation of the word, is not confined to personal spite
1 Le Fann v. Malcomson, I H. L. Gas. 664.
2 In Ferguson v. Earl of Kinnoul, 9 C1. & Fin. 32.




138         LAW   OF  LITERATURE.            [CH. II.
against individuals, but consists in a conscious violation of the law to the prejudice of another." " Malice," says another learned Judge,' " in common acceptation, means ill-will against a person; but in its legal
sense it means a wrongful act done intentionally, without just cause or excuse. If I give a perfect stranger
a blow likely to produce death, I do it of malice, because I do it intentionally, and without just cause of
excuse. If I maim cattle without knowing whose
they are; if I poison a fishery without knowing the
owner, I do it of malice, because it is a wrongful act,
and done intentionally. If I am arraigned of felony,
and wilfully stand mute, I am said to do it of malice,
because it is intentional, and without just cause or
excuse. And if I traduce a man, whether I know him
or not, and whether I intend to do him an injury or
not, I apprehend the law considers it as done of malice,
because it is wrongful and intentional.  It equally
works an injury, whether I meant to produce an injury
or not, and if I had no legal excuse for the slander,
why is he not to have a remedy against me for the
injury it produces?"  " If a person writes defamatory
matter of another," says Bramwell, B.,2 "however
honestly he may believe it to be true, if it be in fact
untrue, the law implies malice." And " the law implies
malice from the publication of a libel, except where
the occasion justifies the publication." And a man
may wilfully publish a mischievous libel without intent
to injure the party, and may yet be responsible.!
By the Scotch law, it is not necessary, in the case
of a civil action for libel, that malice should be either
proved or presumed; but it is necessary in the case of
Bayley, J., in Bromage v. Prosser, 4 B. & C. 255.
Darby v. Ousley, i H. & N. 9; 25 L. J. 330, Ex.'Bayliss v. Lawrence, i i A. & El. 924.




ACm. II.]           OF  LIBEL.                   139
a criminal proceeding. "In general," says Hume, " the
criminal is herein distinguished from the civil process;
that to warrant the inflicting of any punishment the
anzimus injuriandi, or special malice of the act, must
be shown; whereas mere petulance or indiscretion
may be the just ground of an award for the reparation
of damage, though the parties are not even known to
each other, if the things said are naturally and in
themselves of an injurious tendency."
The whole publication, however, is to be looked
at; and if the jury think that the effect of one part of
it, which if taken alone would be injurious to the
plaintiff's character, is removed by the other part
of it, they should find for the defendant.' The jury
will take the whole together and say whether the result of the whole is calculated to injure the plaintiff's
character; if, in one part of the publication, something
disreputable to the plaintiff is stated, but is removed
by the conclusion, the bane and antidote must be
taken together.2
This presumption of malice can sometimes be
overturned by proof of belief, such as we have already
considered. Evidence of recantation of a libel, also,
will be evidence to overburden such presumption.
"Malice: the doing any act without a just cause."3
Malice in its legal sense always excludes a just cause.
It is a technical expression, and means the absence of
any excuse; and is implied in every [wrongful] act
for which there is no legal justification, excuse, or extenuation.6 Malice is the deliberate disregard of the
Chalmers v. Payne, 2 C. M. & R. I56; 5 Tyrw. 66.
2 Id.
Chitty Genl. Pr. 46.
Jones v. Given, Gill. Cas. i85.
Penn v. Lewis, Add. 282.
4 Penn v. Honeyman, Id. I49; Bromage v. Prosser, 4 B. &




140          LA W   OF  LITERA TURE.            [CH. II.
rights of others;' the doing of any act injurious to
another without just cause.
In criminal law and general practice, malice signifies a wickedness of purpose; a spiteful or malevolent
design against another; a settled purpose to injure or
destroy another; Any formed or evil disposition or
design of doing mischief? General wickedness of
heart; inhuman or reckless disregard of the lives
or safety of others; as when one coolly discharges
a gun, or throws any dangerous missile among a multitude of people, or strikes, even upon provocation,
with a weapon that must produce death.4 Deliberate
disregard of the rights of others, as when one carries
on the trade of melting tallow, to the annoyance
of the neighboring dwellings.? All these will constitute malice.
Malice, again, will be either express, or implied
from the circumstances given to the jury. Or, it has
again been divided into legal malice or malice in law,
and  actual malice or malice in fact.  This latter
distinction, however, is not in the malice itself, but
rather in the evidence by which it is established. " If
the charge complained of is injurious, and no justifiable motive for making it is apparent, malice is
inferred from the falsity of the charge. The law,
C. 247; I Russ. Cr. 483; I Starkie on Libel, 3, 2I3; Bouvier's,Law Dict. tit. Malice. See York's Case, 9 Metc. 93; Darry v.
People, io N. Y. I22; Mitchell v. Jenkins, 5 B. & A. 500;:;
Hilliard on Torts, ch. vii. ~ io6.'Per Abbott, Ch. J., 3 B. & C. 584.
2 Id. And see Townshend on Slander & Libel, notes to
pp. 122, et seq., where numerous definitions of malice are
collected.
" Hale's P. C. 455; 2 Stra. 766; 4 B1. Com. I98; 2 Roll.
R. 46I.
44 Bl. Com. I99.'3 B. & C. 584.




CH. II.]            OF  LIBEL.                   I4I
in such cases, does not impute malice not appearing in
fact, but presumes a malicious motive for making a
false and injurious charge, if no innocent motive
appears.  If, from  the circumstances, however, the
defendant may be reasonably supposed to have had
a worthy motive for making the charge, the law
ceases to infer malice from the mere falsity of the
charge, and requires from the plaintiff other proof of its
existence. It is actual malice in either case, only the
proof is different."' " The jury may infer malice from
want of probable cause, but they are not bound
to make this inference. And if malice is deduced
from want of probable cause, it is as much malice
in fact, within the meaning of the law, as though
shown or deduced from any other fact or facts."2
70. The various decisions upon the subject of defamation may seem  finical, over-nice, and even ludicrous to the layman; and many, perhaps a majority of
them, may be such as would no longer govern. But
the principles controlling them are still law, and it is
matter of marvel that in the reported cases the old
judges were able to look beyond the annoyance of the
petty, trivial, and absurd details which encumbered
them, and lay down rules with a reasoning so clear
and forcible, that from their conclusions, even to-day,
there can be no escape.
7I.(Words which sound in disability only, are
not actionable, unless spoken of one who gains his
livelihood by that thing, profession, or business wherein
the words disable him.9) " An action," it has been said,
Selden, J., Iewis v. Chapman, i6 N. Y. 372.
2 Smith v. Howard, 28. Iowa, 51.  And see the brief ot
Nicholas Hill, in Darry v. People, lo N. Y. 123, which cites a
large number of authorities.'  Bill v. Neal, I Lev. 52. Vid. How v. Prin, Holt, 652; 3
Salk. 694.




142         LA W  OF LITERATURE.            [CH. II.L
"lies for speaking scandalous words of any man of any
trade or profession, be it never so base, if they arespoken with reference to his profession."' Thus: it has
been held actionable to say of a servant in husbandry
and bailiff, "Thou art a cozening knave, and hast.
cozened thy master of a bushel of barley;"  or of a
tradesman, " Thou art a rogue, and thou hast cheated
me of several pounds;"' of a person carrying on the
business of a butcher, that she had used false weights
in her trade;4 of a cornseller,." You are a rogue and a.
swindling rascal; you delivered me one hundred
bushels of oats, worse by sixpence a bushel, than I bargained for;"  of an auctioneer and appraiser, employed
by the defendant to value certain goods, "He is a
damned rascal; he has cheated me out of a hundred
pounds on the valuation;,"6 of an asphalte manufacturer, "The old materials have been relaid by your
company in the asphalte work executed in front of the
ordinance office, and I have seen the work done;" innuendo, that the plaintiff "had been guilty of dishonesty in the conduct of his said trade, by laying
down again the old asphalte materials which had before been used at the entrance of the said ordinance
office instead of new asphalte, according to his contract;"  or of a certificated  master mariner, that
" during his stay at N. he was frequently drunk, and in,
that state had to be carried to his boat to reach his
vessel, &c."8 So it was held slanderous to say of a
1 Terry v. Hooper, Lev. II5.
2 Seaman v. Bigg, Cro. Car. 480.
s Surman v. Shelleto, Burr. I688.
Griffith v. Lewis, 7 Q. B. 6i.'Thomas v. Jackson, 3 Bing. Io04.
Bryant v. Loxton, 4 Moore, 344.'Baboneat v. Farrell, I3 C. B. 360.'Irwin v. Brandwood, 2 H. & C. 960; 9 L. T. N. S. 772; 35




CH. II.]             OF  LIBEL.                    I43
gamekeeper that he had trapped foxes; the declaration stating that it was his duty as such gamekeeper
not to kill foxes, and that he was employed on the
terms of his not doing so, as the defendant knew.'
Any unfounded imputation against a person who is in
the enjoyment of an office, either public or private,
whether of honor, profit, or trust, which imports a
charge of unfitness to administer the duties of that
office, is actionable.2
Thus, it is slanderous to say of a lawyer, " He is a
dunce, and will get little by the law;" 3 or " Thou art no
lawyer; thou canst not draw a lease; thou hast that degree without desert; they are fools that come to thee
for law,"4  or "Thou art a false knave, a cozening
knave, and hast got all that thou hast by cozenage;.
and thou hast cozened all those that have dealt with
thee;" 5 or that " he is no lawyer," 6 or that he is a " common barrator;" 7 or if one say to a counsel, "Thou didst
disclose my counsel;" or to a counsel or attorney,
I Thou didst deliver my evidence to my adversary;" 8 or
to style him in a tone of irony-an " honest lawyer."9
But it has been held to be not actionable to charge
one in a business or profession to have exhibited, in
some particular case, bad management or unskillful
L. J. 257, Ex. Vid. Coxhead v. Richards, 2 C. V. 569; 15 L.
J. 278, C. P.; Harwood v. Green, 2 C. & P. I4I.' Foulger v. Newcome, L. Rep. 2 Ex. 327; i6 L. T. N. S.
596; 36 L. J. i69, Ex.
2 See Butler N. P. 45.
Peard v. Jones, Cro. Cas. 382.
4 Bankes v. Allen, Roll. Abr. 54.
Jankins v. Smith, Cro. Jac. 586.  /id. also Berckley's
Case, 4 Rep. I6.
6 Day v. Buller, 3 Wils. 59.
7 Taylor v. Starkey, Cro. Car. I92.' Per Anderson and Grammond, JJ.; Wright v. Moorhouse,
Bro. Eliz. 358. Vid. Brown v. Kennedy, 43 L. J. 342, ch. 342.' Boydell v. Jones, 4 M. & W. 446; 7 Dowl. P. C. 2Io.




144X         LAW   OF  LITERATURE.             [CH. II.
treatment.' Thus: for saying of an attorney in a particular suit, " he knows nothing about the suit; he will
lead you on until he has undone you," no action lies.2
It seems, however, that it would be actionable to
charge such ignorance or unskillfulnes as would infer
gross ignorance and unskillfulness in all cases.3
It is not easy to see the distinction between the
case of the attorney and of the physician, on whom
it was held libelous to say, " he was the death of J.
P.4" J. P.'s case being a particular case, the distinction is somewhat finical and might not always be
servilely followed.5
" It is actionable to call a counselor a " daffodowndilly," if there be an averment that the words signify an ambidexter;6 or to say of an attorney that he hath no more
law than Master Cheyny's bull, even although Master
Cheyny actually had no bull, for if that be the case, as
Keeling, Ch. J., observed,' the scandal is the greater."
It is quite clear that to say that a lawyer'hath
no more law than a goose,' is actionable;' and the
reporter adds a query whether it be not actionable to
say a lawyer'hath no more law than the man in the
moon."'  In another case, it was held actionable to
say of an attorney that " he is no more a lawyer than
the devil."9 But it is not actionable to say of a lawyer
that he kept back his bill fifteen years, until his
client was dead.'" Very few clients, probably, would
1 Garr. v Selden, 6 Barb. 416; Camp v. Martin, 23 Conn.
86; Southee v. Denny, I Ex. i96.
2 Foot v. Brown, 8 Johns. 64.
s Townshend on Slander & Libel, ~ I94.
4 Maires v. Thornton, 8 Term R. 303.
~ And see Cawdrey v. Telley, Godb. 44I.
6 Pearce's Case, I Roll. Abr. 55, pl. I7.
7 Baker v. Morfue, Sid. 327.             8 Id.
Day v. Buller, 3 Wils. 59.
10 Reeves v. Templar, 2 Jur. Exc. I37.




CH. II.]             OF  LIBEL.                      I45
be deterred from  employing an attorney on that account. It is not slanderous to say that a clergyman
"' is a remarkably bad preacher;"  but it would be, to
say of a church warden, " thou art a cheating knave,
and hast cheated the parish of forty pounds;"2 or of a
town clerk," he has taken forty shillings for a bribe;" 3
or of a constable, "he is not worthy the office of a
constable, for he and his company, the last time he
was constable, stole five of my swine and ate them."4
An imputation of insanity to a governess would be
actionable,5 but to say of an alderman that "when he
put on his gown Satan enters into it,6 or to charge a
member of Parliament with insincerity,"' would not
be actionable.
Words of general or doubtful signification, standing alone, are not slanderous; and no action will lie
for speaking the words " rogue," " rascal," " scoundrel,"
"swindler," or "blackleg," unless special damage can
be proved. It seems, however, it would be otherwise
if they were published.8
To say of a trader that he is "A sorry, pitiful
fellow, and a rogue; he compounded his debts at five
Gathercole v. Miall, I5 M. & W. 344.
2Strode v. Holmes: Sly. 338; I Vin. Abr. 468; Woodruff
v. Wooley, Id. 463.
3 elv. T42; i Vin. Abr. 463.  Vid. I Roll. Abr. 56.
4 Cro. Eliz. 86i; I Vin. Abr. 464.
M6 organ v. Lingen, 8 L. T. N. S. 8oo.
6 2 Starkie on Slander, 3I4.
Onslow v. Horne, 2 W. Black. 750.
8 Anon. Lofft, 322; Dyer v. Morris, 4 Miss. 2I4; Lt. Anson
v. Smith, I Tr. 748; Hayes v. Mitchell, 7 Blackf II7. But if
those words were written and published, I doubt not an action
would lie (Gould, J., in Villers v. Monsley, 2 Wils. 403;
Barnett v. Allen, 3 H. & N. 376; 27 L. J. 4I2, Ex.; Richardson v. Allen, 2 Chit. 657; Saville v. Jardine, 2 H. B1.
331).
10




146         LA W  OF  LITERA TURE.             [CH. II.
shillings in the pound;"1 or, "If he does not come~
and make terms with me, I will make a bankrupt
of him, and ruin him;" 2 of a brewer, "I will bet
~/5 to /I that Mr. J. was in a sponging house for
debt within the last fortnight, and I can produce
the man who locked him up; the man told me
so himself," &c.;  of a dyer, that " He is a bankrupt
knave, and is not worth three half-pence;"4 of a tailor,
"I  heard you were  run  away;"   of a  husbandman, "He owes more money than he is worth; he is
run away and is broke;"6 of a carpenter, "He is.
broken and run away, and will never return again;"7
and even in cases where an expectation or opinion
only was expressed, as " I believe all is not well with
Daniel Vivian: there are many merchants who have
lately failed, and I expect no otherwise of Daniel
Vivian." 8
It was held actionable to say of an upholsterer,
" You are a soldier; I saw you in your red coat doing
duty; your word is not to be taken"-it having
been a common practice for tradesmen to protect
Stanton v. Smith, Ld. Raym. 1480. See case of a pawnbroker, Holt, 652.
2 Brown v. Smith, 13 C. B. 596; 22 L. J. I51, C. P.
Jones v. Littler, I M. & W. 423.
Squire v. Johns, Cro. Jac. 585.'Davis v. Lewis, i T. R. I7.
Dobson v. Thornistone, 3 Mod. II2.
Chapman v. Lampshire, 3 Mod. I55. In this case it was
argued for the defendant that the plaintiff might be broken,
and yet be as good a carpenter as before. " But," said the
chief justice, " the credit which the plaintiff has in the world
may be the means to support his skill, for he may not have an
opportunity to show his workmanship without those materials
with which he is intrusted."' 3 Salk. 326; Raym. 207. Vid. Harrison v. Thornborough,.
io Mod. I96.




CH. II.]            OF  LIBEL.                    I47
themselves against their creditors by a counterfeit
enlisting.
In one case, where it was said of a merchant,
"He came a broken merchant from Hamburgh," the
court2 held that an action would lie, the charge being
of having been "once broken, El gqzi semel malczs
semier /bresumiltr esse malzs eodem  genere, or at
least may have an inclination thereto; and it being
alleged to be spoken fa/so et malitios~, and to scandalize him in his profession, it is a great cause of discrediting and impairing him in his trade; whereas
their credit is the principal means of their gain." 
And it is libelous to impute untruly to any
person, pecuniary embarrassment and inability to
purchase a certain property without the aid of a loan
from a third party; even although it be, at the same
time, stated that the loan was afterwards honorably
repaid.4
72. Defamatory attacks on persons in the way of
their trade, profession, or calling must be distinguished
from hostile criticisms, fairly and temperately expressed, on such of their works and performances as
appeal to the public; for such criticisms, however severely they may condemn or effectually turn into ridicule the works of authors, painters, architects, actors,
&c., or even the advertisements or handbills of a tradesman, may be justifiable, though not in all respects accurate; whereas publications which have for their
object the private injury of the person attacked can
only be justified by their substantial truth.
It is slanderous to remark of a physician that he
1 Arne v. Johnson, Io Mod. IIi.
2 Shortt, L. Litt. 406 (note).' Leycroft v. Dunker, Cro. Car. 3I7.'Cox v. Lee, L. Rep. 4, Ex. 284; 38 L. J. 2I9, Ex.; 2I L.
T. N. S. I, 8.




i48          LAW   OF  LITER ATURE.            [CH. II.
"killed six children in one year:"'" Thou art a drunken
fool and an ass:" "Thou wert never a scholar, and are
not worthy to speak to a scholar, and that I will prove
and justify;" 2or of a surgeon and accoucher, " I wonder you had him to attend you. Do you know him?
He is not an apothecary; he has not passed any examination; he's a bad character; none of the medical
men here meet him. Several have died that he has
attended, and there have been inquests held on them;"
or of an apothecary, " It is a world of blood he has
to answer for in this town, through his ignorance; he
did kill a woman and two children at; he did kill
at; he was the death of -; he has killed
his patient with his physic;"4 or, of a midwife, " She is
an ignorant woman and of small practice, and very
unfortunate in her way; there are few that she goes to
but lie desperately ill, or die under her hands;"5 or,
that " many have perished for her want of skill."6
There is no law, however, against calling an innkeeper " a caterpillar;" 7 neither is it actionable to say of
a justice, " He is a logger-headed, a slouch-headed and
a bursen-bellied hound;" 8 or, " He is a fool, an ass, a
beetle-headed justice,"9 or, "He is a debauched man,
Carrol v. White, 33 Barb. 6I5.
2 Cawdrey v. Highley, Cro. Car. 270; i Roll. Abr. 54.
S Southee v. Denny, I Exch. i96. But it was held to be no
libel to publish in a medical journal of a physician that he
had met homce6pathists in consultation, though it was alleged
that, in the opinion of the profession, meeting homceopathists
in consultation was improper, and against etiquette (Clay v.
Roberts, 8 L. T. N. S. 397; 9 Jur. N. S. 580; II W. R. 649).
4 Tulty v. Alewin, ii Mod. 221. Vid. also Edsall v. Russel,
4 M. & W. i090.
Wharton v. Brook, I Vent. 2I.
6 Flower's Case, Cro. Car. 2II.
Vin. Abr. Act. for Words, V. a. 34.
I Keb. 629.
Bill v, Neal, i Lev. 52.




CH. II.]             OF  LIBEL.                    I49
and unfit to be a justice;"I or, "He is a base, rascally
villain, and is neither nobleman, knight, nor gentleman,
but a most villainous rascal, and by unjust means doth
most villainously take other men's rights from them,
and keeps a company of thieves and traitors to do
mischief, and giveth them nothing for their labor, but
base blue liveries;2 or," He is half-eared;" 3 or, " He is
a blackguard;" "There is a combined company here
to cheat strangers, and Squire Van Tassel has a hand
in it. I don't see why he did not tell me the execution had not been returned in time, so that I could
sue the constable;"' or, " Squire Oakley is a damned
rogue;"5 so, to publish orally of a justice "He is a
blood-sucker and seeketh after blood; if a man will
give him  a couple of capons he will take them; 6 or,
"You robbed the poor and are worse than a highwayman;" is not actionable. It does not follow, however
that one might write down all this, even of a justice,7
with impunity from an action for libel.
" Because," said Lord Holt,8 "it is not a slander
to call a justice of the peace blockhead, ass, &c., for
1 Hammond v. Kingsmill, 7 Jac. I.
2 Hollis v. Briscow, Cro. Jac. 58.' Markham v. Bridges, Cro. Car. 223. The justices, however, have some decisions in their favor: e. g., it is actionable
to say of a justice that he was a "Jacobite" (How v. Prin,
Holt, 652; 3 Poulk, 694). "He is a rascal, a villain, and a
liar" (Kerler v. Osgood, i Vent. So). " He is not fit to be a
justice of the peace" (lb.). "When thou wert justice thou
wert a bribing justice" (Aston v. Blagrave, Str. 617; Prudham v. Tucker, Yelv. I53; Herle v. Osgood, I Vent. 50o).
"He covereth and hideth felonies, and is not worthy to be a
justice of the peace" (Stuckley v. Bulhead, 4 Rep. i6).
Van Tassel v. Capron, I Den. 250.
6 Oakley v. Farrington, I Johns. I29.
8 Palmer v. Edwards, Rep. Cas. Prac. in C. B, I6o.
Hillard v. Constable, Mo. 418.
8 How v Prin, Holt, 652.




150         LAW   OF  LITERATURE.            [CH. II.
which action lies, since he is not thereby accused
of any corruption in his employment, nor any ill design
or principle; and it was not his fault that he was a
blockhead, for he cannot be otherwise than his Maker
made him.; but if he had been a wise man, and wicked
principles were charged on him when he had them
not, an action would have lain, for, though a man cannot be wiser, he may be honester than he is."  "If a
person," he continues, " be in a place of profit, and he
is accused of insufficiency, he shall have remedy by
action;'tis otherwise if he be only in a place of honor;
though, even there, if he is charged with ill principles,
and as disaffected to the government, he shall have an
action for such scandal to his reputation." To say of
a judge that he was a corrupt judge,' or that a particular
sentence delivered by him was corrupt,2 is actionable.
In Waldin v. Mitchell,8 it was said that, where a man
had been in an office of trust, to say that he behaved
himself corruptly in it, as it imported great scandal,
so it might prevent his coming into that or the like
office again, and therefore was actionable.4  But the
authority of the two latter cases is much weakened by
what DeGray, C. J., says in Onslow v. Horne,5 "I
know of no case where ever an action for words 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 Vent. 266..... I think the Chief Justice went too far."  There
Birchley's Case, 4 Rep. i6.
2 Caesar v. Carseny, Cro. Eliz. 305.
3 2 Vent. 306.
Cramer v. Riggs, I7 Wend. 209; and see 7 Id. 204;
Wilson v. Noonan, 23 Wis. 23I; Littlejohn v. Greeley, I3 Abb.
Pr. 4I; Walden v. Mitchell, 2 Vent. 266.
3 Wils. i88; and see Hellard v. Constable, Mo. 4i8; 2
Palmer v. Edwards, Rep. Cas. Prac. in C. B. i6o.




CH. II.]              OF  LIBEL.                     Ir5
is no doubt, however, that an action of libel would lie,
if such an imputation as the above were written or
printed and published.
73. Language falsely imputing to one in office any
malfeasance or want of integrity-such as would impair
public confidence in him,1 or with want of capacity
-for the duties of the office he holds,2 or with having
committed a breach of the public trust is actionable 3the language must clearly appear to affect him in
his office.  In the cases just cited, however much the
personal character of the justice was aspersed, nothing
was alluded to which would make him  less useful as a
justice; neither would it be actionable to declare that he
had tried a case that was not within his jurisdiction.4
But if the charge be that he miLde the office of.clerk of his court a matter of private negotiation,5 or
that he procured one to take false oaths;6 or if it consist,of words that necessarily imply corruption generally,7
it would be actionable per se.8  Charges that a judge
took a bribe,9 or is false,1~ or is forsworn, and not fit to
sit upon a bench;"l that he has acted unjustly in
Lansing v. Carpenter, 9 Wis. 340.
2Townshend on Slander and Libel, ~ 196; Robbins v.
Treadway, 2 J. J. Marsh. 540.
3 Kinney v. Nash, 3 N. Y. I77, and cases cited.
Oram v. Franklin, 6 Blackf. 42; but see Carter v. Andrews,'i6 Pick. I; Stone v. Clark, 2I Pick. 51.
Robbins v. Treadway, 2 J. J. Marsh. 540.
6 Chetwind v. Meeston, Cro. Jac. 308.
Chaddock v. Briggs, I3 Mass. 253; Chipman v. Cook, 2'Tyler, 456; Aston v. Blagrave, I Strange, 617; 2 Ld. Raym.
1369; Kent v. Pocock, 2 Str. xI68.
8 Townshend on Slander and Libel, ~ i96.
9 Lindsey v. Smith, 7 Johns. 360; Colton's Case, Mo. 695.
10 Wright v. Moorhouse, Cro. Eliz. 358.'2 Carn v. Osgood, I Levinz, 280; S. C., Kerle v. Osgood, I
Vent. 50; and see Pepper v. Gay, 2 Lutw. I288; Stuckley v.
13ulhead, 4 Rep. i6 a, I9 a; Lassels v. Lassels, Mo. 40I; Hollis




152          LA W   OF  LITERATURE.             [CH. II~
his office,, or that he is partial,2 or half-eared, and will
hear but one side, or that he cannot hear of one ear,3
or that he perverted justice,4 or made use of his office
to worry one out of his estate,5 or to say that " he did
seek my life, and offered ten shillings to the undersheriff to impanel a jury that might find me guilty,"~
would be actionable.
74. Words imputing  an attempt to  commit a
felony, as " He sought to murder me, and I can prove
it;"7 or a hiring or solicitation of another to commit
a crime, are actionable.8
The charge of a crime, in the vulgar language, is:
sufficient to ground an action. It is not necessary
that the words should impute the crime in the technical terms known to the law; all that is requisite
being, that the intention to charge the plaintiff with
its commission, should plainly appear.9
Whether defamatory words are uttered or printed,
the ordinary sense of them is to be taken to be the
meaning of the person who uses them. However, if
anything  can be shown to have taken place which
v. Briscoe, Cro. Jac. 58; Burton v. Tokin, Cro. Jac. I43; Beamond v. Hastings, Cro. Jac. 240.
Isham v. York, Cro. Car. 14.
Kemp v. Housgoe, Cro. Jac. go.' Masham v. Bridges, Cro. Car. 223, and Alleston v. Moor,.
Het. i67.
Delaware v. Pawlet, Mo. 409.
Newton v. Stubbs, 3 Mod. 71.
Bleverhassett v. Baspoole, Cro. Eliz. 3I3.
Cro. Eliz. 308; Lewknor v. Cruchley, Cro. Car. I40.
8 Tibbott v. Haynes, Cro. Eliz. 19I; 4 Coke, I6; Cro. Eliz..
747; Lady Cockaine's Case, Cro. Eliz. 49; Id. 710.
See Coleman v. Goodwin, 2 B. & Cr. 285, note; and Francis v. Roose, 3 M. & W. 9gr. See also Hankinson v. Bilby,
i6 M. & W. 442; Woolnoth v. Meadows, 5 East, 463; Cf.
Sweetapple v. Jesse, 5 B. & Ald. 31; see also Hob. I26; Cro.
Eliz. 250, 496; I Roll. Abr. 74; and 4 Rep. 13.




CH. II.]             OF  LIBEL.                     153
may give a peculiar character to the expressions used,
evidence of it may be given.1
Where slanderous words complained of-"Thou
art a thievish rogue, for thou hast stolen my faggots"
-were spoken by the defendant's wife, who, as a
married woman, could not have possessed the properly
in the faggots, the court held the words to be actionable-understanding them, according to c mmon intendment-to mean a charge of having stolen her husband's faggots.2
On the same footing as an imputation of an
indictable offense, stands the imputation of being, at
the time the imputation is made, afflicted with an
infectious or contagious disease, which would cause
the person who had it to be shunned by society, such
as leprosy, or the lues venerea.s
In the case of words spoken which would  not
otherwise be actionable, but which become so when
they are, without justification, spoken of a person in
respect of his profession, office, trade, or calling (provided it be not an unlawful one), and have a tendency
to injure him in respect thereof, the law implies
"actionable damage" without proof of any:' a forSee per Pollock, C.B., Daines v. Hartley, 3 Exch. 200; i8
L. J. 8i, Ex.; and cf. Hankinson v. Bilby, ubi szi/ra; Tempest
v. Chambers, I Stark. 68; Tomlinson v. Brittlebank 4 B. &
Ad. 630; Harvey v. French, i C. & M. I7; Thompson v. Bernard, I Camp. 48; Christie v. Powell, Peake's Cas. 4; 4
Rep. I3.
2 Stamp v. White, Cro. Jac. 6oo. See also Charnel's Case,
Cro. Eliz. 279. The doctrine as to repugnancy, laid down in
7 Bac. Abr. 296, I Roll. Abr. 74, cannot now be considered
law (see sect. 6i of the C. L. P. A., I852).
37 Bac. Abr. 266; Holt. 653; Cro. Eliz. 2I4, 289, 648; Cro.
Jac. I44, 430; i Vin. Abr. 488; Carslake v. Mapledorum, 2 T.
R. 473; Str. II89; Bloodworth v. Gray, 7 M. & G. 334.
4 Foulger v. Newcomb, L. Rep., 2 Ex. 330; i6 L. T. N. S.
596; 36 L. J. Ex 169




154         LA W  OF  LITERA TURE.           [CH. II.
liori, if the injurious imputation is conveyed by
writing or printing, the defamation being, in this case,
punishable criminally as well as by action. So, also, in
the case of any unfounded imputation against a person
who is in the enjoyment of an office, either public or
private, whether of honor, profit, or trust; which imports a charge of unfitness to administer the duties of
that office, is a libel.'
If the office is merely one of honor-as that of justice of the peace-the oral imputation, according to the
old authorities,2 must be of want of integrity, or charge
a criminal breach of duty: an allegation of incompetency or want of ability is not, of itself, sufficient to
ground an action of slander.
It by no means follows, however, that in any of
the cases mentioned, if the words had been written
down, they would not be actionable as libelous.
The following additional cases, where words
have been held to be slanderous, although no special damage was alleged, may be rapidly glanced at.
Saying that the plaintiff had done an act for which
the defendant could transport him: saying," If you
had your deserts, you had been hanged before now:"4
saying that the plaintiff had murdered his first wife by
administering improper medicines to her for a certain
complaint,2 using the words, "I am thoroughly convinced that you (the plaintiff) are guilty (innuendo
of the death of D.), and rather than you should go
without a hangman, I will hang you:" 6 saying that the
1id. Buller, N. P. 4, 5.' Bill v. Neal, I Lev. 52; How v. Prin, 652; 3 Saulk. 694.
8 Curtis v. Curtis, io Bing. 477.
Cro. Eliz. 62.
Ford v. Primrose, 5 D. & R. 287.
6 Peake v. Oldham, Cowp. 275, 2 W. B1. 960; and see Button
v. Hayward, 8 Mod. 24.




-CH. II.]             OF  LIBEL.                     155
plaintiff was "a returned convict:" that he had been
" in gaol and tried for his life, and would have been
hanged had it not been for L., for breaking open the
granary of farmer A., and stealing his bacon:"2 that he
had been " in gaol, and burnt in the hand for coining;" 3
though in none of the three last mentioned cases was
there any imputation of present or future liability to
punishment; imputing bigamy to the plaintiff's wife,4
saying  either that the plaintiff or his wife kept a
bawdy house;5 saying any of the following things:
"( You robbed me, for I found the thing you have done
it with."6 " He (the plaintiff) is a thief, and robbed me
of my bricks;".7 " He robbed J. W.;"s "You are a rogue,
and  broke open a house at Oxford;"  "You are a
rogue, and I will prove you a rogue, for you forged
my name;" 10 charging the plaintiff with having committed embezzlement,11 or receiving goods, knowing
them  to be stolen,l2 calling him a "pickpocket,"T " or
Fowler v. Dowdney, 2 M. & Rob. I I9.
2 Carpenter v. Tarrant, Rep. Temp. Hardwicke, 339.
Gainford v. Tuke, Cro. Jac. 536.
Heming v. Power, Io M. & W. 564; Delaney v. Jones, 4
Esp. I9i.
b Cro. Eliz. 643; I Roll. Ab. 44; I Buls. i38; 7 C. B. N. S.
II4.
Rowcliffe v. Edmonds, 7 M. & W. I2; 4 Jur. 684.
7 Slowman v. Dutton, io Bing. 402. See also Baker v.
Pierce, Ld. Raym. 959; Holt, 654; 6 Mod. 23; Cro. Jac.
687.
8 Tomlinson v. Brittlebank, 4 Barn, & A. 630; I N. & M.
455.
9 Jones v. Herne, 2 Wils. 87.
10 See Williams v. Stott, 3 Tyr. 688; i C. & M. 675.
1 Alfred v. Farlow, 8 Q. B. 854; 15 L. J. 260, Q. B. See
Briggs' Case, God. I57.
12 Stebbing v. Warner, II Mod. 255; overruling 3 Salk.
326.
13 Holt v. Scholefield, 6 T. R. 69i. See also Ceeley v.
HIoskins, Cro. Car. 509; Roberts v Camden, 9 East, 93.




156          LAW W  OF  LITERA TURE.           [CH. II.
accusing him of subornation of perjury;"' saying of
the plaintiff, who was one of four Commissioners appointed by the Court of Chancery to examine witnesses and hear and determine a suit, " Sir G. M. (the
plaintiff) is a corrupt man, and hath taken bribes of
R. K." (one of the parties to the suit); " R. K. hath
set Sir G. M. on horseback, with his bribes to pervert
justice and equity,"2 bribery having been an offense at
common law punishable by indictment or information;
saying at a Parliamentary election of the plaintiff, who
was one of the candidates, "These guineas are Mr.
B.'s (the plaintiff's) money, and were given me to vote
for him; he has bought my vote, and he shall have
it." 3
To accuse a person of having committed fornication was also held to be actionable, whilst the statute
making that a temporal offense was in force;4 and so, it
seems, was saying, " Thou art a witch and a sorcerer,"'
whilst the statutes against witchcraft remained in
operation.5
The law is the same if the imputation be made,
not directly, but by means of words of suspicion, as
(with reference to a crime of arson), "I cannot imagine who should do it but S.;6 or, " I do not doubt
but within two days to arrest H. for suspicion of
Harris v. Dixon, Cro. Jac. I58.
2 Moor v. Foster, Cro. Jac. 65.
3Bendish v. Lindsay, II Mod. I94. See Purdy v. Stacey,
Burr. 2699.
4 Mo. 142; I Vin. Abr. 435. See also Smith v. Wisdome,
Cro. Eliz. 348.
5 Hext v. Yeomans, 4 Rep. 15; Poph. 210; 3 Bulst. 262.' Web v. Poor, Cro. Eliz. 569. According to the old authorities, if the charge be of killing a person who is not really
dead, an action cannot be maintained. See Snag v. Gee, 4
Rep. I6; Talbot v. Case, Cro. Eliz. 823; I Vent. 1 7.




CH. 11.]            OF  LIBEL.                     I57
felony;"  or, " I will call him  in question for poisoning my aunt, and I make no doubt to prove it;"' or
by repeating a story heard from another, as " A woman
told me that she heard some one say that M., his wife,
had poisoned G., her first husband, &c.;"3 and though
it should be only in alternative words, as that " either
the plaintiff or somebody else " committed the offense;4
or that A. or B. did it,"5 or that a plaintiff was perjured.6
To say " Thou art as very a thief as any in Warwick
goal," no thief then being in the goal, would not be
actionable, but if a thief is in the goal at the time, the
words would be actionable.7  To call a man a "frozen
snake" is slanderous, "For," says Coleridge, J.,8 "we
ought to attribute to a jury an acquaintance with
ordinary terms and allusions, whether historical, figurative, or parabolical. If an expression, originally allegorical, has passed into such common use that it ceases
to be figurative, and has obtained a signification almost
literal, we must understand it as it is used. The term
"frozen snake," has an application very generally
known, which is calculated to bring into contempt a
person against whom it is directed. If, therefore, a
publication imputes to a person that his friends, who
have been assisting him, have realized in him the fable
of the frozen snake, it is for a jury to say whether these
words do not convey an imputation of ingratitude to
friends and benefactors, and if they do, they are actionHarrison v. Thornborough, io Mod. I96.
2 Wiseman v. Wiseman, Cro. Jac. Io07.
s Anon. 2 Sid. 21.
4 Rogers v. Gravat, Cro. Eliz. 57I.
6 See Cro. Eliz. 645; 1Mo. 408.
8 Somers v. Hlouse, Holt's Rep. 39.
7 Fenn v. Dixe, Jo. 444, pl. 5.
8 Hoare v. Silverlock, 12 Q. B. 624.




158          LA W   OF  LITERATURE.             [CH. II.,
able."  Similarly " lame duck,"' as applied to a broker;
"black sheep," 2 as applied to an attorney; " dirty slut," 
as applied to a school-mistress; and " hermaphrodite,"4
as applied to a woman, are equally slanderous.
It is sometimes slanderous merely to repeat what
one says of himself. A man is entitled to his own
opinion of himself, and yet his neighbors may not repeat it. It is no defense to an action for libel to show
that a ludicrous narrative in a newspaper concerning
the plaintiff, was only a repetition of a story told by
the plaintiff of himself; "for there is a great difference
between a man's telling a ludicrous story of himself, to
a circle of his own acquaintance, and a publication of
it to all the world through the medium of a newspaper."3 But while one may not use words tending
to injure a man in his business reputation, it does not
seem to be always scandalous to speak disparagingly
of his wares.6
Calling a woman by lewd name, and thereby
questioning her chastity, was formerly not actionable,
except in the cities of London or Bristol, because of the
custom which obtained there, to " cart " women of that
description.7 Neither, formerly, was it slanderous to say
1 Morris v. Langdale, 2 B. & P. 284; Robinson v. Marchant, 72 B. 9I8.
2 Barnet v. Allen, 3 H. & N. 38I.
3 Wilson v. Runyon, Wright, 65I.' Malone v. Stewart, I5 Ohio, 315. But it seems this was
not slanderous in England in I656. (Vid. Weatherhead v.
Armitage, 2 Leving, 233.)' Cook v. Ward, 6 Bing. 409, 415. And see Abshire v.
Cline, 3 Ind. II5.
6 Fenn v. Dixe, Jo. 444, pl. 5. And see post, as to libels of
things.
7Robertson v. Powell, 2 Selw. N. P. 1224; Alsop v. Alsop,
5 Hurl. & N. 534; Power v. Shaw, i Wils. 62. "The common
law is not very tender of women in respect to defamation.
This is probably for the reason that women themselves are




CH. II.]              OF  LIBEL.                      I59
of a spinster that she "was enczenle," or that she had
had a child, unless she was about to be married, and
loses her marriage in consequence, or suffers other
pecuniary damage.'
always uttering slanders, and are practically as irresponsible
as children for the consequences " (Albany Law Journal, Feb.
2I, i874). By the Scotch law, however, the oral imputation
of unchastity to a woman is actionable without proof of special
damage (Borthwick's Law of Libel, p. I85); and such is the:
law in the state of New York. As to the charge of unchastity
generally, see Ranger v. Goodrich, 17 Wis. 78; Rogers v.
Lacey, 23 Ind. 507; Frisbie v. Fowler, 2 Conn. 707; I8II,
McGee v. Wilson, Litt. Sel. Cas. I87; Smalley v. Anderson,,
2 Monr. 56; Spencer v. M'Masters, i6 Ill. 405; Moberly v.
Preston, 8 Mis. 462; Stieber v. Wensel, 19 Mis. 513; Malone
v. Stewart, 15 Ohio, 3I9; Wilson v. Robbins, Wright, 40; Wilson v. Runyan, Id. 35I; Sexton v. Todd, Id. 317; Terry v.
Bright, 4 Md. 430; Sidgreaves v. Myatt, 22 Ala. 6I7; Berry v.
Carter, 4 Stew. & Port. 387; Shields v. Cunningham, I Blackf.
86; Worth v. Butler, 7 Id. 25I; Rodeburg v. Hollingsworth,
6 Ind. 639; Linck v. Kelley, 25 Ind. 278; Blinkenstaff v.
Perrin, 27 Ind. 527; McBrayer v. Hill, 4 Ired. I36; Snow v.
Witcher, 9 Id. 346; Watts v. Greenlee, 2 Dev. II5; Freeman
v. Price, 2 Bailey, II5; Beardsley v. Bridgman, I7 Iowa, 290o;
Cleveland v. Detweiler, i8 Id. 299; Cox v. Bunker, Morris,
369; Dailey v. Reynolds, 4 G. Greene, 354; Freeman v. Taylor, 4 Iowa, 424; Smith v. Silence, Id. 321; Byron v. Elmes, 2
Salk. 693; W. v. L., 2 Nev. & M. 204; Eliot v.Ailsbury, 2 Bibb,
473; Keiler v. Lessford, 2 Cr. C. C. 90o; Falkner v. Cooper,
Carth. 55; Cavel v. Birket, Sid. 438; contra, Hicks v. Hollingshead, Cro. Car. 26I; Buys v. Gillespie, 2 Johns. I 5;
Smalley v. Anderson, 2 Monr. 56; Rickett v. Stanley, 6
Blackf. i69; Joralemon v. Pomeroy, 2 N. Jersey, 271; Dailey
v. Reynolds, 4 Greene, 354; Woodbury v. Thompson, 3 N.
Hamp. I94; Stanfield v. Boyer, 6 Har. & J. 248; contra,
Miller v. Parish, 8 Pick. 384; Walton v. Singleton, 7 S.
& R. 449; Heard on Libel, p. 46; Ayre v. Craven, 2 Adol.
& El. 2; 4 Nev. & M. 220; Evans v. Gwyn, 5 Q. B. 844;
Lucas v. Nichols, 7 Jones' Law, No. Ca. 32; Brooker
v. Coffin, 5 Johns. i88; Adecock v. Marsh, 8 ed. 360;.
Underhill v. Welton, 32 Verm. 40; Guard v. Risk, II Ind.
I56.
Davis v. Gardner, 4 Co. i66, p. II.




I60          LA W   OF  LITERA TURE.           [CH. II.
Charging a woman with having a venereal disease
is actionable, because it causes her to be shunned,'
but charging her with having had such a disorder is not
actionable, because it is no reason why her company
should be avoided.2 But to imply incontinence to a
woman who held a copyhold dzm  casira vixeriz is
actionable.3
An action will lie for charging a person with being
a returned convict.' Williams v. Holdridge, 22 Barb. 376.
2 Eastlake v. Mapledoran, 2 T. R. 473; Bloodworth v. Gray
8 Scott, N. R. 9.
3 Boys v. Boys, Sid. 214.
See also Robertson v. Powell, 2 Selw. N. P. I24, and Davis
v. Gardiner, 4 Co. i6, 6, p. 11.
" Falstaff. —Go to-you are a woman-go!
"Dame Quickly. —Who, I? I defy thee. I was never
called so in mine own house before! "
4 Fowler v. Gardiner, Q. M. & Rob. ii8. A writer in the
"Albany Law Journal' (Feb. 2i, I874), discusses the inconsistency-as he says-of the law of defamation. Referring to
Villiers v. Mansley, 2 Wils. 403, where it was held libelous to
publish of a man " that he stank of brimstone, and had the
itch," he says: " Now why this distinction between the convict
and the man with the itch? The convict is not contagious;
having once been apprehended, he cannot be caught again;
and wherein, therefbre, is the immorality of the latter charge
greater than that of the former? The law tries to get around
this by saying that slander' is always for the loss of character,
and not the danger of punishment' (Van Ankin v. Westfall,
II Johns. 233). But is it, really? If it is, why make words
charging a felony actionable, in themselves, while others,
although imputing as deep moral degradation, are not? Old
Coke had a more plausible explanation. Commend us to the
ancients for ingenious injustice. He said:' There is this difference of scandal in the past tense, when it touches the mind
and when it touches the body. If it be a scandal to the mind
and affections-as perjury, felony, &c.-then the mind that
remains is slandered; but if it be of an accidental infirmity or
disease of the body, it is otherwise, for none now will forbear
his company, though he had the plague in times past' (Smith's
Case, Noy. I27). We fear Coke was and is practically right;




CH. II.]             OF  LIBEL.                    i6i
So far we have been considering what spoken
words will be deemed slanderous; and we have seen
that the law will construe them strictly by the inquiry
as to what damage they have done to, and what loss,
positive or prospective, may have been sustained by
the person against whom they are spoken.
But when the slanderous words come to be written
down in black and white, the matter becomes more
serious.  The law will no longer construe them by the
question of mere damage, but will hold the fact of
their being written to be przima facie proof of the deliberation and malicious motive of their perpetrator.
The slander, upon publication, becomes libel, and
an offense, not only against the party libeled, but
against the public peace.
75. When merely oral, they might have been
measured by their source, or by the audience to whom
they were addressed.' Once written they may pass, no' none now will forbear his company though he had' any disgraceful disease' in times past.''" But we think, if the learned
gentleman will look again, he may possibly discover that the
law is quite consistent in the matter-the charge of the itch,
being written, and so libel; while the charge of having been
a convict, was spoken, or slander, which may have constituted
the difference.
In the old reporters we find many cases in which the
culture and degree of intelligence of the auditors in whose
presence an alleged slander was uttered, was taken into the
account in construing whether it was slander or not (Kennedy v. Gifford, i9 Wend. 296; Ausman v. Veal, io Ind. 355;
Fen v. Dixe, Jo. 444, pl. 5). This famous case of Tom Fenn's
beer, it seems to me, is open to criticism. The defendant said:
"I will give my mare a peck of malt, and lead her to the water
and let her drink, and she shall piss as good beer as any Tom
Fenn brews." This was held not to be actionable, because it
is i  poss ble that the words should be true in any man's understanding. But if to say of a lawyer that "he hath no
more law than Master Cheyny's bull," and Cheyny hath no
bull, i actionable, because equivalent to saying that he is no




I62         LAW   OF  LITERATURE.              [CH. I.
one knows whither; he who was their source can no
longer control them; "for who," says the philosopher
"can recall the written word?" and it is equally impossible to know where they may find their audience.
All publications are libelous which hold a man up to
such scorn and ridicule as might reasonably be supposed to be liable to provoke him to a breach of the
peace.1  " In a libel," says Best, C.J.,2 " any tendency to
bring a party into contempt or ridicule is actionable;
and, in general, any charge of immoral conduct
although in matters not punishable by law."'
" If any man," says Wilmot, C.J.,4 " deliberately or
maliciously publishes anything in writing concerning
another which makes him ridiculous, or tends to
hinder mankind from associating or having intercourse
with him, an action well lies against such publisher."
" Scandalous matter is not necessary to make a libel;'tis enough if the defendant induces an ill opinion to
be had of the plaintiff, or makes him contemptible
and ridiculous."5 " In case upon a libel, it is sufficient, if
lawyer (i Siderfin, 327), are not the words uttered of Tom
Fenn actionable, because equivalent to saying that his beer is,
all water? It seems to us to be the poorest compliment possible to Mr. Fenn's beer.
Although something depends upon the intelligence of the
hearer, the same does not seem to be true of the person
making the charge. Thus, where one said of a jeweler, "Heis a cozening knave in selling me a sapphire for a diamond,"
it was held actionable. It would seem that one who does not
know a sapphire from a diamond is indeed stone-blind
(Albany Law Journal, February 28, I874).'Holt L. L. 213; Parmiter v. Coupland, 6 M. & W.
io8.
2 Archbishop of Tuam v. Robeson, 5 Bing. 2I.' Clement v. Chivis, 9 B. & C. 172; Churchill v. Hunt, i
Chit. 480.
4 Villiers v. Monsley, 2 Wils. 403.'Cropp v. Tinley, 3 Salk. 226.




CH. II.]             OF  LIBEL.                    I63
the matter be reflecting, as to paint a man playing at
cudgels with his wife."'
Nor will one be permitted to slander or libel his
neighbor by way of joke. It is no defense to say that
the defamatory matter was uttered in jest, and not in
earnest, and that the utterer did not expect to be believed.2 It is related of Sergeant (afterward Lord
Chancellor) Maynard, however, that, he having once
brought a suit for slander against a man who said " that
a client gave the sergeant a basket of pippins, and that
each pippin had a gold piece for a core;-and then the
other side came to him and gave him a roasting pig,
within which, in place of dressing were fifty broad gold
pieces more,"-although the sergeant had a verdict
in his favor, judgment was arrested in consequence of
the actionable words being discovered to be "the
burden of an old story," which " used to be told of
Noy and all the cock lawyers of the west, and had
been repeated by the defendant of Maynard, the reigning cock, as mere merriment over ale, without intent
to slander."3
But drunkenness although not, from policy, a de-'Per Holt, J., II Mod. 99. See also People v. Croswell, 3
Johns. Ch. 337, 354; State v. Southwick, 9 Id. 214; Cooper v.
Greeley, i Duer, 347; Root v. King, 7 Cowp. 6r3.
Hatch v. Potter, 7 Ill. (2 Gilm.) 725; McKee v. Ingalls,
5 Ill. (4 Scam.) 30; Long v. Eakle, 4 Md. 454; Donohue v.
Hayes, Hayes, J. Ex. 265. And see Hawkins, P1. C. 356, ~ 13;
2 Stark. Ev. 464; Wood's Civil Law, 247; Holt on Libel, 230o,
29I; Moore, 627; 9 Coke, 59.'Campbell's Lives of the Lord Chancellors, Mallory's
edition, vol. iv. ch. civ. 433; Life of Guilford, i. 235. When
the suit was tried before Lord Chief Justice North, when the
story of the pippins came out, "those were golden pippins,"
quoth the judge; and when the pig was mentioned, "that's
good sauce to a pig," quoth the judge. See Percy Anecdotes,
"The Bar."




I64          LA W   OF  LITERA TURE.           [CH. II.
fense I would probably be matter in mitigation.2 Olivia
uttered very good law when she said "there is no
slander in an allowed fool,"3 for fools and madmen
are tacitly exempted from all laws.4
76.  The writing will not lose its libelous character although disguised in bad spelling,3 initials  hieroglyphics,7 bad grammar;8 or because constructed in the
form of an allegory,9 an anagram,'0 or a rebus,'" or a caricature,l2 because the persons it libels are designated by
fictitious names,l3 or by the locality in which a class of
1 McKee v. Ingalls, 4 Scam. 30; Reid v. Harper, 25 Iowa,
87.' Howell v. Howell, io Ired. 84; Isley v. Lovejoy, 8 Blackf.
462; Gates v. Meredith, 7 Ind. 440.
Twelfth Night, i. 5.  " O/i.-There's no slander in an
allow'd fool, though he do nothing but rail."
4 Townshend on Slander & Libel, 434; City of London v.
Vanacker, Carthew, 483; Horner v. Marshall, 5 Munf. 466;
Bryant v. Jackson, 6 Humpf. I99; Yeates v. Reed, 4 Blackf.
463; Dickinson v. Barber, 9 Mass. 225. Perhaps delirium
tremens, which is a species of insanity, would be a defense, if
one wrote a libel while laboring under an attack of that distemper. (Maconnehey v. State, 5 Ohio, N. S. 77; O'Brien v.
People, 48 Barb. 275.)
Rex v. Edgar, 2 Sess. Cas. 29, P1. 33.
6 Holt on Libel, 235; Read v. Huggonson, Salk. 470.
Townshend on Slander & Libel, ~ I33, note.
8Cornelius v. Van Slyck, 2I Wend. 70; Borthwick on
Libel, 142.
0 Holt on Libel, 245.
10 Id.
1 Id.
12 Mezzaro's Case, 2 City Hall Recorder, I13; Du Borst v.
Beresford, 2 Camp. 812' I Wood's Inst. 445; Holt on Libel,
244.
3 Ryckman v. Delavan, 25 Wend. i86; Mix v. Woodward,
t2 Conn. 262; State v. Jeaudell, 32 Penn. St. 475.  So that
the libel is brought home (Van Vechten v. Hopkins, 5 Johns.
2zI; Gibson v. Williams, 4 Wend. 320; Morgan v. Livingston, 2 Rich. 573; Miller v. Butler, 6 Cush. 7I; Leonard v.
Allen, ii Id. 241; McLaughlin v. Russell, I7 Ohio, 475; Good



CH. II.]            OF  LIBEL.                    I65
persons to which the person libeled belongs, reside,
or congregate;' or by the order to which he belong
"Common sense is not to be deemed a stranger to
legal process, but as very influential in ascertaining the
force and effect of words and sentences which, although technical, are to receive a sensible construction," said Parker, Ch. J.  "All the libelers of the
kingdom  now  know," said Lord Hardwicke, so far
back as I 742, "that printing initial letters will not
serve their turn, for that objection has been long got
over."3
On the same footing as written or printed libels,
stand those which are published by means of pictures,
prints, or caricatures; and it is as libelous to paint a
man with a fool's cap and bells, or with horns, or asses'
ears, as it is to openly call him by the names that
those signs imply.
So, too, where an indictment was demurred to on
the ground that, by reason of its bad spelling, it was
unintelligible, and wanted a meaning. The libel as set
out in the indictment was as follows: " Here is there
cockels in this place (meaning cuckolds), we now
(meaning know) them well, he (meaning Lambert)
is a nave (meaning knave), he cheats and rongs (meaning wrongs) the county, and is the cur of a son of a
whore;" the indictment was held good, Raymond,
Ch. J., saying: " The present libel is plain to all men
and easily to be understood, and it would be hard that
rich v. Davis, II Metc. 473; Goodrich v. Stone, Id. 486; Allensworth v. Coleman, 5 Dana, 315; White v. Sayward, 33
Me. 322; Smaley v. Stark, 9 Ind. 386).'Ryckman v. Delavan, 25 Wend. i86; Le Faun v. Malcomson, I H. L. C. 637.
2 Harrison v. Bevington, 8 C. & P. 807; Morchtand v.
Cadell, 4 Paton, 385.
8 Commonwealth v. Runnels, io Mass. 5I8.
4 Mezzaro's Case, ubi szpra.




i66         LA W  OF  LITERA TURE.            [CH. II.
a court of justice must not understand it is badly
spelt, when all the world besides make no scruple to
find the signification of the words."'
In a case where a great portion of the libel consisted of insinuations by means of questions, Alderson, B., directed the jury that " if a man insinuates a
fact in asking a question, meaning thereby to assert it,
it is the same thing as if he asserted it in terms."
The libel in that case containing the following passage, " We should be glad to know how many popish
priests enter the nunneries at Scorton and Darlington
teach week? and also how many infants are born in
them every year, and what becomes of them? whether
the holy fathers bring them up or not, or whether the
innocents are murdered out of hand or not?"  The
learned judge told the jury that if they thought that
the defendant, by asking the questions, " meant to insinuate and to state that infants are born in the nunnery at Scorton, and that holy fathers bring them up
or murder the innocents," then it was a libel on those
persons.  And said Cowen, J.,'" one cannot protect
himself from an action by the mere grammatical construction of the phrase."
In a case De Li'bellis Fcamosis,4 it was held, that
a "famosus libellus sine scrz'tlis may be pic/uris; as, to
paint the party in any shameful and ignominious
manner."   "In case upon a libel," says Holt, Ch.
1Rex v. Edgar, 2 Sess. Cas. 29; 5 Bac. Abr. tit. Libel,
199.
2 Gathercole's Case, 2 Lew. C. C. 255; Hunt v. Thimblethorpe, Moo. 4i8; I Vin. Abr. 429; Earl of Northampton's
Case, I2 Rep. I34; Delany v. Jones, 4 Esp. C. I9I; Woolnoth
v. Meadows, 5 East, 463; Hemming v. Power, io M. & W. 564;
Le Fanu v. Malcomson, I H. L. Cas. 664.
8 Cornelius v. Van Slyck, 21 Wend. 70.
s 5 Cok. I25.




CH. II.]              OF  LIBEL.                     I67
J.,1 "it is sufficient if the matter be reflecting: as
to paint a man playing at cudgels with his wife."2
Lord Ellenborough, Ch. J., said of a libelous picture
of a gentleman and his lady, which was entitled " La
Belle et la Bete," that the person who exhibited it in
public was "both civilly and criminally liable for having exhibited it."'
So a libel may be expressed by fixing a gallows or
other reproachful or ignominious signs at a person's
door, or elsewhere;" or, in general, by any insinuation
upon him appealing to the eye of the community in
which he lives.5' Anon. ii Mod. 99.
2 According to Blackstone (in a statement omitted in the
later editions of his " Commentaries "), in the case of signs,or pictures it seems necessary to show not only the import and
application of the scandal, but also "that some special damage has followed;" and he gives as a reason-that "otherwise it cannot appear that such libel by picture was understood to be leveled at the plaintiff, or that it was attended with
any actionable consequences" (see 3 Com. I26). There appears to be no authority whatever for the proposition that, in
the case of signs or pictures, special damage must be shown
to have followed from the publication; and there is as little
force in the reason assigned for making a distinction between
libelous signs or pictures and written or printed libels; for the
former tell their tale, in general, even more unmistakably
than the latter (Shortt, L. Litt. 389).' Du Bost v. Beresford, 2 Camp. 5II.  See also Austin v.'Culpepper, 2 Show. 3I4; Skin. I23, where the defendant was
-held liable in an action for having forged an order of the
court of chancery defamatory of the plaintiff, and drawn, on:the bottom of it, the picture of a pillory, with the words
subscribed, " For Sir J. Austin and his witnesses by him
suborned" (Ib. Shortt, L. Lit. 390).
5 Coke, I25.
See Jeffreys v. Dunscombe, II East, 226, where a lamp
was set up in front of the plaintiff's house, and kept burning
in the daytime, in order to defame him as the keeper of a
bawdy-house; or by the custom  known as "riding Skimmnington." See Cropp v. Tilney, 3 Salk. 225, 226, and Boltonv.




I68         LA W  OF  L1TERATURE.             [CH. IIL
77. It has been held libelous to publish of a protestant archbishop that he had attempted to convert a
Roman Catholic priest (against whom a charge of
seduction had been made), by offers of money and
preferment;  of a person seeking charity that she preferred unworthy claims or squanders money in print —.ing circulars;2 or of the overseer of a parish that he
paid paupers their weekly allowance in orders for flour
upon a particular tradesman,3 or to placard of an overseer that he advocated low rates when out of office,.
but high rates when in office, and that the defendant
would not trust him with five shillings of his property.4
In another case where an action was held maintainable, the important part of the libel was, "I sin —
cerely pity the man" (meaning the plaintiff) "that
can so far forget what is due, not only to himself, but
to others, who, under the cloak of religious and
spiritual reform, hypocritically and with the grossest.
impurity, deals out his malice, uncharitableness, and
falsehoods."5
It has also been held libelous to publish of any
man that he has been guilty of gross misconduct, and
insulted females in a barefaced manner.' The individual libeled in this case was a coachman, but the
publication was not held libelous, because published
of him in that capacity, the court considering it only
necessary to inquire whether the publication in quesDean, referred to by the court in Austin v. Culpepper, 2 Show..
314.
1 Archbishop of Tuam v. Robeson, 5 Bing. 2-.
Hoare v. Silverlock, I2 Q. B. 624.
3Woodward v. Downing, 2 M. & Ry. 74.
4 Cheese v. Scales, IO M. & W. 488; cf. Warman v. Hine, E:
Jac. 820.
Thorley v. Lord Kerry, 4 Taunt. 355.
6 Chement v. Chivis, 9 B. & C. I92.




CH. II.]            OF  LIBEL.                    I69
tion held up the plaintiff to public hatred, contempt,
or ridicule; the imputation was a very serious and contumelious one, clearly calculated to bring the plaintiff
into contempt by some persons, and hatred by others,
and, therefore, according to established rule, the publication was libelous.
The publication in a newspaper, of a papagraph
stating that, although the plaintiff was aware of the
death of a lady occasioned by his furious and careless
driving, he nevertheless, on the very evening of the
catastrophe, attended a public ball, was held actionable.'
A publication alleging that a person has for years,
without cause, systematically done everything to annoy
another, and had unnecessarily dragged that other into
the court of chancery and put him to great expense,2
or that the plaintiff was ungrateful,' or of one who
had been an attorney that when practicing, he had
been guilty of "sharp practice,"4 " cozener,"  "tanmoney."6 And courts have hesitated to take judicial
notice of the meaning of the word "swindle,"7 or that
"hooked" is sometimes used to mean "stole,"8 or
"goose-house " to mean " brothel."' The word "woolcomber," however, does not need an innuendo to show
it means one who buys wool to work with.'1  "Truck1 Churchill v. Hunt, i Chitt. 480.
2 Fray v. Fray, I7 C. B. N. S. 603; 34 L. J.; 45 C. P.
Cox v. Lee, L. Rep. 4 Ex. 284; 21 L. T. N. S. I78; 38 L.
J. 2I9 Ex.; Hoare v. Silverlock, I2 C. B. 624; I7 L. J. 306.
Q.B.
4 Digby v. Thompson, 4 B. & Aid. 821.' Walcot v. Hind, Hutt. I4.
6 Day v. Robinson, i Ad. & El. 554.' L'Anson v. Stewart, 17 R. 748; but see Forrest v. Hans
son, I Cro. Car. C. 63.
8 Hays v. Mitchell, 7 Blackf. II7.
9 Dyer v Morris, 4 Mis. 214.
10 Anon., Lofft 322.




I70          LAW   OF  LITERA TURE.             [CH. II,
master," a word said not to be found in any dictionary,
was used without an innuendo; it was left to jury to
decide if used in libelous sense.'
The court, however, will inform itself of the meaning of words peculiar to a certain place.2 And a defendant will be allowed to show what he meant by the
words used,3 or explanatory circumstances of time and
place, known to both parties at the time the words
were said, from which the court will construe the
intent or malice of the speech.4
1 Homer v. Taunton, 5 Hurl. &. Nor. 66i.
2 Parke, B., McGregor v. Gregory, 2 Dowl. N. S. 769; II
M. & W. 287; Corn. Dig. Act. for Defam. C.; Rolle Abr. 86;
Hobart, I26; Pearce's Case, Cro. Car. 382; McGregor v.
-Gregory, 2 Dowl. N. S. 769.
3 Tighe v. Cooper, 7 Ell. & Bl. 639; 4 Co. I4; Cro. Jac.
go; Kinnersly v. Cooper, Cro. Eliz. I68; Brittridge's Case, 4
Co. i8; Abrams v. Smith, 8 Blackf. 95; Coles v. Haviland,
Cro Eliz. 250; Miles v. Van Horn, I7 Ind. 245; Rodeburgh v.
Hollingsworth, 6 Ind. 339; Vin. Abr. Act. for Words, L. b. 7;
Dimmock v. Fawset, Cro. Car. 393, pl. 5; Vin. Abr. Act. for
Words, L. b. 6; Id. 4, 7.
4 Explanatory circumstances known to both parties, speaker
and hearer, are to be taken into the account as part of the
words (Dorland v. Patterson, 23 Wend. 422; citing Andrews
v. Woodmansee, 15 Id. 232; Miller v. Maxwell, i6 Id. g;
Heming v. Power, io M. & W. 569; Hankinson v. Bilby, 2
Car. & Kir. 440; I6 M. & W. 446; Perry v. Mann, i R.
I. 263; Dole v. Rensselear, 3 Johns. Cas. 458; Aldrich v.
Brown,  I Wend. 596; Trabue v. Mays, 3 Dana, 138;
Emery v. Miller, I Denio, 208; Thompson v. Bernard, i Camp.
48; Shecut v. McDowel, Const. Rep. 35; Christie v. Cowell,
Peake, 4; Pegram v. Styron, i Bailey, 595; Beardsley v. Tappan, I Blatch. C. C. Rep. 588; Cooper v. Perry, Dudley, 247;
Ceeley v. Hoskins, Cro. Car. 509; Norton v. Ladd, 5 N. H.
203; Stevens v. Handley, Wright, 123; Williams v. Cowley, i8
Ala. 206; Hays v. Mitchell, 7 Blackf. II7; Harrison v. Findlay,
23 Ind. 265; Robinson v. Keyser, 2 Foster (N. H.), 323; 2
Starkie on Slander, 85; Penfold v. Westcote, 2 N. R. 325;
Christie v. Cowell, Peake's Cas. 4; Sel. N. P. 1250; Bissel v.
Cornell, 24 Wend. 354; Watson v. Nicholas, 6 Humph. I74.




'CH. II.]            OF  LIBEL.                    I7I
Again: the condition of things, as well as the meaning of words, may, in course of time, alter; and of the
mutations in language courts will take judicial notice.l
For instance, in the time of Charles II., it was held
actionable to say of a man that he was a papist, or
that he went to mass,2 while in the United States it
has been held actionable to call one a "mulatto."3
Though in the course of time the word " mulatto," may
come to be no more a word of reproach than the word
6' papist" is to-day.
78. Nor will a libel be any the less actionable, if
the defamatory imputation is made by reference or
comparison-direct or indirect-to some character in
history or fiction, or to some animal which suggests
an injurious idea.
Thus, it was held a libel to publish, in a newspaper,
of the plaintiff-who was an applicant for assistance
from a charitable society-that her warmest friends, in:giving up the advocacy of her claims, stated that they
had realized the fable of the " Frozen Snake." 4 To an
objection, grounded on the absence of an innuendo
in the declaration, explaining the meaning of the allusion to the " Frozen Snake," Coleridge, J., replied'' Holt on Libel, 43; Borthwick on Libel, I42; Harrison
v. Thornborough, io Mod. I96; Beardsley v. Dibblee, i Kerr,
246; Vanada's Heirs v. Hopkins, I Marshall Ken. R. 287;
Gibson, J., Bash v. Sommer, 20 Penn. St. R. 159; Pollock, C.
B., Tozer v. Mashford, 6 Ex. 539; Beardsley v. Dibblee, I Kerr,
260; Foster v. Small, 3 Whart. I43; Bloss v. Tobey, 2 Pick.
32C. Carth. 55; Holt, Ch. J., Baker v. Pierce, 6 Mod. 23.
2 Row v. Clargis, Ld. Raym. 482;.2 Salk. 696; Walden v.
Mitchell, 2 Ventr. 265; Cutler v. Friend, 2 Show. I40. But
held otherwise in the reign of King James (Ireland v. Smith
2 Brown, i66).
King v. Wood, I N. & M. (So. Car.) I84; Eden v. Legare,
i Bay, I7I; Atkinson v. Hartley, 1 McCord, 203; contra,
Barrett v. Jarvis, I Hamm. 83, note.
Hoare v. Silverlock, 12 C. B. 624; 17 L. J. 306 Q. B.




172         LAW  OF LITERATURE.            [CH. II.
"The jury and court, in such a case as this, are in an
odd predicament, if they alone of all persons are not
to understand the allusion complained of. Suppose
the libel had said that the plaintiff acted like Judas;
must the history of Judas have been given and referred to by innuendo? We ought to attribute to a
court and jury an acquaintance with ordinary terms
and allusions, whether historical or figurative, or parabolical. If an expression originally allegorical, has
passed into such common use that it ceases to befigurative, and has obtained a signification almost
literal, we must understand it as it is used. Half of
our language is founded upon allegorical allusion:
"Vinegar is used in describing a bad temper; even
the word'sour' is figurative. We must understand
such terms according to the sense which has become
familiar."  " Nothing is easier," said Erle, J., " than to
bring persons into contempt by allusion to names well
known in history, or by mention of animals to which
certain ideas are attached; and I may take judicial
notice that the words'Frozen Snake' have an application very generally known indeed, which application
is likely to bring into contempt a person against whom
it is directed."
See also a case where part of the libel consisted in a
comparison of the conduct of the plaintiff, an attorney, in reference to a particular case, with that of the
firm of Quirk, Gammon, and Snap, in the novel of
"Ten Thousand a Year."2
So where a newspaper copied a libelous paragraph
from another newspaper, and added the word " fudge"
at the end of it, Lord Lyndhurst, C.B., on the trial
of an action of libel against the publisher, left it to the
Hoare v. Silverlock, I2 Ad. & El. N. S. 624.
W2 oodgate v. Ridout, 4 F. & F. 206.




CH. II.]             OF  LIBEL.                    I73
jury to say with what motive the paragraph was copied,
and what was meant by the addition of the word
"fudge;" if that word were added only for the purpose
of making an argument at a future day, it would not
take away the effect of the libel.' And, accordingly,
courts will take judicial cognizance of the meaning of
words and idioms in the vernacular language,2 and no
innuendo will be necessary to point out their meaning.  But otherwise as to  expressions which have
not become idiomatic, such as "milk your purse," 
~' bogus peddler,"4 " shooting out of a leather gun."'
79. But absurd and ridiculous and preposterous
charges that are impossible, and in the truth of which
no rational person will believe, will not be held libelous. As, for instance, to charge that a woman had a
itter of pups by a dog.6 Though the court will undoubtedly take into consideration the discrimination or
common sense of the persons to whom the scandalous
matter was communicated,7 or their peculiar relations
to or dealings with the person slandered;8 as, for inHunt v. Algar, 6 C. & P. 245.
2 I Greenl. Ev. ~ 5; 6 Vin. Ab. 49I, P1. 6, 7, 8; Tit. Court
C.; Hoyle v. Cornwallis, I Stra. 387; Page v. Faucet, Cro.
El. 227; Harvey v. Brand., 2 Salk. 626; Elam v. Badger, 23
Ill. 498; Forbes v. King, I Dowl. P. C. 672; Hoare v. Silverlock, I2 Adol. & Ell. N. S. 624; Homer v. Taunton, 5 Hurl.
& Nor. 66I; Edgar v. McCutchen, 9 Missouri, 768; Ashley v.
Billington, Carth. 23I; Vin. Abr. Act. for Words, S. a. I2.
King v. Lake, 2 Ventr. i8.
Pike v. Van Wormer, 6 How. Pr. IoI; 5 Id. I75; and see
Forbes v. King, I Dowl. 672.
Harman v. Delaney, 2 Stra. 898.
6 Kennedy v. Gifford, 19 Wend. 296. This statement, however, was held to be libelous, upon other grounds. And see
Fen. v. Dixe, Jo. 444, pl. 5; Harper v. Delph., 3 Ind. 225.
7 Id.
8 Wyatt v. Gore, Holt, 299; Ward v. Smith, 6 Bing. 749;
Keene v. Ruff. i Clarke (Iowa), 482; Schenck v. Schenck, I




I74          LAW   OF  LITERATURE.             [CH. II~.
stance, if they be spoken in a foreign tongue, it must:
be shown that the audience understood the foreign
tongue.l
80. Not only the living but the dead can be subjects of libel. Although the person defamed be dead,
the libel is, nevertheless, punishable; for it stirs up
others of the same family, blood, or society, to revenge
and to break the peace.  The chief cause for which the
law so severely punishes all libels is, says Hawkins,8
the direct tendency of them to a breach of public
peace, by provoking the parties injured, and their
friends and families to acts of revenge, which it would
be impossible to restrain by the severest laws, were
there no redress from public justice for injuries of this
kind, which of all others are most sensibly felt. And
so histories, biographies, or memoirs, published at long
intervals after the death of their subjects, might be so
scandalous and prurient as to be actionable;  but, in
such cases, the intent to libel must be proved.5
It was held libelous to publish an obituary notice, as,
follows: " On Saturday evening died of the small-pox
at his house in Grosvenor Square, Sir Charles Gaunter
Nicoll, Knight of the Most Honorable Order of the
Spencer, 208; Wenman v. Ash, I3 Com. B. 836; and see Mills
v. Monday, Lev. 112; De La Croix v. Thevenot, 2 Stark. C. 63.'Amann v. Damm, 8 Com. B. N. S. 597. But where words
are spoken in German, in a German county, it will be presumed they were understood (Bechtell v. Shaler, Wright, Io07;
and see i W. Saund. 242, n. I; Keene v. Ruff, i Clarke [Iowa],
482; Danvers Abr. I46, pl. I, 2; 2 Starkie on Slander, 52;
Fleetwood v. Curley, Hob. 267; Viner's Abr., tit. Actions for
Words, A. b.; 2 Stark. Ev. 844; Holt on Libel, 245; Cro.
Eliz. 496, pl. i6).
2 p. C. Book I, c. 28.
8Co. 5, 124, C.
See a query as to the somewhat celebrated Greville Memoirs, Albany Law Journal, March 13, I875.
Rex v. Topham, 4 T. R. I26.




CH. II.]            OF  LIBEL.                     I75
Bath, and representative in Parliament for the town
of Peterborough. He was blessed with an ample
fortune, which he enjoyed in a manner that rendered
him, in early years of life, a truly valuable husband
and friend.  He could not be called a friend to his
country, for he changed his principles for a red
ribbon, and voted for that pernicious project, the
excise."1
In the case, however, of libels on the dead, the intention of the person publishing must be shown to
have been malevolent, for, to say that the conduct of
a dead person can at no time be canvassed-to hold
that, even after ages are passed, the conduct of bad
men cannot be contrasted with the good-would, in
the words of Lord Kenyon,2 be to exclude the most
useful part of history; "and, therefore," said that
learned judge, " it must be allowed that such publications may be made fairly and honestly. But let this
be done whenever it may, whether soon or late after
the death of the party, if it be done with a malevolent
purpose, to vilify the memory of the deceased, and
with a view to injure his posterity, as in Rex v.
Critchley, then it comes within the rule stated by
Hawkins; then it is done with a design to break the
peace, and then it becomes illegal."3  And so, again, it
1 Rex v. Critchley, cited 4 T. R. I29.
2 Rex v Topham, 4 T. R. I29.
3 Id. For the reasons thus stated by Lord Kenyon, the
court of king's bench, in i79i, held bad, after a verdict of
guilty, an indictment charging the defendant that he, " wickedly
and maliciously contriving and intending to injure, defame,.
disgrace, and vilify the memory, reputation, and character of
George Nassau Clavering, Earl Cowper, then deceased, and
to cause it to be believed that the said earl in his lifetime was
a person of a vicious and depraved mind and disposition, and
destitute of filial duty and affection, and of all honorable and
virtuous sentiments and inclinations, and that the said earl had




176          LA W  OF  LITERATURE.             [CH. II.
would be libelous to publish an obituary notice of
one whom the author knew to be alive.'
8I.  Not only persons, but things, fall under the
protection of the law of words. Properly speaking,
perhaps, a thing has no rights to be invaded, and no
claims to any particular duties from persons. But for
all that, it may be quite possible to injure a person, by
speaking disrespectfully of a thing.
"1 am far from  saying," said Chief Justice Cockburn,2 " if a man falsely and maliciously makes a statement disparaging an article which another manufactures or vends (although in so doing he casts no imputation on his personal or professional character), and
led a wicked and profligate course of life, and had addicted
himself to the practice and use of the most criminal and
unmanly vices and debaucheries, &c., wickedly, maliciously,
and unlawfully did print and publish, and cause to be printed
and published, in a certain newspaper called'The World,' a
certain false, scandalous, and malicious libel of and concerning the said Earl Cowper, &c., to the great disgrace and scandal
of the memory, reputation, and character of the said Earl
Cowper; in contempt, &c.; to the evil example, &c., and
against the peace, &c." The court made absolute a rule to
arrest the judgment, because the indictment did not allege that
the libel had been published with an intent to create any ill
blood, or to throw any scandal on the family and posterity of
Lord Cowper, or to induce them to break the peace in vindicating the honor of the family (4 T. R. I29).-Shortt.' McBride v. Ellis, 9 Rich. Law (S. C.), 3I3.
2 Young v. McCrae, 3 Best & Sur. 264; though the chief
justice suggests, further on in the same case, that such an
action, however, might be more in the class of actions for false
representations than actions of libel (Snow v. Judson, 38
Barb. 2I2; Benton v. Pratt, 2 Wend. 385; White v. Merrit,
7 N. Y. 352; Gallager v. Brunel, 6 Cowen, 346; Swan v.
Tappan, 5 Cush. Io5; Ingram v. Lawson, 6 Bing. N. C. 212; 8
Scott, 471; Hamilton v. Walters, 4 Up. Can. Q. B. Rep. O. S.
24). In Yates' Pleadings & Forms, 436, is the form of a plea to
a declaration for slander of the plaintiff's ship (Evans v. Harlow, 5 O. B. 624; Malachy v. Roper, 3 Bing. N. C. 37I; 3
Scott, 723; Kerr v. Sheddon, 4 C. & P. 528).




CH. II.]             OF  LIBEL.                     I77
thereby causes an injury and special damage is averred,
an action might not be maintained."
A man may very naturally be injured by slandering his wares; as if, for instance, he be a manufacturer
of those wares (possibly not if he merely sold themsince he could easily keep others not open to the disparagement). But if a book be unfairly criticised it
may be libelous of its author, as we shall see presently
in this chapter, and as will be further illustrated in the
chapter on newspapers.
The rule will be, that whenever disparaging words
spoken of an article become injurious to the owner or
producer of the article, the ordinary rules of libel may
be invoked by the person injured. But in all such
cases, undoubtedly, a special damage must be shown.
One form in which a slander of things is of frequent occurrence and well known to the law, is what is
technically spoken of as " slander of title." Slandering
of title consists in publishing language not of a person
or of a thing, but of a person's right to a thing,
whether the publication be written or spoken,l there
being no such thing as a libel of title; and such slander, to be actionable, must be malicious, false,2 and
be productive of special damage.?
Malachy v. Roper, 3 Bing. N. C. 371; 3 Scott, 723
a Like v. McKinstry, 4I Barb. i86; aff'd, 4 Keyes, 397;
Kendall v. Stone, 5 N. Y. I4, rev'g S. C., 2 Sandf. 269. There
must be malice which the plaintiff must prove (Smith v.
Spooner, 3 Taunt. 246; Hill v. Ward, I3 Ala. 3Io; Stark v
Chetwood, 5 Kansas, I4I; McDaniel v. Baca, 2 Cal. 326;
Hargrave v. Le Breton, 4 Burr. 2422; ~ 87, ante; Linden v.
Graham, i Duer, 670; Bailey v. Dean, 5 Barb. 297; Watson
v. Reynolds, I Mo. and Malk. I; Paull v. Halferty, 63 Penn.
46, and note 2, p. 3I5, post; re, Madison Ave. Bapt. Church,
26 How. Pr. 72).
Kendall v. Stone, 5 N, Y. I4; Paull v. Halferty, 63
Penn. 46.




I78          LA W   OF  LITERA TURE.           [CIT. TIL
As will be seen from an examination of the cases
cited in the notes, a case of slander of title generally arises where one's estate in lands or real property
is so impeached as to cast a cloud upon his title, or
to injure or prevent a sale of the property; but it may
occur also in the case of personal property. So where,
at a public sale of rye, the defendant attended, and in
the presence and hearing of those assembled, said,
" I forbid selling the rye; it is mine," in consequence
of which persons were deterred from bidding, and the
rye soldc for less than it otherwise would have done, it
was held an action could be maintained.'  Or, an
action would lie for alleging that plaintiff's machines
were an infringement on defendant's patents.2
And, similarly, where the author of a work sold
the copyright to the defendant, who afterwards published a new edition, purporting to be edited by the
author, but which contained mistakes and errors, it
was held, if this was calculated to injure A.'s reputation as an author, he might maintain an action.3
It has been held slanderous to say that a newspaper has a low  circulation,4 but it is not without
- Like v. McKinstry, 4I Barb. i86; aff'd 4 Keyes, 397; and
see Carr v. Duckett, 5 Hurl. & N. 783; Hill v. Ward, I3 Ala.
3I10; and slander of title to a slave; Ross v. Pines, Wythe, 71;
Gutsole v. Mathers, I M. & W. 495; I Tyrw. & Gr. 694; Green
v. Button, I. Gale, 349; 2 C. M. & R. 707; I Tyrw. & G. ii8;
Malachy v. Soper, 3 Bing. N. C. 37!; 3 Scott, 723; Rowe v.
Roach, I M. & S. 304.
2 Wren v. Wield, I4 L. R. 2I3 Q. B.
Archbold v. Sweet, 5 C. & P. 2I9; I M. & R. i62.
Heriot v. Stewart, I Esp. Cas. 437. See also Lattimer v.
West. Morning News Asso., 25 L. T. N. S. 44.
"For instance, it would be slander to say of Jones, that heis a vulgar, ignorant, and scurrilous editor; but it would not
be slanderous to say that Jones' newspaper is a vulgar, ignorant, and scurrilous journal. As experience shows, this may
be a benefit rather than a detriment to Jones. One may, with



CH. II.]             OF  LIBEL.                     I79
the limits of criticism to say that a picture is a " mere
daub."'
82. A comment upon a literary production, exposing its follies and errors, and holding up its author
to ridicule, will not be deemed a libel," says Broom,2'provided such comment does not exceed the limits
of fair and candid criticism, by attacking the character of the writer unconnected with his publication..... But if a person, under the pretense
of criticising a literary work, defames the private
character of the author, and, instead of writing in the
spirit and for the purpose of fair and candid discussion, travels into collateral matter, and introduces facts
not stated in the work, accompanied with injurious
comments upon them, such person may become a
libeler of the author, and liable to an action.3
out malice, securely say that Robinson's candles are short of
weight; but not that Robinson makes his candles short of weight,
forthat would implicate him in a wicked business. The effect of both allegations may be the same so far as the sale of
the candles goes, but not the same as to Robinson's character.'"
-Albany Law Journal, Feb. 28, I874, art. " Defamation."' Thompson v. Shackell, i Mo. & Malk. I87; and as to an
architect, see Soane v. Knight, Id. 74. This question will be
more fully discussed, post, in chapter on Newspapers, which see
2 Leg. Max. 288.' The case of Reade v. Sweetzer (6 Abb. Pr. 9, note), carefully discusses the question of libel in literary criticism, and
its value seems to justify its insertion here at length:
This was a trial at circuit.
The action was brought by Charles Reade, an Englishman,
residing in London, as author of a novel, " Griffith Gaunt," to
recover $25,000 damages, for an alleged libel published in the
"Round Table," a New York weekly paper.
The complaint, after stating the plaintiff's profession as an
author, and averring his authorship of the novel, alleged that
when, in pursuance of arrangements therefor with the author,
the book " Griffith Gaunt " was in course of publication in
the "Argosy," a London magazine, and in the "Atlantic
Monthly," by Ticknor & Fields, of Boston, on the 9th day of




180          LA W   OF  LITERA TURE.            [CH. II.
83. If one requests, dictates, or suggests defamatory matter to another, who publishes it, even though
the latter alter the form or otherwise changes the
June, i866, "the said defendants falsely and with malice, composed, and published in said newspaper, at the city of New
York, called the " Round Table," as aforesaid, of and concerning the plaintiff as an author; and of and concerning him in
his said profession, business or employment, and thereby to
injure him in his said business or employment, an article containing the false, libelous, and defamatory matter following."
There was set forth the notice published in the " Round Table,"
of " Griffith Gaunt," which charged that it was " one of the
worst stories that had been printed since Sterne, Fielding and
Smollett defiled the literature of the already foul eighteenth
century;" that the book "is not only tainted with this one
foul spot, it is replete with impurity, it reeks with allusions
that the most prurient scandal-monger would hesitate to
make;" and the article recommended that the publishers discontinue it, as unfit for circulation in families.
For a second cause of action, the plaintiff alleged the
publication, on the 28th of July, i866, of another article of
similar tenor; and for a third cause of action, alleged that the
defendant published, on the IIth of August, i866, an article,
entitled " Did Charles Reade write Griffith Gaunt? " which
article asserted doubts as to whether the plaintiff was the real
author of the work.
The complaint concluded as follows: "And the plaintiff
further shows, that by means of the aforesaid wrongful acts
and doings of the said defendants, he has been and is greatly
prejudiced in his credit and reputation as an author as aforesaid, and brought into public scandal, infamy and disgrace,
and otherwise greatly wronged and injured, in and by the
aforesaid wrongful and malicious acts and doings of the said
defendants, to the damage of the said plaintiff in the sum of
twenty-five thousand dollars. Wherefore," &c.
The answer admitted the plaintiff was an author, denied
his authorship of the novel in question, denied that the defendants published or owned the " Round Table," but alleged
ownership of it by an "association."  It admitted the publication of the articles in the " Round Table," and also that the
innuendoes in the complaint were true as to persons and publications. It then alleged, that the articles complained of
were just and honest criticisms of the novel, and privileged
as such. It then justified the publication of the articles on




CH. II.]              OF  LIBEL.                      I8I
same in the publication, it seems that the former will
be guilty of a libel.
Thus, where the defendant told the reporter of a
the ground that they were true. In mitigation of damages, it
averred that the novel was identical in plot with two other
novels previously published, and that parts of it were selections from other works. It closed with a general denial.
The cause was tried at the circuit, before Mr. Justice
Clerke, and a jury.
Frederick Gallatin, Elbridge 2. Gerry, and William D. Booth,
for plaintiff.
H. F. Dimock, W. C. Whitney, and Robert Sewell, for the
defendants.
Gallatin opened the case for the plaintiff, and the articles
complained of were read in evidence.
George Vandenhoff, a professor of elocution, was then
called by the plaintiff's counsel, and proceeded to read at
length the novel, " Griffith Gaunt." After some portion of
the book had been read:
Whitney, for the defendants, objected to the further reading, on the ground that the authorship of the book was not
proven.
Gerry, for the plaintiff, insisted-I. The course pursued, is
sanctioned by precedent (Strauss v. Francis, 4 Fost. & Fin. N.
P. 939, II07).
II. The book was properly read in evidence as part of the
plaintiff's case, to prove malice in fact.  Justification was
pleaded, and in no other way could the jury judge of the truth
or falsity of the articles, than by having the book before them.
III. The plaintiff would be shown to have been the author
before his case was rested, and it was a mere question as to
the order of proof.
IV. As to authorship, the two first articles complained of;,
and the innuendoes admitted by the answer to be correct,
proved it.
Mr. Justice Clerke overruled the objection of non-proof of
authorship, but excluded the further reading of the book, on
the ground that the articles complained of were libelous on
their face, and the book was proper only in rebuttal of the
defense of justification.
The plaintiff then proved by two witnesses who had resided
with the plaintiff at the time, and had seen him prepare the
work for the press, that he was the author of the novel in question; that he was paid twenty dollars a printed page for it, by




I82          LAW /   OF  LITERATURE.              [CH. II.,newspaper a story defamatory of the plaintiff, saying
that " it would make a good case for the newspaper,"
and afterwards gave the reporter a more detailed acMessrs. Ticknor & Fields, and a still larger sum by certain
English publishers; that it had passed through three editions,
of 25,000 copies each, in America; that the plaintiff had been
an author twenty years, and enjoyed a reputation, as such,
equaled only by Charles Dickens.
Plaintiff further proved, by the printers, of the "Round
Table," that the articles complained of were received by them
from the defendants, and inserted pursuant to their directions;
that each of the numbers in question were printed and distributed three days before its date, and that over 3,700 copies
of each was so printed and published.
Plaintiff then rested.
Dimock, for the defendants, then moved for a nonsuit on
the following grounds:-I. The plaintiff, a foreigner, sues for
injury to him as an author. Such a character has no recognized existence in our courts, even under the copyright law.
II. There is no sufficient proof that plaintiff is author of
the novel reviewed.
III. The articles being written of the book, the plaintiff cannot recover without proof of special damage (Foot v. Brown,
8 Johns. 53; Tobias v. Harland, 4 Wend. 537; Cooper v. Stone,
24 Id. 442; Swan v. Tappan, 5 Cushing, Io9).
IV. The articles were privileged as criticisms (Carr v.
Hood, I Campb. 355, per Lord Ellenborough), and express
malice must be proven to sustain this action (Lewis v. Chapman, i6 N. Y., 369). This is matter of law for the court (Cook
v. Wildes, 5 El. & B1., 340; Somerville v. Hawkins, Io Comn.
B., 583; Taylor v. Hawkins, i6 Q. B. 308).
Mr. Justice Clerke.-In regard to the first objection made,
that because Mr. Reade sued in a representative capacity, and
as a citizen of a foreign state, he could not maintain this action,
the point is untenable (Pisani v. Lawson, 6 Bing., N. C. go;
Tuerlote v. Morrison, Yelv., I98; Bulst. 134; Dows v. Maloney, 8 Abb. Pr. 329). Bonapaite sued a London printer,
named Peltier, for serious charges made against him  as a
sovereign; and it was in that case that Mr. Mackintosh first
came into prominence as an advocate. But here, Mr. Reade
does not sue only as an author. In his complaint, he says he
was greatly prejudiced in his credit and reputation as an
author, and brought into public scandal, infamy, and disgrace.
The disgrace must refer to him as a man (Lewis v. Walter, 4




CIu. II.]             OF  LIBEL.                     I83
count, for the express purpose of inserting it in the
newspaper; whereupon the reporter, from the particulars thus furnished to him, drew up an account, which,
Dow. & Ry. 8X3). The copyright law makes no distinction
of that. sort at all. That law is intended solely to protect
American authors in their right to the productions. As to
the articles themselves, I hold, as matter of law, that the)y are
libelous on their face; and hence not privileged, within the
rule, as to criticisms. I do not think the other points taken by
counsel tenable, and therefore deny the motion.
Sewall then opened the case to the jury for the defendants.
The testimony of the defendants, under stipulation, was then
read to the jury in their absence, to the effect that the " Round
Table " was owned and organized by a corporation, called
the " Round Table Association."  It was established and conducted as a literary and critical paper. The defendants were
shareholders in the organization. They had never known
the plaintiff personally; they had known him only through
his works; they never had any communication with him.
Understood from the proprietors of the " Sunday Mercury"
that "Griffith Gaunt" was offered for sale to them. When
the articles complained of were published in the' Round
Table," they believed them to be correct. Ticknor & Fields
sent copies of the " Atlantic Monthly," containing chapters of
4' Griffith Gaunt," to the " Round Table," with a request that
the editors would pass their critical opinion upon the numbers.
Whitney, for the defense, then offered in evidence of the
E' Evening Post," of June 26, I866, as showing that other similar articles had appeared in other papers.
Gerry, for the plaintiff, objected-I. This article appeared
subsequent to the defendants' articles, and hence they could
not have known of it when they wrote them (Bush v. Prosser
ii N. Y. [Kern.] 36I).
II. At best, it is only proof that other libels were published
by other parties (Hager v. Tibbits, 2 Abb. Pr. 97; Lewis v.
Walter, 4 B. & Ad. 6r; De Crespigney v. Wellesly, 5 Bing..392; Ward v. Weeks, 7 Id. 2II).
Mr. Justice Clerke excluded the evidence.
Whitney, for defense, then offered two novels, entitled
~   Queen of Hearts," and "Eighth Commandment," written
by the plaintiff, to show that " Griffith Gaunt " was a plagiarism, and that the plaintiff admitted that he was a plagiarist.
Gerry objected, that there was no such defense, and that.the evidence offered was not admissible, even in mitigation.




184          LA W   OF  LITERATURE.            [CH. II.
after some slight alterations, not effecting the sense,
were made in it by the editor, was published in the
newspaper, the court held that what the reporter pubMr. Justice Clerke.-I cannot see that the evidence is relevant. Nothing is more common than for standard authors of
known repute to borrow ideas from others, and dress them in,
their own language. Shakespeare himself copied into his.
plays other stories, and many of his plays are based on Cynthia's novels. But the evidence may aggravate the damages,
and I will admit it.
Whitney then offered i8 Howell State Trials, II8I, to show
that a speech therefrom was copied verbatim in " Griffith Gaunt."'
Gerry objected, on the ground that part of the novel waspublished subsequent to the articles, and cited Bush v. Pros —
ser (supra).
Mr. Justice Clerke sustained the objection.
Whitney then offered a letter of the plaintiff's, published bythe defendants in the " Round Table " after the publication of
the articles entitled the " Prurient Prude."
Gerry objected-I. That the publication of this letter was,
the act of the defendant.
II. That the whole paper should be put in evidence.
Mr. Justice Clerke admitted the whole paper.
Whitney then called Richard H. Stoddart, who testified
that he had been an author and literary man for twenty years,.
and that it was a common custom for authors having a.
book to write to employ others to aid them in compiling it,~
and that such fact being known would not damage their
reputation.
Whitney then called Richard Grant White, who testified to.
the same in substance, and also that he had read "Griffith:
Gaunt," introduced it in his own family, and that its literary
merits were very high.
Gerry, on cross-examination, asked the witness what wasthe reputation of Mrs. Henry Wood as an authoress in the
literary world.
Whitney objected.
Gerry insisted that the evidence was competent to showmalice against the plaintiff, because one of the articles com —
plained of attacked also the character of Mrs. Wood. Hecited Miller v. Rutler, 6 Cush. 7I; Coddy v. Barlow, I Moody
& R. 275.
Mr. Justice Clerke allowed the question, and the witness
replied he had never heard it assailed.




CII. II.]             OF  LIBEL.                      I85
lished in consequence of what passed with the defendant, might be considered as published by the defendant.'
Gerry then asked the following question: "Suppose an
article should appear in a literary weekly paper having a circulation of over 3,700 copies per week, and that article should
contain a charge against an author of the position in the
literary world second only to that of Mr. Charles Dickens,
with having published an article which was grossly impure, a
book not merely tainted with one foul spot, but replete with
impurity, reeking with allusions that the most prurient scandalmonger would hesitate to make-dealing throughout with vice
so familiarly, so much as a matter of course, and with such an
assumption of straightforwardness, as to divest it of all the
repulsiveness it should wear; should state that he is an author
of position and splendid talents, and then say these splendid
talents only aggravate his offense, and render the story worse
than the detailed proceedings of a crim. con. case by just the
proportion in which his writings are more graphic and fascinating than newspaper reports; and state, in addition, that
the publishers of the story have no right to introduce into
thousands of virtuous families, and to children and girls.
whose parents accept it unquestioned on their indorsement,
such reading; and should assert in addition, and finally, that
such a book was only fit for the avowed organ of the' demnimnonde;'-assuming an article of this description should appear in a weekly newspaper, of high authority in the literary
world, what effect would it have on the character of an author
so assailed? "
Counsel cited in support of his question, People v. Lake,.
i2 N. Y. (2 Kern.) 358.
Whitney objected, and the court excluded the question.
Whitney then proved by a publisher, that, after the libels,,
he had published an edition of " Griffith Gaunt," and sold
sixty thousand copies, but neither he himself or any one had.
paid for it; also, that hardly any novel had ever sold so well.
After proving publication, in other papers, of the " Prurient
Prude " letter, defense rested.
Gerry, in rebuttal, then offered to read in evidence an.
editorial article in the "Round Table" of October 15, i866,.
being the same number of that paper in which was published
1 Parkes v. Prevcoll, L. Rep. 4 Ex. I69; 20 L. T. N. S. 537;
38 L. J. I05 Ex.; I7 W. R. 773.




i86          LA W   OF  LITERA TURE.              [CH. II.
And where the defendant asked the editor of a
newspaper to  "show  up" the  prosecutor and  his
brother, telling him a ludicrous story concerning them;
the letter of Mr. Charles Reade, and which article was headed,
"An English Bully."  He proposed to read this, as showing
the anzimzs of the defendants, even after the libels had been
published.
Sewell objected to the admission of this article, on the
ground that anything tending to an aggravation of the original
libel is not admissible; and cited Root v. Loundes, 6 Hill, 5 8,
as showing that no other matter, which would itself sustain an
action for libel, can be admitted, as then the plaintiff would
recover twice for the same words.
Gerry cited Rustell v. Macquister, I Campb. 48, n.; Tate
v. Humphrey, 2 Id. 73, n.; Lee v. Hudson, Peake N. P. I67;
Chubb v. Westley, I Carr. & P. 436; and Code, ~ 93, to show
that the statute of limitations had run, and the case relied
upon by defendants' counsel did not apply.
Justice Clerke decided that the reading of the article in
question might be admitted.
Both sides then rested.
Whitney summed up for the defense, and commented on
the book " Griffith Gaunt," certain portions of which he read
at length.
Booth, in summing up for the plaintiff, cited and referred
to People v. Crosswell, 3 Johns. Gas. 393, as showing the distinction laid down by Chancellor Kent between the liberty
and license of the press.
Gallatin, for plaintiff, requested the court to charge as follows:-I. Where, under guise of reviewing a book, a criticism.attacks the author's character, it ceases to be privileged as
such, and is actionable as a libel (Cooper v. Stone, 24 Wend.
434; Fry v. Bennett, 3 Bosw. 210; Cooke on Defam. 58;
Stuart v. Lovell, 2 Starkie, 73; Greene v. Chapman, 4 Bing.
N. C. 92; S. C., 3 Scott, 340; Strouse v. Francis, supra). The
first two articles are within this rule.
II. Language of' one in his trade or profession is actionable
when it imputes to him fraud, misconduct, or want of integrity, in that profession or business; and the third article
charges plaintiff with defrauding Ticknor & Fields (Baboneau
v. Farrell, 15 C. B. 360; Bryant v. Loxton, II Moore, 344;
Davis v. Davis, I Nott. & McC. 290; Fowles v. Bowen, 30
N. Y. 20).
III. The articles complained of, in substance, charge the




CiH. II.2              OF  LIBEL.                      187
and the editor-told the story to a reporter for the paper,
and the story appeared in the paper, with comments
added; the defendant, before the publication, having
plaintiff with being author of an obscene book. This alone
renders them libelous, and actionable as such (Viele v. Gray,
i8 How. Pr. 550; Brooker v. Coffin, 5 Johns. i88; Rex v.
Wilkes, 4 Burr. 2527; Rex v. Curl, 2 Strange, 788).
IV. A printer of a newspaper is bound to abstain from
publications, which he knows to be libelous, with more than
ordinary care. It is no apology for him that he is not the
author; for he who wantonly publishes a libel, is as guilty, in
the eye of the law, as he who writes it. The injury is done by
the publication (Dexter v. Spear, 4 Mass. II6, per Story, J.;
Burdett v. Cobbett, 5 Duer, 201; Sanford v. Bennett, 24 N.
Y. 20).
V. If the jury believe that the tendency of the publications,complained of was injurious to the plaintiff, the law presumes
that the defendants, by publishing it, intended to produce that
injury which it was calculated to effect (Haine v. Wilson, 9
Barn. & Cress. 643). (i.) In their verdict, they are not limited
to the actual damage he sustained, but may give further,damages, suited to the aggravated character the act assumed
{(Taylor v. Church, 8 N. Y. N4 Seld.] 460). (2.) And the
original wrong has been aggravated by their defense of justification, in which they have wholly failed (Fero v. Ruscoe, 4
N. Y. [4 Const.] I62; Hunter v. Sharp, 4 Fost. & Fin. 992, per
Cockburn, Ch. J.).
Sewell, for defendants, requested the court to charge the
propositions, szupra, on motion for nonsuit, and furtherV. If the jury find from the evidence that the articles were
justified by the character of the novel " Griffith Gaunt," then,
whether they were privileged or not, the plaintiff cannot
recover.
VI. If the jury find for the plaintiff, they are not to award
damages for supposable loss resulting to the plaintiff from the
sale of the edition of the novel published after the libels, and
for which he received no compensation.
Mr. Justice Clerke then charged as follows:
Gentlemen of the Jury:- Among the rights of perfect
obligation, which alone the law undertakes to protect, that of
reputation is one of the most prominent. Many men, unfortunately for the well-being of society, are totally regardless
of principle, and are therefore totally regardless of reputation. But to every member of society who, differing from the




I88          LAW   OF  LITERATURE.              [CH. II.
remarked on the delay, and, after the publication, expressed approbation of it, it was held that the jury
(who had found the defendant guilty) might, on this
beasts that perish, is guided by principle, reputation is necessarily very precious. He is very sensitive in relation to it,
and it would be most unwise as well as most unjust, not to
offer him ample and efficient means of vindicating it when it
is unjustly assailed. Accordingly, the law allows an action
for the recovery of damages as means of redress for injuries
in cases of defamation. It allows for oral defamation an
action technically called an action of slander. For written
defamation, or defamation by printing or pictures, it allows,
an action technically called libel. Our law, like the Roman
law, recognizes a very marked distinction between spoken
defamation, and defamation communicated by writing, printtinig, pictures, or signs. Matter calculated to cast ridicule
upon a man, or to degrade him in the opinion of his acquaintances, or of the community, is libelous, if written, or
printed and published, although, if only spoken, it may not be
actionable. For instance, to accuse a man orally of being a
liar, even in the presence of hundreds, is not actionable per
se; but to say of him, in an article published in a newspaper,
that he is a liar, is actionable, and no proof of special damage,
is necessary. A general oral charge even of having sworn
falsely, without reference to material evidence given by the
plaintiff at the trial of a cause, is not actionable in itself, but
it is actionable to print and publish concerning a man, " Our
army swore terribly in Flanders," as said Uncle Toby; and if
Toby were alive now, he might say the same thing of some
modern swearers. The man is no doubt swearing to an old
story. A libel, then, as applicable to individuals, may be defined to be a malicious publication, expressed either in printing or writing, or by effigy, tending either to injure the memory of one dead, or the reputation of one alive, and expose
him to public hatred, contempt, or ridicule.
The plaintiff, in his allegations in the complaint, first states
that he is the author of a certain work called "Griffith
Gaunt," and that certain articles published by the defendants.
are libelous. As these have been spread before you, I will
not now read them. Two of them were to the effect that this
work was calculated to demoralize society, to debauch public
morals, and to contaminate the purity of the youthful mind.
The third article accuses-but whether it amounts to an accusation you are to determine: —that he allowed an obscure per



CIt. II.]             OF  LIBEL.                      I 9
evidence, find that the defendant authorized the publication of the particular libel, notwithstanding the
comments added, and although it appeared that the
son to assume his name, and to pass off the book here as his
original production. The first two are essentially different
from the third. The former accuse him of writing and dis*seminating works calculated to debauch and demoralize the
public mind, and the latter accuses him of what the plaintiff's
counsel contends is absolutely an accusation of fraud. Now,
in regard to the allegation in the complaint that Mr. Charles
Reade is the author of " Griffith Gaunt," you have had the
evidence of two witnesses who lived in London.
for five or six months. They saw the manuscript, saw him
actually engaged in the composition of the work, and saw him
hand over his original manuscript to his amanuensis, and saw
him receive it back again from his amenuensis, then send it to
the printers, then receive the proof, correct it, and send it back
to them. It is scarcely necessary for me to say that, in my
opinion-though you are to judge-the proof is ample as to
the authorship. With regard to the first two alleged libels,
have the defendants transcended the limits of allowable criticism in these two articles?
In criticising the productions of an author, the law allows
considerable latitude. The interests of literature and science
require that the productions of authors shall be subject to fair
criticism; that even some animadversion may be permitted,
unless it appears that the critic, under the pretext of reviewing his book, takes an opportunity of attacking the character,of the author, and of holding him up as an object of ridicule,
hatred, or contempt. In other words, the critic may say what
he pleases of the literary merits or demerits of the published
production of an author; but with respect to his personal
rights, relating to his reputation, the critic has no more privilege than any other person not assuming the business of criticism.  For instance, he may say that the matter is crude,
forced, and unnatural; that it betrays poverty of thought, and
abounds with commonplaces and platitudes, being altogether
flat, stale, and unprofitable; and that its style is affected,
obscure, and involved. He may say, as Burke said of the
style of Gibbon, that it is execrable; but he cannot say that
the author himself is execrable, or that he is personally
affected, or absurd, or wayward. The critic has the same
liberty, under the same restrictions, in relation to all people
who come before the public for praise or censure. He may




Igo          LAW   OF  LITERA TURE.             [CH. ILeditor had heard the story before the defendant told it
to him.'
This rule has been carried so far as to extend to a
say of the orator who uses excessive gestulation and vociferation-mistaking extravagant action and verbosity for eloquence-that he has all the contortions, without any of the
inspiration, of the Sybil. He can say of the player that he
mouths his speech, as many players do, or that " he saws the
air too much with his hand," or that he "tears a passion to,
tatters, to very rags, to split the ears of the groundlings";
but he cannot abuse him  as "a robustious, periwig-pated.
fellow," and recommend that he should be " whipt for o'erdoing Termagant." The critic can call a painting a daub and
an abortion; but he cannot call the painter himself a low,.
Rex v. Cooper, 8 Q. B. 533; I5 L. J. 206, ~. B. "If," said
Lord Denman, Ch. J., "a man requests another, generally, to
write a libel, he must be answerable for any libel written in
pursuance of his request: he contributes to a misdemeanor,
and is therefore responsible as a principal. He takes hischance of what is to be published. Here the defendant first
desires the newspaper editor to'show up' the prosecutor,
and communicates to him the particulars of the story, which
afterwards appear in the newspaper. Having given this general authority, he meets the editor, and says that the article
has not appeared. That which did, in fact, form the foundation of the libel, and which the editor communicated to the
reporter, was what the defendant communicated to the editor;
and, after the publication, it was approved of by the defendant. It is observed that there were additions; but the editor
said that what the defendant communicated was substantially
what was published. If we held this not to be a publication
by the defendant, we must go the length of exonerating a
party who gives instructions for a libel, in every case where
the libel published, departs from the instructions, by a single
word. It is enough that there is a substantial identity. I
have no doubt that a man who employs another generally to
write a libel must take his chance of what appears, though
something may be added which he did not state." Wightman,
J., added: " It would be very dangerous to allow a man to,
direct a libel to be published on a particular subject, and,.
after he has approved of what is published, to defend himself
on the ground that something has been added to his original.
communications."




Clr. II.]             OF  LIBEL.                       I9'
party presiding at a public meeting, who requests the
reporters present to "take notice of" a speech, or
other portion of the proceedings; and, if, following
discreditable pretender, and an abortion. The most comprehensive freedom in animadverting upon the productions and
actions of public men is essential to the very existence of civil
and political liberty, and to the progress of civilization; and
I heartily say with Lord Ellenborough, in Tabart v. Tipper, I
Campb. 350-" Liberty of criticism  must be allowed, or we
should have neither 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 a libel, which has, for its object, not to injure
the reputation of any individual, but to correct misrepresentation of fact, to refute sophistical reasoning, to expose a vicious
taste in literature, or to censure what is hostile to morality."
Bult, gentlemen, although a critic may not have directly
assailed the character of an author; or ridiculed his personal
appearance, his manners, his voice; or exposed any eccentricities or defects of the man-may he not, nevertheless, defame
and wound him in the most vital spot by imputing to him
unworthy motives, and evil designs against the well-being of
society, intimating that he infers these motives and designs.
from the sentiments expressed, and the characters delineated,.
in the work which he has undertaken to review? My own
opinion, gentlemen, is, that many of the works of fiction which
are published in this country are very pernicious in their
effects upon public morality. Not that I think that fiction, in
itself, is demoralizing-very far from it. The most instructive
lessons in faith and morals have been conveyed through its
instrumentality. The founder of Christianity himself did not
disdain frequently to employ it. Indeed, it was his favorite
method of moral and spiritual instruction. But in its very
fascination consists its danger; and when we see the press
teeming with productions of this kind, describing scenes and
portraying characters calculated to corrupt the morals, and
even weaken the mental stamina, of the multitude of novel
readers who seem to be absorbed in this kind of reading, it
will be prudent to allow considerable latitude of criticism in
in relation to these productions.
There is one virtue which women of honor have not only
always observed, but have tenderly and ardently cherished,.
and, I may say, adored. They esteem it as a sacred jewel-its
price far above rubies; and the woman who is without it is




192          LAW   OF  LITERA TURE.            [CH. II.
such suggestion, the matter be reported either verbatim or summarily, if the matter be libelous, he will
be held to respond therefor.'
deemed lost to all virtue. The want of it disfigures her whole
nature; and any community in which the want of it is prevalent, depend upon it, is on the rapid road to ruin. The tendency of many of the productions, to which I have referred, is
to weaken the foundations upon which this virtue is based.
They are almost as mischievous as the plays which abounded
in the profligate reign of Charles II., when the foulest and
most hideous corruption prevailed in the court and among
the higher classes. I have often wondered that society escaped
the destruction which that corruption was calculated to produce. I do not say that English novels are as mischievous in
this respect as similar works of fiction published in France.
For there, in such works, open adultery seems to be especially
admired and honored. Unholy love, like unsanctified human
reason, at a memorable period of its history, seems to be
deified in that land. The writer who has contributed most
toward this dreadful condition of things is a profligate woman,
although she has shown some token of decency by assuming
the name of a man. I make these observations, gentlemen, to
show that, in dealing with this kind of literature, the critic
1 Parkes v. Prescott, L. Rep. 4 Ex. I69; 20o L. T. N. S. 537;
38 L. J. I05 Ex.; I7 W. R. 773. In this action, which was
brought against the chairman, and one E., a member of a
board of guardians, for a libel published in a newspaper report of one of the meetings of the board, it appeared that a
discussion having taken place at the meeting respecting the
case of the plaintiff's daughter, then an inmate of the workhouse, and reporters of the local newspapers being present in
the ordinary discharge of their duty, the defendant E. said
"he hoped the local press would take notice of this very scandalous case," and requested the chairman to " give an outline
of it," which was done accordingly. The chairman, in the
course of his statement of the case, said: " I am glad gentlemen of the press are in the room, and I hope they will take
notice of it;" to which E. added, " and so do I;" the chairman further expressing a hope that publicity would be given
to the matter. The libel was contained in what was proved
to be a correct but condensed summary of what took place
at the meeting, published in a local newspaper, and containing matter defamatory of the plaintiff. The learned judge




CH. II.]             OF  LIBEL.                      I93
Nor will it be a defense to an action for libel, that
the libelous matter was received from  another; even
though it be accompanied with the name of the real
author.'
shou J not be prevented from inferring the motives and designs of the author from the inevitable effect of his writings.'Of course, if he imputes motives and designs which he was
not warranted in imputing by any opinion or sentiments expressed, or any character delineated in the work, or from its
general tone, he is liable, and must take the consequences, and
thD author is ent tled to redress. To charge an author with
(Martin, B.) who presided at the trial was of opinion that
t ere was not sufficient evidence for the jury of the publication of the libel by the defendants, and directed a verdict to
be entered for them. A bill of exceptions was tendered to
this ruling; and the majority of the court of exchequer
chamber (Keating, Montague Smith, and Hannen, JJ.) held
1De Crespigny v. Wellesley, 5 Bing. 392. "We do not
hesitate to say," observed Best, Ch. J., delivering the judgment of the court of common pleas, in this case, " that even if
we were to admit, what we beg not to be considered as admitting, that in oral slander, when a man, at the time of his speaking the words, names the person who told him what he relates,
he may plead to an action brought against him that the person
whom he names did tell him what he related-such a justification cannot be pleaded to an action for the republication of
the libel. If the person receiving a libel may publish it at all,
he may publish it in whatever manner he pleases; he may
insert it in all the journals, and thus circulate the calumny
through every region of the globe. The effect of this is very
different from that of the repetition of the oral slander. In
the latter case, what has been said is known only to a few persons, and if the statement be untrue, the imputation cast upon
any one may be got rid of; the report is not heard of beyond
the circle in which all the parties are known, and the veracity
of the accuser and the previous character of the accused Will
be estimated. But if the report is to be spread over the world
by means of the press, the malignant falsehood of the vilest of
mankind, which would not receive the least credit where the
author is known, would make an impression which it would
require much time and trouble to erase, and which it might be
difficult, if not impossible, ever completely to remove.....
13




194          LA W   OF  LITERA TURE.           [CH. II..
We have already alluded to the old star-chamber
doctrine that a libel could be published by sending a
sealed letter; although that doctrine has long sincesuch motives and designs is a most serious imputation, and if
it is unwarranted the critic has committed a grievous wrong,.
which money is scarcely capable of repairing. Undoubtedly,
the criticisms complained of make these imputations against
the plaintiff. That can scarcely be denied. I repeat, that
it is not necessary for me to read these articles.  I have
no doubt you understand them. The jury have the right
to determine-for it is plain that the articles are prima
facie libelous-whether " Griffith Gaunt" is obnoxious to
such imputations; and if so, you have the right to infer
that the ruling was incorrect, Byles and Mellor, JJ., dissenting.
It was contended, on behalf of the defendants in this case,
that the words used by them did not amount to a request to
the reporters to publish the proceedings, but were merely the
expression of a wish or hope that they would do so, nor to an
authority to publish the particular reports in the words in
which they in fact appeared; but the majority of the court of
error were of opinion that the facts proved afforded evidence
Of what use is it to send the name of the author with a libel
that is to pass into a country where he is entirely unknown?
The name of the author of a statement will not inform those
who do not know his character, whether he is a person entitled
to credit for veracity or not; whether his statement was made
in earnest; or by way of a joke; whether it contains a chargemade by a man of sound mind, or the delusion of a lunatic.
If, without any allegation that its contents were true,
or that the publisher had any reason to believe them to be
true, we were to hold that these pleas were a justification, we
should establish a mode by which men might indulge them.
selves in ruining the characters of any persons they might be
disposed to calumniate. There will be no difficulty in getting
wretches, who would be better off within the walls of a prison
than they are without, to furnish such as will pay for them
with any statements they may desire respecting the characterof any person whatsoever." Vid. also M'Gregor v. Thwaites, 3
B. & C. 24; M'Pherson v. Daniels, io B. &. C. 263; Watkin v.
Hall, 9 B. & S. 279; L. Rep. 3 Q. B. 396; 37 L. J. I25, Q. B.;
i8 L. T. N. S. 56I; Shortt, p. 423.




Cfi. II.]            OF  LIBEL.                     I95
fallen before the advance of civilization, it is by no
means impossible at the present day to publish a libel
by means of a letter.
the culpability of the plaintiff, and the truth of the justification. I do not mean to examine the pages of the book before
you. I hope you have read the whole, or a large portion of it.
The three chief characters in the work are Griffith Gaunt,
Caroline Ryder, and Mrs. Gaunt-once the beautiful Catharine Peyton. Griffith Gaunt is not, to my mind, a very
attractive character. He is a rough, north-country squire.
He is not prepossessing in his manners, or elevated in his
mind, and there is nothing whatever about him calculated to
excite the admiration of the virtuous and refined; and I am
very much astonished that so charming a person as Catharine
Peyton should have fallen in love with him. He was guilty
of bigamy. But is there anything in the work itself to set off
this crime? to make it alluring? and to induce others to follow
his example? That is a proper consideration. Is he so fascinating in character, or has he any other qualities-any heroic
qualities, any great intellectual or moral qualities-to set off
his guilt, and to recommend it to others for an example?
Are the circumstances, which are represented to have caused
and to have attended his conduct, calculated to entice the
fit at all events to be laid before the jury, of a request by the
defendants to the reporters to publish an outline or summary
of the proceedings, and to publish the report in such a way as
to show the conduct of the plaintiff to have been disgraceful;
the disclosure to the local public of what was called the plaintiff's disgraceful conduct being the avowed object of the request made by the defendants to the reporters.
" I agree with the learned counsel for the defendants," said
Montague Smith, J., in whose judgment Keating and Hannen,
JJ., concurred, " that loose expressions of a mere wish or hope
that proceedings should be published, would not be sufficient
to fix liability on the defendants in cases like the present. I
think the words must be of such a kind, and used in such a
manner, as to satisfy the jury that they amounted to, and were,
in fact, a request to publish. If the words do amount to such
a request, and the publication be made in pursuance of it by
the persons to whom it was addressed, then, it seems to me,
the persons making such request would be responsible for the'libelous matter so published. Whether the libelous matter
published is in pursuance of, and in accordance with, the




I96          LAW   OF  LITERATURE.             [CH. II,
So if a man write scandalous matter in a letter,
knowing or designing that that letter shall fall into
the hands of certain persons, he is publishing a libel
reader into an approval, not to say imitation, of it? His guilt
is not described as the result of inherent, deliberate wickedness; of depravity-gratuitous and utterly selfish. Believing
that his wife was false; maddened at the thought that one
whom he had loved intensely, whom he had supposed to be
the paragon oftpurity and honor, was a hypocritical wantonhe fled from her, far away, determined never to see her again.
In his new and humble home he became, immediately after his
arrival, grievously and dangerously ill, and would have died
but for the devoted attention of a modest and pleasing maiden;
and, persuading himself that he was forever freed from his
wife, he went through the form of a marriage with this girl
some time after his recovery. She devoutly loved and admired him, and, of course, thought he was bound to no other
woman. In his delusion about his wife's supposed guilt, in
his resolution never to see her again, and in his resignation to
his new attachment, which he imagined he could not avoid, he
seems almost like a man in the inexorable grasp of the destinies. Not quite an CEdipus indeed, although the tumult of
his mind and the horrors of his condition are described with a
request, or a departure from it, and so unauthorized, would be
a question to be considered on the circumstances of the particular case. It is, of course, plain, that if a man gives a copy
of his speech to another to publish, he is answerable as a publisher. It cannot be contended that he would not be equally
answerable, if he desired a reporter to take down his speech
as he delivered it, and to publish it. Then, can it make any
difference in his liability that he requests the reporter, instead
of publishing the whole speech, to make and publish an outline or summary of it? Surely, in reason and principle there
can be none, where the request is acted on, and a correct outline or summary made and published. It was strongly urged,
for the defendants, that they could not be liable, unless they
authorized the libel in the very words in which it was published. If this argument is correct, then it must follow that a
man could never be liable when he desired another to make
and publish an outline or summary of a speech or writing;
because such an outline or summary necessitates condensation,
and consequent alteration of language. But the argument
cannot, as it seems to me, be correct. The man who requests




CH. II.]              OF  LIBEL.                    I97
to those persons. A sealed letter addressed to a wife
containing a scandal on her husband, is a libel.' The
delivery of a writing to another that he may read it,2
power scarcely inferior to that with which Sophocles, in his
"CEdipus the king," "CEdipus at Colonus," and in his
"Antigone," describes the unexampled miseries of a doomed
family of victims. Still, Griffith Gaunt greatly erred; and
unlike CEdipus, he was a conscious doer of disastrous deeds.
Next we have Caroline Ryder. She is the very incarnation
of sensuality; and she, like the man she fell in love with, had
a ruddy face, a well-developed person, a well-developed chest,
and, I think the author says, had fine teeth. But is there anything in her character which can give a gloss to her crimes, or
make them worthy of imitation by the reader, whether young
or old? Now, gentlemen, the mere delineation of a character
in a novel, the mere setting forth of a certain kind of wickedness in a character, is not necessarily demoralizing. If that
were the case, every man would be obliged to send away from
his library real history. If fictitious history is not allowed
to do what real history does, the novel would be entirely desanother to make and publish an outline or summary of a
speech, writing, or proceedings, must know that the words
will be, to some extent, those of him who makes such summary
or outline; and he must, therefore, be taken to constitute him
an agent for the purpose, and be answerable for the result,
subject always to the question whether the authority has been
really followed. If this be not so, a man might become a
libeler with impunity. Again, if the very words of the libel,
and not its substance, are in these cases to be regarded, a man
who gives the manuscript of a libel to an agent to print and
pub'lish, would not be answerable if, by accident or negligence,
there were variations in some of the words, although not in
th:e substance of the libel.....  In the result, I come to the
conclusion that, on principle, it is correct to hold that where
a man makes a request to another to publish defamatory
matter, of which, for the purpose, he gives; him a statement,
whether in full or in outline, and the agent publishes that
matter, adhering to the sense and substance of it, although the
language be, to some extent, his own, the man making the
Schenck v. Schenck, I Spencer, 208; Wenman v. Ash, 3
Com. B. 836; Mills v. Monday, Lev. 112.
2 Wyatt v. Gore, Holt, 289.




198          LAW   OF  LITERATURE.             [CH. II.
or that he may copy it,-since he must read it as he
copies it, —is a publication of that writing as to him.'
And where the libelous letter is written in one
titute of interest. I repeat, that the mere delineation of a
character is not necessarily demoralizing.
Look at all the histories of ancient and modern times, the
history of Thucydides, the biographies of Plutarch, and
modern histories and biographies; they all represent real
men, who were cruel, earthly, sensual, and devilish.
In modern times, we have only to go to the last century to
look at the character of Catharine, empress of Russia. She
certainly was much more wicked than Caroline Ryder, for she
had a lover almost every week, and when she got tired of him,
she killed him. But are we not to read the history of Russia
in the reign of Catharine? Still there may be something else
objectionable in this work beside the delineation of character.
I only wish to impress upon you that the mere delineation of
a vile or vicious character, unless it is presented to the reader
in some seductive shape, does not make the author criminal,
or liable to the charge of demoralizing society. You are to
consider, also, whether all the events which the author states
in any part of his work happened to them, were calculated to
request is liable to an action as the publisher. If the law were
otherwise, it would, in many cases, throw a shield over those
who are the real authors of libels, and who seek to defame
others under what would then be the safe shelter of intermediate agents."
Byles and Mellor, JJ., dissented from the judgment in this
case. Byles, J., very much doubted " whether the expression
of a hope that the press would take notice of the case, or give
publicity to it, or that the chairman would give an outline of
the proceedings, amounts to an authority to publish in a newspaper defamatory and unjustifiable matter spoken at a meeting." The learned judge pointed out that the libel must be
proved as laid; and that though a variance is now amendable,
none was in this case asked for or made, or could be made so
as to cure the objection that the evidence did not show what
particular facts or what particular defamatory expressions
were or were not authorized by the defendant. His lordship
also remarked on the great difference between the authority
which will make a man liable criminally for the acts of his
Keene v. Ruff, i Clarke (Iowa), 482.




'CH. II.]             OF  LIBEL.                      I99
place and opened in another, it is a publication of
-the libel in the place where the letter is opened.'
One Gibbons wrote defamatory matter of one
encourage similar conduct in others. As to the third article,
gentlemen, accusing the plaintiff of allowing his name to be
given to the productions of others, and that this was fraudulent, I do not intend to dwell upon that. It has been shown
by several witnesses that it is a very common practice for an
author to allow his name to be used, when the materials, perhaps, are furnished by others, but that he usually superintends
the work, revises it, and perhaps adds to it. They say that
this is a very common practice, and is not considered dishonorable. If you believe this third article amounted really to a
charge of that kind, I do not know that there is anything
libelous in it. It is for you to determine, however. If you
believe it to be a dishonorable practice, you should find it to
*be libelous.
The next inquiry is as to the damages.
You have a right to consider whatever injury in mind the
plaintiff has sustained by these charges, and you may go even
agents and that which will make him liable civilly; a principal
-not being civilly liable unless the agent duly pursues his au-thority, though liable criminally even where the agent has
widely deviated from the authority. Mellor, J., said: " I think
that in order to make a man responsible for a report printed
and published by a third person, it ought to be shown that he
had seen or heard or dictated the report himself, or approved,of the libelous statements therein..... I think that in order
to support the allegation that the defendants caused to be
printed and published the libels set out in the declaration,
there ought to have been evidence of a communication, either
verbal or written, of the entire substance of the libel to the
-reporter, as the libel to be published; or that either before or.after the publication thereof, the defendants sought to be.charged saw and approved of the particular libel; and that,
inasmuch as in the present case the expressions used only in1Rex v. Johnson, 7 East, 65; Rex v. Middleton, Str. 77;
Keene v. Ruff, I Clarke (Iowa), 482; Rex v. Watson, i Camp.
215; Rex v. Girdwood, East's P. C. I1I6, I120; Case of the
Seven Bishops, 4 State Trials, 304; Rex v. Burdett, 4 B. & A.
717; 2 Starkie on Slander, 39-43; Commonwealth v. Blanding, 3 Pick. 304.




200          LA W  OF  LITERA TURE.            [CH. II.
Trumbull, and had fifty copies printed in pamphlet
form in Massachusetts. Forty-five copies he retained,.
and five copies he sent to his wife in New Jersey, indorsing four of them with the names of certain persons, acquaintances of the wife, but without instructing his wife to dispose of them. The wife delivered
two of the copies in New Jersey to the persons whose
names were indorsed thereon, and the others she delivered in New Jersey to Trumbull, who exhibited
them to various persons. On Trumbull suing Gibbons in New York for libel, it was held that there
was a publication  by defendant within the State;
that the delivery of the manuscript to be printed was,
a publication, although a delivery to a wife in confidence would not be a publication; the wife acted as
the agent of her husband, and her delivery of the
pamphlets amounted to a publication by the defendant.,
further; you may consider what he is entitled to as compensation for his wounded character, if it has been wounded; and
you have a right to consider what injury hereafter he may suffer,.
for I hold that prospective damages are allowable in this action. They have been allowed in several instances, and I
think it may be considered as settled that they may now be
awarded, when they are incident and accessory to the'action,.
and where no separate action can be maintained for them.
The jury found a verdict for the plaintiff, and assessed thedamages at six cents. And see the recent case of Johnson
v. The (London) Athenaeum (Athenaeum, April 3, I875),.
which will be examined post, in the chapter on Newspapers.
dicate a wish that gentlemen of the press present would no —
tice the case, or call attention to it, or give publicity thereto,.
leaving the mode and manner to the absolute discretion of the
reporters, I am of opinion that my brother Martin was justified
in holding the evidence not to be sufficient to be submitted to
the jury in support of the issue joined upon the pleadings
(Shortt).'Trumbull v. Gibbons, 2 City Hall Recorder, 97




CH. II.]             OF  LIBEL.                      201
But throwing a sealed letter, addressed to the piaintiff or a third person, into the enclosure of another, who
delivers it unopened to the plaintiff himself, is not a
publication,' nor is sending to the person whom the
writing concerns a sealed letter a publication; a
letter always being understood to  be sealed up, unless otherwise expressed.2
So sending letters to various persons, announcing
to them that a certain person is a scoundrel or a
cheat,3 or circulating postal cards upon which scandalous or scurrilous matter is Written is libelous.4 Sending
a defamatory letter sealed up is no publication of a libel.!
But if the sender read it to a third person before sending it, such reading constitutes a publication.6 But send —
ing a libelous letter, unsealed, by a messenger, if the
messenger do not read it, there is no publication.7 A
libel might be, undoubtedly, published by telegraph;
in which case the liability of the telegraph company as
publishers might be analogous to the liability of a news —
paper, whose agents receive, publish and give circulation
to defamatory matter written by another for reward.&
The modern invention of the postal card is one by
1 Fonville v. Nease, Dudley (S. C.), 303.
3 Lyle v. Clason, I Cai. 58I; Phillips v. Jansen, 2 Esp. 625;.
i W. Sand. 132 (note).
See Note 2, post, p. 202.
4 Chamberlain's Case, U. S. C. C., S. D. N. Y. I874.
Lyle v. Clason, I Cai. 581.
a Snyder v. Andrews, 6 Barb. 43; McCombs v. Tuttle, 5
Blackf. 43I; Van Cleef v. Lawrence, 2 City Hall Recorder,
41.
7 Clutterbuck v. Chaffers, I Stark. R. 47I; Say v. Bream, 2
Moo. & R. 54. Nor where a writing is sent to the plaintiff,
and he, in the presence of a third person, repeats the contents
of such writing to the writer, who admits having sent it, this
is not a publication of the writing to the third party (Fonville:
v. Nease, Dudley (S. C.), 303).
S No such case, however, appears to have been reported.




202          LA W  OF  LITERA TURE.           [CH. II.
which a libel could be circulated with very small
trouble and expense to the libeller, and to the great
damage and injury of the person libeled. A postal
card, carrying defamatory matter, will be regarded by
>the law as libel in a particularly aggravated form, and
punished with great severity not only by indictment,'
but, in a civil suit, probably, with exemplary damages.2
84. Libel may also be published by means of a
theatrical representation, and courts will enjoin the
performance of a dramatic production which is intended as a libelous caricature of a citizen, upon his
bill.3 And these observations, it seems, will apply to
an actor.4 Even a historian might possibly be con-.strued to be a libeler.5
85. A libel may sometimes be conveyed by a mere
carelessness and inaccuracy of detail in a published
work.) Thus, where the writer of a treatise on the
"C Law of Attorneys " referred in his book to the case
of the plaintiff, as that of an attorney who had been'People v. Chamberlin, U. S. Dist. Court, S. D. N. Y. Vid.
post, vol. I., p. 5IO.
2 Crane v. Walker,post, Id.
a Post, vol. II., chapter on Dramatic Copyright.
4 Broom Leg. Max. 32I.
The son of McLauren, the distinguished mathematician,
felt aggrieved by Goldsmith's statement, in his History of
Animated Nature, that the senior McLauren was subject to
fits of yawning, so violent as to render him incapable of proceeding in his lectures; and, although the senior McLauren.and Goldsmith were both dead, yet the son bullied the publisher into canceling the offensive leaf. Dr. Johnson did not
approve this course, but said, "it is of much more consequence that truth should be told than that individuals should
not be made uneasy," and declared that the " uneasiness which:a man feels on having his ancestor calumniated," is "too
nice" (Boswell's Life of Johnson, Pickering's ed. vol. 3,
p. 12).
For a more extended discussion of this species of libel,
see chapter on Newspapers,post, vol. II.




CH. II.]              OF  LJBEL.                     203
struck off the rolls, whereas he had only been suspended for two years, as appeared from the very report of the case cited by the writer, the court, after
pointing out to the jury the important distinction
between the two punishments, and that the misstatement was an unintentional mistake, left it to them
to say whether it was a reasonably fair statement of
the report, or whether it was a mistake arising from
want of reasonable diligence and care.'
A corporation is a person in law. It may have a
reputation, which is part of its capital,2 and therefore be the subject of a libel. Or it may entertain
malice, and be itself a libeler of others. Though, as
a corporation can only act by its agent, it cannot, of
course, be guilty of slander, since that crime cannot
be vicariously committed.3 In the case of a libel, as
both authors and publishers are always liable,4 the corporation has no such escape.5 They can sue or pros1 Blake v. Stevens, II L. T. N. S. 544; 4 F. & F. 239.
Abshire v. Cline, 3 Ind. II5; Long v. Brougher, 5 Watts,
437; Smith v. Wyman, 4 Shep. I3; Lewis v. Black, 27 Miss.
425; Snow v. Witcher, 9 Ired. 346; Ingham v. Laivson, 5 Bing.
N. C. 6o (this latter was a case of a libel on the plaintiff's
ship); Trenton Ins. Co. v. Perrine, 3 Zabris. 402.'3 Maloney v. Bartley, 3 Camp. 2IO; Hecker v. De Groot,
I5 How. Pr. 3I4. There can be no agency in a crime (Lowenstein, 54 Barb. 305; Reg. v. Bull, 7 L. T. 8).
Rex v. Drake, Holt, 425; Rex v. Paine, 5 Mod. I63; Rex
v. Bear, Carth. 407; Rex v. Williams, 2 Camp. 646; Dale v
Lyons, IO Johns. 46I; Cochran v. Butterfield, 8 N. H. IlS;
Dexter v. Spear, 4 Mason, 115; Watts v. Fraser, 7 Car. &
P. 369; Frescoe v. Miay, 2 F. & F. 23; Miller v. Butler, 6
Gush. 7I.
5 Phil. R. R. Co. v. Quigley, 21 How. U. S. R. 202; Aldrich
v. Printing Press Co., 9 Minn. 133; Lawless v. Anglo Egyptian
Cotton Co., Law Rep. IV. Q. B. 262; Maynard v. Fireman's
Ins. Co., 34 Cal. 48; Latimer v. West. Morn. News Co., 25
Law Times, N. S. 44. In New York by statute (Laws i86o,
ch. go). Whitfield v. South-East. R. R. Co., I Ell. B. & E. II5;




204          LA W   OF  LITERA TURE.            [CH. II.
ecute for a libel of themselves, upon proof of special
damage, though not otherwise.' But a voluntary
association, not chartered or organized under any general law, could not maintain an actionand so no
action would lie by the members of a voluntary
organization  known  as "No. 12  Hose  Company,"'
against one who published, with other defamatory
matter, that his hat had been "stolen by some of the
members of No. I2 Hose Company." 3
86. An exception arises just here in regard to what
are called private publications. ( It is a well-known
principle of the common law, that a communication
made boza fide upon any subject-matter in which the
party making it has an interest; or in reference to.
which he has, or honestly believes that he has, a duty,
is privileged; If made to person or persons who have,.
or honestly believe they have, a corresponding interest or duty, is privileged  accordingly;) a bishop's
charge to his clergy has been held privileged,.
although containing matter which would have been
otherwise libelous;4 and injurious reflections on the
Alexander v. N. East. R. R. Co., 34 Law Jour. Rep. N. S. 152,
Q. B.'; i Jurist, N. S. 6I9. Exemplary damages against a
corporation (Jefferson R. R. v. Rogers, 28 Ind. i).
Townshend on Slander & Libel, 263.
2 Giraud v. Beach, 3 E. D. Smith, 337.
3 Td.
4 Laughlin v. Bishop of Sodar. & Man., 4 L. R. P. C 495.
9 Moore P. C. C. N. S. 318; 42 L. J. P. C. If; 2I W. R. 214;:
28 L. T. N. S. 377, sed vid. aliter; Gournley v. Plimsoll, 42 L.
J. C. P. I2I; 8 L. R. C. P. 362; 2I W. R. 683; Dawkins v.
Lord Rokeby, 8 L. R. Q. B. 255; 42 L. J. Q. B. 63; 21 W. R.
544; 28 L. T. N. S. I34; Exch. Cham. Hart v. Gumpach, 4 L.
R. P. C. 439; 42 L. J. P. C. 25; 2I W. R. 365; 9 Moore P. C..
C. N. S. 241; Hunt v. Goodlake, 29 L. T. N. S. 472, C. P.;
Odger v. Mortimer, 28 L. T. N. S. 472, C. P.
The late celebrated charge of Judge Routhier, however,
holding that a Roman Catholic priest was not responsible for
words spoken in the pulpit, was reversed by ---—.




CH. II.]            OF  LIBEL.                     205
character and conduct of individuals, may be rendered
justifiable and necessary by the occasion, or circumstances.
Thus, it becomes absolutely necessary to the due
administration of justice, that judges, jurors, witnesses, and suitors -should enjoy an absolute immunity for all words spoken or written, in the course of,
or necessary to any judicial proceeding, and that members of legislative bodies should not be trammeled in
their deliberations by the restraints to which, as private
individuals, they might be subjected.
Such publications, whether made by spoken or by
written words, are known to the law as privileged
publications, and are of two kinds,-those absolutely
privileged, and those qualifiedly privileged,-and it will
make no difference with a publication so absolutely
privileged, whether or not it be influenced by malice
on the part of the speaker.
Publications are absolutely privileged when made
by a privileged person. Publications are qualifiedly
privileged, when made not by a privileged person,
but upon a privileged occasion, which will excuse
everything  except actual malice.  Thus a judge,
whether he be judge of a superior or inferior court, or
a coroner, is absolutely privileged.' An action will not
lie for defamatory matter contained in pleadings,2 or
1 Scott v. Stanfield, L. Rep. 3 Ex. 220; I8 L. T. N. S. 572;
Floyd v. Barker, Co. Rep., part I2, p. 24; Rex v. Skinner,
Lofft, 55; Miller v. Hope, 2 Shaw, Sc. App. Cas. I25; Jekyll
v. Moore, 2 B. & P. N. R. 341; Revis v. Smith, I8 C. B. 126;
Henderson v. Broomhead, 4 H. & N. 569; Fray v. Blackburn,
3 B. & S. 576; Thomas v. Churton, 2 Id. 475; 3i L. J. I39,
Q. B.; per Kent, Ch. J., in Yates v. Lansing, 5 Joh. 282; 9
Joh. 395. But see per Cockburn, Ch. J., 2 B. & S. 479; and
per Lord Denman, Ch. J., Kendillon v. Maltby, I Car. &
Mar. 409.
2 I Roll. 33; Dyer, 285; 2 Burr. 808, 817; Weston v. Dobi



206          LA W   OF  LITERA TURE.            [CI. II.
affidavits,l or judgments; 2 and a want of jurisdiction in
net, Cro. Jac. 432; Ram v. Lamley, Hutt. II3; Astley v.
Young, 2 Burr. 809, 817.
Revis v. Smith, i8 C. B. I26; Astley v. Younge, 2 Burr.
817; Henderson v. Broomhead, 4 H. & N. 569; 28 L. J. 360,.
Ex.; Doyle v. O'Doherty, I C. & Mar. 4i8. See Maloney v.
Bartley, 3 Camp. 2io; and McGregor v. Thwaites, 3 B. & C.
24. But see, however, the case of King v. Townshend, I
King's Bench, A. D. 1822, and reported in the Appendix to
Townshend on Slander & Libel, p. 64I. That was an action
for a libel, contained in an affidavit voluntarily made by the
defendant, before a magistrate, charging plaintiff with having
given information to the commissioners of customs, that one
Decima Barber, a milliner, was possessed of certain uncustomed goods, which were in fact seized, whereby the plaintiff,.
who carried on the business of a silk mercer, sustained special
damage, by reason that the said Decima Barber wholly ceased,
to deal with the said plaintiff in consequence of such slander.
Plea, not guilty, and issue joined.
Mrs. Decima Barber, to prove the special damage, deposed
that previous to the publication of this libel she had dealt
almost entirely with the plaintiff, for such articles of silk as.
she required in her business; but that since the publication,
believing that the plaintiff had been the person who caused
information to be given against her to the customs, she had
ceased to deal with him to so large an extent as formerly,
though she had not ceased to deal with him altogether.
Abbott, Ch. J.-I am of opinion that this action is main —
tainable. First, I think this affidavit is not a judicial proceeding, for it is the mere voluntary affidavit of the defendant;.
and if such an affidavit were to be considered as a judicial
proceeding, and therefore privileged, it would afford a veryeasy recipe for a libeler to traduce the characters of the most
innocent persons. Second, I think that to designate a man as
an informer, in a publication like this, if done maliciously
(which is for the jury), it is libelous in a very offensive degree,
and may be the subject of an action. And, Third, I have no
doubt that proof of Mrs. Decima Barber having ceased to deal
with the plaintiff to any extent, in consequence of the publication of this libel, will be sufficient proof of special damageto sustain this declaration; and it is for the jury to say
2 Jekyll v. Moore, 2 B. & P. N. R. 341; Home v. Bentinck,,
2 Brod. & Bing. I3 - See Oliver v. Bentinck, 3 Taunt. 456.




CH. II.] -           OF  LIBEL.                     207
the court' or court martial,2 will not abrogate theprivilege.  Communications  made  by  officers and
soldiers of the army, in the discharge of military or
other duty, are absolutely privileged.3
In the case of publications qualifiedly privileged,
"the occasion prevents the inference of malice, which
the law draws from unauthorized communications, and
affords a qualified defense, depending upon the absence of actual malice. If fairly warranted by any
reasonable occasion or inquiry, and honestly made
such communications are protected for the common.
convenience and welfare of society; and the law has.
not restricted the right to make them within any narrow limits."4  "The proper meaning of a privileged
communication is only this: that the occasion on
which the communication was made, rebuts the inferwhat damages they will give under the circumstances of
the case.
A letter complaining that the affidavit of an attorney's.
clerk was untrue was held privileged (Buckley v. Kiernan, I
Ir. L. R. N. S. 75).
1 Lake v. King, I Vin. Abr. 389; Hawk. P1. Cr. 73, ~ 8;
Hare v. Meller, 3 Lev. I69).
2 Jekyll v. Moore, 2 B. & P. N. R. 34I; Home v. Bentinck,.
2 Brod. & Bing. I30; Oliver v. Bentinck, 3 Taunt. 456.' Dawkins v. Paulett, 9 B. & S. 768; L. Rep. 5, Q. B. 94;
21 L. T. N. S. 584; 39 L. J. 53, Q. B; Dixon v. Earl of Wilton,.
I F. & F. 419; Keighley v. Bell, 4 Id. 763.
The Scotch law on this subject is in general the same as
the English. In case of an action of libel against a judge or
witness there is a ipresumptio jzris et de jure in favor of the defendant, the effect of which cannot be traversed by any contrary evidence. Proof of actual malice will, however, take
away the privilege from a litigant party (Borthwick's Law of
Libel, ch. 5, ~ I, p. 217).' Per Parke, J., Toogood v. Spyring, I Cr. M. & R. 193.
See also Somerville v. Hawkins, io C. B. 583; Croft v. Ste —
vens, 7 H. & N. 570; Whiteley v. Adams, IS C. B. N. S. 4I9;.
Cowles v. Potts, 34 L. J. 247, Q. B.




208          LA W  OF  LITERA TURE.            [CH. II.
ence prima facie arising from a statement prejudicial
to the character of the plaintiff, and puts it upon him
to prove that there was malice in fact-that the defendant was actuated by motives of personal spite or
ill-will, independent of the occasion on which the
communication was made."'  " The rule is, that if the
occasion be such as repels the presumption of malice,
the communication is privileged, and the plaintiff
must then, if he can, give evidence of malice: if he
gives no such evidence, it is the office of the judge to
say that there is no question for the jury, and to direct
a nonsuit or a verdict for the defendant." 2
All occasions upon which a publication of defamatory or injurious matter is made by a person bona
fide in the discharge of a public or private, legal or
moral duty, or in the conduct of his own affairs in
matters where his interest is concerned,3 are privi1 Per Parke, B., Wright v. Woodgate, 2 Cr. M. & R. 577.
2 Per Campbell, J., Taylor v. Hawkins, i6 Q. B. 32I.' A communication made bona fide upon any subject-matter
in which the party communicating has an interest, or in reference to which he has a duty, is privileged if made to a person
having a corresponding interest or duty, although it contain
criminatory matter, which, without this privilege, would be
slanderous and actionable; and this, though the duty be not a
legal one, but only a moral or social duty of imperfect obligation. And the court was of opinion, though it was not
necessary to decide so expressly in that case, that the same
privilege would be accorded to a communication made to a
person who had not in fact such a corresponding interest or
duty as referred to, but who might reasonably be, and is, supposed by the party making the communication to have such
interest or duty (Harrison v. Bush, 5 El. & B. 344. Vid. also
Fairman v. Ives, 5 Barn. & A. 642; King v. Bayley, cited by
Bayley, J., 5 Id. 647; Scarll v. Dixon, 4 F. & F. 250).
The cases in which the law of Scotland accords this qualified privilege are those of counsel, litigants, masters giving
characters of servants, literary criticisms, and communications
to persons having an interest in the matters made known
(Shortt, p. 429).




CH. II.]             OF  LIBEL.                    209
leged occasions, and the publication so made, is a
privileged publication.! And so the communication
of a church-member complaining of the character or,conduct of the clergyman of his society, if not malicious,2 or of an agent to his principal within the province of his agency,3 are privileged.  And  as to
where, in an action for slanderous words, the defendant justified, on the ground that he was the pastor of
the church of which the plaintiff was a member; that
by the rules and regulations of the church the ruling
elders composed the session of the church,'and the
pastor was the moderator thereof; and that, if the
words were spoken, they were used in the course of
church discipline, to the session, in the progress of the
investigation of certain rumors against the chastity of
the plaintiff, see a very recent case.4 A lawyer's letter
to his client, or a client's to his lawyer, are privileged.5
So, too, are charges preferred by one member of a
lodge of Odd-Fellows against another, within the rules
of the order,6 or a banker's communication to a firm
who had sent him a customer's note for collection.7
Where the New  York College of Pharmacy appointed a committee to examine certain charges as to'Toogood v. Spyring, I Cr. M. & R. 93.
2 O'Donohue v. McGovern, 23 Wend. 26.
Wasburne v. Cooke, 3 Den. IIo; Gilbert v. People,
Id. I.
Kleizer v. Aymmes, 40 Ind. 562. Held, that the paragraphs
of the answer were good, and that the word "crimes," in the
rules, was not confined to statutory crimes, but included a
violation of the moral law or of duty as a member of the
church. Written charges were not necessary to authorize the
investigation. Pettit, Ch. J., dissented.
Warner v. Payne, 2 Sand. I95.
6 Streety v. Wood, 15 Barb. Io5. But see, however, Holmes
v. Johnson, II Ired. 55.' Lewis v. Chapman, 2 Smith, 369; reversing I9 Barb.
252.
14




2IO          LA W  OF  LITERATURE.            [CH. II.
the importation of spurious drugs, and-the committee
having reported recommending that charges be forwarded to the secretary of the treasury against plain —
tiff, who was public inspector of drugs-the college
sent such charges, it was held that such constituted a
privileged communication.'
But a letter addressed to a superior officer having a
power of removal, charging his subordinate with fraud
in office,2 or a memorial to the post-master-general in
relation to the business of his department, where the
plaintiff can show want of probable cause,8 or the publication of proceedings on an ex farte application to
a magistrate for a criminal warrant, will not be privi —
leged. The published representations of a mercantile
agent or agency, confidentially reporting the business
character and standing of merchants and others, may
be, however.4
The keeping of a mercantile agency, whose busi —
ness it is to obtain information respecting the credit
and responsibility of persons in business, and to furnish
the same to subscribers, is a lawful business; and a communication made, in good faith, to a subscriber to such
agency, is one privileged, and sanction edby the usages
of commercial communities.5 The privilege accorded
to a mercantile agency, however, will not extend to the
country correspondents of the agency,6 nor is a communication by the proprietor of a mercantile agency,' Van Wyck v. Aspinwall, 3 Smith, go.
2 Howard v. Thompson, 2I Wend. 3I9.
Cook v. Hill, 3 Sand. 341.
4 4 Seld. 452; Billings v. Russel, 8 Boston Law Rep. N. S.
699; Getting v. Foss, 3 Car. & P. I6o; Ormsby v. Douglass,.
37 N. Y. 477; Sherwood v. Gilbert, 2 Albany Law Journal,.
323; Beardsley v. Tappan, 5 Blatchf. 497; but see Taylor v.
Church, I E. D. Smith, 279.
bOrmsby v. Douglass, 37 N. Y. 477.'Sherwood v. Gilbert, 2 Albany Law Journal, 323.




CH. II.]            OF  LIBEL.                    2I1
through his clerks, to his customers and their clerks,
privileged.'
The publication of a report of a coroner's inquest,
by the coroner and a county physician, implicating the
managers of the public poorhouse; or, generally, matters presented to any person or tribunal not having
jurisdiction in the premises,3 are not privileged. But
an abusive article in a newspaper, touching a candidate for an appointment for office, is not privileged,
though such a remonstrance, addressed to the appointing power, would be.
True, it has been held that when a man becomes a
candidate for public honors, he makes profert of himself for public investigation. No one has the right,
indeed, to impute to him infamous crimes or misdemeanors; but talents and qualifications are mere matters of opinion, of which the electors are the only
judges, and it has been held that imputing weakness
of understanding to a candidate for Congress (for
instance), was not actionable.5
And to a like effect said Parsons, Ch. J.: 6 " When a
man shall consent to be a candidate for a public office,
conferred by the electors of the people, he must be
considered as putting his character in issue, so far as
may respect his fitness and qualifications for office."
But the better opinion will be that, as in every other
case, the existence of malice in the publication will be
the criterion. " Officers and candidates for office may
Beardsley v. Tappan, 5 Blatchf. 497.
3 Greene v. Telfair, 20 Barb.  I.' Hoseman v. Loveland, I9 Barb. I I I.
Hunt v. Bennett, I9 N. Y. I73; affirmed, 4 S. D. Smith,
647.
~ Mayrant v. Richardson, I Nolt. & McC. 327.
6 Commonwealth v. Clapp, 4 Mass. I63; but see Aldrich v.
Press Print. Co., 9 Min. I33; Curtis v. Mussey, 6 Gray
(Mass.), 26I.




212         LA W  OF  LITERA TURE.             [CH. II
be canvassed, but not calumniated";1 and some of the
cases went further, and held that malice would be
implied if the charge were false.2 So in a recent case,;
where it was claimed to be justifiable for an elector,
bonaade to communicate to the constituency, matter
respecting a candidate which the elector believed to be
true and material to the election, the principle was
conceded by the court to be correct, but was held
inapplicable, because the communication had not been
confined to the constituency of the plaintiff, but had
been published in a newspaper.4 Words which deter
others from voting for him of whom they were
spoken, at an election at which he is a candidate, are
actionable.5
go. The presence or absence of actual malice is
generally for the jury to determine.6 Whether or not
the occasion is privileged, and so makes the publication privileged, is, nevertheless, a question of law for
the court;' so also the intention of malice8 is often a
1 Lewis v. Few, 5 Johns. I; Harwood v. Astley, 4 Bos. &
Pul. 47; I N. R. 47; Seely v. Blair, Wright, 358, 683. See
Brewer v. Weakley, 2 Overt. 99; Root v. King, 7 Cow. 613;
affirmed, 4 Wend. II3, note; I Stark. Slan. 30I.
2 Lewis v. Few, 5 Johns. I.
Law v. Scott, 5 Har. & J. 438.
And see Cowles v. Pott, 34 L. J. 247 Q. B; George v.
Goddard, 2 F. & F. 689.' Brewer v. Weakley, 2 Overt. 99.
Liddle v. Hodges, 2 Bosw. 544; Dolloway v. Turrell, 26
Wend. 369; Cooke on Defamation, ch. iv.
7 Taylor v. Hawkins, i6 Q. B. 321; Cooke v. Wildes, 5 El.
& B1. 335; Dickson v. Earl of Wilton, I F. & F. 426; Hancock
v. Case, 2 Id. 7II; Whiteley v. Adams, I5 C. B. N. S. 392; 33
L. J, 89 C. P.' So strictly will the doctrine of malice be construed, that,
it seems, though a member of congress is not responsible out
of Congress for words spoken there, though libelous on individuals, yet, if he causes his speech to be published, he may be
punished as for a libel, by action or indictment (I Kent. Com.




CH. II.]             OF  LIBEL.                     213
conclusion of law.l  But, while it is undoubtedly a
question for the jury whether matter not trima facie
libelous, is or is not so, according to the circumstances; the law will presume that one who publishes
of another what is defamatory on its face, does so
with that malicious  intention  which constitutes a
libel.
If one use the weapon of truth wantonly, though the
occasion be a proper one, he may be guilty of libel;
but where, for example, a person consents to become
a candidate for a public office, conferred by a public
election, he must be considered as putting his character in issue so far as regards the question of his fitness
or unfitness for that particular office.  For, that offices
of public trust be well filled, is most certainly a matter
of the greatest public interest, and the publication of
truth concerning one's past character, made with the
honest intention of informing the electors, will not
be a libel. Where the communication is przima facie
privileged, the burden is on the plaintiff to prove
malice.3 But a priviliged communication made with a
knowledge of its falsity is actionable,4 and if a newsp. 236, note; Cases of Lord Abingdon and of Creevy, 3 Eq.
N. P. Cases, 228; I M. & S. 278).
1 Fryv. Bennett, i Code R., N. S. I243; 5 Sandf. 54; Root
v. Lowndes, 6 Hill, 520; Washburn v. Cook, 3 Den. I62;
Howard v. Sexton, 4 N. Y. 15I; Littlejohn v. Greeley, I3
Abb. Pr. 55; and see Hargrave v. De Breton, 4 Burr. 2425;
Bromage v. Prosser, 4 B. & C. 247; 6 Dowl. & R. 296.' Commonwealth v. Odell, 3 Pittstb. (Pa.) 449. Vida. Wilson v. Fitch, which discriminates as to who is or is not a public
officer; also, Thorn v. Blanchard, 5 Johns. 50o8; King v. Root,
4 Wend. TI3; Vanderzee v. McGregor, I2 Id. 545; Fawcett v.
Charles, I3 Id. 473; Howard v. Thompson, 21 Wend. 3I9;
O'Donaghue v. McGovern, 23 Id. 26; Washburne v. Cooke, 3
Den. IIo.
O'Donahue v. McGovern, 23 Wend. 26.
King v. Root, 4 Wend. II3.




2I4          LAW  OF  LITERATURE.             [CH. II.
paper publish falsehood and calummy, such an excuse
will not avail.'
88. The publisher of a newspaper in which a libel
appears, is primafacie presumed to have published the
libel, and this presumption is not rebutted by evidence
that he never saw the libelous matter, and was not
aware of its publication until it was pointed out to
him in print, and that an apology and retraction.were
afterwards inserted in an issue of the same newspaper.2
Nor that the article in question was copied from another newspaper merely as an article of news, and in
the form of an extract.5 But the publisher will be
allowed the fullest opportunity to rebut all presumption of malice if he can 4 —and he may plead matters
in mitigation as a partial defense.5
Commonwealth v. Odell, 3 Pitt. & C. 449.
2 Id.' McDonald v. Woodruff, 2 Dill, 244.' Wilson v. Fitch, 41 Cal. 363.' Bennett v. Matthews, 67 Barb. 4Io.
It was held by the house of lords, on appeal from the
Scotch court of session, that the publication, in a book called
" The Scottish Mercantile Society's Record" (known amongst
the trading community as the " Black List "), of a copy of the
register of protests for non-acceptance and non-payment of
bills of exchange and promissory notes, established by the
Scotch acts of I68I and I696, and the I2 Geo. 3, c. 72, and 23
Geo. 3, c. i8, was not libelous, the contents of the register
being public property, and the publication of them authorized;
and the result of the various acts of parliament being to give
the registration the effect of a decree or judgment of the court
of session, " It is equivalent," said the lord chancellor, " to
what in this country we call a judgment upon a warrant of
attorney. In neither case does the court interfere, but in both,
as in cases of judgment by default and decreet in absence, the
party having a right to the authority of the court to confirm
his claim, obtains the judgment as of course. Whether that
judgment is obtained by authority of parliament, or by the
consent of parties, or by the practice of the court, appears to
me to be immaterial. It is for all purposes a judgment of the




CH. II.3              OF  LIBEL.                     215
89. The following have been held communications
privileged by the occasion of their publication: a letter
written by a person to his mother-in-law,' giving her
advice on the subject of her proposed marriage, and
containing imputations upon the person whom she
was about to marry;2 a letter written by a tenant who
had been asked by his landlord to tell him if he saw
court until altered or reversed, and entitled to all the attributes of any judgment after the longest and most contested
litigations..... Is it, then, unlawful to state or publish the
decreet or judgment of courts of justice? If their proceedings are public, so must be the result of such proceedingsnamely, the judgment. For, although the' steps preliminary
to the judgment are not transacted in open court (the whole:being incontestible in that stage), yet the whole is supposed,to be the result of regular proceedings in court.
If, however, the publisher of such a "Black List" inserts
in it, as a still existing liability, a judgment which has been
-satisfied by payment, he is, according to a decision of the
Irish court of queen's bench (McNally v. Oldham, 8 L. T. N.
S. 604), liable to an action of libel, and, if special damage has
been caused by the publication, also to an action for a false;representation.
"He would have been justified," said Lefroy, Ch. J., "if
he had published the judgment as it stood in reality, as a
judgment annuled and satisfied; but if, instead of that-if instead of availing himself of a legal right, which none of us
mean to question, the right of publishing a judgment, a true.copy of a judgment, so long as the party does not add a sting.to it-if he adds the sting that it is an unsatisfied judgment,
this becomes an exercise of a legal right with an addition
-which makes that injurious to the plaintiff, in a way that it
-would not have been, if he represented the truth of the trans-.action.... The case in Scotland was very different from
the present one. The party there acted under an act of parliament, and what he did, he did bona fide and according to the
truth of the transaction. The very contrary has been the case
here " (Fleming v. Newton, i H. L. Cas. 363).'It is not libelous, however, to accuse a man of having
brought suit against his mother-in-law, especially if such is
the fact (Cox v. Cooper, 9 L. T. N. S. 329).
2 Todd v. Hawkins, 2 M. & Rob. 20; 8 C. & P. 88.




216          LAW   OF  LITERATURE.              [CH. II.
or heard anything respecting game, informing the
landlord that his gamekeeper sold game;  information.
given to a party asking for it, as to the respectability
of a tradesman with whom that party is about to deal;2
a letter written confidentially to persons employing a.
particular solicitor, containing charges as to his professional conduct in the management of certain matters intrusted to him by the writer, and in which the,
writer was interested;  a letter written bona fde and
confidentially to the employer of a steward, informing
him of certain supposed malpractices on the part of
the steward; 4 a character given by a master or mistress of a servant,5 or a retractation of a character formerly given;6 a letter written by a subscriber to a.
charitable institution, to the committee, reflecting on
the conduct of the secretary;7 a communication made.
by one director of a company to his co-directors,
respecting the conduct of one of its officers; 8 a com —
munication addressed by a rate-payer to a parish:
meeting, reflecting on the parish constable; 9 a letter
addressed to a bishop, informing him of a report affect —
Cockayne v. Hodgkisson, 5 C. & P. 543.
" Storey v. Challands, 8 C. & P. 234. See Bennett v. Dea —
con, 2 C. B. 628; King v. Watts, 8 C. & P. 614.
M'Dougall v. Claridge, I Camp. 267. See also Dunman.
v. Bigg, 3 Camp. 260.
4 Cleaver v. Senande, referred to by Lord Ellenborough, ICamp. 267.
5Burr. 2425; Edmondson v. Stevenson, Bull. N. P. 8;
Child v. Affleck, 9 B. & C. 403; Pattison v. Jones, 8 B. & C.
578; Fountain v. Boodle, 3 Q. B. Ii; Dixon v. Parsons, I F.
& F. 24.
Gardner v. Slade, I3 Q. B. 796; i8 L. J. 334 Q. B.' Maitland v. Bramwell, 2 F. & F. 623. See Hartwell v.
Vesey, 3 L. T. N. S. 275.
8 Harris v. Thompson, I3 C. B. 333. See Brooks v. Blan —
shard, i Cr. & M. 779; 3 Tyrw. 844.
Spencer v. Amerton, I M. & Rob. 470. See George v
Goddard, 2 F. & F. 689.




CH. II.]            OF  LIBEL.                   2I7
ing the character of an incumbent in his diocese;
bona fitce applications to the proper authorities for
redress for wrongs suffered;2 letters written by the
defendant in answer to a letter from  a friend of the
plaintiff who had been in correspondence with the
defendant on the subject of certain charges against the
plaintiff, with the sanction and concurrence of the
latter;  a memorial from an elector and inhabitant of
a borough, complaining of misconduct on the part of
a magistrate of the county in which the borough
wvas situated, although not addressed to the proper
authority.4 It is important to note here, however, that
in cases where the occasion would render privileged a
communication otherwise defamatory, the privilege
may be lost by the use of language so exaggerated as
to be clearly in excess of the occasion. But a letter
written to the secretary of state by an inhabitant of a
borough, imputing to a person holding the offices of
town-clerk and clerk to the justices of the borough,,
corruption in the latter office;5 or a letter written to
Lloyd's, by an officer in the navy, imputing to a cap —
tain of a transport-ship misconduct and incapacity in
the management of it;6 or a letter written by an
opposing creditor to a judge of the bankruptcy court,.
previous to the hearing of an insolvent's case;  or a
letter written to a newspaper by members of a town
council, charging contractors intrusted with the erec-'James v. Boston, 2 C. & Kir. 4.
2 Johnson v. Evans, 3 Esp. 32.; Woodward v. Lander, 6 C..
& P. 548.
3 Hopwood v. Thorn, 8 C. B. 293; 19 L. J. 94 C. P.
Harrison v. Bush,  E. & B. 344; 25 L. J. 28 Q. B.
Blagg v. Sturt, Io Q. B. 899; i6 L. J. 39 Q. B.
6 Harwood v. Green, 3 C. & P. I4V.' Gould v. Hulme, 3 C. & P. 625. See chapter on Contempt of Court.




2I8         LAW   OF LITERATUR.E.            [CH. II.
tion of a jail with misconduct in the performance of
-their contract;' or an advertisement in a newspaper,
addressed to the creditors of B. & Co., who had been
declared bankrupts, and containing imputations on B.
of fraudulent conduct, published by the solicitor who
had acted under the commission of bankruptcy;2 or
the publication in a newspaper, by a voter at an election, of statements reflecting on the character of one
of the candidates: will not be considered as privileged.
H' However large the privilege of electors may be," said
Lord Denman, Ch. J., in that case,3 " it is extravagant:to suppose that it can justify the publication, to all
the world, of facts injurious to a person who happens
to stand in the situation of a candidate."
A pamphlet which has bona fide for its object the
vindication of the character of the writer against'charges made by others, is undoubtedly privileged.
*Thus, where the plaintiff, a policy-holder in an insurance company, published a pamphlet accusing the
directors of fraud, the court held privileged, if the
jury should be of opinion that it was published
without malice,4 a pamphlet published in reply by the,directors, declaring the charges contained in the plaintiff's pamphlet to be false and calumnious, and also
asserting that in a suit he had instituted he had:sworn, in support of those charges, in opposition to
his own handwriting, was held of privilege, his Lordship thus directed the jury: "The law is that a publication is privileged either by the duty or the fair and
*honest interest of the party who has made it. And I.am  of opinion that the answer here was privileged,' Simpson v. Downs, I6 L. T. N. S. 39I. But vid. Harle v.
Catherall, 14 L. T. N. S. 8oi.
2 Brown v. Croome, 2 Stark. N. P. 297.
Duncombe v. Daniels, 8 C. & P. 222.
Koenig v. Ritchie, 3 F. & F. 4I3.




CH. II.]           OF LIBEL.                  219
and that the publication was privileged. If vou are
of opinion that it was bona fide for the purpose of
the defense of the company, and in order to prevent
these charges from operating to their prejudice, and
with a view to vindicate the character of the directors,
and not with a view to injure or lower the character,of the plaintiff-if you are of that opinion, and think
that the publication did not go beyond the occasion,
-then you ought to find for the defendants on the
general issue."!
Where an action of libel was brought for an advertisement, published in a newspaper, offering a
reward to any person who could give notice to the
defendant of the marriage of James Delany previous
to a certain date, there being an innuendo that the
defendant meant thereby to insinuate that J. D., the
plaintiff, had been and was married before the time
mentioned in the advertisement, and had another wife
-then living; and the defense relied upon was that the
advertisement had been i'nserted by the authority ol
the plaintiff's wife, for the purpose of making a discovery which it was important for her to know,
namely, whether the plaintiff had another wife then
living, Lord Ellenborough, Ch. J., told the jury that,
though that which is spoken or written may be injurious to the character of the party; yet, if done bonza
fide, with a view of investigating a fact in which the
party making it was interested, it was not libelous,:and, therefore, if the investigation had been set on
foot and the advertisement published by the plaintiff's
wife, either from anxiety to know  whether she was
legally the wife of the plaintiff or whether he had
another wife living when he married her, it was justifiable, though done through the medium of imputing
1 b. Vid. also Rex v. Veley, 4 F. & F. III7.




220         LA W  OF LITERATURE.           [CH. IIL
bigamy to the plaintiff.' The soundness of this law
however, was doubted by Lord Denman, Ch. J., in a
subsequent case.2  "I have great doubt," said that
learned judge, "whether the interest which the wife
had in the inquiry could justify the offering a reward
in a newspaper."
Another class of publications which would appear
to be privileged from considerations of public interest,.
if not of public policy, are newspaper comments on
matters of daily occurrence-the news of the day,,
proceedings of legislative or other deliberative bodies,,
1udicial proceedings in the courts, etc.) These will be
considered further on in the chapter on newspapers.
The law of libel, it should be remarked, is in
no sense in conflict with a liberty which, with us, is.
especially dear to the citizen, and especially guarded
and secured by our constitution-the liberty of the
press-"The law of libel is no more unfavorable to,
the press than the statute against larceny is unfriendly
to the people. One perplexes thieves, the other liars,,
but neither is a terror to honest men, and nothing
therein can militate against the principle laid down
in what Judge Kent calls the'comprehensive and.
accurate definition' of Alexander Hamilton:'the
liberty of the press consists in the right to publish,
with impunity, truth, with good motives, and for
justifiable ends, whether it respects government, magistracy, or individuals."'
The question as to how far a newspaper may
comment upon matters of public interest, which involve more or less the reputation and the rights of
individuals, will be examined in the chapter on news1 Delaney v. Jones, 4 Esp. i9I. And see Fendin v. Westlake, I Mo. & Malk. 46I.
2 Lay v. Lawson, 4 A. & E. 795.




CH. IJ.]            OF  LIBEL.                   221
papers, except as to the question of comments upon
judicial proceedings, which will be found treated of
in the chapter upon contempts of court.
A defendant will not be allowed, for purposes of
mitigating damages, or of justifying a libel, to inquire
into a plaintiff's religious opinions, even where the libel,concerns his religious creed.' Nor will he be allowed
to read, in his address to the jury, specific books and
documents, as proofs of what the doctrines of the
plaintiff's co-religionists are. These are matters of
fact and must be proved by witnesses.2
The conduct of the plaintiff in provoking the libel,
is a fit subject for the jury to take into account, in
estimating the amount of compensation for his injured
feelings.3
And evidence may be given of libels on the defendant, published by the plaintiff, respecting the same
subject-matter.  Said Mansfield, Ch. J., "If a man
is in the habit of libeling others, he complains with a
very bad grace of being libeled himself; and he cannot be supposed to suffer much injury from this
source."4  But before such publications are read, it
must be shown that they are connected with the libels
proceeding from the defendant: for it is not a proper
ground for mitigating damages that, on other occasions, the plaintiff has written libels on the defendant,
on some other matter unconnected with that which is
the subject of the action;5 and it must be proved that'Darbey v. Ouseley, i H. & N. I. But see Turnbull v.
Bird, 2 F. & F. 508.
2 Id.'Kelly v. Sherlock, 2 R. I Q. B. 686; 35 L. J. 209,
Q. B. And see note i, p. 222.
4 Finnerty v. Tipper, 2 Camp. 72.
6 May v. Brown, 3 B. & C. II3; Tarpley v. Blabey, 2 Bing.
N. C. 437; Wakeley v. Johnson, i Ry. & Moo. 422.




222          LA W   OF  LITERA TURE.           [CH. IIthey came to the defendant's knowledge before he
libelled the plaintiffl
1 Watts v. Frazer, 7 Ad. & E. 223. So, too, the provocation for the libel will be considered at the trial. Thus, where
the action was for imputing unchastity to the plaintiff's wife,.
the defendant was allowed to prove that the wife had lived
alone with an unmarried man in the same house. Reynolds
v. Tucker, 6 Ohio, N. S. 5I6; and see Bradley v. Heath, 6
Pick. I63; Shoulty v. Miller, I Carter (Ind.) 544; Knight v.
Foster, 39 N. H. 876; Regnier v. Cobot, 2 Gilman 34; Henson v. Veatch, I Blackf. 369. It was remarked on page 201,.
that undoubtedly a libel could be published by telegraph.
While these pages are going through the press, such a case(Jaffras v. McKellop. &c. Co., 4 T. & C. (N. Y.) 578) has been
reported, though it does not appear that the telegraph com —
pany was pursued as a publisher.
In England, I of 6 and 7 Vict., c. 96, enacts that "it shall
be lawful for the defendant (after notice in writing of his intention so to do, duly given to the plaintiff at the time of
filing or delivering the plea in such action) to give in evidence, in mitigation of damages, that he made or offered an
apology to the plaintiff for such defamation before the commencement of'the action, or as soon afterwards as he had an.
opportunity of doing so, in case the action shall have been
commenced before there was an opportunity of making oroffering such apology" (Shortt L. L. 568). Upon the action,
by virtue of " Fox's Libel Act " (32 Geo. 3, c. 6o), the judge
before whom a case of libel is tried, may give his opinion as.
to whether the publication is libelous (Id. 595).




CHAPTER III.
OF CONTEMPT OF COURT.
go. The original source of judicature is the peo —
ple. And courts are the distributors of the justice
of the people. In England, by theory of law, theking, and with us, the state, hears all disputes between
man and man. " But as it would be impracticable to
render complete justice to every individual by the
people sitting collectively to hear each other's disputes, they have committed that power to certain
select magistrates, who, with more ease and expedition
can hear and determine complaints,"  whence it is
that courts are appointed to be the tribunals wherein
all disagreements shall be heard and determined.
But in order to do justice, these courts must be
omnipotent. In order to protect the suppliant, they
must themselves be protected.2 If a court of justice
was merely a bench, upon which a judiciary, elected
or appointed, sat to arbitrate concerning the quarrels
of its neighbors, to say that its doings and proceedings should be sacred against criticism, and beyond
arraignment by the people, might savor of arrogance,.
and oligarchism, and smack of that oppression of the
many by the few, which it is the boast of our constitution, cannot thrive beneath the shadow of her aegis.
But under the above definition of a court, as a
B1. Corn. 267.




224         LA W  OF LITERA TURE.    [CH. III.
forum where the majesty of the state sits forever and
supreme, the whole doctrine is plain and rational,' and
consonant to the spirit of our laws. The great powerthe great physical power of the state-sits in her
courts. And all her engines of execution, from the
constable and the posse comzita1us, to her soldiers and
her army, are at their beck to enforce obedience to
their last decree. But for all this, the mightest power
which centers in courts, is a moral one. A court, to
be useful, must secure and maintain the confidence
and respect of society, and without that, the puissance of the commonwealth is vain.
91. It is for this reason that to the author and
the man of letters these courts must look for their
greatest support and co-operation. The vast power
of the writer, whether his vehicle of publication be
through the library, the bookseller, the press, the
rostrum or the stage; can readily become the greatest
and chiefest auxiliary of equity, justice, and good
order; or, with equal ease, a mighty power for their
destruction.  Law  is the  arm  of justice, and  is
the means by which justice-the end-is  to be
reached. Courts are the administrators of this means,
and to the learned and wise and far-seeing, the law
looks with confidence, that, all the more because of
their wisdom and foresight, will they be solicitous
to utter nothing that shall go to undermine her sway
or paralyze her arm-nay more, to those who guide
and mold opinion and society with their pens, she looks
not only that they refrain from lessening her authority,
but for positive and substantial aid, countenance, and
support. And when the author reflects that it is to this'The authority to punish for contempt is granted as a
necessary incident in establishing a tribunal (U. S. v. New
York, I W. & M. 40I).




CH. III.]  OF  CONTEMPT  OF  COURT.              225
law that he owes the power of following and controll-ing his own thoughts and clustered words, when-once
uttered-they pass beyond his reach, it would seem
-that to him, at least, she should not look in vain.
92. There are two sorts of contempts of a court.
The first arises when words are spoken derogatory of
its justice, its impartiality, or its organization; the
second, when its directions or decrees are disobeyed
or slighted.
It is this first sort which may arise in the form of
a literary composition, and with which we have to
deal in this chapter. For, it is to be remarked, that the
criticism of the decree of a court is not a contempt
of that decree; since, once made, it is beyond the
power of cavil and cannot be disarmed by clamor;
the theory of literary contempts being, that they interrupt the facility of the court in arriving at, and not
in enforcing, its judgments.
It is, therefore, the rule, founded in the reason of
the common law, that all contempts to the personality, or organization of a court: to its judges, juries,
officers, or ministers, when acting in the due discharge
of their respective duties, whether such contempts be
by direct obstruction, or consequentially: that is to say,
whether they be by act or writing, are punishable by
-the court itself, and may be abated instanter as
nuisances to public justice, and subject the party so
offending to fine and imprisonment.' And it belongs
exclusively to the court offended to judge of what
are contempts-and of their punishment.2
1Holt L. L. 138;             v.
37 N. H. 950.
2 No other judge or court can or ought to undertake, in a
collateral way, to question or review an adjudication of a contempt made by another collateral jurisdiction, though a superior court may undoubtedly review them, except perhaps in a




226          LA W  OF  LITERA TURE.           [CH. III..
93. The law of contempt might at first appear
to be contrary to the spirit of the common law.
Personal liberty, by the law of England, was con —
sidered a strictly natural right, not to be abridged but
in the exercise of the greatest possible caution, nor at
the mere discretion of a magistrate.' This case, however, appears to be without that provision, since it
seems that, in a proceeding for contempt, the party
accused is not entitled to a trial by jury.2
Says Dr. Dwight,3 " The power to punish for contempts is undefined, and its exercise depends on the
discretion of the court or judge. It is lodged in the
hands of one who may suppose himself to have been
insulted, or, in other words, with the person aggrieved.
It is exercised without the ordinary checks or safe-.
guards attending criminal trials. The proceeding is
inquisitorial, and the accused is compelled. to answeragainst himself. The decision of the committing
judge is without appeal. The only supervision. that
an appellate court can exercise, is to, see that the
forms of the law have been observed; as, for instance,
that the person charged with contempt has had a
hearing, and that the offense is stated in the orderof commitment.  Whether the acts were, in fact, a.
contempt of court, is finally decided by the court or
judge before whom, in the first instance, the case is
presented, and the punishment may be by fine and
matter arising on habeas corpus. Via. 3 Wils. I88; I4 East. I;
2 Bay. So. C. i82; I Ill. 266; J. J. Marsh. (Ky.) 575; i Blackf..
(Ind.) i66; 2 U. P. Charlt. (Ga.) I36; I4 Ark. 538, 544; 2Ind. i6i; 6 Johns. (N. Y.) 337; 9 Id. 395; 6 Wheat. 204; 7
Id. 38.
Mag. Chart. c. 29.
2 Neel v. State, 4 Eng. 259.'Paper prepared in the case of the Code Amendments,.
I87I.




CH. III.]  OF  CONITEMPT  OF  COURT.              227
imprisonment, or both." But the earlier and modern
authorities hold the power to exist by the reason of
the common law, and as vital to the very existence
of courts.
94. The power to imprison for contempt of court
is traced by Blackstone to Magna Charta itself.
The Magna Charta bears date June I5th, 1215,
which was the seventeenth year of the reign of King
John. The first enactment upon the subject of contempt was the statute of Westminster,' or seventy
years afterward; the statute, however, having reference
only to contempts in resisting the process of the
King's courts, or, as Blackstone entitles them, to consequential contempts alone.2 From this statute one
writers derives the present doctrine of contempts, consequential or otherwise.
95. The power of courts to imprison for contempt
is declared both by our own and by English writers.
It has been repeatedly asserted in the English courts
(and those decisions followed in the courts of this
country), as of immemorial usage and practice, since
the law itself was known.  It is claimed to be a
vitally essential attribute and consequence of the administration of the law itself, without which it dies;
since it is, thereupon, impotent to command respect
or obedience to its own decrees.4 It is held to have
arisen from the very nature and necessity of things,'4 Com. 237.
2 " If, then, the power to punish this class of consequential
contempts constituted a part of'the law of the land' so long
anterior to the date of Magna Charta as to have become, at
that early day, a very maxim of law, where was the necessity
for legislation upon the subject?" (per Thacher v. Ex parte
Hickey, I2 Miss. 75I).
Gilb. Hist. C. P. C. 3.
Exparte Hickey, I2 Ark. 75I.




228         LAW  OF  LITERA TURE.    [CH. III.
coeval with the period when the administration of
the law, by means of courts and legal tribunals, was
established. It is in this point of view that it is insisted by Blackstonel to have been confirmed by the
statute of Magna Charta, when it enacted that "no
freeman shall be imprisoned and condemned but by
the judgment of his peers or by the law of the land."
"In this country," said Dade, J.,2 "we know no
privileges but such as exist for the public good. Many
such privileges we have-from those which appertain
to the legislature itself, even down to such as belong
to the lowest executive officer. Those which surround the administration of justice are of the same
order. Courts, their officers and process, are shielded
from invasion and insult-not from any imaginary
sanctity in the institutions themselves, or the persons
of those who compose them, but solely for the purpose of giving them due weight and authority, and to
enable those who administer them to discharge their
functions with impartiality, fidelity, and effect. This
is the true test of every privilege not granted by
statute, and is the spirit of every one (not merely private) which is so secured. The political character of
the judiciary, and the tendency of the duties which are
devolved upon it, render it necessary to invest it with
a considerable share of these privileges. It is confessedly the weakest branch of all governments, wielding neither wealth, force, nor patronage. Its duties
consist in adjusting and settling the contested rights
of individuals; in controlling their turbulence, and
punishing their crimes. These duties are often of a
severe and rigorous character, and as they are generally
4 Com. 237; Commonwealth v. Dandridge, Virginia Gas.
409.
2 Commonwealth v. Dandridge, Virginia Cas. 409.




CH. III.]  OF  CONTEMPT  OF  COURT.            229
to be discharged in almost immediate contact with
those on whom they act, their exercise will frequently
elicit the angry passions, or excite unworthy and
sinister attempts to bias or avert their operation; and
where there is little real power, and no patronage, a
certain degree of external dignity may have been considered necessary to supersede a too frequent resort to
the actual powers of the courts."
Said Scott, J.:' "The doctrine of contempts, and
of attachments for contempts, as it existed at common
law, and has been recognized by some of the ablest
American jurists, extends not only to acts which
directly and openly insult or resist the power of the
court or the persons of the judges, but to consequential, indirect, and constructive contempts, which
obstruct the process, degrade the authority, or contaminate the purity of the court; and every case of
authority seen in the books will be found to proceed
upon the idea, either remote or proximate, of disrespect
to the court or the judges, in reference to their official
character or conduct, or of matter in derogation of the
dignity of the court, or are referable to that power of
self-protection, which, we have remarked, is necessarily
inherent in judicial institutions.
" Although these doctrines of the common law had
their origin in an idea totally unrecognized and without place in this country, and preserved, even in England, only by a fiction of law, still, in our own free
government, it has always been admitted that, to a
greater or less degree, they must have place, and they
have rested, with us, on an idea not totally dissimilar
to that original one. Anciently, in England, it is
known that the king, in person, presided in his courts
of justice, and sat, himself, in judgment; and the' Neel v. State, 9 Eng. (Ark.) 259.




230         LA W  OF  LITERA TURE.    [CH. III.
insult, resistance, or contamination, was to majesty
itself, that held sway in divine right. In our day we
refer it to the majesty of the law."
96. It has never been contended in this country
that the common law, although it is our birthright,'
and in force among us without express recognition by
our constitution and laws, was ever actually in force in
all its length and breadth, but only to an extent that
was not wholly inconsistent with those great principles upon which our free institutions, purely American,
have been reared and maintained. So these doctrines
which we are considering, in being recognized by the
courts, must be regarded as having received a corresponding abatement of those of its lineaments which
are at open war with the nature and character of
our constitution, and the actual state of things among
us, under its legitimate operation, or it would be an
exotic that could not germinate in our soil.2
" Contempt of court," says Blackstone, " may also,
it appears, be committed by insult to a judge out of
court; that contempts thus punished are either direct,
which openly insult or resist the powers of the court,
or the persons of the judges who preside, and elsewhere."a In enumerating the contempts which degrade the judicial authority, he refers to one which
consists in " speaking or writing contemptuously of
the courts, or judges in their official capacity."
"It is obvious," said the learned judge above
1The common law of England is not the common law of
the United States (Van Ness v. Pacard, 2 Pet. I44). There is
no common law of the United States. The constitution and
laws of the Union prevail as the authority of law throughout
the Union; but each independent state may have its own
common law, which may not be considered so in another
(Wheaton v. Peters, 8 Pet. 658; Exparte Hickey, 2 Miss. 75I).
4 Coin. 238.                        Id. 285.




Cir. III.]  OF  CONTEMPT  OF  COURT.             23 I
quoted, " that, in these two clauses, the word'judges'
is not used by the writer for the mere purpose of
illustrating his meaning in the use of the word'court;' for, besides the consideration that this view
is not sustained by the context, such an explanation
of his meaning is so altogether futile and useless, after
his luminous exposition of the courts in his third volume, as not to be attributed to a writer so able and
perspicuous. On the contrary, it was evidently h's
purpose in the first clause, to take the distinction between a disrespect of the constitutional powers of the
court and a personal disrespect of the judges therein
sitting; and in the second, between a contempt of the
judges while actually holding a court, and a contempt
*of the same persons while in discharge of judicial duties appertaining to their official character, though not
performed in court. The opposite construction would
produce a complete identification of the judges with
the court, so as to make a contempt, of the one or the
other, perfectly convertible. From which may be deduced the clear privilege of the persons of the judges
-in or out of court, when acting in their judicial capacity; not because of any imaginary sanctity of their
persons, nor because that an indignity to their persons
when so engaged obstructs the course of justice, for it
might sometimes be of such a character as not to have
that effect (and besides, in that aspect, it is always:referable to another head of contempts; that is, for
obstructing the powers of the court), but because, to
use the words of Blackstone,' it demonstrates a gross
want of that respect which, when once the courts of
justice are deprived of, their authority (so necessary
for the good of the kingdom) is entirely lost among
the people.'"
Neel v. State, 9 Eng. (Ark.) 259.




232        LA W  OF LITERATURE.    [CH. III,
Nor, to produce this effect, is it of any importance
whether the contumely be used in open court, at the
moment when the occasion occurs, or the moment
afterward, when the sheriff has proclaimed the adjournment. The only real question in either case is,,
whether it is the official conduct for which the judge:
is challenged and insulted. Nor can a reason be offered
for the protection of the person of the judge in court,
that will not equally apply to a protection out of court:
on the same account, in view of the remark we have
already made, that whenever the indignity in open
court would have the effect to interrupt its business,
the attachment would be referable to the head of obstructing the powers of the court.
An ideal, imaginary being, without form, substance,.
or locality, needs no protection from penal sanctions..
A court separate from the persons who compose it, is,
of this description. A sensible writer has said that
the terms " nation, state, community, are words only;
they do not denote anything separate from the individual members whose aggregation and association
have received these names," and the like may be:
affirmed of a court of justice.'
97. In ex parse Hickey,2 Mr. Justice Thatcher
ably expressed himself on this branch of the subject
as follows: " What is a contempt of court? Besides
the various classes of contempts which were known
to the common law of England and particularly described; besides those relations to officers and others.
connected with the courts, concerning which the lawis plain and explicit, there are many which are claimed
to lie exclusively within the discretion of courts. The
belief in the existence of such, is alone in the breast
4 B1. Com. 286.
2 I2 Miss. (Sm. & Mar.) 75I.




Cu. III.]  OF  CONTEMVPT  OF  COURT.           233.
of the court. They may be construed to spring from,
a gesture, a word or a look."
98. "Thus, the court is constituted the judge of
his own privileges, and the vindicator of his own
wrongs, whether real or supposed, and his jurisdiction in this particular, is without measure. The offense
is without specification and without definition; and,
though, legally viewed, it is said to refer solely to the
functionary, it necessarily touches and stimulates the
individual who finds it hard to separate himself from
the office and station. It may thus become an offense
of opinion, of feeling, or of prejudice. An offense
which has no other legislation than the imperfections
of human nature, blinded and misled by the circumstances of the moment, notions of caprice, and the
improper bias of passion, or by those powerful, but
imperceptible influences from which the most upright and enlightened minds cannot be considered or
trusted to be wholly exempt."
99. " The power of punishing may be extended
to a degree despotic, and, as it is extended in a judicial capacity, it is irresponsible, and may therefore be
used, regardless of consequences. Under such a state
of things, liberty and property may become precarious, and there is no protection against expression.
The rights and privileges which our constitution has
retained and reserved to its citizens, may thus be despotically abridged or wholly refused, and their remedy, by due course of law,'denied' or, at least,'delayed,' until vindicated and restored by the slow
process of the proverbially sluggish channels of jurisprudence."
" Many cases of the infringement of constitutional
rights could be conceived and enlarged upon, to illus —
trate in strong relief this position, but the mere ad




-234        LAW  OF LITERATURE.    [CH. III
mission of the principle of entire and complete power
-without responsibility-to adjudicate for the time
being, upon those rights and privileges, will suggest
them to all freemen who are acquainted with, and jealous of what of right belongs to them as their inheritance under our form of government. It is a legal
motto, full of meaning, and not too strong in expression which declares that,'Mlzs'era esl servitzs, ubi lex
est vcaga aut incerta.' And certainly in no code of
laws can one be pointed out more obnoxious to this
reproach, than that of a supposed offense which finds
its enactment, its tribunal, and its punishment in one
and the same source."
Ioo. The learned judge, however, does not hesitate to admit that the power, or rather, the potentiality of the court to exercise the discretion is the most
potent engine of the authority and usefulness of,courts, and, when soberly and judiciously administered,
to the greatest interest of the public good; and he
concludes, by denying that the fact that it is capable
of abuse should constitute a reason for its abrogation,
as follows:
ioI. "The shield which our constitution throws
around the press has been held up to interpose before
-the power of courts to punish for contempts. The
most dearly prized offspring of our national liberty
is the freedom  of the press. It is so because it
can be made its most effectual protection at home,
and because it can be employed as the apostle of
-those liberties, to millions abroad. The worst enemy
to freedom is ignorance. Instruct men in a knowl-,edge of their rights, and a vindication of those rights
follows as surely as light follows the rising sun. Yet
the freedom of the press is abused to base and unaworthy purposes.  Such, indeed, as sad experience




CH. III.]  OF  CONTEMPT  OF  COURT.            235
teaches, is often the melancholy fate of the greatest
blessings that a wise providence has bestowed
upon us, or that human skill has invented.  The
free air we breathe is essential to our existence,
but when infected with pestilential matter it becomes the most terrible weapon of death.   But
who would argue, because disease may float in the
atmosphere, that that atmosphere should be destroyed? 
It is not within the scope of the present chapter
to essay a full discussion of the law of contempt; it
being only where such contempt is committed by the
pen that it enters into our inquiry.
Contempts by the pen arise mainly in the publi-,cation of language or statements which impair the
authority of courts, or their usefulness in the course
of their administration or legitimate scrutiny.
The questions of contempt of courts, and what:are privileged communications by written or printed
matter, are in many cases difficult of separation. It
has been attempted, however, to treat the latter question according to the three classes under which all
communications group themselves. Such communications, when reflecting upon individuals, we have examined in the chapter on Libel; when published in
newspapers exclusively, we have treated them, as far
as possible, in the chapter on Newspapers, while in the
present chapter we have striven to confine ourselves
strictly to its title.
I02. The common law defined three classes of
contempts of court, namely: Those which scandalize
the court itself; those which calumniate, villify, or
ridicule the parties concerned in causes before the
court; and those which prejudice the public before
12 Miss. (Sm. & Mar.) 781.




236         LAW  OF LITERATURE.    [CH. IIIL
the cause is heard, or the cause itself before the court.
The disregard of the process of a court is also a contempt thereof.  And any literary or artistic work,
writing, manuscript, letter, book, magazine, or newspaper article, picture, or caricature, which, in intention
or effect, would do either of the above, will bring itself under the charge of obstructing the course of
justice by corrupting its sources and its channels,
and incur the penalties attached to a contempt of
court.
103. Contempts of court, by written matter, can
arise in at least four different ways:-JI. By a statement reflecting upon any officer of a court while in
session, providing such reflection interfere, or have a
tendency to interfere, with his duty as an officer of the
court in discharge of the legitimate duty of the court.
II. By a disrespect shown to the court itself.  III. By
such comments upon the proceedings of the court as
will tend to weaken the confidence of the people in
their courts; impair its usefulness or its impartiality
or as will tend to produce a prejudgment of a
case undergoing investigation before it; and-IV. By
unauthorized reports of the proceedings of the courts.
As will be seen in treating of the first of these sorts,
a libel upon an individual-under any of the definitions given in the chapter on libel-will not lose its
libelous character, and become contempt of court,
merely because that individual is employed as an officer of a court. The latter's remedy will still be for a
libel.  If, however, the circumstances of the attack
upon the individual cannot be separated from the circumstances of his employment, the attack will constitute contempt of court, and the remedy proceed out
of the court upon its own motion.
Io4. "Not only contempts in the face of a court




CH. III.]  OF  CONTEMPT  OF  COURT.            237:of record," says Dr. Dwight,' speaking of the old
common-law doctrines upon the subject, " but alleged
libels published out of court, upon the administration
of justice, might be regarded either as direct offenses
against the king's peace, in which case they would be
tried by jury, or they might be considered as attacks
on the dignity of the court, when they would be
regarded as contempts.  In the one view, the alleged
delinquent had the protection of twelve of his fellowcitizens, and of regular modes of trial, and could only
be convicted upon the evidence of witnesses; in the
other, the matter was examined by the court, and perhaps by a single judge, who considered himself to have
been insulted. The proceeding was summary, and
without the usual safeguards. The accused could be
required to answer interrogatories of the most searching character. The judge could put his own interpretation on the words used, and the skill of a man of
thorough training in the use of language might be
employed to attach a meaning to words which was
possible and plausible, though not ordinary and natural.  Charges which could never be substantiated
before a jury, might meet with swift condemnation
and punishment at the hands of an offended magis-trate. The matter of criminal contempts is left in a
very undefined condition at the common law. Blackstone classifies the cases under seven general heads,
-the last of which is, for the present purpose, the most
important.'Contempts,' he says,'may arise in the
face of the  court, as by rude and contumelious
behavior; by obstinacy, perverseness, and prevarication; by breach or the peace, or any willful disturbSee a paper prepared upon the occasion of the passage of
the celebrated Contempt of Court Amendments to the Code
of Procedure of the State of New York, I87I.




238         LAW   OF LITERATURE.    [CH. III
ance whatever;.... by speaking or writing contemptuously of the court or judges, acting in theirjudicial capacity; by printing false accounts, or even
true ones, without proper permission, of causes then
depending in judgment; and by anything, in short,.
that demonstrates a gross want of that regard and
respect which, when once courts of justice are deprived
of their authority, is entirely lost among the people.'"
IO5. I. As to contempts of court by defamatory
statements concerning an officer of a court in session,,
it is the theory of the law that officers of a court in
session are ministers of the justice of the state.
The offense of contempt of court is, therefore, not.
an offense against the particular officer whose person
or whose edict happens to be ignored or disobeyed,
but against the state.
II. In speaking of contempts of court by a libel of
the judge, Scott, J., said:1 " When, therefore, the common law deemed it so necessary, for this great purpose
(zie., the public good), to protect the juror, the witness,,
the informer, the party, the jailor, the attorney, and
other persons, many of whom might never again be
called into a court of justice, it was not to be expected that it would fail to cover, with its complete
armor, the presiding minister of the law's majesty,.
who would be so often exposed to similar trials."
"Not that any higher personal privileges were
arrogated to him than to the humblest of these, but.
because it was obvious that the principle which suggested the protection of these would be powerless if it
did not also protect him, since the majesty of the lawmight be more degraded in the person of a higher
than of a lower officer intrusted with its administration."
1 Neel v. State, 9 Eng. (Ark.) 268.




CH. III.]  OF  CONTEMPT  OF  COURT:.             239
" To the same source are to be traced the numerous
cases that have settled the doctrine that a judge act —
ing within the scope of his jurisdiction shall not be
called to answer for his judgment, except by impeachment, however erroneous, malicious, or even corrupt it
may have been. But while the aegis of the law is so
thrown over the judge, it finds no pleasure in him
when he proves recreant to the high trust reposed in
him; for, in the language of one of its oracles,'' If a
judge will so far forget the honor and dignity of his
post as to turn solicitor in a cause which he is to
judge, and privately and extrajudicially tamper with
witnesses, or labor jurors, he hath no reason to,
complain if he be dealt with according to the capacity
to which he so basely degrades himself;' nor does it
animadvert upon his outdoor affairs more than upon
those of other citizens, unless these are forced upon
him on account of his judicial functions."
When, therefore, attachments were sent out for the
various kinds of contempts which are summed up by
Blackstone,2 as " demonstrating a gross want of that
regard and respect, which, when once courts of justice
are deprived of their authority (so necessary for the
good order of the kingdom) is entirely lost amongthe people;" they were not issued upon the idea that
the abstract ideal, invisible judicial institution known
as a court, had been injured; or because the efficacy
of their process, rule, order, or writ, was impaired by
such contumely, but because the public good, as connected with the preservation, in its purity, of the ju-t
dicial institution required them, and that the authority
and dignity of the officers in whom this ideal, invisible being called a court, is realized and Dersonified
1Sergeant Hawkins.
2 4 B1. Com. 286.




240         LA F  OF  LI.TERA TURE.    [CH. III.
was sunk and degraded. And that the impurity of
such conduct would deprive these institutions of the
aid of public opinion in carrying into effect their ordinances, and render a resort to force in all cases necessary, and thus avert a state of things in which it is
not probable that any judicial system could long
exist." 1
Chief Justice Wilmot2 in discussing the objections to a proceeding to commit for contempt for a
libelous attack upon a justice, namely, that it is an invasion upon the ancient simplicity of the law; that it
took its rise from the Statute of Westminster (ch. 2),
that that act applies only to persons resisting process;
and that-while proper to remove obstructions to the
execution of process, or to any contumelious treatment of it, or to any contempt of the authority of the
court papers reflecting merely upon the qualities of
judges themselves are not proper objects of an attachment; that judges have proper remedies to recover
a satisfaction for such reflections by actions of scazdzalm magnaluz; and that in the case of a peer, the
House of Lords may be applied to for a breach of
privilege; that such libelers may be brought to punishment by indictment or information; that there are
but few instances of this sort of libels on courts or
judges; that libels of this kind have been prosecuted
by actions and indictments; and that, should attach9 Eng. (Ark.) 268.
2 In an elaborate judgment, prepared, and intended to be
delivered in the case of an application in 1765 by the attorney-general for attachment against J. Almon, for publishing a pamphlet entitled "A Letter concerning Libels, Warrants, Seizure of Papers, &c.," containing many libelous passages upon the court of king's bench, and the chief justice,
charging the court, and particularly the chief justice, with
having introduced a proceeding to deprive the subject of the
benefit of the Habeas Corpus Act.




CH. III.]  OF CONTEMPT  OF COURT.            24I
ments be extended to libels of this nature, judges
would be determining their own wrongs, &c., and denies that attachments derived their origin from the
Statute of Westminster (ch. 2). "The power which
the courts in Westminster Hall have of vindicating
their own authority," he says, is " coeval with their
first foundation and institution; it is a necessary incident to every court of justice, whether of record or
not, to fine and imprisonment for a contempt to the
court acted in the face of it. And the issuing of attachments by the supreme courts of justice in W~estminster Hall for contempts out of court, stands upon
the same immemorial usage as supports the whole
fabric of the common law: it is as much the lex
ierr,, and within the exception of Magna Charta
as the issuing any other legal process whatsoever."
To the objection that there is not such necessity
for summary punishment, in the case of libels upon
courts or judges, as in the case of resistance of process, his Lordship said: "When the nature of the
offense of libeling judges for what they do in their
judicial capacity, either in court or out of court,
comes to be considered, it does, in my opinion, become more proper for an attachment than any other
case whatsoever.....The arraignment of the justice of
the judges is arraigning the king's justice; it is an impeachment of his wisdom and goodness in the choice
of his judges, and excites in the minds of the people
a general dissatisfaction with all judicial determinations, and indisposes their minds to obey them; and
-whenever men's allegiance to the law is so fundamentally shaken, it is the most fatal and most dangerous obstruction of justice, and, in my opinion, calls
out for a more rapid and immediate redress than any
16




242         LA W  OF LITERATURE.    [C1i. III.
other obstruction whatsoever; not for the sake of the
judges as private individuals, but because they are
the channels by which the king's justice is conveyed
to the people. To be impartial, and to be universally
thought so, are both absolutely necessary for the
giving justice that free, open, and uninterrupted current which ic has for many ages found all over this.
kingdom, and which so eminently distinguishes and
exalts it above all nations upon the earth."
"The  constitution has provided very apt and
proper remedies for correcting and rectifying the involuntary mistakes of judges, and for punishing and
removing them for any voluntary perversions of justice..
But if their authority is to be trampled upon by pamphleteers and news-writers, and the people are to be
told that the power given to the judges for their protection is prostituted to their destruction, the court
may retain its power some little time, but I am sure it
will instantly lose all its authority. The power of the
court will not long survive the authority of it."
As to whether a judge making an order at his
house or chambers is not acting in his. judicial capacity as a judge of the court, and both his person and
character under the same protection as if he were
sitting in court: "It is conceded," he says, " that an act
of violence upon his person when he was making such
an order would be a contempt punishable by attachment: upon what principle? for striking a judge in
walking along the streets would not be a contempt
of the court. The reason, therefore, must be, that he
is in the exercise of his office, and discharging the
function of a judge of this court; and if his person
is under this protection, why should not his character
be under the same protection? It is not for the sakeof the individual, but for the sake of the public, that




CH. III.]  OF  CONTE~~MPT  OF  CO'URT.         243
his person is under such protection; and in respect
of the public, the imputing corruption and the perversion of justice to him, in an order made by him at
his chambers, is attended with much more mischievous consequences than a blow; and, therefore, the
reason of proceeding in this summary manner applies
with equal, if not superior, force to one case as well
as the other. There is no greater obstruction to the
execution of justice from the striking a judge, than
from the abusing him, because his order lies open to
be enforced or discharged, whether the judge is struck
or abused for making it or not. It may, perhaps, merit a
less punishment to libel a single judge in court or
out of court, than to libel the whole court; but the
question of the offense does not vary the mode oi
prosecuting it; it is an offense ejusdem genzeris, although  izferioris gradus,; and I cannot explore a
single reason which can be urged to cover the judges
in court against calumny and detraction for what
they do there, which does not hold equally true,
though in a less degree, when applied to what they
do in their judicial capacities out of court."
0o6. III. Any publication pending a suit, reflecting
upon the court, the jury, the parties, the officers of the
court, or the counsel, with reference to the suit, or
tending to influence the decision of the controversy, is a contempt of court, and punishable by
attachment.'
A slur or innuendo cast upon a court by means of
written matter, will be contemptuous.2 Thus, where an
attorney wrote on the court docket, opposite the
entry of a cause in which he was engaged, the words
following:
1 Hollingsworth v. Duane, Wallace R. 77.
2 People v. Freer, I Caines, 485, 5i8; Bayard v. Passmore,




244         LA W  OF  LITERATURE.    [CH. III.
" Having become satisfied that we cannot get the
law administered, by direction of the plaintiff I hereby
dismiss this action, without prejudice to the plaintiff.
"Jos. SMITH,
"March 6th, I867."                For Plaintiff.
It was held that the foreign and unnecessary matter,
introduced into the order dismissing the suit, could
only be regarded as a direct reflection on the integrity
of the court. So in the matter of the high sheriff of
Surrey,' where a judge of assize ordered part of the
court to be cleared on account of the noise made by
the persons assembled there, and the high sheriff of
the county caused a placard, signed by him, to be
posted up in the town opposite the court, in which he
recorded his protest against "this unlawful proceeding" of the learned judge, and said, "I have given
directions that the court shall be opened again to the
public according to the custom and the law. All persons, so long as they conduct themselves with decorum, have a lawful right to be present in court; and I
hereby prohibit my officers from aiding and abetting
any attempt to bar out the public from free access
to the court": it was held to be a contempt of
court.
Threatening letters written to persons concerned
in a trial, either as judge, parties, witnesses, solicitors,
or jurymen, are alike contemptuous of the court, and
there is no difference in the degree of the crime,
whether it be to the officer or the person summoned.
3 Yeates, 439; Morrison v. Moor, 3 Edw. Ch. 25. In Passmore's Case, the matter was written with chalk on a blackboard.
2 F. & F. 237.
2Smith v. Lakeman, 26 L. J. 305, ch. -; Shaw v. Shaw,
3i L.J. Prob. 35; 6L.T.N.S. 477; 2 S. &T. 515; re Mulock, 33 L. J. Prob. 205; io Jur. N. S. II88.




CH. III.]  OF  CONVTEMPT  OF  COURT.              245
I07. And so any one sitting in the place or stead
of a judge, will likewise be entitled to protection.
Where a barrister and member of parliament who
wrote a letter in threatening and insulting terms to a
master in chancery, before whom he had appeared in
support of a petition presented by himself and others,
the tendency of the letter being to induce the master
to alter the opinion he was supposed to have formed
upon the case, he was committed by the Lord
Chancellor (Cottenham) to the Fleet during pleasure. His lordship saying: "the power of committal
is given to courts of justice for the purpose of securing the better and more secure administration of justice. Every writing, letter, or publication which has
for its object to divert the course of justice is a contempt of the court. It would be strange, indeed, if
the judges of the court were the only persons not
protected from libels, writings, and proceedings, the
direct object of which is to pervert the cause of justice. Every insult offered to a judge in the exercise
of the duties of his office is a contempt; but when
the writing or publication proceeds further, and whennot by inference, but by plain and direct language-a
threat is used, the object of which is to induce a judicial officer to depart from the course of his judicial
duty, and to adopt a course he would not otherwise
pursue, it is a contempt of the very highest order."'
Mr. Lechmere Charlton's Case, 2 My. & Cr. 3I6.
Lord Abinger, C.B., and Alderson, B., seem to have taken
a different view of the mode of dealing with insulting letters
addressed to a judge, touching a matter under consideration.
"I can only say," said Lord Abinger,' that if I received such
a letter I should not consider myself at liberty to commit the
writer." To which Alderson, B., added: "There would be a
great many committals if such a course were pursued by the
judges." "Do you mean to say," asked Lord Abinger of
counsel, " that one of the judges has the power to fine a man




.46          LAW  OF  LITERATURE.            [CH. III.
"The principle upon which attachments issue for
libels upon courts," said Wilmot, J., " is of a more enlarged and important nature (than that upon which
attachments are granted in certain other cases) —
it is to keep a blaze of glory around them, and
to deter people from attempting to render them
contemptible in the eyes of the public." The law
cannot be understood as a respecter of persons, but
she will very zealously respect her own instruments.
o08. As to matters disrespectful to the court:
It has been very recently held to be a contempt of
court for counsel in a case to hand up to the court a
written paper protesting against his hearing a certain
case on the ground of his personal prejudice against
the prisoner.  And we think  that the  ruling is
grounded in good sense. The statutes of the various
states appear to enumerate the cases in which a judge
shall be disqualified from sitting; but it does not
appear to be just that counsel should be at liberty to
conclude, from their own opinions, or from hearsay, or
from matters not upon the record, that a certain judge
is unfitted to preside at a trial. Though possibly the
distinction might arise just here: that it would not be
contemptuous for counsel to object to the judge's
sitting, in the course of their argument, if they believed
it for their client's interest so to do; but only when
they went so far-upon such objection being overruled or ignored-to write out a paper in the form of
a protest, and hand it to the judge, personally, upon
the bench.'
for sending him a silly letter, or an impudent letter about any
matter that he has decided? I can only say I should be very
much afraid of exercising it" (See Rex v. Faulkner, 2 Mont.
& Ayr. 32I, 322).
People v. Tweed, Matter of Contempt, N. Y. S. C. I874.




ICH. III.]  OF  CONTEMPT  OF  COURT.             247
So, again, to write a letter to a judge, before
whom a proceeding is depending, attempting to
influence his decision therein;' or to the foreman of a
grand jury which has before it the case of one accused
of an indictable offense.2
Where a barrister and attorney, not in his professional capacity, but in his private capacity as a
suitor, in respect of a supposed grievance and injury
done him as a suitor, wrote a letter to the chief justice
of Nova Scotia, reflecting on the judges and the administration of justice generally in the court, the privy,council held that an order suspending the writer from
practicing in the court was not an appropriate punishment for the offense, and on that ground advised her
Majesty to discharge the order.3
"The letter," said Lord Westbury, in delivering
the judgment of the privy council in that case, " was a
contempt of court, which it was hardly possible for
the court to omit taking cognizance of. It was an
offense, however, committed by an individual in his,capacity of a suitor in respect of his supposed rights.as a suitor, and of an imaginary injury done to him as a
suitor, and it had no connection whatever with his
professional character, or anything done by him professionally either as an advocate or an attorney. It
was a contempt of court committed by an individual:in his personal character only. To offenses of that
kind there has been attached by law and by long practice a definite kind of punishment, viz., fine and imprisonment. It must not, however, be supposed that
1 Ex parte McGill, 2 Fowl. 474; Eagleton v. Duchess of
Kingston, 8 Ves. 467; Gould v. Hulme, 3 C. & P. 625.
Bergh's Case, Abb. Pr. N. S. Seepost, this chapter.
-Re Wallace, L. R. I P. C. App. 283; I4 L. T. N. S. 286;
36 L. J. 9 P. C. C.; I4 W. R. 609. See also re Downie, 3
IMoore's P. C. C. 4I4.




248          LAW   OF  LITERA TURE.    [CH. IIIa court of justice has not the power to remove the
officers of the court, if unfit to be intrusted with a professional status and character. If an advocate, for example, were found guilty of crime, there is no doubt
that the court would suspend him. If an attorney
be found guilty of moral delinquency in his private
character, there is no doubt that he may be struck off
the roll. But in this particular case there is no,
de/ictlum  brought forward or assigned; except that
which results from the fact of addressing an improperand contemptuous letter to the chief justice of the
court, in respect of something supposed to have been
done, unjustly to the writer, in his private capacity as a
suitor. We think, therefore, there was no necessity
for the judges to go further than to award to that.
offense the customary punishment for contempt of
court."
An attorney of the king's bench, in the reigi of
Edward III., was committed for having written ax
letter to one of the king's council, reflecting on the
judges, saying: " That neither Sir William Scot, chief
justice, nor his fellows the king's justices, nor theirclerks, any great thing would do by the commandment of our lord the king, nor of Queen Philippa, inthat place more than of any other of the realm."'
The writer of a letter to Lord Hardwicke relative
to a threatened suit, and inclosing a bank-note, was
held guilty of contempt;2 and so was the writer of aletter to Chief Baron Parker, making mention of a
13 Inst. I74.
2Macgill's Case, 2 Fowl. Ex. Prac. 404. And in i8-,
Judge Barnard, of the New York supreme court, read from
the bench a letter he had received from General Santa Anna,.
relating to a case in which the latter was a litigant, and which
was about to be tried before him. " I will show the general,'"
said Judge Barnard, "that this is not a Mexican court."




Ca. III.]  OF CONTEMPT  OF  COURT.            249
cause depending in the court of exchequer, and containing a scandalous offer to his lordship.
I 09. Where the offensive matter is directed to
the judge upon the bench, the question whether it
will constitute libel or contempt, will depend upon
whether the charges published affect the judge's personal character or reputation as a man, or his record,
character, and reputation for fairness, and general
ability and reliability as a judge.
Thus, in Rex v. Almon,' the publisher of the letters of Junius was arraigned for contempt of court
for comments upon Lord Mansfield; but the prosecution was ultimately abandoned, and the defendant proceeded against for libel.
So, in Neel v. State,2 where one James P. Neel, an
attorney, affixed to a judge's door a writing to the
effect that " Sebron G. Sneed (the judge's name) is a
dam'd base and corrupt man," it was held that the
words were published of the judge as a man, and not
as a judge, and were not, therefore, contempt of court.
This distinction has been carried to great lengths.
In the Matter of Hickey,3 for example, a scandalous
charge against a member of a court, connected with a
cause pending at the time the charge was made, was.
held to constitute, not contempt, but libel.
In that case the circuit court was engaged in
trying an indictment for murder, when an article appeared in the defendant's newspaper, charging the
judge upon the bench with being a criminal abettor
of the murder.
In a proceeding to commit the defendant for contempt-held, that the publication was a libel, and not
5 Burr. 2686; Bishop on Criminal Law, ~ 216.
2 4 Eng.(Ark.) 259.
I2 Miss. (4 Sou. & Mar.) 75I.




250          LAW   OF  LITERSATURE.           [CH. III.
a contempt. But, with all deference to the learned
judge's opinion, we can hardly accept this decision as
satisfactory. It seems to us that this charge would
come under all of the definitions of contempt that
have been given.  It is an attack upon an officer of
the court, since it charges him with a criminal interest
in the case in court before him. It is a disrespect to
him. It tends to impair public confidence in the
court, and its usefulness in investigating truth. And
surely such a charge against the character of the
presiding judge must be held to "scandalize the court
itself."   That the charge was libelous, indeed, there'It is equally indispensable to repress in the like speedy
-and effectual manner all attempts which may be made with
relation to any trial depending at the time, or which has re-.cently been so, to slander the proceedings of the court, or
depreciate the character, or sully the honor of the judges; or
to impose on their wisdom and pollute the demands of justice,
to the prejudice of a fair and an impartial trial. In former
times, they scrupled not summarily to inflict high corporal
pains for transgressions of the first of these kinds. As in the
*case of Donald Campbell, who, in the course of a trial, when
standing among the multitude by the courthouse, had openly
accused the Earl of Athol, justice-general, of gross partiality
and corruption in the case; he had sentence, therefore, to
stand two hours upon the cuck-stool and make public confession of his fault, and to have his tongue bored by the common.executioner. More lately, after the conviction of Nairn and
Ogilvy, certain printers were rebuked (and, on account of
their submission, were dismissed without further answer) for
publishing an opinion of English counsel on the case, accompanied with notes highly injurious to the court and the jury.
In a still later instance, an account had been published of a
*certain trial, equally slanderous of the proceedings of the
court, and contemptuous of the persons of the judges; and
here, as the offense was not followed with the like symptoms.of contrition, the culprits Johnson and Drummond were sent
to jail for three months, and till they should find surety
for their good behavior for the future. In these several instances the court guarded their own honor. Hume, 2 Coin.
139.




CH. III.]  OF  CONT~EMPT  OF  COURT.           25I,can be no doubt; but it seems to us that this was a
contempt, as well as a libel.
In treating of the English law upon this question
of libeling judges, a late writer' says: "There is no
instance of a judge at chambers fining or imprisoning,
without the authority of the court, for any insult
offered to him  there. We must distinguish, in this
respect, between a judge of a court of record and
the court of record itself."  " No one of the rights,
privileges, and incidents of a judge of a court of
record," says Alderson, B., " necessarily carries with it:the power of committing for contempt."   Where
the proprietor and printer of a newspaper were
-tried upon an information filed by the attorneygeneral, for a libel upon Le Blanc, J., and the jury before whom the captain of a merchant-ship had been
tried for murder at the Old Bailey, Grose, J., said: " It
certainly was lawful, with decency and candor, to discuss the propriety of the verdict of a jury, or the decisions of a judge; and if the defendants should be
thought to have done no more in this instance, they
would be entitled to an acquittal; but, on the contrary,
they had transgressed the law, and ought to be convicted, if the extracts from the newspapers set out in
-the information contained no reasoning or discussion,
but only declamation and invective, and were written
not with a view to elucidate the truth, but to injure the
character of individuals, and to bring into hatred and
contempt the administration of justice in the country."2
II0. IV. As to the publication of comments
tending to prejudice a case in the minds of the court,
the jury, or the public at large:
The publication in a newspaper, pending a cause
Shortt L. L. 36I.
2 Rex v. White, i Camp. N. P. 359.




252         LAW  OF  LITERATURE.    [CH. III.
in chancery, of articles reflecting on the plaintiff and
his witnesses, and characterizing the chancery proceedings as vexatious and unprincipled, and representing
the affidavits as " containing glaring misrepresentations,
which the editor believed, and heartily hoped, would
lead to an indictment for perjury," is a contempt of
court.' "If parties in the prosecution of their rights,"'
said Lord Langdale, Master of the Rolls, "are to be
exposed to this species of attack, and are to be placed
in such a situation that they cannot safely proceed in
the defense of their rights, and if witnesses are, in this
way, deterred from coming forward in aid of legal proceedings, it will be impossible that justice can be administered.  It would be better that the doors of>
the courts of justice were at once closed."2 Or, if the
publication comment upon affidavits filed in the case,
but not yet before the court.3 So in a recent case a
motion was made on the part of the plaintiff that the
publisher of the "Pall Mall Gazette" newspaper
might be committed to the Queen's prison, for a contempt of the court, in having published in that paper,
an article containing comments on certain affidavits
which had been filed in support of the plaintiff's case,
but had not yet been brought before the court.  Similar applications were at the same time made to commit the publishers of  certain other newspapers, for
having published the same article. The vice-chancellor
(Wood) said: " I have no hesitation in saying that a
gross contempt of court has been committed in this
case. The first observation I would make is, that, from
the time of Lord Hardwicke downwards, the rule
1 Littler v. Thompson, 2 Beav. 129.
2 Id.
Vid. also Felkin v. Herbert, 9 L. T. N. S. 635; 33 L. Je
294 C. H; Rex v. Clement, 4 B. & Ald. 218; Tichborne v.
Mostyn, I7 L. T. N. S. 5; L. Rep. 7 Eq. 55.




CH. III.]  OF  CONTEMPT  OF  COURT.              253
which that great judge laid down in Roach v. Garvan, has been the rule which the court has adopted for
its guidance, namely, the determination on the part of
the court to discountenance any attempt to prejudice
mankind against the merits of a case before it has been
heard. I have not the slightest doubt that such an
attempt has been made here, and that it has been made
in the most offensive manner. An opinion has been
pronounced by the author of this article (who sits
down to examine these affidavits with a clear and
decided bias) with all that boldness which persons
under the screen of the anonymous, and having no
responsibility cast upon them, think themselves entitled to indulge in. But those who have responsibility cast upon them, this court-and every tribunal
which has to administer justice-is bound to protect
every suitor from such an attempt to pervert the
course of justice.  I am  not entitled to consider
myself above being influenced by articles of this
description, though I should hope I am. I am not
entitled to think that the jury whom I may have to
summon in the case are above such influences, though
perhaps I ought to do so." 1
I I I. And when the publication is a copy from
another paper, of matter contemptuous of a court, the
publisher and printer of the second paper will be,
together with the publisher of the first, guilty of contempt.2 The rule as to newspaper comments will not
12 Atk. 469.
2Tichbourne v. Mostyn, I7 L. T. N. S. 5; L. R. 7 Eq. 55;
2 Id. The publisher of the " Pall Mall Gazette," having made
a humble submission and apology, the vice-chancellor thought
it sufficient for the purposes of justice to order him to pay the
costs of the motion. A similar order was made with respect
to the printer of another paper which had gone beyond a mere
insertion of the article from the "Pall Mall Gazette," and the




254          LAW  OF  LITERA TURE.    [CH. IIIJ.
extend to comments of any description on a matter
that is pending, waiting for argument, and waiting for
decision; but courts will not permit comments to bemade on any documents whatever, which are before
the writer and not before the court, but which are
afterwards to come before the court, if such comments.
have a clear and distinct tendency to directing and
swaying the mind of the court or jury, or whoever may
have to determine the cause.'
112. It is a contempt for the solicitor of one of
the parties to a suit to write letters, for publication in
a newspaper, which may tend to influence the result
of the suits;2 so, for a party to print his brief, before
the cause came on, was held a contempt of court,,
though there was nothing in the publication reflecting
upon the court in any way.3
motions against the other papers were abandoned. Vid. also,
Tichbourne v. Tichbourne, 22 L. T. N. S. 55.
Tichbourne v. Mostyn, ubi sufzra.
2 Dan v. Eley, L. R. 7 Eq. 49.
Via. per Lord Hardwicke, 2 Atk. 471; S. C., nom. Roach.
v. Garvan, 2 Dick. 794.
"It is highly important," said ILord Romilly, M. R., "that.
the court should not allow steps of this sort to be taken by
the officers of the court, in causes in which they are engaged,
which possibly may have an effect favorable to their client, or
unfavorable to the other side; and I may further say that if I
am'to go minutely into every sentence of a letter which is
written in a public newspaper, to say this is questionable, and
that is doubtful, and the like, it is imposing a task and a duty
upon the court which it will be impossible to perform. There
is one distinct line. drawn, which is this: that gentlemen who
are concerned for contending clients in this court, whether
solicitors or counsel, should abstain entirely from discussing
the merits of those questions in public print; if they do it at
all, they ought to put their names to their communications.
But to let the public suppose that it is merely done by a person
who takes a great interest in, and has great knowledge of, the
subject, and discusses it from a public point of view, when, if
the fact were known, he is the solicitor of the defendant, and.




CH. III.]  OF  CONTEMPT  OF  COURT.                    255
II3. And, it seems, not only will the  truth  or
falsity of the publication make no difference1 in thehas the strongest possible interest in his suceess, is, in my
opinion, highly reprehensible."
The letters published in this case were anonymous. Thesuit was to restrain the infringement of a patent-one of the
issues raised being as to the novelty of the plaintiff's invention-and the letters written by the defendant's solicitor stated
facts tending to disprove the novelty of the invention. On
the appearance of the first letter, the plaintiff wrote to the
editor referring to the suit, and suggesting that the writer of
the published letter was an interested party. Notwithstanding
this, the editor, besides refusing to insert the plaintiff's letter,.
as containing personal imputations, afterwards published a
further anonymous letter from the defendant's solicitor, knowing that he was a solicitor, but not knowing that he was the
solicitor in the pending suit. A motion was made to commit
the editor, also, for a contempt of court, but the motion was.
refused; the editor, however, having to pay his own costs.
Lord Romilly said: "The case of the editor of a newspaper is
very different from that of persons who write letters to the
paper for publication. His duty is simply to take no part in
matters purely personal between individuals, or in matters.
which are the subject of a lawsuit. But it often happens that
private matters are so mixed up with public matters, into
which it is his duty to enter, that it is very difficult to draw
the distinction between them. In this case, if the editor had
inserted Mr. D.'s (the plaintiff's) letter, I should have thought.
that there was nothing in his conduct calling for the interference of the court; but he did not insert it, and afterwards,
with notice that a suit was pending, with the knowledge that
the author of the letters was Mr. C., and that Mr. C. was a
solicitor-which ought to have induced him to inquire further,
and ascertain the exact position which Mr. C. occupied —he
allowed further letters on both sides to be published. I am
inclined to think, by what the plaintiff told him, he was put
upon inquiry whether:' Copper Cap' (the nom de plunme of theletter-writer) was connected with the suit."  His lordship,.
having taken time to consider the matter, said, on a subsequent day: "As regards the case of the editor, I think that hedid not show quite the forbearance towards Mr. D. that he'
might have done, considering how materially interested Mr., Hollinsworth v. Duane, Wallace, 77.




256         LA WS   OF  LITERA TURE.          [Cti. III.
offense, but even if it be neither true nor false, it may
be contemptuous-as where the matter consists of an
advertisement.'
The publication, in a newspaper, of an advertisement offering a reward for evidence tending to establish one side of a controversy pending before the court,
is a contempt of court, as tending to produce false
evidence; 2 and Lord Hardwicke once committed a
person who published an advertisement relating to an
answer in a chancery suit; saying that his reason for
committing was " not only for the sake of the part}y
injured by such advertisement, but for sake of the
public proceedings in court, to hinder such advertisements which tend to prepossess people as to the
proceedings in the court." 3 And it seems that even
pendency of the litigation will not be deemed necessary, to give courts jurisdiction to punish where the
contempt is flagrant.
D. was in the matter; and that he might have made some little
excuse for the warmth which Mr. D. showed upon the subject.
At the same time there is nothing I can find against the editor
for which I can require him either to make an apology or to
pay the costs of this motion; but, for the reasons I stated on
the last occasion, I cannot give him costs. That is out of the
question. He has certainly shown a tendency to decide against
Mr. D.; but I also feel for the difficult position in which an
editor is placed in such cases.  But, as I said before, with
respect to him I can make no order."
1 W. B1. Com. 285; Respublica v. Oswald, i Dallas, 3I9;
In re Benson & Mitchell, 12 Johns. 460.
2 Pool v. Sacheverel, i P. Wins. 675.
Mrs. Farley's Case, 2 Ves. Sr. 520.
2 Shortt, 378.
"It is a reproach to the nation," said the lord chancellor
(Parker), in that case, " and an insufferable thing, to make a
public offer in print to produce evidence; and is tantamount
to saying, that such persons as will come in and swear, or
procure others to swear such a thing, shall have /JIoo reward,
and this in a cause now depending here. If /Jioo is to be




CH. III.]   OF  CONTEMPT  OF  COURT.                 257
In the last quoted case the court 1 granted a commitment, observing that such an advertisement tended
to the subornation of witnesses, was very dangerous,
and not only criminal, but "a means of preventing
justice in a cause now depending."
It will be noticed that, were it not for the words:above given in quotation marks, the ruling of his lordship would go to characterize the offering of the reward in the advertisement, and not the advertisement
itself (a proceeding in the nature of a subornation), as
the offense in this case.
II4. The true liberty of the press requires the
amplest and most unrestricted right of every man, not
only to maintain and possess, but to publish, if he
will, his own opinions.  But, as we have seen (in our
inquiry concerning the laws of libel), it is due to the
dignity and peace of society to possess a supervisory
power over the motives of such publications, to be exercised when necessary to distinguish between those
opinions, expressed in the interests of good manners,
of the reformation of individuals, or of institutions,
and with an eye solely to the public good; and those
which are intended to defame (as in the case of libel),
*or to delude and prejudice. To opinions of the latter
description it is impossible that any good government
should afford protection and impunity.
allowed, the same reason will hold as to the allowing of 5oo00
or /JI,ooo. And though the intention of the person so advertising may be innocent (and I, knowing the man, believe it
was so, inasmuch that if a court may be said to have inclinations or impressions from thence, I must own, I should be influenced by my knowing Mr. Pool to be an honest man), yet
the justice of the court nay, the justice of the nation, being
concerned in so public a case, I cannot dismiss the party
though his counsel offer to pay costs to the other side, but in
justice and for example's sake, he must stand committed."
1 Parker, L. C.




258          LAW   OF  LIT~ERATURE.           [CH. III,
"If the liberty of the press, then, is regulated byany just principle, there can be little doubt that he
who attempts to raise a prejudice against his antagonist in the minds of those who must ultimately
determine the dispute between them, who for that
purpose represents himself as persecuted, and asserts
that his judges are influenced by passion and prejudice; willfully seeks to corrupt the source and to dishonor the administration of justice."'
I 5. The publication of an article, in a newspaper
printed and circulated in the place where a court is
sitting, reflecting, in severe and opprobrious terms, on
the character of a criminal prosecution then pending
in a court, and standing in order for trial-if the publication be made at a time and in circumstances such
as would naturally bring it to the notice of jurors and
others who are in attendance on the court-is a contempt of that court.2
In the Matter of Sturoc,3 the court said: "It must
not be inferred that we question the right to criticise
and censure the conduct of courts and parties when
causes have been finally decided. The question, in
this case, is whether publications can be permitted,
which have a tendency to prejudice the decision of
pending causes. The publishers of newspapers have
the right, but no higher right than others, to bring to
public notice the conduct of courts and parties after
the decision has been made; and, provided the publications are true, and fair in spirit, there is no law-and
Per McKean, Ch. J., in Respublica v. Oswald, I Dallas,
319.
2 Re Stinoc, 48 N. H. 428; People v. Wilson, Albany Law
Journal, Nov., I872, vol. 6, p. 352; Bronson's Case, I2 Johns.
460; Yates v. Lansing, 9 Id. 4I7; Tenney's Case, 23 N. H. I65;
State v. Matthews, 37 Id. 450.
48 N. H. 428; Bishop on Crimes, ~ 2I6.




CIi. III.]  OF  CONTEMPT  OF  COURT.             259
I am sure there is no disposition to restrain or punish
the freest expression of disapprobation that any person
may entertain."
I I 6. If, during the trial of his cause, a litigant publish
matter in his own defense, and reflecting upon his adversary therein, it will be deemed a contempt of court.1'Or if a litigant write threatening and abusive letters
to parties engaged or concerned in the court or the
controversy, it will likewise be construed to be contempt.2
A solicitor in a bankruptcy proceeding was held
guilty of a gross contempt of court in publishing a
pamphlet containing insulting observations on the
court of review, and on certain parties engaged in
litigation before it. The pamphlet spoke of the judgment of the judge as " an elaborate production, wholly
beside the merits of the case, free from all allusions to
the facts or statements in the affidavits, which it was
but charity to suppose were never referred to by the
judge; free from all denunciations against fiaud; and
that the only object of it seemed to have been to deter
solicitors from every attempt to expose and correct
abuses in bankruptcy." The court of review considered this to be a gross and scandalous contumacy of,
and a gross libel upon, the learned judge, which ought
to be visited as a contempt of that court; and committed the writer to custody; from which he was
released, however, on humbly apologizing and paying
all the costs incidental to the application.3
Rex v. Jolliffe, 4 Term R. 285 (I79I).
2 Charlton's Case, 2 Mylne & C. 316; 2 Russ. & M. 674, n.;
Macgill's Case, 2 Fowl. Sch. Prac. 474; Re Jones, I3 Ves. 237;
Anon., 2 Ves. Sr. 520; Rex v. Fleet, I Barn. & A. 379; Roach
v. Sarvan, 2 Atk. 464; 2 Dick. 749; Lofft, 465; Re Sturoc, 48
N. H. 428.
Ex parte Turner, 3 Mont. D. & De G. 523, 55I, 558.




260        LA W  OF LITERATURE.    [CH. III.
II 7. A false and exaggerated account of a trial,
published pending the trial, will be punished as a
contempt.'
118. And it has been held that, even in cases
where the publication of statements having a tendency
to interfere with the administration of justice does not
call for punishment, the court may, nevertheless, interfere to prohibit such publication. Thus, where one
William Haire was charged with the murder of James
Wilson, on the motion of the counsel for the accused,
with reference to an advertisement of a forthcoming
publication of the confession of William Burke, which
had been amnounced in the " Edinburgh Evening
Courant," the lords prohibited " the editor and publisher
of the'Edinburgh Evening Courant' from publishing
or circulating any statement relative to the alleged
murder of James Wilson, or anything prejudicial to
the prisoner, William Haire, in the said confession, or
doing anything whereby the same may be published,
till the proceedings now in dependence against the
said William Haire shall be brought to a conclusion;
and recommended to the publishers of all newspapers
to abstain in like manner from doing so." 2
I 9. The publication of matter designed or tending to prejudice the public mind, in any way, in a
cause depending before a court of justice, is a contempt of that court.
And even though the matter be published whilst
the court is not sitting; and at a place somewhat distant, a court of record has still the power of punishing
by commitment.' The publisher and the writer of an
article in a newspaper, which reflected intemperately
1 Shaw's Cases, No. 4; Matter of McLeod, Id. No. 6.
2 Bell's Notes, I65; Edmond's Case, 7 December, 1829,
Shaw, Id.' Crawford's Case, i3 Q. B. 6I3.




Cil. III.]  OF  CONTEMPT  OF  COURT.             26i
on certain proceedings of the court of chancery of the
Isle of Man, were committed to prison for the contempt, though the court was not sitting at the time of
publication, and the publication took place in Douglas,
ten miles distant from where the court sat.l "It is
objected," said Patterson, J., "that the court could
have no general power of commitment for a libel published out of court some time before. This point has
not been expressly decided upon. In Van Sandau's
Case,2 the libel appears to have been published both
in court and out of it." And, even if the publication
does not, upon its face, allude to the cause depending; if it, in fact, has reference to the cause, and its
tendency is to prejudice the public mind-it will be
held to be in contempt.3
For, if the unlawful intention must appear upon
the face of the writing, an artful man may escape, with
impunity, even though his publication have the most
pernicious effect or tendency to interrupt the course
of justice.4
I20. In the Matter of Spooner,5 before the mayor
of the city of New York, a distinction was attempted
between real and constructive contempt, which, it
seems to us, no other cases on the subject, either
earlier or later, can be understood to warrant.
I2I. Comments upon the proceedings of parties
who are to be litigants in a forthcoming trial, at a
session of the court already begun at the time when
they are published, or who are to be witnesses or par1Id.
2 Van Sandau v. Turner, 6 Q. B. 773; I Phill. 445, 605.
3 Bayard v. Passmore, 3 Yeates, 438; Anon., 2 Ves. Ai.
524; Re Sluise, 48 N. H. 428; People v. Wilson, 6 Albany Law
Journal, 532.
Bayard v. Passmore, 3 Yeates, 438.
5 City Hall Recorder, p. io8.




262         LAW  OF  LITERA TURE.    [CH. III.
ties, will constitute a contempt if they tend or are
likely to tend to prejudice the decisions, or to throw a
suspicion of bias upon a certain decision which might
be made.'
In November, I872, the " Chicago Evening Journal " contained an article, commenting upon a criminal
trial then in progress in the city of Chicago, as follows:
"The riff-raff who contributed fourteen hundred dollars
to demonstrate that'hanging is played out,' may now
congratulate themselves on the success of their little
game....    The money is operating splendidly.
The courts are now completely in the control of corrupt and mercenary shysters-the jackals of the legal
profession-who feast and fatten on human blood
spilled by the hands of other men."-Held, to be a
gross contempt of court, and to subject the editors
and proprietors of that newspaper to attachment and
imprisonment.
During the pendency of an election petition, the
proprietor of a newspaper published in his journal a
series of articles which were calculated to interfere with
the due course of justice; intended to prejudice the
public mind against the petitioner; to prevent witnesses affording him their evidence; to deter him from
prosecuting his petition, and, if he abandoned it, to
deter any other qualified person from becoming petitioner in his stead.-Held, that the publications were
a contempt of the court of common pleas.8
I22. And even in a case where judgment had
People v. Wilson, Illinois Supreme Court, 6 Albany Law
Journal, November, 1872, vol. 4, PP. 301, 3I7, 334, 348, 349, 352.
2 People v. Wilson, Illinois Supreme Court, 6 Albany Law
Journal, November, I172, vol. 4, p. 352. Vid. Bishop's Criminal Law, ~ 216; 5 Burr. 2686.
I Tyrone Election Petition, in re Macartney v. Corry, 7 Tr.
R. C. L. 242 C. P.




CH. III.]  OF  CONTEMPT  OF  COURT.               263
been finally pronounced upon a petition, but the order
itself had not been drawn up, it was considered a pending proceeding for the purpose of punishing a contempt;  the court saying in that case:
" If the principle be the protection of the subject in,all fair matter of litigation, in order that his mind may be
unbiased by threat or intimidation, and that he may go
on freely through that course of proceeding which the
laws of his country have provided for him, I cannot
but consider it the duty of the court to protect him
against an impression, that, when the proceeding is
concluded, he may be liable to imputations and abuse,
and have no protection but by going into a court of
law for damages in an action for libel.  I apprehend
it is the duty of the court to the suitors, to tell them
that, though the matter is ended with respect to
them, the court will still protect them, as if the litigation or the business of the court were still pending;
and that the principle is not varied by the circumstance that the matter is altogether concluded."
Though one party to a suit in chancery publish
newspaper attacks on the conduct of his opponent,
the latter will not be allowed, by way of defense, to
publish, pending litigation, ex parte garbled accounts
of any of the proceedings in court, or before the,examiner.
Expparte Turner, 3 Mont. D. & De G. 544 545
2 Coleman v. West Hartlepool, Harbow & Ry. Co., 2 L. T.
N. S. 766; 8 W. R 734. In this case the court enjoined the
publication of a pamphlet containing an unfair account of the
evidence of a witness taken before the examiner, saying: " If
the one party endeavors to prejudice the public in any way
against the other litigant party, there is not the slightest justification for the other party doing the same; and this court,
in the administration of justice, always takes care that neither
party shall do it....  I quite agree with the respondent's
counsel in thinking that the present times are very different




264          LA W   OF  LITERA TURE.            [CH. IIII23. The publication of proceedings in court,,
however, pending a suit, by a reporter, vill be discriminated from a publication by a party thereto..
The presumption is fprima facze against the fairness
of the report in the latter case;' though it is not:
from those of Lord Hardwicke, and that the present feelingand the general judgment of mankind as to what is or is not
proper to be published, are exceedingly different to what theywere at that time. That may be at once conceded; but at the
same time, even as regards the publicity of proceedings in
courts of justice, and when it is a question between parties.
who are not litigant, but between one of the parties litigant
and the publisher of a newspaper, for instance; even as be —
tween these parties the court, in these days, recognizing in the
highest possible degree the importance of the public being
duly and fairly informed of all that takes place, yet does takecare that there shall only be such proper information published in a fair and reasonable manner. I mean that courtsof justice, in giving directions to a jury as to the ultimate result in that which is or is not a fair publication, always leaves
it for the consideration of such jury whether or not an independent, or supposed to be independent, person, who has published a narrative of proceedings of a court of justice, has.
published them in a fair and reasonable manner, being anxious to inform the public; or whether there is evidence of
malice in the mode in which the report was framed. Now,.,
this court, in dealing between litigants, takes care that the litigants shall not, by such foolish attempts as appear to me tohave been made on both sides here, create public prejudice,.
each against his opponent, in the progress of the litigation,
which ought to be conducted with all proper calmness and..
discretion, and for the purpose of eliciting truth.
1 Id. "Nobody," said the vice-chancellor, " feels more sensibly than myself the advantage of having a fair publication,
of all that takes place in a court of justice; but I make this.
observation, that whenever one of the litigants is the party
making the statement, that is a very strong frirna facie pre —
sumption against its being at all fair, and that in any case in
which a litigant makes a publication, it is exceedingly different from that which a newspaper reporter would publish simply in the discharge of what was his duty. Such a case iswidely different. I am not aware that any case precisely likethis has occurred before; but I had no hesitation in granting




CH. III.]  OF  CONTEMPT  OF  COURT.                265
infrequent that, in the course of a trial exciting great
public interest, the bench will request the newspapers
to abstain from comments upon the merits as the case
proceeds.'
I24. But the question is, in all cases, one purely in
the discretion of the court, and cannot be demanded,
as matter of right, by either party.2
Or, if the court, in its discretion, pending a trial
promising to continue for several days, make an order
prohibiting the publication of its proceedings, disobedience of such order will be a contempt.3
I25. If one of the parties to the suit has himself
supplied the newspaper with the information upon
which comments are made, he cannot himself complain of the contempt.4
the interim order for the injunction in the first instance, because I was aware of what the course of all the courts at all
times has been, with reference to keeping their proceedings.
pure from this false description of excitement, which would.
tend to bring witnesses into the witness-box with their imaginations colored and prejudiced by ex parte statements sent and
circulated among them by one of the litigant parties; and,.
consequently, it is a case in which one ought to prevent any
such undue use being made of the proceedings of the court."'' See request of Judge Neilson (in Tilton v. Beecher) to the
newspapers of New York and Brooklyn, that they should abstain from any criticisms, or expression of opinion as to the
merits of that famous controversy. It is due to the press to
say that as a rule they recognized the justice of the judge's.
request, and readily complied.
2 Brook v. Evans, 29 L. J. 6i6, ch.. So in Rex v. Gilham, I Mood. & Malk. i65, the exhibition in an assize town of
inflammatory publications respecting a prisoner about to be
tried for murder, was considered not to be a contempt which
the judge of assize could interfere to stop by commitment,
though they thought it "highly indecorous and improper,.
and one that might subject the man to punishment."
R3 ex v. Clement, 4 B. & Ald. 218.
4 Vernon v. Vernon, 23 L. T. N. S. 697. In this case the
plaintiff procured the insertion in a local newspaper of a.




266          LAW   OF  LITERA TURE.            [CH. III.
126. The publication, by a newspaper, of a paragraph charging certain witnesses in a pending cause
with " turning affidavit men," is a contempt.1
On the I 9th day of March, I1875, an information was
filed in the Criminal Court of Cook County, Illinois,2
statement of his claim, and his agent gave the newspaper proprietor a copy of the bill. A motion having been made to commit the proprietor for contempt in publishing certain articles
disparaging the plaintiff's claim, Bacon, V. C., refused to make
any order whatever in the matter, saying: " I am not considering the offense committed against the court by contempt,
but the right which the plaintiff in the suit, who has endeavored to make use of a newspaper for his own purpose, has to,come afterwards and complain of subsequent statements or
comments, not malevolent and not libelous, upon the subject
which he has submitted to the editor of that newspaper.
What right has he to be here to complain? I cannot conceive that he has the slightest right in the world."
1 2 Atk. 469. Construing the words " affidavit men " to mean
6' persons who are ready, upon all occasions, to make affidavits
without regarding whether they have any cognizance of the
facts," and committed the printers to prison, observing that
"nothing is more incumbent upon courts of justice than to
preserve their proceedings from being misrepresented; nor is
there anything of more pernicious consequence than to prejudice the minds of the public against persons concerned as
parties in causes, before the cause is finally heard.
There cannot be anything of greater consequence than to
keep the streams of justice clear and pure, that parties may
-proceed with safety both to themselves and their characters."
2The case of the People v. Storey, excited great public interest, from the wealth and influence of the defendant,
land from the fact that the articles alleged to be contemptuous
as criticising the grand jury had been preceded by articles
personal to the judge who delivered the opinion. " To understand the nature of the alleged offense," said the court, " we
must understand who and what is assailed. The grand jury
was in continuous session in the court-house, from day to day,
at the time of the publication of the articles in respondent's
paper. Though in a different room from the judge, it was a
constituent part of the court. I Bishop on Crim. Prac., ~ 868.
It was not only a part of the criminal court, but a necessary and
indispensable part, without whose action no criminal could




'CH. III.]  OF  CONTEMPT  OF  COURT.                 267
against Wilbur F. Storey-editor and proprietor of
the "Chicago Times" newspaper-alleging that the
defendant had, while the grand jury was in session
even be put upon trial. It only could initiate any criminal
proceeding. It was the motive power in the absence of which
all the other machinery of the criminal court was motionless
and useless. It was so intimately connected with the court,
that witnesses brought before it are sworn in what is called,open court, though not necessarily in the presence of the
judge. i Bishop's Crim. Prac. 868. The grand jurors were
for most purposes as completely under the supervision of the
court as would be petit jurors in sessions in their jury-room.
"If they misconducted themselves in the grand jury-room,
if guilty of drunkenness, or bribery, or personal abuse of
each other while in session, they could be punished by the
-court. They had been summoned into court and their attendance could be enforced by fine or imprisonment. All their.official action was under the solemnity of an oath that'they
will present no person through malice, hatred, or ill-will, nor
leave any one unpresented through fear, favor, or reward, or
for the hope or promise thereof; but in all their present
threats they should present the truth, the whole truth, and
nothing but the truth, according to the best of their skill and
understanding.'  Private citizens thus compelled, under the
fear of penalties, to perform a thankless public service, under
the obligationrs of solemn oaths, for the purpose of carrying
on the business of our courts-a service often performed at
great personal sacrifice by grand jurors-are entitled to some
protection from the court of which the grand jury is a constituent part.
"The court that could not protect a grand jury from vindictive abuse in the discharge of its official duties, and the
court which, possessing the power to protect, would, through
fear of personal animadversion, fail to protect it, would alike
fall into universal and deserved contempt. Failing to be protected, honorable men would resort to every artifice to escape
service upon the grand jury, and would even brave fine and
imprisonment, rather than subject themselves to such a fiery
ordeal as the malicious and vituperative attacks of the daily
press of the county in which they are impaneled. What honorable man would not rather be incarcerated for thirty days in
the common jail than to sit thirty days upon a grand jury, exposed to have his character maligned by libelous publications,
his family disgraced, and perhaps his business ruined? Is it




268          LA W   OF  LITERATURE.    [CH. III.
and engaged in investigating cases from day to day,.
"published of and concerning the grand jury in their
official capacity, and of and concerning divers memto be said, as it has been said upon the argument, that he has.
his action of libel for the injury received? Would the privilege of bringing such an action be any special consolation to,
the man who has been maligned?
" On the I4th instant,' The Times' commenced the attack
upon the grand jury, continuing it on the I5th, and intensifying it and publishing five different articles in its issue of the
i6th. On the last mentioned day the grand jury in a body
presented themselves in the court-room, moved by a common
indignation, and desired to be informed by the court if it
could be protected from such insults. On the morning of that
day' The Times' had heaped upon the jurors the vilest abuse
for their performance of their official duties. If it could not
be stopped, the paper, increasing in virulence, might be expected to charge them the following day with being thieves
and robbers. It might ruin their reputations and business
standing.
"What was to be done? Was the court to say to the jurors,
I have no power to protect you in the discharge of your official duties? The judge of this court did not so understand
the law. Was the court to say, I have the power to protect you,
but will not? Should the court say to them, in the language
of the counsel who opened the argument, that' the law for
libel, the law for embracing, the law for any kind of misdemeanors, provided by the statute covering all these cases are
made for your vindication.' The grand jurors did not come
into court and serve therein for the privilege of bringing such
suits. They came to perform a public service as a constituent
part of the court. They were entitled to protection from the
court which had compelled their service; and the court, upon
such complaint being made by the grand jury, immediately
issued a rule upon the respondent to show cause why he
should not be punished for contempt. The articles show upon,
their face the motives which actuated the publisher. It was
no regard for the interests of the public, but personal revenge against the jury for their action toward defendant.
There is no proof before the court that other indictments.
were then pending, but there is proof that other indictments
were filed in court three days later. It is more than probable
that they were then under consideration. The editor of that
paper had, at least, the right to suspect so much." The defend



CH. III.]  OF  CONTEMPT  OF  COURT.                269
bers of said grand jury on account, of their action, in
his paper, many slanderous and vituperative articles;,calculated to impede, embarrass, or obstruct that court
in the administration of justice." The articles were set
forth at large in the information, and were seven in
number, published in "The Chicago Times" of the
I4th, Is5th, and I6th insts., soon after the defendantStorey, himself —had been indicted by the grand jury
upon four different indictments, for libel, and related
to the action of the grand jury in finding the same.
The article published in "The Times" of Sunday,
the I4th inst., was entitled, " Disreputable Vengeance," and contained, among other statements, the
following:
"This action on the part of the grand jury and the
state's attorney, is not in the interests of justice or
decency, but wholly in the interest of the rascally,elements that control the city and county.,Every
indictment returned by the grand jury, last week,
against the editor of'The Times,' was a mean, pitiful
attempt at revenge, for his effort to invite attention to
the true character of men, into whose hands has fallen
the control of local affairs.' The Times' accepts these
indictments as a mean and pitiful attempt to secure
revenge for the expose of official iniquity. It accepts
them as such, and herewith gives notice to the state's
attorney, and all others in whose interest this attempt
ant Storey had, in the course of the publication complained of,
printed, as it was alleged, matter personal to the judge
delivering the opinion, as appears from the following sentence
in the opinion:
"I have no further defense to make of the judge of this
court from the character of defendant's paper, but desire to
say that the feeling of intense indignation with which he first
read those charges has entirely passed away, and that he is
not now conscious of the least possible animosity against the
defendant."




270        LA W  OF  LITERA TURE.    [CH. III.
at private vengeance is directed, that it proposes to,
carry the battle to the end."
In the article of Monday, March I5, the following:
language occurred:
"The result of the trial of this man proves what'The Times' has asserted, to wit: That no man
having money has ever been sent to Joliet from the
criminal court of Cook county. Just as soon as a
grand jury of honorable men can be gotten together,
and' can be allowed to investigate abuses under the
guidance of some lawyer appointed temporarily bysome judge whose integrity-of judge and lawyerare above suspicion, then will'The Times,' in the
name of an outraged community, demand an investigation of this latest development of the peculiar prac —
tices of our criminal court."
The first article of the five contained in "The
Times" of the I6th instant, contained the following
language:
" Especially strong is the belief of the public in.
the virtue, the integrity, the purity of the men composing the grand jury which has just returned an
indictment against a city newspaper for publishing'obscene' matter. The men who have done this are
themselves immaculate. Their social relations are of
the highest, and their private lives are of the purest.
It is only necessary to mention a few names, in orderto demonstrate their standing. They are'Fred' Erby,'Ab' Price, B. R. Chambers, W. H. Watchtel, Wil —
liam Manchester, Frank Sherman,'Jim' Brown,.
Walter Williams, and James Fitzgerald. Not one of
these gentlemen but has a record of the most lofty
character. Not one of them is a common drunkard..
Not one of them is a'sport,' or a bummer. Not one
of them has a bastardy case on his hands. Not one



CH. III.]  OF  CONTEMPT  OF  COURT.            271
of them keeps a one-third interest in a notorious"
prostitute; and not one of them is a notorious companion of abandoned women, and a regular frequenter
of brothels.... Such being the character of the
grand jury now in session, its indictments must necessarily carry weight."
The second article contained the statement:
" The state's attorney is determined to tolerate the
exposure of no crime, if he has to put every male
strumpet in Chicago on a grand jury to secure the
punishment of the offender."
The third article, in the same paper, was as follows:
" It is a fact scarcely worthy of note, that a dozen
or more members of the present grand jury, who are
not bummers and notorious male strumpets, are personal friends and'cronies' of the managing editor of'The Tribune,' who is also wonderfully noted as not
being a bummer and a male strumpet. Is this grand
jury a' Tribune' grand jury?  It looks like it."
The fourth article contains these words:
" But that was before office-holding knavery found
out that the grand jury could be converted from an
agency for the punishment of offenders into an agency
for shielding them against exposure."
The fifth is as follows:
" How to make a free press a terror to evil-doers.
Get a grand jury to indict the editor that exposes
them."
The court (Williams, J.) concluded its opinion delivered in the case, as follows:
"I doubt whether any city in the United States
has been the scene of such events as have been transpiring in Chicago for the past few weeks. A leading
public journal has been persistently employed in striving




272        LAW  OF LITERA TURE.    [CH. III.
to undermine the public confidence in the officers and
juries of the only criminal court existing in the city;
a court whose efficiency would be destroyed in case
that confidence was lost. Deprived of this confidence
through the libels of the press, it would be as powerless and pitiable as Samson in the lap of Delilah."
" With the efficiency of this court destroyed, no
home in this city would be safe for forty-eight hours,
and robbers and murderers would hold high carnival.
No one who has not sat in this court, as has the
present judge and his brethren of the bench, can know
how absolutely necessary it is to the safety of our
citizens, especially of late, when crime seems to have
taken a new lease of life. No greater offense can be
committed by any man, than to stab justice in her
own temple and at her own altar. What has been
done by the respondent in reference to this court, is
nothing, except so far as it has been an attack upon
the administration of justice."
"The judge, prosecuting attorney, and jurors of
this court are individually nothing to the public; but
when justice ceases to be duly administered, the rights
of the people are no longer secure, and their wrongs
must go unredressed. The question in this case rises
above every personal issue.  The defendant has
grossly assailed and attempted to overawe that part of
this court which was the most vunerable and the least
capable of self-defense-its juries. There was no way
by which they could be defended, and the efficiency of
this court maintained, except by the use of the only
weapon of defense it possessed-the proceeding for
contempt. In none of the various ways suggested by
counsel upon argument, could any adequate defense be
afforded. Before libel suits could be tried, the court
would be without grand jurors to indict criminals or




CH. III.]  OF CONTEMPT  OF COURT.            273
petit jurors to try them. As I have said, the act of
the defendant would have been punished, without any
public protest, in the case of an insignificant person.
Could it be allowed to go unpunished because of the
wealth and power of the defendant? It is the disgrace,of our jurisprudence-a disgrace more keenly felt by
those who minister at the altars of justice than by any
other-that wealthy and powerful criminals go unwhipt
of justice, while indigent and friendless offenders often
receive an excess of punishment. Should there be no
exception to this universal rule?"
" For a judge, appealed to as I have been by the
grand jury in this case, to let the offender go unpunished, would be an unpardonable crime. It would be
treason to the cause of justice, which, by my official
oath of office, I am bound to conserve. It would be
a base and cowardly desertion of the fort while the
enemy was battering down the walls."
"A judge has never any right to think of the personal consequences which may ensue to himself. Duty
must be his polar star. He may know that he will be
assailed by the bitterest calumnies; that he will be
furiously assaulted by his enemies, and deserted or
feebly defended by his friends. If his is the post of
honor, it is also sometimes the post of danger. I was
reminded by the defendant's counsel, upon argument,
that the effort to enforce the law of contempt had
twice, in the state of Pennsylvania, nearly resulted
in the impeachment of the judges, and that in Illinois
it had driven one judge from the bench of the supreme
court. I shall receive the statement of counsel, that
what was said was not designed as a threat."
" But having been so recently reminded, I cannot
now fail to appreciate the extent to which the malevolence of the press may be carried, and the results it
18




274         LA W  OF LITERA TURE.    [CH. III..
may secure. I know the vindictiveness with which,
some of the judges of the supreme court of this state
were pursued, for their conscientious discharge of duty
in a case of contempt; and that one judge, who, by
his integrity, purity, learning, and ability, cast a luster
upon that bench, was driven therefrom.  But duty
cannot be learned in the school of fear. Personal
popularity may be pleasant, but the serene consciousness of duty faithfully done, is infinitely better. The
storm may rage, but one may patiently and calmly
bide its buffetings."
" If in this case I make a blunder, though an honest
one, I expect to bear the consequences. If I shall
willfully do the defendant any injustice, my conduct
will deserve the execration of the public. The whole
facts are before it. If I am right, the sober second
thought of the people, which is seldom unjust, and
sometimes generous, will sustain me. If it does not,
I shall still rest content."
"Such a proceeding as this, against an editor, is
extremely rare. But twice before, in the history of
this state, has it been resorted to, so far as I know.
This is due, in part, to the press; which, while it often
libels individuals, has realized that it would be a great
crime, persistently to attempt to destroy the efficiency
of the courts, through which alone justice can be duly
administered. In case of supposed personal wrongs.
by the courts, editors have usually resorted to such
remedies as were possessed by them in common with
other citizens, and with these they have been content.
But the fact is due, even more, to the extreme patience
of the courts, and the great reluctance, upon the part
of judges, to use the process of the court for its own
protection. No action, upon the part of a judge, can
be so utterly distasteful to him as the action for con



CH. III.]   OF CONTEMPT  OF COURT.            275
tempt. It is looked upon with disfavor by the public.
If the process is directed against an editor, it is always
attended with results which seriously prejudice the
judge in the esteem of the press, and all whom it can
influence."
" But if the duty should always be shunned, the
independence of the courts would be soon lost. Aggressions, from whatever quarter, upon the acknowledged rights of the courts must be resisted."
" Extreme cases demand severe remedies. I believe
the defendant to be the only editor in the United
States who, from personal motives, by a series of articles published in his paper, day after day increasing in venom, has deliberately and persistently attempted to destroy the efficiency of a court of justice
-apparently determined to ruin, if he could not
rule it."
" The offense committed by the defendant has been
often repeated, and in each case with greater aggravations. It was committed deliberately and willfully.
Its tendency was to obstruct the due administration
of justice, by the use of that almost omnipotent instrumentality-the press.  It was intended to inaugurate over this court, and especially over its jurors,
a reign of terror, and make the ministers of justice
the subservient tools of the defendant. If the acts
of the respondent had not been restrained by the proceedings in this cause, I know not to what extent of
virulence and abuse the editor would not have gone.
To punish such an offense merely by a fine, would be
a mockery of justice. The sensational articles which
would appear in' The Times' would, in two or three
days, more than reimburse the defendant for any fine
which I should consider it proper to impose. Editors
must understand that their rights are the same, and




276          LA W  OF  LITERA TURE.    [CH. III.
no greater, than other citizens, and their responsibilities no less. If they publish libels upon individuals,
they may escape without loss or damage to themselves, but they cannot with impunity commit gross
outrages upon jurors, tending to impede, and obstruct,
and overthrow the due administration of the law.
But the action of the court must be vindicatory, not
vindictive. In this case the motion to vacate the rule
to show cause will be denied, and the cross-motion for
ve issuance of the attachment will be granted.  No
mne will be assessed, and no costs awarded against the
-~spondent, but for the contempt, of which he has
been guilty, he will stand committed to the jail of
this county for ten days."
The action of the court in this case is remarkable,
in that the penalty of a fine, usual in such cases, was
omitted to be imposed, either alternatively with, or as
accompanying the imprisonments'The defendant Storey was released upon a supersedeas
from the supreme court, upon giving bonds, &c.-Chicago
Times, Tuesday, March 30, I875.
The grand jury of the city and county of New York, February I5th, i875, made the following presentment:
NEW YORK, Feb. 15, I875.
To His Honor, Recorder Hackett, presiding in Court of General
Sessions:
DEAR SIR: The accompanying communication was received from Mr. Henry Bergh, president of the American
Society for the Prevention of Cruelty to Animals, February
10, instant.
We, the members of the grand jury, consider the sending
of such letter on the part of Mr. Bergh as totally uncalled
for, and reflecting upon our integrity as grand jurors. It has
certainly never occurred within the experience of any of us,
to be called to account by a party to a criminal proceeding for
what we may have done, after calm deliberation and weighing
of evidence. Thinking that some action in the matter, on the
part of the court, would be right and proper in order to secure
to future grand juries the respect which is their due, we leave




CH. III.]   OF  CONTEMPT  OF  COURT.                 277
I27. It was held contempt for a newspaper to
publish, before it is heard, a petition which had been
the matter in the hands of the court, to be acted upon or not,
as may be deemed proper.
Respectfully submitted,
CHRISTIAN S. DELAVAN,
Foreman.
" THE AMERICAN
SOCIETY FOR THE PREVENTION OF
[SEAL.]                       CRUELTY TO ANIMALS,
Head Quarters, Fourth Avenue, cor.
22nd Street,
NEW YORK, Feb. Io, I875.
To Christian S. Delavan, Esq., Foreman of the Grand Jury for
thZe City and County, at present sitting:
SIR: On the Ioth of December last were found a number
of disreputable men engaged in a dog-fight in a back basement at I2 Rivington-street. Two savage bull-dogs had been
fighting, a moment before the arrival of the officers; and the
respective owners of the animals were at the time handling
the animals, their hands at the time being covered with blood,
and the dogs terribly cut up by reason of the contest. The
proprietor of one of the dogs and place where they fought
was present, and the lease of the vile premises is in the possession of this society. This fellow and some of his comrades
have been proceeded against before; but, as in the present instance, they have escaped through means which I forbear to
mention. On Monday, the 8th instant, this case came up before your jury, and, notwithstanding these facts were fully
represented, as I believe, these notorious ruffians and keeper
of one of the most disorderly houses in this or any other
city, was relieved of all responsibility, and, in his own language, since uttered to one of our officers,'was honorably
acquitted.' I think, on reflection, you will in a measure
realize the discouragement I feel at finding my earnest and
unselfish labors in the public service, diverted from their legitimate ends by this decision of the grand jury, the inevitable
consequence of which will be to double the already onerous
duties of this society, and go far to make dog and cockfighting, if not respectable and honorable, at least tolerable in
this city. I do not mean! this as a censure, for your associates
acted doubtless conscientiously, but erroneously. The result,
however, is the same. A scandalous stain upon our civilization has been condoned, and these execrable wretches led




278          LAW   OF  LITERATUR.E.             [CH. III.
presented to the court of chancery for the winding-up
of a company, which contains grave charges against
the directors.l
thereby to believe, however mistakenly, that a certain amount of
sympathy exists in this community with their atrocious calling.
I have the honor to remain,
Your obedient servant,
HENRY BERGH, President."
On February i6, Mr. Henry Bergh appeared voluntarily
at the bar of the court with his counsel,The court said-In giving my action upon this proceeding,
it is proper I should submit my views in writing. I am clear
that it is contempt of court at common law, for a witness or
by-stander to communicate with the grand jury without its
request; but to be a contempt under the statute, the commu-'Re Cheltenham  v. Swansea Ry. Carriage & Wagon Co.,
20o L. I. N. S. I69; L. Rep. 8 Eq. 58o. —It was contended, in
this case, on behalf of the newspaper proprietor, that the
case of a petition to wind-up was an exceptional one, because
under the Act it must be advertised, and the advertisement
must be accompanied by a statement that persons desiring to
possess it might obtain copies from the solicitor by an ordinary
application.  Malins, V. C., said: " No doubt, every contributory and creditor can obtain such copies, but it is not open
to any one of the public, strangers to the matter, and does not
give a general license to publish the petition. It is the duty
of the solicitor, before he gives copies of such a petition,
which frequently contains unpleasant charges, to ascertain
whether the applicants are contributories or creditors: he cannot give copies to any one who will pay for them. There is
nothing in the Act or rules which sanctions the publication of
a petition of this kind, any more than a bill in Chancery. It
was said that there was no intention to injure in this publication; but it is a sound rule that you cannot dive into men s
minds, but must draw inferences from their acts. In this case
I must attribute to these proprietors, that they did not print
these grave charges of fraudulent conduct against these directors unknowingly and unwittingly. They may be true or false,
but that must be decided on the evidence. If you once permit such a publication as this, any person may file a petition,
and any proprietor of a newspaper may print and publish it,
and thus it may be made the vehicle of grievous injury to an
individual character."  Shortt, p. 374.




CH. III.]  OF  CONTEMPT  OF  COURT.                  279
I28. While the tendencies of the times are clearly
to construe the offense of conetempt of court with the
greatest liberality, it is none the less true now than
nication must savor of the degree of contemptuous behavior
committed during the sitting of the court, and directly tending
to impair due respect. I think that the term behavior may
cover the writing and delivery to the grand jury of a contemptuous and insulting letter. It is clear from the elementary writers, and from what the court of appeals imply in the
IHackley Case, 24 N. Y. 78, that the grand-jury-room is an enlargement of the court-room, and' part of the court sitting.
Handing to the petit jury a letter containing remarks upon
the case pending before them has been at nisi prius adjudged
a contempt; the jury, for convenience, being outside of the
court-room proper, it is true, but legally and technically, nevertheless, a part of the court sitting; and both the grand and
petit jury-rooms were merely extensions of the court apartmenit, and are under equal jurisdiction.
The insinuation conveyed by this expression in the letter
of Mr. Bergh, " as in the present instance they have escaped
through means which I forbear to mention," addressed to any
officer of the court during its sitting, could not be made worse
for contemptuous and insolvent behavior tending to impair
respect. At the commencement of the last October term of
this court, I charged the then grand jury as follows:
"The minutes of some grand juries have, in the past, distinctly shown traces as well as evidences of considerations:and of reconsiderations and preferences, which can only be
explained upon the belief that grand juries have yielded to
lobby pressure, either in finally finding or finally dismissing
-bills of indictment. The grand juror who suffers himself to
be even impliedly approached upon subject-matters pending
before the body of which he is a sworn member, not only violates his oath, but transcends the common law that forbids
such approaches, either in the act of the citizen or in the con-.sent of the juror. Should it so happen during the present term
of your duty as grand jurors that any person whomsoever
(except the district-attorney, who, when desired, becomes your
legal adviser), shall approach either of you and seek to confer,
or endeavor to influence your action for or against the prosecution of any complaint pending before you, then it will become your duty to promptly communicate the fact to this
court, in order that the person so offending maybe summarily
dealt with. The district-attorney has done all in his power




280           LAW   OF  LITERATURE.              [CH. IIIever before, that the usefulness of courts of justice is,
capable of being greatly hampered, if not wholly
destroyed, by a too great license on the part of the
to destroy the opportunities for this lobby influence with the
grand inquest, but if jurors allow letters to be delivered to,
them by accused persons, accusers, or their counsel, or visits.
to be made to them at their places of business, or houses, by
friends of suspected persons, they cannot obviate such a
scandal or frustrate the wrong intended."
It will thus be perceived that the considerations growing:
out of the action of Mr. Bergh are not new and were not
suggested by the attitude taken by the late grand jury, and I
had determined to reprehend the first instance of grand jury
lobbying or outside interference which should be submitted tomy consideration. But Mr. Bergh shows that he is, for the
purposes of his society, both a deputy attorney-general and:
an assistant district-attorney by written appointments from
Messrs. Pratt and Phelps. Mr. Bergh, in his affidavit swears:.
" Such letter was sent and intended to be sent, as an official
communication in the interests of the people of this State,
which deponent then honestly believed he was then representing, and not to subserve any private or personal interest, or
to gratify any individual spleen or malice; and deponent
firmly and conscientiously believed at the time that he was,
only doing his duty, and that his course was entirely justifiable
under the authority derived from the attorney-general an&
district-attorney referred to."
In the matter of Strong, in this court, half a century since,
it was held that the act of sending a scurrilous letter to thegrand jury ought not to be considered a contempt, unless it
clearly appeared that it was designed to interrupt the adminis-.
tration of justice. The supreme court has held (Weeks v.
Smith, 3 Abb. Pr. 2 I) that if the alleged contempt becapable of a construction consistent with innocence of the
party of any intentional disrespect, there is no legal contempt.
It would seem that Mr. Bergh's explanation that he was acting
as the agent of the prosecuting officers is consistent with innocence. The court, however, trusts it may be pardoned forobserving that the representative of the attorney-general and
the district-attorney owes it to those gentlemen, if not to himself, to infuse into his oral or written intercourse with grand
juries, rather the suaviter in moda than the forliter in re; andi
to remember an old saying, " that he who impugns motives,
should always rigidly examine his own."




CH. III.]  OF  CONTEMPT  OF  COURT.              281
press.  It is to the good sense of the press that the
doctrine of contempt of court most earnestly appeals.
I29. There can be no doubt-in the case of proceedings of legislative bodies, for instance-that the
newspapers should be untrammeled, by the law, in
their comments thereon (and yet, as we shall presently
see, wanton attacks upon such bodies, will on no,
hand be privileged). For in legislative proceedings.
the whole people are directly interested; since the
result of legislative deliberations is to give to the
public the laws which shall govern them; and since, to
that end, they have sent thither their own representatives, armed as their mouth-pieces, with their own desires and opinions, and since it is for their unquestioned
benefit that such scrutiny should accompany them.
But in the case of courts it is different; for
although it is to the best interest of every citizen that
a tribunal should exist in which they should have
every confidence, still, when an individual case is once
before that tribunal, the public interest can only extend so far as to be solicitous that justice (in whatever
remedy that justice may consist) shall be done; which
would be impossible if the deliberate examination of
the court into the merits thereof were to be anticipated by a newspaper trial.
I30. The fact that a publication, contemptuous of
court, was innocent of any intention of its writer to be
so, cannot be permitted to purge it of contempt..
Iggnorantia juris non excusat.l
It is evident, from the theory upon which punishments for contempt are based, that this must be so.
Let the rule be discharged, and Mr. Henry Bergh stands.
exonerated under his explanatory oath from any intentional
contempt.' Broom. Leg. Max. 253.




282         LA W  OF  LITERA TURE.    [CH. III.'The great principle of the safety of the people (which
is the supreme law), is evidently the principle upon
which punishments for contempt proceed; and against
the safety of the people no evidence of good or harmless intentions can be allowed to avail.
A  publication, then, once being confessed; no
course is left the court but to pronounce judgment.
"The intention can only be taken in mitigation of the
punishment, not in mitigation of the offense.
During the trial of one Nixon,' an article appeared
in the "'New  York Tribune," headed, "A  Judicial'
Outrage," which was supposed to reflect upon the
conduct of the judge2 presiding. The article was supposed to have been written by Horace Greeley; and
an order was issued that Mr. Greeley show cause,
before that judge, why he should not be attached for
contempt. Instead of showing cause, he moved for a
writ of prohibition, which was denied, and the follow-ing order made:
" It is ordered, by the court, that the said Horace
Greeley answer (and the answer under oath is waived)
the following interrogations, and have until Monday
next, being the 25th day of April inst., at i i o'clock,
A. M., to file answers thereto, and be then heard in this
court in defense of the accusation that he published a
grossly inaccurate report of the proceedings of this
court in the'Daily Tribune' of April I4, I864, in the
language contained in and recited in interrogatory the
first.
"Interrogatory the First. Did you write in manuscript the following matter, which appeared in page 4,
in column 2 thereof, in the'New York Daily Tribune' of Thursday, April I4, 1864?' Supreme Court of New York, Oyer & Terminer, New
York city, April, I864.          2 Geo. G. Barnard.




CH. III.]  OF  CONTEMPT  OF  COURT.           283
To wit, ("A Judicial Outrage." Here following
the article, portions of which contained the alleged
contempt.)
" Interrogatory Second.-If not, did you write in
manuscript any part thereof?
"Interrogatory Third. —If not, did you see the same
in manuscript, or in proof, before it was published?
" Interrogatory Fourth.-If not, were you or not
the responsible editor of'The Tribune' on the I4th
day of April, I864?
" Interrogatory Fifth.-If you did not write or see
before publication the said matter, do you know who
is the author, or writer, or composer thereof, or did
you not know that it was to be published?
"Interrogatory Sixth.-If you know the said
author or writer, please name him?
"A statement of the transactions in court, which
were reported and commented on in'The Tribune'
followed, together with a disclaimer from the court of
any complaint as to the editorial comments, but only
as to what purports to be a report of the proceedings
in court."
To these interrogatories Mr. Greeley filed the following statement:
" Horace Greeley, in the above-entitled proceedings referred to, protesting against the jurisdiction of
this court over his person, and over the proceedings
now being taken, and insisting that they are irregular
and without warrant of law, and further insisting that
he ought not to be asked, and cannot legally be compelled to answer questions upon a charge which is in
its nature criminal, and for which he may be exposed
to indictment, both as a misdemeanor for a contempt
as well as for a libel; and further insisting that the said
article, in the order to show cause in these proceed



284          LA W   OF  LITERATURE.            [CH. III.
ings referred to, is not a report of the proceedings
of a court, but, on the other hand, is simply an editorial criticism, based upon a report of such proceedings contained in a newspaper called'The Evening
Express,' published two days before said editorial article
was published, to wit, on the I 2th day of April instant.
" For answer to the interrogatories filed and served
on him, says that he is nowv, and ever since its foundation has been, the principal editor of the newspaper
called'The Tribune,' and is one of its proprietors, by
being a stockholder of the corporation that publishes
the same. That, as such editor and proprietor, he is
subject to all the responsibilities that justly pertain to
that relation. Believing that this avowal is a substantial answer to all the interrogatories propounded
to him, he most respectfully declines to answer any
questions that may expose any of his associates in the
editorship and publication of said newspaper, to the
discipline of this tribunal, preferring to abide the consequences, be they what they may."
The court being satisfied that no disrespect was intended, discharged Mr.Greeley.'' And see as to this subject generally exparte Jones, I3 Ves.
Jr., 237; Re Mayer, 2 Barnard, 43; Re Crawford, I88 J., 225
Q. B.; Re Yates, 4 Johns. 317; 6 Johns. 337. As to contempts
by publications reflecting on courts, &c., see Re Van Hook, 3
City Hall Recorder, 64; Re Spooner, 5 Id. Iog; Re Strong,
Id. 9; Birch v. Walsh, Io Ir. L. R. I3; Re Van Saudan, I De
Gex. 55; Re Crawford, I8 L. J. 225, Q. B.; exparte Turner, 3
Mont. D. & G. 523; Rex v. Lee, 5 Esp. I23; Respubli,. v.
Oswald, i Dallas, 319; Richmond v. Dayton, ro Johns. 393;.
Folger v. Hoogland, 5 Id. 235; Re Bronson; I2 Id. 460;
The People v. Freer, i Cai. 485; The People v. Few, 2 Johns.
290; Rex v. Hart, I Camp. 359; I Hawk. P1. Cr., Ch. 73; Re'
Crawford, 13 Q. B. 6I3; Starkie on Slander, by Folkard, Ch.
xxxvi; Moulton v. Clapham, Sir W. Jones, 43t1; March on
Slander, 20; Hollingsworth v. Duane, J. B. Wallace, 77;
Bayard v. Passmore, 3 Yeates, 438.




CH. II.]  OF  CONTEMPT  OF  COURT.                285
I3I. Courts cannot be permitted to be scandalized by statements and comments tending to weaken
their authority, merely because those statements are
published by a newspaper in giving its readers the
news of the day. And if a prisoner convicted of murder and sentenced to death, while on the scaffold, and
before his execution, makes a speech, reflecting
upon his trial, a newspaper may not be justified
in publishing a report of his speech.' If a highwayman shall, at the gallows, arraign the justice of the law,
and of those who condemned him, he who publishes
(the highwayman's language) shall not go unpunished.2
"The  defendant's excuse," said the court, "in such
a case3 is indeed entitled to be received at its fullest
value; but since the wrong and injury consist, not in
the intention, but in the printed word reaching the
eye of the reader, the disavowal of bad intent
cannot do away with the pernicious effect against
which it is the aim of these proceedings to guard."
But neither, on the other hand, will the court
travel behind the publication to search for a bad intent, even if the publication were intended to be contemptuous of the court, but is not so in fact, the court
will not punish for the intention.
Lord Erskine committed to prison the committee
of a lunatic and his wife for having published a
1 See Sandford v. Bennett, 24 N. Y. 20, and the same
commented on post. in chapter on newspapers. In this case
the language reflected on one of the prisoner's counsel, not
upon the court. Townshend on Slander and Libel, p. 375.
Here was a literal exemplification of Butler's lines:
" No rogue ere felt the halter draw
With good opinion of the law."
2 I Read. Stat. Law, I5I; Dig. L. L. 32.' People v. Freer, I Caine, 485.
People v. Freer, I Caine, 485, 518; Bayard v. Passmore, 3
Yeates, 439; Morrison v. Moat, 3 Edw. Ch. 25.




286        LA WV OF LITERA TURE.    [CH. IIIl
pamphlet, with a dedication to the lord chancellor, reflecting upon the conduct of certain persons acting, in
the management of the affairs of a lunatic, underorders from the court of chancery. His lordship committed also the printer; holding that ignorance of the
contents of the pamphlet would not excuse him.'
132. Even wide insinuations will sometimes be
construed into a contempt at common law. In 1788 an
information was granted against the members of the
corporation of Yarmouth, for having entered upon
their books an order, stating " that the assembly were
sensible that Mr. W. [against whom an action had
been brought for a malicious prosecution, and a ver —
dict returned for /3,oo000 damages, which the court refused to disturb,] was actuated by motives of public
justile, of preserving the rights of the corporation to;
their admiralty jurisdiction, and of supporting the
honor and credit of the chief magistrate; and therefore they vote him the sum of /2,300."  " Nothing,"
said Buller, J., "can be of greater importance to thewelfare of the public, than to put a stop to the animadversions and censures which are so frequently
made on courts of justice in this country. They can
be of no service, and may be attended with the most
mischievous consequences.  Cases may happen in
which the judge and the jury may be mistaken:
where they are, 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; either by a writing
like the present, by publications in print, or by any
other means, to calumniate the proceedings of a court
of justice, the obvious tendency of it is to weaken the
administration of justice, and in consequence to sap.




CH. III.]  OF  CON TEMPT  OF  COURT.           287
the very foundation of the constitution itself....
They say'that W. was actuated by motives of publicjustice,' &c. But the judge and jury who tried the
cause, confirmed as to their opinion by the court of
common pleas, have said that-instead of his having
been actuated by motives of public justice, or by any
motives which should influence the actions of an
honest man-he had acted from malice. These opinions are not reconcilable; if the one be right, the
other must be wrong. It is, therefore, a direct insinuation that the court had judged wrong in all they have
done in this case, and it is therefore clearly a libel on
the administration of justice..... The defendants
have, indeed, said that they never meant to reflect on
the public justice of the country; but that, alone, is no
answer to this application. Where particular allegations are made, in applying for an information, some
answer must be given.  If the thing charged be
capable of different explanations, it is fair to take the
defendants' explanation in their affidavits, that they did
not intend anything wrong; but if it be only capable
of one interpretation, we are not to be guided by such
a general answer. I am of opinion that the information should go against all."'
When the common council of New York citybeing enjoined, by a preliminary injunction, from certain official action passed resolutions declaring the
injunction illegal, proclaiming a determination to
disregard it, and imputing dishonesty to the judges
who granted it; the resolution was held a contempt.2
Rex v. Watson, 2 T. R. I99.
2 People v. Sturtevant, 9 N. Y. 263; affirming People v
Compton, I Duer. 5I2. See also Morrison v. Moat, 4 Edw
25.




288          LAW   OF  LITERATURE.            [CH. III.
But a fair account of proceedings in a court of
justice will be considered as privileged from proceedings by contempt.'
Or-even if the publication be otherwise construable as contemptuous-if it appear that no right or
remedy of the parties to the suit be defeated, impaired, impeded, or prejudiced; and if the misrepresentation be not willful, the court will accept a disavowal of an intentional contempt, and withhold punishment.2
I33. V. As to the publication of reports: courts
have always claimed and exercised the right to dictate
whether or not their proceedings should be published.
In the time of Edward the Third, Lucius de Thacstead,
a notary public, was committed to the Tower, for
merely attending in court to take a note of the
Hoare v. Silverlock, 9 C. B. 20; Ryallsv. Leader, i L.
R. 298 Ex.; Pillock v. Onell, 63 Pa. St. 253; Hearne v. Stowell, I2 Adol. & El. 7I8; 4 Per. & D. 696; Turner v. Pullman,
6 Law Times Rep. N. S. I30; Rex v. Wright, 8 T. R. 298;
Chambers v. Payne, 2 C. M. & R. I56; Cincinnati, &c. Co. v.
Timberlake, Io Ohio, N. S. 548; Flint v. Pike, 4 B. & C. 84;
Saunders v. Mills, 6 Bing. 213; 3 M. & P. 520; Lewis v. Levy,
i El. B. & E. 537; Andrews v. Chapman, 3 C. & K. 286;
Smith v. Scott, 2 Id. 580; Thomas v. Croswell, 7 Johns.
264; Rish Allah Bey v. Whitehurst, i8 L. T. (N. S.) 298 Ex.
No reporter, editor, or proprietor of any newspaper shall be
liable to any action or prosecution, civil or criminal, for a fair
and true report in such newspaper of any judicial, legislative,
or other public official proceedings, of any statement, speech,
argument, or debate, in the course of the same, except upon
actual proof of malice in making such report, which shall in
no case be implied from the fact of publication (Laws of N.
Y. I854, ch. I30, ~i). Nothing in the preceding section contained shall be so construed as to protect any such reporter,
editor, or proprietor, from an action or indictment for any
libelous comments or remarks superadded to and interspersed
or connected with such report. Id. ~ 2. Edsall v. Brooks, I7
Abb. Pr. 227; 26 How. Pr. 426.
2 Morrison v. Moat, I Edw. ch. 25.




CH. III.]   OF  CONTEMPT  OF  COURT.               280
proceedings between Johannes de Bourne and Ricardus
de Potesgrave; and a disregard of the prohibition of
a court,' or even of a magistrate,2 is a contempt.
Lord Eldon once remarked that, when he first
came into Westminster Hall, the law was well understood that it would be a contempt to publish the proceedings of the court before they were finished;   and
Lord Tenterden, in one case,4 ordered that there should
be no publication of the proceedings, until the several
indictments against the defendant had been tried; and
fined a newspaper proprietor ~500 for disobedience to
this order, in publishing an account of the first trial
before the second had begun.
" Nothing," said Lord Hardwicke, " is more incumbent upon courts of justice than to preserve their proceedings from being misrepresented; nor is there anything of more pernicious consequence than to prejudice the minds of the public against persons concerned
as parties in causes, before the cause is finally heard.
It has always been my opinion, as well as the opinion
of those who have sat here before me, that such a proceeding ought to be discountenanced." And the jurisdiction has been exercised in very recent cases.6
In the state of New York, " publishing a false or
See Flint v. Pike, 4 Barn. & C. 473.
2 Cox v. Coleridge, I B. & C. 37; Garrett v. Ferrand, 6 Id.
6 II.
Knight v. Knight, I Jacc. & Walk. 167.
4Rex v. Clement, 4 B. & Ald. 218. The courts upheld the
action of Lord Tenterden in this proceeding, but Campbell
(Lives of the Chief Justices, vol. iii. p. 208) gives it as his
opinion that this transaction tarnished the fame of Lord Tenterden, and that the order forbidding the publication was " imprudently" made.
~ In Baker v. Hart, 2 Atk. 488.
6 So recently as i867, a justice of the Superior Court of the
city of New York prohibited the publication of proceedings
19




290          LA W   OF  LITERA TURE.    [CH. III.
grossly inaccurate report of the proceedings of a court
of record is a criminal contempt," by statute.l
It is very far from the purpose of the law to forbid,
newspaper comments upon public and well-known and
accomplished facts.
If, for instance, one engaged in the trial of a cause~
should himself commit a contempt of court, it would
not be contempt for a newspaper to chronicle the fact,,
or to call the attention of the public or of the court
thereto.2 So, if a newspaper remark upon the conduct
of a juror, who-while engaged in the trial of a capital
cause, and while apart from the public and in charge
of the court officers-was furnishing articles for publication to the daily press, and call the attention of the
court to the fact, in a manner irritating to the presiding judge, though not in any way impeaching his
impartiality or uprightness, it is not contemptuous in
the newspaper.'
I34. In I83I, it was enacted by congress,4 that
"the power of the several courts of the United States
to issue attachments, and punish for contempt of
court, shall not be construed to extend to any cases
except the misbehavior of any person or persons in
the presence of the said courts, or so near them as to
obstruct the administration of justice. The misbehavior of any of the officers of the said courts, in their
official transactions, and the disobedience or resistance
by any officer of the said courts, party, juror, witness,.
had before him, and his course was approved by the other
justices of that court. Townsend on Slander and Libel, p.
370 (note).
2 Rev. Stat. 278, ~I.
2 Stuart v. People, 3 Scam. 395.
Id.
Act of March 2nd, I83I. Sec. 725, Title xiii., ch. I2. Revision of I873-74. Where the wording was slightly changed.




CH. III.]  OF  CONTEMPT  OF  COURT.             291
or any other person, or persons, to any lawful writ,
process, order, rule, decree, or command of the said
courts. But there may undoubtedly, and do, arise
cases in which it is expedient that a court should
regulate the publication of its own proceedings. As,
for instance, where these proceedings might or did
awaken such intense public sympathy or indignation
as might prejudice or interfere with the progress and
calmness of the judicial inquiry.  Such a case was
United States v. Holmes,l where the defendant was a
survivor of a party who, having been shipwrecked,
had found themselves forced to sacrifice the life of
some of their number to save the rest, and had drawn
lots for their lives. The case attracted great attention,
and public sentiment was intensely agitated in the
matter. In that case, Mr. Justice Baldwin said:
"By act of congress, passed some years since, the
court has no longer the power to punish, as for contempt, the publication of testimony pending a trial
before us. We have, however, the power to regulate
the admission of persons, and the character of proceedings within our own bar; and as the court perceives several persons, apparently connected with the
daily press, whose object, we presume, is to report the
proceedings and evidence in this case, as it advances,
the court takes occasion to state that no person will
be allowed to come within the bar of the court for
the purpose of reporting, except on condition of
suspending all publication till after the trial is
concluded." 2
I35. As we have before had occasion to remark,
1Wallace Jr. I.
2 Vid. also Rex v. Clement, 4 B. & Aild. 2I8; per Lord
Hardwicke, 2 Atk. 471; S. C. nom; Roach v. Garvan, 2 Dick.
794; Mrs. Farley's Case, 2 Ves. Sen. 520; Garnett v. Ferrand,




292          LA W  OF  LITERA TURE.           [CH. III.
fair comments upon matters of public interest will be
rather encouraged than otherwise, but the privilege
will not be construed by courts to extend to comments on matters still pending, which have a direct
tendency towards directing and swaying the mind of
the court or jury by whom the cause is to be
determined.'
I36. The misrepresentation of a decision of a
court, or of its views and reasons in making the
decision, may be a contempt of court, or possibly the
suppression of its authorized reports, made by its own
reporter.'
6 Barn. & Cress. 6i6. The rule would to-day appear to be
eminently the reverse, for almost as much a matter of course
as the presence of the court itself, has come to be the presence
of the representative of the daily press.
1 Shortt L. L. 371; Tichborne v. Mostyn, I7 L. T. N. S.
7; L. Rep. 7 Eq. 57. In this case it was held a gross contempt of court to publish in a newspaper an article commenting on affidavits which had been filed on behalf of the plaintiff in a suit, but were not yet before the court; and the
publisher, after making an ample apology, was ordered to pay
the costs of a motion to commit him.
Tt is also a contempt to reprint in another newspaper an
article of this sort. In the case last referred to, a motion to
commit the publishers of two newspapers which had simply
reprinted the article was refused, but the publishers had to
pay their own costs. The printer of a newspaper which had
gone beyond merely reprinting the article, was made to pay
the costs of the motion.
Vice-Chancellor Kindersley committed to prison the publisher of a newspaper, for having published a leading article
commenting on affidavits made in a suit in Chancery, which
had not yet come on for hearing, and holding up to ridicule
the makers of the affidavits, and characterizing their conduct
as utterly disgraceful.
If a court made an order prohibiting the publication of
the proceedings pending a trial likely to continue for several
successive days, it is a contempt of court to disobey such
order. Shortt L. L. 37I.
2 Morrison v. Moat, X Edw. Ch. 25.




CH. III.]  OF  CONTEMPT  OF  COURT.              293
I37. As analogous to, and parcel of, the doctrine
of contempt of court, is the doctrine of the contempt
of legislative bodies.
The rule, as to contempts of this kind, has been
stated to be that " whatever grossly reflects on the
character of a member of either house, or whatever
imputes to him what it would be a libel to impute to
an ordinary person, is a contempt, and thereby breach
of privilege; it is a direct assault upon his character,
and, through the odium presumed to be excited
thereby, a consequential obstruction of his political
duties." 1
The house of lords formerly inflicted fine, imprisonment, and the pillory, for offenses of this kind against
its members; but in more recent times, commitment,
with or without fine, has been the ordinary punishment inflicted by both houses of parliament.2
In the case of Arthur Hall, in I58I, himself a
member of parliament, the house of commons inflicted
the threefold penalty of imprisonment, fine, and expulsion, for a printed libel, "not only reproaching some
particular good members of the house, but also
very much slanderous and derogatory to its general
authority, power, and state, and prejudicial to the
validity of its proceedings in making and establishing
of laws." 3
For examples of the punishment of the pillory, see
the cases of Thos. Morley, in I623, for a libel on the
lord keeper,4 and William Carr, in I667, for dispersing
scandalous and seditious printed papers against Lord
Gerard, of Brandon.5
Rex v. Cuthell, 27 Howell's St. Tr. 642.
2 Holt, L. L. ii8.
D'Ewes, 29I; Hatsell, 93; I Com. S. I25; Hallam Const.
Hist. C. 5.
439 Lords J. 3I4, 33I.'66 Id. 704.




294         LAW  OF  LITERA TURE.    [CH. III.
Commitments were made by the house of lords, in
I663, for a libel on Lord Gerard, of Brandon; in
I688, for printing a paper reflecting on Lord Grey, of
Wark.'
In I722, persons were attached'for printing libels
concerning Lord Strafford and Lord Kinnoul;2 and
in I 776, for sending an insulting letter to the Earl of
Coventry, the offender in the last case being afterwards reprimanded and ordered "to be continued in
custody until he find security for his good behavior;"
in I 779, for a libel on the Bishop of Llandaff.3
One Rainer was convicted, in I733, of having
printed a scandalous libel upon the lords and commons, and sentenced by the court of king's bench to
pay a fine of /50, and to be committed for two years,
and until he should pay the fine, and likewise till he
should find security for his good behavior for seven
years.4
In pursuance of a resolution and address of the
house of commons, John Stockdale was tried, in I 789,
upon an information charging him with having published a certain false, scandalous, wicked, seditious, and
malicious libel concerning the impeachment of Warren Hastings, intending to asperse, scandalize, and
vilify the commons of Great Britain, in parliament
assembled, and most wickedly and audaciously to
represent their proceedings in parliament as corrupt
and unjust, &c.5
14 Lords J. I44.
22 Id. I29.
342 Id. I29.
42 Barnard, 273.
After a brilliant speech on behalf of Mr. Stockdale by
Erskine, who took the line of defense that the intention of the
author was to charge with injustice, not the house of commons as a body, but the private accusers of Mr. Hastings,




CH. III.]  OF  CONTEMPT  OF  COURT.             295
In I 796, John Reeves was tried upon an information
filed against him  by the attorney-general, in consequence of a resolution of the house of commons, that,a pamphlet published by him entitled, " Thoughts on
the English Government," was a malicious, scandalous,
and seditious libel, and was also a high breach of the
privileges of the house, and that an address should be
presented to his majesty asking him to direct a pros*ecution of the publisher.'
In I834, a leading article having appeared in "The
Morning Post," reflecting upon the conduct of the
lord chancellor (Lord Brougham) with reference to a
case which had come before the house of lords on
appeal, the house resolved that the paragraph was a
gross breach of their privileges, and committed the
editor to the custody of the usher of the black rod.
In I686, an information having been filed against
Sir William  Williams, for publishing a libel called
"Dangerfield's Narrative," the defendant pleaded that
he was, at the time of publication, speaker of the
house of commons, and, as such, had a right to publish
the votes and acts of the house, and that the " Narrative " in question was printed and published as parcel
of the proceedings; but the court called the plea an
idle, insignificant one, and gave judgment for the king,
inflicting a fine of ~Io,ooo on the defendant; the
lord chief justice (Wright) asking the defendant's
counsel whether an order of the house of commons,could justify a scandalous, infamous, and flagitious
libel.2
Lord Kenyon, C. J., told the jury that he acceded to the doctrine that they must be convinced that the pamphlet "was
meant as an aspersion upon the house of commons;" and
the jury retured a verdict of not guilty.
The jury acquitted the defendant. Rex v. Reeves, 26 St.'Tr. 530.                     2 Io St. Tr. App. 34 n.




:296        LA W  OF LITERA TURE.    [CH. III.
This case of Sir William Williams happened, as
observed by Lord Kenyon, C. J., in the worst of times,
and the publication was a paper of a private individual published by another individual, under pretense of
sanction of the house of commons. Gross, J., said of
the same case, that it was declared by a great authority,,
to be a disgrace to the country.
In i805, one Stuart was committed to the custodyof the sergeant-at-arms for a breach of privilege in
printing and publishing, in "The Daily Advertiser,.
Oracle and True Briton," certain libelous reflections
on the character and conduct of the house. In I8Io,
Sir F. Burdett, a member of the house, was sent to
the tower for publishing "a libelous and scandalous
paper reflecting upon the just rights and privileges of
the house." In I8I9, the house resolved that a certain
pamphlet, of which Mr. Hobhouse acknowledged
himself to be the author, was "a scandalous libel containing matter calculated to inflame the people into
acts of violence against the legislature, and against
this house in particular," and that it was " an high contempt of the privileges and of the constitutional authority of this house;" and the writer of the pamphlet
was committed to Newgate.
In i68o, two persons, named Yarrington and
Groome, were committed for a libel against a member.
In 1689, one Smelt was committed for spreading a
false and scandalous report of a member; as was
John Rye, in I696, for having caused a libel reflecting
on a member to be printed and delivered at the door.
The house committed one Woodfall, in I774, for publishing a letter reflecting on the character of the
speaker; and, in I82I, the author of a paragraph in
" The John Bull " newspaper containing a libel on one
of the members. In I832, two solicitors were called:




Cui. III.]  OF  CONTEMiPT  OF  COURT.          297
to the bar of the house, for a libel contained in a
printed handbill, being a copy of an official letter
signed by them, and addressed to a committee sitting
on the " Sunderland Wet Docks Bill," reflecting on the
conduct of certain members of the committee, and
containing a statement of the manner in which the
members had voted in the committee.
I38. Burdett v. Abbott' was an action against the
speaker of the house of commons, for breaking open
and entering the house of the plaintiff (a member of
parliament), arresting him, taking him to the tower of
London, and imprisoning him there; acts which the
defendant justified, under a resolution of the house,
that a certain letter published by the plaintiff in a
newspaper known as " Cobbett's Weekly Register,"
was a " libelous and scandalous paper, reflecting on the
just rights and privileges of that house," and that the
plaintiff had thereby been guilty of a breach of the
privileges of the house; whereupon it was ordered
that the speaker should issue his warrant to commit
him  to the tower. "Can the high court of parliament," said Lord Ellenborough, C. J., in his judgment, "or either of the two houses of which it consists, be deemed not to possess intrinsically that authority of punishing summarily for contempts, which
is acknowledged to belong, and is daily exercised as;
belonging, to every superior court of law, of less dignity undoubtedly than itself?  And is not the degradation and disparagement of the two houses of parliament, in the estimation of the public, by contemptuous libels, as much an impediment to their
efficient acting, with regard to the public, as the actual
obstruction of an individual member by bodily force,
in his endeavor to resort to the place where parlia1 I4 East, T




.298         LA W   OF  LITERATURE.    [CH. III.
ment is holden? And would it consist with the dig-.nity of such bodies-or, what is more, with the immediate and effectual exercise of their important func-.tions-that they should wait the comparatively tardy
result of a prosecution in the ordinary course of law,
for the vindication of their privileges from wrong and
insult? The necessity of the case would, therefore,
upon principles of natural reason, seem to require that
such bodies, constituted for such purposes, and exercising such functions as they do, should possess the
powers which the history of the earliest times shows,that they have, in fact, possessed and used."'
The Speaker, in issuing such a warrant, does not, according to Bayley, J., act in the character of a subordinate officer,
but in that of a member of the House. "When the House
make an order that their Speaker shall issue his warrant, they
do not direct him to do it as a subordinate minister to them,
but only as being the individual member of greatest dignity
in the House; by whom, on ihis and other occasions, the House
speaks and acts; and his act in this respect is not, I think, the.act of an officer, but the act of a member of the House. But
-if," adds the learned judge, " it were the act of an officer of the
House, acting under and by virtue ofitsjudgment on the subjectmatter, I can not help thinking that, where a court has competent jurisdiction to decide upon a point, and has decided
and given judgment upon it, and they direct their officer to carry
that judgment into execution; the officer is protected by that
judgment."
This was so decided by the Court of Exchequer Chamber
(Howard v. Gossett, Io Q. B. 359; Parke, Alderson, and
Rolfe, BB., Coltman, Maule, and Creswell, JJ.), reversing the
decision of the majority of the Court of Queen's Bench, who
held a Speaker's warrant void, because it did not show a sufficient authority on the face of it, to justify the defendant in
all he admitted to have done. Parke, B., in delivering the
unanimous judgment of the Exchequer Chamber, says:
"Writs issued by a superior court, not appearing to be uut of
*the scope of their jurisdiction, are valid; and, of themselves,
without any further allegation, a protection to all officers and
others in their aid, acting under them; and this, although they
be, on the face of them, irregular, as a capias against a peeress




CH. III.]  OF  CONTEMiIPT  OF  COURT.                299
I39. " There is no power," says Kent,' " expressly
given to either house of congress to punish for contempts, except when committed by their own mem(Countess of Rutland's Case, 6 Rep. 54 a); or void in form, as
a capias ad respondendurn not returnable the next term (Parsons
v. Lloyd, 3 Wils. 34I); for the officers ought not to examine
the judicial act of the court whose servants they are, nor
exercise their judgment touching the validity of the process in
point of law, but are bound to execute it, and are therefore
protected by it (Turner v. Filgate, I Lev. 95; Cotes v. Michill,
3 Id. 20)..... If, in these courts, the writ of attachment need
not state any special grounds in order to show that the court is
*acting duly, formally, and regularly, what good reason can be
assigned for requiring the House of Commons to do so? If
the writ of attachment in the general form used, is a protection
to the sheriff or the officer of the court executing it (as it undoubtedly is); and he need state nothing in his plea but the
issuing of the attachment (Levinz's Entries, p. i9I; Britton v.
Cole, i Salk. 408; Com. Dig. " Pleader," 3 M. 24), why should
not the warrant of the Speaker, in a general form, be equally
a protection to the sergeant-at-arms, the proper officer of the
House? We are clearly of opinion that at least as much respect is to be shown, and as much authority to be attributed to
these mandates of the House, as to those of the highest courts
in the country; and if the officers of the ordinary courts are
bound to obey the process delivered to them, and are therefore
protected by it, the officer of the House of Commons is as
much bound and equally protected...  The possibility of
abuse, which is urged as an objection to the power of either
House to issue its mandate in such a form, is no valid argument against its existence. If it were, it would apply equally
to all the superior courts, which, without doubt, have such
power; and it would apply also to the other admitted legal
powers of these courts, which may be abused without adequate
remedy. In case of an improper exercise of the power of attachment by a court of law or equity, or by either branch of
the Ihigh Court of Parliament, there can be no appeal: the
only remedy is by application to the sense of justice of each
court; and it would be improper to suppose that any one of
them would be more likely to abuse the power, or less likely
to grant redress, than another."
The warrant of commitment is not to be construed strictly
1 I Com. 235, 236, n. I,.




300          LA W   OF  LITERA TURE.    [CH. III,
hers; but in the case of Anderson,' who was committed by order of the house of representatives, for
a contempt of the house, and taken into custody by
the sergeant-at-arms, an action of trespass was carried
by writ of error to the supreme court of the United
States; which court decided that the house had that
power, and that it was an implied power, and of vital
importance to the safety, character, and dignity of the
house."2
It seems indisputable that such a doctrine is of
vital necessity to the usefulness of a legislative assembly.  But, since it contemplates  only the offense
against the body in session,' and not an offense against
the laws of the land, or the dignity of the government
(which offense would be sedition-a crime, as we have
seen, almost. unknown  amongst us), the power to
punish need not and does not extend beyond the
as that of an inferior court or justice of the peace, but it is to
be construed as a writ of a superior court, not appearing on
the face of it to be beyond the scope of its jurisdiction (Howard v. Gossett, Io Q. B. 359); and therefore the warrant,
though it does not specify the cause of arrest, furnishes a justification to the officer who executes it. Id.
Anderson v. Dunn, 6 Wheat. 204.
2 It is a power inherent in all legislative assemblies, and is
essential to enable them to ekecute their great trusts with
freedom and safety; and it has been frequently exercised, not
only in Congress, but by the respective branches of the state
legislatures, and may be considered as indisputably acknowledged and settled (Story's Commentaries, ii. 305, 317).
In the case of Howard v. Gossett (Io Ad. & Ell. N. S..
359), the powers and privileges of parliament were veryelaborately discussed; but the Court of Exchequer Chamber,.
in the final decision, placed itself upon the narrow ground, that
the speaker's warrant must be construed as process of a
superior court, not appearing to go beyond its jurisdiction.
In the case of a contempt of court, however, the case is
different, for courts, being the impersonation of justice of the
state, are always in session, there can be no interregnumi to
their authority.




CH. III.]   OF  CONTEMPT  OF  COURT.               301
session in which the contempt was committed, and
will terminate upon the adjournment or dissolution of,congress.'
It was held by the supreme court, in the case of
Anderson v. Dunn,2 that the house of representatives
has, by necessary implication, a general power of
punishing and committing for contempts, notwithstanding that the lex Scriz>ta, " the constitution of the
United States," had expressly conferred upon it a
power to punish "its members"; thereby, as it was
argued, on the principle that enumeratio unzis est.exclusio alterius, prohibiting the jurisdiction in the
case of persons not members of the house. "It is
true," said Johnson, J., delivering the judgment of the
court, " that such a power, if it exists, must be derived
from implication, and the genius and.spirit of our
institutions are hostile to the exercise of implied
powers...    That a deliberate assembly, clothed
with the majesty of the people, and charged with the
care of all that is dear to them; composed of the most
distinguished citizens, selected and drawn together
from every quarter of a great nation; whose deliberations are required by public opinion to be conducted
under the eye of the public, and whose decisions must
i Kent. Com. 236. The duration of imprisonment for contempt terminates also in England upon the close of the existing session of parliament. Stockdale v. Hanford, cited in
May's Treatise on the Privileges of Parliament, 62; Rex v.
Crosby, 3 Wils. Rep. 138; Burdett v. Abbott, I4 East R. I.
Even to the duration of imprisonment, " a period is imposed
by the nature of things, since the existence of the power that
imprisons is indispensable to its continuance; and although
the legislative power continues perpetual, the legislative body
ceases to exist on the motion of its adjournment or periodical
dissolution.  It follows, that imprisonment must terminate
with that adjournment." Per Johnson, J., in Anderson v.
Dunn, 6 Wheat. Rep. 231.            2 6 Wheat. R. 204.




302          LA W   OF  LITERA TURE.          [CH. IIIL
be clothed with all that sanctity which unlimited confi-d
dence in their wisdom and purity can inspire-that
such an assembly should not possess the power to
suppress rudeness, or repel insult, is a supposition too,
wild to be suggested." What particular acts shall
amount to a contempt of either house of congress are
not defined; and are, it would seem, left to the judg —
ment and discretion of the house, under the circumstances of each  case.'  And, we  doubt not, libels
which grossly interfered with the usefulness of officers
or members of either house, would be held contemptuous by courts.
I40. Congress has unquestionably, as we shall
have occasion to consider further on, in the chapter
upon newspapers, the right to control the publication
of its own deliberations. But in the exercise of this,
right, we know of but a single instance in which that
body has proceeded to its extreme powers.2
I4I. The newspapers of the Union always have
enjoyed, and still enjoy, the largest liberty of criticism
of Congress and of its officers and members, and show
no disposition to be scrupulous of passing the line
which separates criticism from vilification and abuse.
It is needless to observe that, not only legislative,.
but the whole law of contempt is one regarded with
great disfavor with us, and it is possible that it would
only be inforced by our courts with great reluctance
and in rare instances.' Kent. Com. 236 (note).
2 In I873, during what has been since known as the " Credit
Mobillier Investigation." In that instance Congress, having
resolved that certain of its deliberations should be secret, discovered, nevertheless, that its proceedings were being pub-.
lished in the daily papers, and proceeded to imprison certain
reporters who refused to disclose the perpetrators or the
neans employed by them to obtain the prohibited news. See:
Congressional Globe, Ist series, 42nd Congress, part ii., 846.




CH. III.]  OF  CON02EMPT  OF  COURT.               30o3
I42. The foregoing pages, it is believed, exhibit
the American law of contempt in its extreme form.
But it is well that it should be studied in that rather
than in its more lenient form, in order that we may
know the extreme of its operation.
The sentiment which pervades our courts, undoubtedly, is that which was well expressed by the
court in Stuart v. People.l  "Respect of courts can3 Scam. 397; quoted with approval by Scott, J., in Peoplev. Wilson, 6 Albany Law Journal, 352. The question as to
what is a contempt of court, its definitions and penalties, will
be usually found treated by the statutes of the different states.
In I87T, a successful attempt was made in the New York
legislature to enact, along with others, the following amendment to the code of procedure:
"SECTION 24.-The said act is hereby amended by edding
thereto an additional title, to be known as title sixteen, as
follows:'Conferring power upon courts of record, and
every judge or justice of any such court, to punish for contempts.' Every court of record, and every judge or justice of
any court of record, shall have the like power which courts of
record, or a judge or justice thereof, possessed at common law,
to punish as for a contempt of court, any person or persons
for any act, matter, or thing for which' courts of record or a
judge or justice thereof could at common law punish any person or persons as for a contempt of court; and the proceedings for contempt shall be had and conducted in such manner
as the court, or judge, or justice shall direct, and the punishment, which may include fine or imprisonment, or both, shall
be in the discretion of the court, or judge or justice, before
whom the proceeding is had. And all laws and parts of laws
inconsistent herewith are hereby, so far as the courts of record
and judges or justices thereof are concerned, repealed."
But an earnest and intelligent opposition was made by the
public, and notably by the Bar Association of the city of New
York; a committee of which association waited upon theGovernor (Hoffman), through whose efforts the Governor was
induced to veto the whole. Said Hon. Theodore W. Dwight,
one of that committee:
" It can scarcely be possible that the people of the state of
New York, after an experience of forty years of full liberty of'
speech and of the press, as far as the doctrine of constructive



304          LAW   OF  LITERA TURE.             [CH. III.
not be compelled, it is the voluntary tribute of the
public to truth, virtue, and intelligence, and while they
contempts is concerned, are ready to endanger, and perhaps
sacrifice it, by giving deliberately such portentous powers to a
single judge, having no check upon his will except the cumbrous, well-nigh obsolete and quite ineffectual method of trial
by impeachment. Assuming that there is no danger at the
present moment, the hour may arrive when the common-law
power to commit for contempt will furnish a ready and
efficient weapon in the hands of the bold and unscrupulous,
to silence, not only the press, but also the utterances of
advocates or counsel. Arbitrary power always frets at free
speech on the part of members at the bar. So Gov. Coldon
wrote to the Earl of Halifax a letter in which he refers to the
dangerous influence which the profession of the law had
obtained in this province more than in any other, and wishes
that'the people were freed from the domination of the lawyers.' This so-called' domination' was nothing more than a
fixed determination, on the part of the few members of the bar
of that day, to insist upon a rational freedom-a determination
which the governor in vain hoped to overcome. Should the
struggle for free speech ever commence again, the bar will
not be unfaithful to its traditions, and will strive again to'dominate'in the same good sense. If, by the doctrine of
constructive contempts, its members are cowed into silence,
there will be hushed a potent voice of the tribunes of the
people."
The question of contempt by written matter alone is, of
course, within the province of this inquiry. What constitutes
contempt, however, by other means, as by words or gestures
in the presenee of a judge, can not fail to be an interesting
inquiry, and we can not forbear the insertion of some
additional memoranda under that head.
Calling a magistrate, in a court of justice, a fool, but not
so speaking of him in his absence, and without reference to
the execution of his office (Simmons v. Sweete, Cro: Eliz. 78;
Reg. v. Wrightson, Salk. 698; see also 2 Roll. Rep. 78; 4 Inst.
I8I; exparte the Mayor of Yarmouth, i Cox Grim. Cas. 122);
giving the lie to the steward of a manor holding a court leet
(Earl of Lincoln v. Fisher, Cro. Eliz. 58I; Ow. II3; Mo. 470),
or telling him in court that he is forsworn (2 Rol. Abridg.
78); saying to justices in session "Though I can not have justice here, I will have it elsewhere" (Rex v. Mayo, I Keb. 508;
I Sid. I44); putting on one's hat in presence of the lord of a




CH. III.]   OF  CONTEMPT  OF  COURT.                 305
are found on the judgment-seat, so long, and no
longer, will they retain the public confidence." 
court leet, and saying he cared not what he could do (Bathurst
v. Coxe, I Keb. 45I, 465; Raym. 78); saying to a justice of
*the peace in the execution of his office that he was a rogue
and liar (Rex v. Revel, i Str. 420); but not saying of a justice
in his absence that he was a scoundrel and a liar (Rex v. Weltie, 2 Camp. I42).
And a court may be insulted by the most innocent words
uttered in a peculiar manner and tone (per Lord Denman, C.
J., Carus Wilson's Case, 7 Q. B. IoI5). Wherever a justice
may commit for such words, the offender may also be indicted
-for the misdemeanor (Str. 420). A justice can commit only
where the contemptuous words are spoken in his presence;
in other cases the remedy is by indictment of the offender
(Rex v. Revel, ubi supra; see also Rex v. Wrightson, ubi suzjra,
and I Vent. i69; 2 Keb. 249; Hutt. I3I; 3 Mod. I39; Rex v.
Selby, Mich. 4 Anne K. B.; Rex v. Penny, I Ld. Raym.; Rex
v. Pocock, Str. 1157). A barrister may also commit a contempt of court in the conduct of a cause (Retalter, 33 L. J. I42
9. B.) and so may one of the parties to the cause in the course
of addressing the jury (Rex v. Davison, 4 B. & Ald. 329).
The act of congress of March 2, I83I (azt'e, p. 291), iS
claimed to have been induced by the case of Judge James H.
Peck, a district judge of Missouri, who, having written and
published an opinion in a certain case (upon which, during
the vacation of the court, one of the counsel therein, one Lawless, published a criticism), at a subsequent term, imposed an
imprisonment and fine for contempt of court upon Lawless.
Lawless complained to the House of Representatives, which
-voted articles of impeachment against Judge Peck, which were
tried before the Senate in 1830, Monday, Dec. 13, and following days. Judge Peck was acquitted by one vote, but upon
the ground that he had acted in good faith and in his understanding of the law  (annals of congress, p. 4 et seq). And
see Wharton's criminal law, 3439; Cole on criminal information, ch. 2; Re Oswald, I Dall.; Respublica v. Passmore, 3
Yeates, 441.




CHAPTER IV.
OF  ORIGINALITY.
I43. Once having satisfied itself that the work ask-.
ing its protection is innocent in its nature, that is, that
it does not subvert the state; or libel, deceive or injure
the morals of her subjects, or undermine the sanctity
and usefulness of her courts of justice; the law will,.
lastly, inquire whether the work be original; that is
to say, whether the person asking to be protected
therein, be, in any legal sense, its producer or originator, and entitled to a property by occupancy therein.For, as in the case of a title by occupancy to the solid
earth, which he has not made, the author must show
something in his published work of which he is the
first possessor. Some idea, of which no other can
claim to be in possession, must enter into its design,
material, or manufacture, or employment. Something
there must be new and original.
I44. This question of originality is by no means
one easy of solution, for many reasons. In the first
place-like the fact of innocence-the originality
must exist in every case, independently of any actual
possession of the manuscript, either by manual custody or statutory registration.  Though one be the
owner, by legitimate purchase, of a written work; if it
be actually the production of a foreigner, the owner
cannot claim the protection of the law therefor. Nor,




CIi. IV.]      OF ORIGINALITY.                307
again: will the fact of compliance with any formal
requisites of a statute, be anything more than przim
facie proof of his ownership so long as it remains undisputed; and equity will not fail, in either case, not
only to withhold its protection from the work not
original, as it did from the work not innocent, but in
this case to endeavor, if possible, to restore or compensate therefor to its rightful owner.
I45. In the second place, it is very clear that a
legal, as contradistinguished from the popular and
derivitive meaning of the word original, must be
sought. For in the field of literature, any such thing
as absolute originality is very rarely to be met with.
As long ago as the old Librarian wrote, he declared
that men were in the habit of " making new books as:
apothecaries make new mixtures, by pouring only out
of one vessel into another;"' and he lived at a
time when the presses of the world were not taxedi
with new volumes, nor the world glutted with bookwriters.
That we must accept a legal definition of the
words "original" and "originality," as distinguished
from the strict and derivative meaning, is apparent, too,
from the impossibility of following the latter at all, in
these days. If we were to declare that none but he
who devised from his own brain, without a knowledge
of the compositions of other men, should be entitled
to protection, what author could claim that protection?
(And it might be added, of what value would his production be?) From the very inception of literature;
language not only has been a common stock in trade
of authors; but sentiments, similies, phrases, and compositions; whose recurrence might sorely tax the credulity of those who would believe them mere coin1 Burton's Anatomy of Melancholy, 435.




308         LA W  OF LITERATURE.    [CI. IV.
cidences. "There is," said Dr. Johnson,' "a common
stock of images; a settled mode of arrangement, and
a beaten track of transition, which all authors suppose
themselves at liberty to use, and which produce the resemblance generally observable among contemporaries. So that, in books which best deserve the name
of originals, there is little new beyond the materials
already provided. The same ideas and combinations
of ideas have been long in the possession of other
hands. And, by restoring to every man his own, as
the Romans must have returned to their cots from the
possession of the world, so the most inventive and
fertile genius would reduce his folios to a few pages.
Yet the author who imitates his predecessors, only by
furnishing himself with thoughts and elegances out of
the same general magazine of literature, can with little
more propriety be reproached as a plagiary than the
architect can be censured as a mean copier of Angelo
or Wren, because he digs his marble from the same
quarry, squares his stone by the same art, and unites
them in columns of the same order."
".... As not every instance of similitude can be
considered as a proof of imitation, so not every imitation ought to be stigmatized as a plagiarism. The
adoption of a noble sentiment, or the insertion of a
borrowed ornament, may sometimes display so much
judgment as will almost compensate for invention;
and an inferior genius may, without any imputation
of servility, pursue the path of the ancients, provided
he declines to tread in their footsteps." 2'The time came, however, when Dr. Johnson himself was
the victim of a piracy. See Dodsley v. Kinnersley, Amb. 402.
2 "4 Sir Fret.-I can tell you it is not always so safe to
leave a play in the hands of those who write themselves.
" Sneer. —What! they may steal from you-hey! my dear
Plagiary?




CIr. IV.]        OF  ORIGINALITY.                    309
Virgil imitated Homer, and Horace followed
Virgil.
"Hae tibi erunt artes —
Parcere subjectis, et debellare superbos,"
said Virgil.
" Imperet, bellante prior, jacentem
Lenis in hostem,"
said Horace.
"Nisi Ilias illa extitisset, idem tumulus qui corpus ejus
contexerat, nomen ejus obruisset,"
said Cicero; and this, again, we find paraphrased in
Horace:
"Vixere fortes ante Agamemnona
Multi, sed omnes illacrymabiles
Urgenter, ignotique longa
Nocte, carent quia vate sacro."
So Chaucer followed Petrarch, and Milton followed
IEschylus, Virgil, and Spenser.l So the author of
" Sir Fret. —Steal! to be sure they may, and, egad-serve
your best thoughts as gypsies do stolen children-disfigure
them to make'em pass for their own.
" Sneer.-But if your present work is a sacrifice to Melpomene-and he, you know, never —
" Sir Fret. —That's no security, a dexterous plagiarist may
do anything. Why, sir, for aught I know, he might take out
some of the best things in my tragedy and put them into his
comedy."-The Critic, act i. scene I.
"Our sage and serious poet.Spenser, &c.," says Milton,
in the Arcopagitica, I9. Milton told Dryden that Spencer was
his "original."  (See Dryden's Fables, preface.)  Without
any such conffession, it would have been evident from Milton's
earlier works how great was the influence of Spenser over his
youthful mind.  To say nothing of numerous Spenserian
echoes that may be detected, it is to Faerie Queene that he
especially alludes in I1 Penseroso, after his mention of the
Squire's Tale of Chaucer:
" If aught else great bards beside
In sage and solemn tunes have sung
Of turneys and of trophies hung,
Of forests and enchantments drear
Where more is meant than meets the ear."




3 10        LA W  OF  LITERA TURE.    [CH. IV.
Shakespeare drew from almost every source known to
the learned of the day; and so Byron and Tennyson
have followed, as in their turn they are and will be followed, let us be certain, until the end of time. Not
only the Latin, but every poet since has exclaimed at
the "sic vos non vobis" of the craft. Literature may
be aptly styled a mill, that is always-grinding over and
over again the same grist. An essayist is nothing
more than a man who runs together, into one composition, as much as he can of what has been said by a
dozen or a hundred of his predecessors, upon the theme
which he has chosen. As every opinion of a judge
upon the bench is drawn from  the volumes in his
library, so the work of every author has grown from
his reading and his lore, as well as from his genius and
his fancy.  A  lexicographer is not the originator
of language; nor a commentator, of the law; and all
these difficulties and complexities must be contemplated and construed, in considering the question of
originality before the law.
I46. A  legal definition of "originality" might,
perhaps, well be, that which is, in some ascertainable
feature, original. It would evidently be incorrect to
substitute the words " part," or "portion," for the word
" feature,"-for a work partly original, and partly copied
from another, has been repeatedly held to be original,
in the eye of the law, only as to the portion not
copied; and no amount of original matter added, can
justify use of borrowed matter in solido, or vest its
ownership in the transcriber.
If ten chapters of my novel or cantos of my poem
are entirely original, and the eleventh taken from
He quotes at length from the fifth book of the Shepherd's
Calendar in his Animadversions upon the Remonstrant's
Defense.




CH. IV.]      OF ORIGINALITY.               3 r:another book, the eleventh is none the less another's;
neither does it lose its identity by being printed
along with my ten. But, even though not a single
line of my work be new or original, if the feature
of the plan and arrangement of those lines be so, it is
my book. If I should print one play of Shakespeare
-along with ten' plays of my own, or one novel of
Charles Dickens, or of George Eliot, along with ten
novels of my own, I would not become by the process
the owner of Shakespeare's play, or of Dickens's, or
of George Eliot's novel.  But if I took every word
of Shakespeare's plays, and arranged them into a concordance, the concordance would be mine; or, if I
arranged his sentiments alphabetically, the Shakesperian dictionary would be mine. And so I might
arrange a cyclopedia of Charles Dickens's or George
Eliot's Thoughts; and even though I wrote no single
original line, yet the words to which I contributed the
-feature of plan and arrangement, the idea of which'was mine by occupancy, would be my own. In one
case I have contributed originality without obtaining
ownership, while in the other I have contributed
only ingenuity and industry, and have rightfully acquired ownership.
The distinction becomes still more subtle, when
we reflect that there might be a dozen (and doubtless,
in fact, there are more than that number) different
dictionaries of Shakespeare, or of elegant extracts
therefrom, upon the plan of alphabetical arrangement,
and yet each of them original in the legal sense; for
although in general a plan may be original, yet an
alphabetical plan cannot be monopolized by any one;
and concordances, like commentaries, are likewise
capable of being produced indefinitely, without infringement upon each other.




312         LAW  OF LITERATURE.    [CH. IVIt is very apparent that equity cannot stop to pull
over the libraries of. the world every time an injunction is asked, or a piracy is alleged. If we were to insist upon rare and absolute originality in a work,
our courts must be furnished not only with complete
legal but complete literary libraries-must be turned
into academies, and our judges into critics and librarians, which we cannot evidently do.
I47. A learned French commentator,1 with the
facility of his language, has thrown much light upon
this question, by dividing all literary composition into
works de genie-of genius, and de l'espri'-o'f ingenuity or intelligence. And the legal meaning of
"originality" may be said to include both of these.
Thus, it was a genius who wrote Shakespeare. It was.
an intelligence that could compile from his plays a
history of his native land, or a concordance of his,
speech. We have but to remember that the title to
literary property is a title by occupancy, and assume
that, in the case of literary property, the occupancy
may be in any feature of the things occupied, and the.
whole way will become plain. If the work contain an
idea, even though it be only an idea as to the plan,.
~arrangement, or adaptability of old and well-worn
matter: so that idea is first occupied and possessed by
the arranger and adapter, the law will give him his.
proprietorship therein, equally as if the matter itself
were produced entirely by himself. But-as we shall
see, when we presently come to discuss the decisions
upon this subject-some such idea the writer must
possess; and he is not entitled to seize upon anything'
that can be traced to the ownership of another, any
more than he will be allowed to possess himself of a
M. Merlin, Repertoire de Jurisprudence, title contrefacon,
~ xi.




CH. IV.]        OF  ORIGINALITK                   313
horse that wanders near his own preserve, or of a
house whose door stands open before him.
I48. The word'author,' which is, as we shall
presently see, the one used both by the English and
American statutes of copyright law, is not, in itself,
one readily capable of exact definition. Some light
may be thrown upon its precise significance by the
expression used in the French copyright statute or
decree of July I9th, I 793, to which we have already
referred. Instead of the word authors, the expression
" les auteurs d'ecrits eu tout genre " was there substituted,-in the construction of which expression M.
Merlin says: " Mais il ne faut pas necessaire, dans cet
article, les mots ecrits'en tout genre,' de l'expression'auteurs;' et la propriete dont cet article declare que
les ecrits en tout genre sont susceptibles, ne peut
evidemment etre reclamee que par ceux qui en sont
auteurs, dans la veritable acception de ce terme."
Or, "le mot'auteurs' quel sens a-t-il en general?
Quel sens a-t-il relativement aux ecrits?  Quel sens
a-t-il dans la loi du I9 Juillet, 1 793?"
"En general, le mot auteur designe Quivant la
definition qu'en donnes le dictionnaire de l'acadamie
Francaise celui que est la premiere cause de la quelque
chose: et il est aussi. suivant la mgme definition,
synonyme d'inventeur.
" Appleque aux ecrits, le mot auteur se del (toujours
suivant le meme dictionnaire) de celui qui a compos6
un livre, qui a fait quelques ouvrages d'esprit, en vers
ou en prose, et il est bien'clair qu'en ce sens, le mot
auteur est oppose a copiste.
" Enfin la loi du I9 Juillet, 1793, ne permit pas de
douter qu'elle n'exclue egalement les copistes de la
denomination d'auteurs. Les litterature ou de gravure, dit-elle, art. 7, ou de toute autre production de.




3 4         LA W  OF LITERA TURE.    [CH. IV.
l'esprit ou du g6nie, qui appartient aux beaux-arts, en.auront la propriete exclusive pendant dix anndes
Ces termes, "ou de toute autre production de l'esprit
ou du genie, qui appartient aux beaux-arts," ne sont
ni obscurs ni dquivoques.  Ils signifient clairement
que les productions de l'esprit ou du genie sont de.deux sortes; que les unes consistent en ouvrages de
litterature; que les autres appartienment aux beauxarts; mais que nul ne peut etre repute auteur soit.d'un ouvrage de littdrature, soit d'un ouvrage d'arts, si
-ce n'est pas a son esprit ou A son genie qu'en est due
la production.
" Donc, les expressions " d'ecrits en tout genre," ne:sont employees dans l'art. Ier de la mtme loi, que
pour designer tous les genres de compositions littHraires.
"Donc, elles n'y designent pas les ecrits qui ne
seraient pas des compositions, mais de simples copies.' Done, celui qui ne fait que copier une composi-tion littdraire, ne peut jamais etre repute auteur de la
copie de cette composition, ni par consequent en.avoir la propriet6, dans le sens attache A ce mot par
la loi du I9 juillet I793 et par le Code penal I8Io."'
I49. The essential attribute of one who would,establish himself to be "an author" of anything, is,
that he must be the fi}st producer of the thing composed. As for instance, let us state that Shakespeare
was the author of the plays which bear his name:
Schlegl was the author of a translation of those plays
into German: Halliwell was the author of an edition
of those plays: Furness was the author of a variorum,collection, from various sources, of notes to certain of
-those plays, Price was the author of an alphabetical
Merlin, Repertoire de Jurisprudence, titre Contrefacon,




Cu1. IV.]      OF  ORIGINALITY.                3I5;arrangement-of sayings and proverbs taken from those
iplays. Now here Shakespeare, Schelgl, Collier, Furness, and Price were all authors, "de l'esprit," though
only the first was, primarily, an original writer, " de
g6nie." And so there may be, besides, an author of
original matter, an author of secondary matter, such as
a translation, an edition, a collection, or an arrangement. And yet the authors of all of these are authors,
in the legal sense of the word, and will be protected'by law in the product of their labors.
Or, again, take the case of legal reports. A reporter collects, in book form, a certain number of.opinions of judges, accompanied by statements of the,cases in which they were uttered. A compiler of,digests takes a certain number of these reports; and,,by drafting resumes of the point involved in each
case found in them, forms a digest. After a certain
number of digests have been published, still another
compiler forms from them a table of the names of cases
contained in the digests, with the volumes and pages
where they occur. And still another writer may, from
the reports or the digests, or both, compose an abridgment, or an index, or a compendium of practice, or
innumerable volumes of use to the practicing lawyer.
Now, every one of these volumes are of value to the
profession. No case involving a legal question can be
tried without their aid-no opinion given, or pleading
drawn-and yet, if we were to insist upon the derivative meaning of "originality" and "author," neither
the compiler of the reports, of the digest, nor of the
index, abridgment or compendium, could be protected
in the profits of his toil, in what the profession know
to be its most laborious and important branches. For,
in the latter case, not one of the parsons mentioned
have exercised the slightest invention.  Even the




316          LAW   OF  LITERATURE.            [CH. IV.
judges arrived at their opinions from the perusal of
the opinions of other judges, and carefully guarded
themselves from the exercise of any such faculty as
invention-they merely pronouncing over again what
had been enunciated thousands of times before.
I50. In the mercantile law there is such a thing
as admixtion, and rules are laid downr following the
ownership of the things mixed, to the very limits of
possibility, and providing for the rights and remedies
of all concerned. But in the law of literature no such
provision is possible.
The utmost that the law can do is to require:
and insist that the secondary author shall have exercised original labor in devising the plan, selection,
arrangement, and presentation of the materials which
he has found to be zn medio, and open to all.  It will
not be sufficient, on the one hand, that he has bestowed
upon his work the manual labor of copying or clipping the material; nor will it be necessary, on the
other, that he have used such judgment in discovering
the wants of the public, and such skill in catering to
them, as to have produced a really valuable book. But
the product of actual mental labor, whether valuable'
or worthless, will be protected by law.
" The mere utility of a book, or its adaptation to the end
which it professes to answer-its value in a critical point
of view-can not determine its legal originality. The law
takes upon itself none of the functions of the critic, in this.
sense. It looks only for some substantial product of individual thought or labor, and leaves to public taste or judgment to determine its value, and to bestow its due reward.
So that whether a book be more or less useful, more or less.
successful, or brilliant, or important, if in a just sense the
claimant is the author of that in which he claims an exclusive
property, he is entitled to his copyright valere quatntnz, valere
potest. It is true, there may be cases, in which the question
will arise, whether a subsequent author has made any im



CH. IV.]         OF  ORIGINALITY.                  317
So, as we shall presently see, the science of mathematics is a subject zis  medio; and the law will protect a man in the ownership of a set of mathematical problems or tables, calculated by himself, even
though everybody knows that the problems cannot be
varied because their principles are immutable; and
although a calculation by any other person must, ex
zecessizate, produce identically the same tables, the
same problems, and the same results.' " Sans doute,"
says the learned commentator, before quoted, "Sans
doute, il est des compilations d'ouvrages litteraires qui,
par l'immensit6 des recherches qu'elles supposent, par
le discernement et le gouft qu'elles exigent, peuvent
et doivent passer pour de veritables productions de
l'esprit, et qu'il n'est pas plus permis de contrefaire que
si elles dtaient reellement des compositions originales.
" Par exemple, les Pandectes de Pothier ne sont,
a peu de chose pres, qu'une compilation des Institutes,
du Digeste du Code et des Novelles de Justinien;
*c'est-a-dire, de recueils qui, depuis plusieurs siecles, sont
incontestablement dans le domaine du public.
"Cependant, si Pothier vivait encore, et qu'un
imprimeur s'avisat de publier une 6dition de ses Pandectes, sans sa permission, qui est-ce qui oserait conprovements upon his predecessors; and, in such cases, it may
become necessary to apply collaterally, as a test of originality,
an inquiry into the practical and relative value of his publication. But this will be done, in order to determine whether he
has borrowed any, and how great a part of his matter from
sources common to all writers —whether he has actually produced anything of his own, and not whether his production is
better or worse than the productions of others. If it appears
that he has produced anything of his own, not borrowed or
adopted from a previous writer, its effect in advancing or
retarding the progress of knowledge, or its value in a critical
point of view, can have no influence upon his title to a copyright." Curtis on Copyright, I 72.
Bailey v. Taylor, 3 Law Journal, 66; and see post.




318         LAW   OF  LITERATURE.    [CH. IV.
tester A Pothier le droit de la poursuivre comme
contrefacteur? Qui est-ce qui oserait dire que Pothier,
en compilant a sa maniere les Institutes, le Digeste,
le Code et les Novelles de Justinien, n'a pas fait un,
ouvrage qu'il n'appartenait qu'a un jurisconsulte du_
premier ordre d'entreprendre et d'achever? Qui est-cequi oserait dire qu'un simple copiste efit pu, comme.
lui, tirer tous les textes du droit romain'de l'espece dechaos dans lequel ils sont disperses; les ranger dans
un vaste cadre oh, enchainds les uns aux autres, ils
s'expliquent mutuellement; rapprocher de chaque regle
gdn6rale toutes les exceptions qui la limitent; placer
a c6t6 de la loi ancienne, la loi moderne qui la modifie;
et la loi plus moderne encore qui l'abroge; en un mot,
substituer l'ordre A la confusion, la lumiere, a l'obscurit6, la facilite d'etudier et d'apprendre aux degouts et
aux 6pines qui arretent, des leurs premiers pas, tous
les aspirants a l'exacte connaisance des lois romaines?
" Compiler de cette maniere ce n'est pas copier
c'est cr6er; c'est faire ce que ferait un architecte qui,
apres avoir demoli un edifice gothique-en emploierait tous les materiaux pour dlever un superbe palais,
un temple majestueux."
"Mais il est aussi des compilations qui se font
comme-on le dit vulgairement-avec des ciseaux, qui
n'exigent, qu'un travail de manoeuvre et qui, pour
cette raison, ne peuvent pas meriter a leurs artisans le
titre d'auteurs." 
I5I. In the legal sense, then, of the word, the
originality of a literary production will be found to
exist:
First. In its author (if an original work).
Second.  In its compiler or arranger-(if a comMerlin, Repertoire de Jurisprudence, titre Contrefacon,,
~xi.




CH. IV.]         OF  ORIGINALITY.                   319,
pilation, such as a dictionary, glossary, gazetteer, encyclopedia, abridgment, guide-book, text-book, manual of an art, of a science, or, generally; any otherbook of reference),-or,
Third.  Its translator-(in case of a translation).
And the ownership of the work will follow the individual or individuals in whom its originality exists,.
until he or they part with the same by his or their
own act.
I52. An author is well described, by Dryden, as.
one who "has the choice of his own thoughts and
words." And, following him, we may define an author
as, one who by his own intellectual labor produces a
new  work, composed  in  his  own  thoughts  and
words.'
A compiler is one who by his own intellectual
labor, makes, arranges, or frames a composition or collection of literary or scientific matter, not originally
produced by him; but which he has himself first
brought together in an arrangement new with himself.2
It is important, at the outset, to remark that the
words compiler, editor, arranger, codifier, abridger,
&c;, though technically distinguished, will be regarded
by the law as one and the same; that is, in so far as
their legal rights and liabilities are concerned.
If it were otherwise, the law of copyright might be1 Author. —(Latin, auctor; Italian, autore; Spanish, autor;
French, autour or auteur).-He to whom anything owes its
origin; originator; maker; first cause; one who composes a
work of science or literature; the first writer of a thing; distinct from a translator or compiler; a composer; a writer.
-Worcester.
2Compiler. —(Greek, zZXoco, to press close; Latin, pilo;
Italian, compilare; Spanish, compilare; French, compiler).One who frames a composition from various sources; a collector of literary fragments.-Worcester.




320          LAW   OF  LITERA TURE.           [CH. IV.
come a complicated and intricate mass of subtleties
instead of the simple and logical thing it is.
I53. The law can recognize but two classes of intellectual labor, viz., original labor and secondary
labor.  An original work alone has, properly speaking, an author. The producer of a secondary work,
that is, a work consisting of parts, passages, or matters
collected, condensed, or amplified from various sources,
is a compiler,' editor, arranger, or abridger, as the case
may be.
An editor is also one who superintends, revises, or
prepares a work for publication, or in popular language-one who conducts a newspaper, but none the
less his labors are secondary, and not original.
I54. There is, however, a third sort of literary
laborers, in the classification of whom, and of the results of whose labors, an apparent, though-as we
think will presently appear-no real difficulty arises.
This class of intellectual laborers are translators.
A translator is one who renders or interprets
literary matter from one language into another, retaining the idea and the sense, which are not his, and
clothing them in words which are his own.
Now, a translation, under the division above indicated, is clearly a secondary work. A translator, however, is not a secondary laborer; and it is not erroneous, but perfectly correct and proper, to speak of
the author of a translation.2'In the time of Alfred the local customs of the several
provinces of the kingdom were grown so various that he
found it expedient to compile the Dome Book. 4 Blackstone
Com. ~. Atwill v. Ferrett, 2 Blatchf. 45; DeWitt v. Brooks,
MS. N. Y. I86i; Nelson, J., cited in Law's Digest of Patent
and Copyright Cases, I74.
2 All translations, I suppose, may be reduced to these three
heads: first, that of metaphrase, or turning an author, word
for word and line by line, from one language into another.




CII. IV.]        OF  ORIGINALITY.                   32 
I55. The apparent paradox, therefore, arises, that
while the labor is original, the result is secondary;
and hence the difficulty to which allusion has been
made.
The work of a translator is clearly original, since it,not only presupposes and requires knowlege, care, foresight, and a wide appreciation of the difference between
the real and popular significance of idioms, expressions,
phrases, and words in the language into which, as well as
in the language out of which, he translates; but a positive primary labor-as contradistinguished from  the
secondary labor of selecting transcribing, and compiling, which the mere collector or editor performs.
Again, the labor of a conscientious and faithful
translator is much more original and primary, for instance, than the labor of a mere paraphraser; since a
-creditable paraphrase may be produced without the
slightest knowledge of, or familiarity with, or reference
to, the language of the original work, by mere refer-,ence to a previous translation, and a book of synonyms.
The paraphraser's labor might be secondary, but the
work of a translator is at least original, in the contemplation of the common law and statutes of cop,-right,
This manner was: Horace —" His Art of Poetry," translated
by Bengonson.  The second way is that of paraphrase, or
translation with latitude, where the author is kept in view by
the translator so as never to be lost; but his words are not so
strictly followed as his sense, and that, too, is admitted to be
amplified, but not altered. Such is Mr. Waller's translation
of Virgil's fourth 2Eneid. The third way is that of imitation,
where the translator (if now he has not lost that name) assumes
the liberty, not only to vary from the words and sense, but to
forsake them both, as he sees occasion, and taking only some
general limits from the original to run divisions on the groundwork as he pleases. Such is Mr. Cowley's practice in turning
two odes of Pindar's and one of Horace's into English. Dryden's Works, Scott's Ed. xxii.




322         LAW  OF LITERATURE.             [CH. IV.
and of the definition given by them  of the word
"author."
In the earliest days of our literature, the trans —
lator's work was regarded as one of much greatermerit and genius than the author's. The mere faculty
of invention was formerly little prized; while the learning required to translate, was of the highest value, and
exacted the highest respect.
Chaucer, the father of English literature, never attempted invention; neither did the author of Shakespeare, whose stories are, without exception, taken from
the classics, or the Italian, and from other and foreign
sources.
The reason undoubtedly was, and is, that education does not develop (possibly by affording ruts and
grooves for the intellect, it rather retards) the faculty
of literary invention; and in the days when education
was a thing very rarely met with, the mere faculty of
story-telling was of no estimation whatever.'
It is an interesting reflection that stories, legends,
and tales-what in fact is now learnedly known as
" folk-lore," sprung entirely from the lowest classes intellectually-from the utterly uneducated, in whom
superstition and imagination go hand in hand-the
imagination of one generation becoming, in the course
of time, the superstition of the succeeding, and the
fancy of each lending new exaggerations and amplifications to the superstition of the age before it.
It is essential, of course, that the translated work
should be in a language foreign to the one intowhich it is translated. One who should take a work
by an author of his own country, and carefully change
each word into a synonym, thus destroying the identity
lFor curious confirmation of this fact, see Prof. John
Fisk's " Folk Lore." Boston, I872.




CH. IV.]         OF  ORIGINALITY.                     323
of the language, but in reality leaving the ideas and
thoughts the same, would not be held, by this exercise
of disingenuous ingenuity, to be entitled to the rights
of a translator.' It is of the utmost importance that
these classes of secondary works should be carefully
approached and examined; for it is in regard to their
construction that the questions of originality arise,
which we are about to consider.
I56. In the copyright law of the United States,
these three classes of writers we have alluded to are undoubtedly included under the word "author," or at least
under the three words "author," "designer," or " proprietor," in the first sentences, which are as follows:
"Any citizen  of the United States, or resident
therein, who shall be the author, inventor, designer,
or proprietor of any book, map, chart, dramatic or
musical composition, engraving, cut, print, or photograph, or negative thereof, or of a painting, drawing,
chromo, statue, statuary, and of models or designs intended to be perfected as works of the fine arts, and
the executors, administrators, or assigns of any such
person shall, upon complying with the provisions of
this chapter, have the sole liberty of printing, reprinting, publishing, completing, copying, executing, finishing, and vending the same; and, in the case of a
dramatic composition, of publicly performing or representing it, or causing it to be performed or represented by others. And authors may reserve the right
to dramatize or to translate their own works."2 But,
The rights of a paraphraser do not appear to have ever
been recognized as such in the law.
2 Revision of i873-4, ~ 4952; 3 Feb. I83I, ch. I6, ~ I, v 4,
436; I8 Aug. I856, ch. I69, ~ I, v. II, 138, I39; 3 Mar. I865,
ch. I26i ~ I, v. I3,540; 8 Pet. 662; I4 How. 530; Hopk. ch.'35I;
I Blatchf..625; I Story, I7; 3 Story, 778; 4 McLean, 316, 3i7;
5 Id., 37; 2 Wood & Min. 46; 2 Bla. 46, I70, 336' 2 Paine. 383.




324         LAW   OF LITERATURE.            [CH. IV.
in the interpretation of this law, the distinctions above
alluded to arise, and make it of the utmost importance to carefully examine and determine them.
I57. Whenever an author can identify his own
labor in the book or production of another, he can
claim damages for its use, or protection by injunction
against its further illegitimate employment. It is a
maxim of the law that wherever there exists a wrong,
there also exists somewhere a remedy. But if it should
appear that the portion used was so insignificant or so
trifling as to be unworthy the consideration of the
dignity of the bench, the above rule might not apply;
-for de minimi non curaI lex.  Mere quotation
(i. e., fair quotation) is always optional; the only test,
as we have seen, is whether the author has been injured by the use of his language.'
If the unwritten law which prohibits larceny and
theft were capable of being applied to a man's
thoughts, as well as to his watch or his purse, no statutes of copyright would be necessary. Their existence
is only important because of the impracticability of
carrying the law's recognition of meum and tuum so
far. Their principle and spirit is precisely the same;
and the law of copyright is only the eighth commandment applied to intellectual and immaterial labor.
Upon this point it is unnecessary to dwell further.2
The simple rule is, that a man is entitled to the
product of his own literary labor. And the simple
question that the law will ask, without reference to
the form or the pretension of the work is, Is it inclusive
of any genuine product of his own labor? is it an original conception, an original composition, an original
compilation, an original translation, codification, ex1 Curtis on Copyright 247, 249, 250, 252.
2 See post, chad ter on piracy.




CH. IV.]       OF  ORIGINALITY.                 325
emplification, arrangement, analyzation, cr annotation?
"In truth, in literature, in science, and in art,"
says Judge Story, " there are and can be few, if any,
things which, in an abstract sense, are strictly new
and original throughout. Every book in literature,
science, and art, borrows, and must necessarily borrow
and use, much which was well known and used before.
No man creates a new language for himself-at least
if he be a wise man-in writing a book. He contents
himself with the use of language already known, and
used and understood by others.  The thoughts of
every man are more or less a combination of what
other men have thought and expressed, although they
may be modified, exalted, or improved by his own
genius or reflection. If no book could be the subject
of copyright which was not new and original in the
elements of which it is composed, there could be no
ground. for any copyright in modern times; and we
should be obliged to ascend very high even in antiquity to find a work entitled to such eminence."
I58. "The law does not require that the subject
of a book should be new, but that the method of treating it should have some degree of originality about it,"
not merely colorable.2
Thus, for instance, the composing receipts, or
arranging them in a book, will give a copyright to the
compiler; but the mere collecting them and handing
them over to a compiler will not.3 Or, one may have
Emerson v. Davies, 3 St. 779; Vid. also Gray v. Russel, I
St. i6.
2 Copinger on Copyright, 2I; Sayre v. Moore, i East, 36I;
King v. Reed, 8 Ves.; Jarrould v. Houlston, B. K. & J. 708;
Reed v. Carusi, 98 Law Rep. 0. S. 4II; Wilkins v. Atkins, I7
Ves. 422.'Rundell v. Murray, Jac. 3I4; Newton v. Cowrie, 4 Bing. 234.




326          LA W  OF  LITERA TURE.           [CH. IV.
copyright in mathematical tables, actually calculated
by himself, although, on a similar calculation, precisely the same tables would be produced from the
same sources, upon an application of the same principles by anybody else, and although they may have
been published previously, and before his appeared.'
Upon this principle, mere indices of title,2 and schoolbooks, no matter how elementary their characteras we have remarked elsewhere in this chapter —will
be protected.'
"Anything like absolute originality in the composition of a work nowadays," says a late and learned
writer, "seems to be almost an impossibility. The
range of human ideas on any subject is limited; and
the productions of the busy brains and pens of preceding thinkers are so numerous, that, if books are to
be written, the writers must be, to some extent at
least, beholden for their materials to those who have
written before. If no copyright exist in a work, of
course subsequent writers may make of it what use
they like, and reproduce it to any extent they please.
But if a copyright does exist in it, then the important
and somewhat difficult question arises: In what manner, and to what extent, may subsequent authors make
use of the materials contained in it without an infringement of the copyright? In other words, how far may
Bailey v. Taylor, 3 L. J. 66; " I admit," said Lord Eldon
(in Matthewson v. Stockalde, I2 Ves. 275), " that no man can
monopolize such subjects as the English Channel, the Island
of St. Domingo, or the events of the world; and every man
may take what is useful from the original work, improve, add.,
and give the public the whole, comprising the original work,
with the additions and improvements."
2 Banker v. Caldwell, 3 Minn. 94.
Emerson v. Davies, 3 Story, 768; Lennie v. Pillans, 5
Sess. Gas. 2 Law, 416; Constable v. Brewster, 3 S. 215 (N.
E. 152).




CII. IV.]       OF  ORIGINALITY.                327
one writer avail himself of the product of another's
labor in which copyright exists, without subjecting
himself to the charge of piracy? "
He who claims the originality must show something which the law can recognize as the result
of his own, and not of another's industry and skill.
" Something he must show to have been produced by
himself; whether it be a purely original thought or
principle, unpublished before, or a new combination
of old thoughts and ideas and sentiments, or a new
application or use of known and common materials,
or a collection, the result of his industry and skill.
In whatever way he claims the exclusive privilege
accorded by these laws, he must show  something
which the law can fix upon, as the product of his own,
and not another's labors. But, in order that the law
should do this ample justice to the great variety of
claimants, it is necessary that its rules should be
capable of adaptation to the objects of their labor.
They must include in their range everything that can
be justly claimed as the peculiar product of individual
efforts; otherwise, they would exclude from the benefits
of literary property, objects which are as clearly the
products of individual labor as the most original
thoughts ever written, namely, new and important
combinations and arrangements, or collections of materials known and common to all mankind."2
I59. No matter how original in his conception
the author may be, or at what date he writes, or how
soon after the discovery, or invention, or introduction
of his theme, he clearly cannot copyright his subject-.matter. He may even own it, but still it is firee to the
Shortt,  7 I.
2 Curtis on Copyright, I71, I72.




328          LAW  OF  LITERA TURE.            [CH. IVW
world, to be described and commented upon by whom —
soever will.'
One who has written a treatise, for example, on the
moon, cannot copyright the moon as a subject, and give
out that thereafter he intends to monopolize it. Norcan he copyright the name of a cardinal virtue, and.
prevent the use of that title forever afterwards.2 Nor,,
if one happened to be the owner of land upon which.
an aereolite had fallen, or upon which a curious boulder
happens to rest, which attracts the attention of scientificmen, could he copyright the subject of that aereolite,,
or that boulder, and prevent its description by others.
He would have power, indeed, to prevent an incursion.
upon his premises for the purpose of their examination, but his power over his property would not extend to words. He could not enjoin their discussion..
Neither, on the other hand, will the fact that the
subject-matter is common, deprive the author of the
product of his original labor, bona flde performed, in
creating that subject-matter.
I6o. " I do not see why," said Lord Eldon, "if a.
person collects an account of natural curiosities, and
such articles, and employs the labor of his mind by
giving a description of them, that is as much a literary
work as many others that are protected by injunction.
1 See, however, the case of Prince Albert v. Strange,.
2 De G. & Sm. 674,
2 Isaacs v. Daly, N. Y. Times, March 3d, 5th, and 6th, i874.
In that case the defendant, who was proprietor of the Fifth,
Avenue Theater, in the city of New York, had advertised and_
announced his intention of producing at that theater, on a
certain night, a play called "Charity;" the plaintiff, who,
claimed to have written and copyrighted a play by that name,,
some time before, moved for an injunction, not pretending that.
the play was the same as the one he had written, but merely
claiming the title " Charity." Curtis, J., refused the injunctions
See this case reportedpost, chapter on Dramatic Copyright.




CH. IV.]       OF  ORIGINALITY.                  329
and by action. It is equally competent to any other
person, perceiving the success of such a work, to set
about a similar work, bona fde his own; but it must
be in substance a new and original work, and must be
handed out to the world as such.l
The fact that the subject of the work is common,
does not deprive an author of copyright in the product of the labor which he has bona fide spent on it,
or render it less necessary for any subsequent author
to have recourse to the original sources. So in Longmans v. Winchester,2 the plaintiffs were held entitled to
copyright in the " Court Calendar," a work consisting
of lists of members of the houses of peers and commons, &c., and an injunction was granted restraining
the defendants from copying and publishing the plaintiffs' work. "The question before me," said Lord
Eldon, " is whether it is not perfectly clear that, in a
vast proportion of the work of these defendants, no
other labor has been applied than copying the plaintiffs' work. From the identity of the inaccuracies, it is
impossible to deny that the one was copied from the
other verbatim et l'teralim. To the extent, therefore,.
in which the defendant's publication has been supplied
from the other work, the injunction must go; but I
have said nothing that has a tendency to prevent any
person from giving to the public a work of this kind
if it is the fair fruit of original labor, the subject being
open to all the world; but if it is a mere copy of an
original work, this court will interpose against that invasion of copyright."'
A work entitled " The Guide to Science," which,
Hogg v. Kirby, 8 Ves. 221.
2 i6 Ves. 269; Vid. also Kelly v. Morris, L. Rep. i Eq. 702;.
I4 L. J. N. S. 222; 35 L. J. 423; ch. I4, W. R. 496.
3 Longmans v. Winchester, ubi supra.




330         LA W  OF LITERA TURE.    [CH. IV.
laid no claim to any originality with reference to the
scientific doctrines treated in it, but contained, in the
form of questions and answers, a scientific exposition
of some of the ordinary phenomena of human life, in
parts digested from different works; was held to constitute an original work, in which the author was
entitled to copyright. Wood, V. C., said, "That an
author has a copyright in a work of this description is
beyond all doubt. If any one, by pains and labor, collects and reduces, into the form of a systematic course
-of instruction, those questions which he may find
ordinary persons asking in reference to the common
phenomena of life, with answers to those questions
and explanations of those phenomena; whether such
explanations and answers are furnished by his own
recollection of his former general reading, or out of
works consulted by him for the express purpose, the
reduction of questions so collected, with such answers
under certain heads and in a scientific form, is amply
sufficient to constitute an original work, of which the
copyright will be protected.'
In Cary v. Faden 2 the question is fully illustrated.
In I797, the plaintiff Cary was employed to make a'survey of certain roads and highways in Great Britain.
Upon the completion thereof, he published a book
called "Cary's New  Itinerary," which followed the
plan and contained much of the materials of an older
work called " Patterson's Road Book," but contained
also many corrections of and additions to it. Faden
having published a book bearing the same relation to
Cary's that Cary's did to Patterson's, Cary filed a bill
in chancery to restrain Faden from  publishing his'work, on the ground that it was not original, but,'Jarrold v. Houlston, 3 K. & J. 708.
25 Ves. 23.




'CH. IV.]        OF  ORIGINALITY.               331
either in whole or part, a copy of Cary's. The lord
chancellor (Loughborough) refused an injunction. He
said, "What right had the plaintiff to the original
work? If I were to do strict justice I should order
the defendants to take out of their book all that they
have taken from the plaintiff, and reciprocally the
plaintiff to take out of his all he has taken from Patterson. I think the plaintiff may be contented that a
bill is not filed against him."' An action was brought
in i8oi by the same plaintiff against Messrs. Longman & Rees for publishing a pirated edition of the
same or a similar work, the book published by the de-fendants being professedly a twelfth edition of the
original work by Patterson, but containing nine-tenths
of Cary's alterations and improvements. The plaintiff
was held entitled to recover. Lord Kenyon, Ch. J.,
said, " Certainly the plaintiff had no title on which he
could found an action to that part of his book which
he had taken from Mr. Patterson's; but it is as clear
that he had a right to his own additions and alterations, many of which were very material and valuable:
and the defendants are answerable at least for copying
those parts in their book..... The courts of justice
have been long laboring under an error, if an author
have no copyright in any part of a work unless he
have an exclusive right to the whole work."2
6 I. " The identity of a literary work," says Blackstone,3 " consists entirely in the sentiment and the language. The same conceptions, clothed in the same
words, must necessarily be the same composition; and
whatever method may be taken of exhibiting that
composition to the ear or the eye of another, by recital,
1 East, 358.
2 Cary v. Kearsley, 4 Esp. 169.
3 Com. 406.




332         LA W  OF LITERA TURE.    [CH. IV,
by writing, or by printing, in any number of copies, or
at any period of time, it is always the identical work
of the author which is so exhibited."
I62. If the author of a work be unknown, and
impossible to be ascertained, the copyright will be
held to belong to the publisher.'
Where one procures from another the subjectmatter or data of a work, and, upon procuring them,
frames them into a work-the authorship of the work
exists in the person composing it, and not in the one
furnishing the material.2
Accordingly, in the case of De Witt v. Brooks,8 it
was held that where the incidents of a person's life
were furnished by him to one who prepared them for
publication, and the copyright was taken out in the
name of the person furnishing the facts, it was held
that he was not the author, and that a person claiming
as his assignee, could not maintain an action for an
infringement.
But a judicious, careful, and useful new arrangement of old and well-known material, may be produced
by original labor; and if so, will be entitled to protection.4
And so, under the copyright law of I83I, it was
held that, to constitute a person an author, he must,
by his own intellectual labor, applied to the materials
of his composition, produce an arrangement or compilation new in itself;5 but he cannot obtain an owner-'McLean v.Moody, Scotch Sess. Cas. 2nd series,vol. 20,II63.
2 DeWitt v. Brooks, MS. cited Law's Digest of Patent and
Copyright Cases, 174.' MS. cited Law's Digest of Patent and Copyright Cases,
I74.
4 Per Lord Jeffrey in Alexander v. McKenzie, 9 Scotch
Sess. GCas. 2 ser. 758.
b Atwill v. Ferrett, 2 Blatchf. 39.




CH. IV.]       OF  ORIGINALITY.                333
ship in those materials in the same state in which he
finds them, or in which they are furnished to him.1
In the case of Alexander v. Mackenzie,2 the pursuer
had copyrighted a manual of practical forms and styles
of the writs and instruments introduced by the heritable securities and infeftment acts, those acts giving
only general descriptions of the forms to be used.
The court, in rendering its judgment (per Lord
Fullerton) remarked: " It is said, that owing to the particular nature of the styles they cannot be the subject
of copyright, because they are drawn up precisely after
the form prescribed in the statute, and because any
styles relating to the same subjects as those given by
the complainer must, if the directions of the statutes
and phraseology of conveyancers were used, be expressed in the same manner exactly as those proposed
by the complainer. Now, it may be quite true that, if
the statute had supplied certain forms by which the
operations intended to be thereby regulated were to
be done, if the statute had contained, as such statutes
sometimes do, an appendix exhibiting certain schedules
of forms which it was only necessary for anyone to
copy in order to avail himself of the provisions of
the act, then I hold that the reprinting of such forms
in a separate publication would not give him a copyright in those forms. But the case here is different,
for the statute only gives very general directions and
descriptions of the styles that are to be used. The
schedules are very general in their terms, and it is no
doubt of great practical importance to suit these general directions to each case falling under the statute as
it may arise. The preparing and adjusting of such
writings require much care and exertion of mind. As
l Id.
2 9 Scotch Sess. Cas. 2nd ser. 758.




334         LAW  OF  LITERA TURE.    [C-r. IV.
to invention, that is a different thing; it does not require the exercise of original or creative genius, but it
requires industry and knowledge." And he was, therefore, held to have in them such a property as courts
of equity would protect.
I63. A work, to be entitled to recognition as suffi —
ciently original for the purposes of protection, must,
therefore, contain internal evidence of labor, thought,
and skill, on the part of the one claiming the originality of the secondary labor.
i64. A  not unusual case arises where a person
compiles a list of names of public men for reference.
In such cases, the first compiler undoubtedly has a
copyright in his compilation, though the material is
in no sense original, and is equally accessible to any
person seeking it. But how far a second compilation
of the same will be an infringement upon the first, does
not appear to be fully settled.
In the case of Longman v. Winchester, where this
question arose, it was. evident, from the identical reappearance in the second compilation of certain inaccuracies in the first, that the defendant had performed
scarcely any other labor than merely to copy, verbatiz'
et li'era/im, from the plaintiff. " To the extent," said
Lord Eldon, " in which the defendant's publication has
been supplied from the other work, the injunction must
go' and he adds, by way of obi'er, " but I have said
nothing that has a tendency to prevent any person
from giving to the public a work of this kind (a'court calendar,' or lists of members of the houses of
lords and of commons, &c.), if it is the fair fruit of
original labor, the subject being open to all the world.'... Take the case of a map describing a particular country, and a map of the same country afterwards.
1 I6 Ves. 27I.




CH. IV.]       OF  ORIGINALITY.                 335
published by another person: if the description is accurate in both, they must be pretty much the same;
but it is clear the latter publisher cannot, on that account, be justified in sparing himself the labor and expense of actual survey, and copying the map previously published by another."
The circumstances here supposed by Lord Eldon,
appear actually to have arisen in the case of Kelly v.
Morris.
And the court, in its judgment, stated the rule
with great clearness, as follows:
"The compiler of a directory or guide-book containing information derived from sources common to
all, which must of necessity be identical in all cases,
if correctly given; is not entitled to spare himself the
labor and expense of original inquiry, by adapting and
republishing the information contained in previous
works on the same subject. He must obtain and work
out the information independently for himself; and
the only legitimate use which he can make of previous works is for the purpose of verifying the correctness of his results,2 as Lord Eldon said in Longman
v. Winchester." I
Lord Eldon had previously said, with reference to
a "Road Book," " It is certainly competent to any
other man to publish a book of roads; and if the
same skill, intelligence, and diligence are applied in
the second instance, the public would receive nearly
the same information from both works; but there is,
no doubt that this court would interpose to prevent a
1L. Rep. I Eq. 702; I4 L.J. N.S.222; 35 L.J.423, ch. I4;.
W. R. 496.
Vid. also Lewis v. Fullerton, 2 Beav. I4; Murray v..
Bogue, i Drew, 353.
I3 6 Ves. 271.




336         LA W  OF LITERA TURE.    [CH. IV.
mere republication of a work which the labor and skill
of another person had supplied to the world."
I65. This fact, perhaps, can only be established
by the testimony of individuals employed on the
second work. In Kelly v. Morris, canvassers and employees of the defendant were examined; and one of
them admitted that he had " done his work carelessly,
and had not taken the trouble to make the necessary
inquiries; and such testimony, where internal evidence
(as in the case of Longman v. Winchester, where the
inaccuracies of the first work had been copied along
with the rest') is wanting, will be the safest test.
i66. As to in how far portions of one original
work may be quoted, contained, or incorporated in
another, without interfering with the originality of the
second-it would be difficult to state any one principle
of universal application. The decisions will be found
mainly to be governed by the circumstances of the
particular cases. A quotation is, of course, a reprinting of the portion quoted. Without doubt, the author
has a right to every line of his work; and the only
question can be-at least the only question for the
court-is the author injured, or in danger of being
injured, by the publication of quotations from his
book?
The gist-the valuable part of a work-might
readily be copied, and credit therefor duly given, and
yet the quoting be illegal. The value of the matter
taken, rather than the quantity thereof, must be regarded. If the tendency of the quotation be to supersede the sale of the work quoted from,2 then it will
1 It is curious to observe that the first conclusive proof of
the forgeries of Chatterton was of this description. Skeat's
Chatterton, vol. I, p. i6.
2 Emerson v. Davies, 3 Story, R. 768, 797.




CH. IV.]        OF  ORIGINALITY.                 337
be illegal. "When it comes to a question of quantity,"
said Lord Cottenham, "it must be very vague. One
author might take all the vital part of another's book,
though it might be a small proportion of the book in
quantity.  It is not only quantity, but value that is
always looked to."'
There are several cases where courts of equity have
refused interference, on account of the minuteness of
the injury occasioned by short extracts or quotations.
XWhere the value of the extract or the amount of injury
is minute and trifling, courts will discourage the practice of occupying their time by applications in which
it would be harassing and difficult to ascertain, by
account, the precise value of the injury alleged to have
been committed.' But the court, however, would not
refuse to allow an attempt to assess the damages by a
jury. "There is no doubt," said Lord Eldon, "that a
man cannot, under pretense of quotation, publish the
whole or a part of another's book, though he may use
-what, in all cases, it is very difficult to define-fair
quotation.3  And in determining the question of fair
quotation, the intention of the person quoting will
make no difference.4 The question must be, has the
quotation the effect of injuring the sale of the book
quoted from? The work might be quoted from with
a view, even, of advertising or complimenting it; and
Lord Ellenborough instanced-[what has become of
such habitual custom in these days]-the practice of
reviewers and literary critics, who include large extracts
Bramhall v. Halcombe, 3 Mylne & C. 737, 738.
2Whittingham v. Wooler, 2 Swanst. 428; Tonson v.
Walker, 3 Id. 672; Bell v. Whitehead, 17 L. J. I42; Wilkins
v. Aikin, I7 Ves. 422, 424.
Wilkins v. Aikin, szpra.
Curtis on Copyright, 245 (note).
22




338         LAW  OF LITERA TURE.    [CH. IV.
of works criticised by them.' But the case viewed byhis lordship was that of an encyclopaedia, which had.
taken from the plaintiff's book and reprinted seventyfive of the one hundred and eighteen pages of which
it consisted.  Said he:'The question is, whether the
defendant's publication would serve as a substitute forthe plaintiff's? A review will not, in general, serve
as a substitute for the book reviewed; and even there,
if so much is extracted that it communicates the sameknowledge with the original work, it is an actionable
violation of literary property.' The intention to pirate
is not necessary in an action of this sort; it is enough
that the publication complained of is, in substance, a
copy whereby a work vested in another is prejudiced."
Upon the appearance of Dr. Johnson's " Rasselas,"
it was seized upon by "The Gentleman's Magazine,"
which printed the story, leaving out the " moral reflections." Now this was claimed to be an abridgment
only; and the court held, with a reasoning that later
decisions can hardly be said to sustain, that an abridgment was an advantage to the author, as being not
only, perhaps, a testimonial to the value of his work,.
but as serving the end of an advertisement.2 Thisreasoning of the Master of the Rolls was very much the
same as saying, If your goods are stolen, it is testimony that they are worth stealing; and the gratification of the compliment should compensate you for
your loss. And perhaps it might, if writers wrote for
"glory," as we have seen, unhappily for this line of
argument, is not the case. "This latitudinarian right,"
said Chancellor Kent, in commenting upon this case,.
"is liable to abuse, and to trench upon the copyright
of the author. The question as to a bona fide abridgRoworth v. Wilkes, i Camp. 94.
2 Dodsley v. Kinnersley, Aub. 403.




CI-. IV.]       OF  ORIGINALITY.                 339
ment may turn-not so much upon the quantity, as
the value of the selected materials."'
Somewhat later, in the case of Charles Dickens's
"Christmas Carol," where the defendant had taken
the story, and without altering incident, character,
scene, or name, had set out the narrative in somewhat
fewer words; the court would not permit the defense,
of abridgment to be set up, saying that it "was not
aware that one man had the right to abridge the
works of another; that-although it would not pronounce that such a thing as a lawful abridgment was
impossible-to say that one man had the right to
abridge, and publish in an abridged form, the work of
another, without more: was going much beyond his,
notion of what the law of this country was.2
And  so  an  injunction  was  granted  against
the sale of a work entitled "An Abridgment of
Cases," &c., which appeared to be a verbatim copy of
a preceding work of the same name, except that the
former work left out certain portions of the cases, such
as the arguments of counsel. The injunction was
granted.'
Where the publication of the quotation is a substitute for the quoted work, or for so much of it as
may be, the quotation is an infringement. As to the
"giving of credit," that goes merely to the question
of the intention of the quoter, and is mainly immaterial; for, as an injury may be inflicted without in12 Corn. 382 (note), and see Gyles v. Wilcox, 2 Alk. 141.
2 Story Eq. Jur. ~ 939; Campbell's Lives of the Chancellors, v. 56.
2 Dickens v. Lee, 8 Jur. I83.
3 Brellerworth v. Robinson, 5 Ves. 709; and see Bell v.
Walker, I Bro. C. C. 45I, and see also Sweet v. Shaw, i Jur.
2I2; Whittingham  v. Wooler, 2 Swanst. 428; Mecklin v.
Richardson, Amb. 694.




340        LA W  OF LITERA TURE.    [CH. IV.
tention, so no injury may result from an intention to
injure. The law will look at the effect, as we have
said before, whether intentional or unintentional.' This
question, and the questions arising in the cases of
abridgments, are often so inseparable as to be practically identical.
I67. To constitute a true and proper abridgment
of a work, the whole must be preserved in its sense.
The act of abridgment thus becomes an act of the understanding, employed in carrying a large work into a
smaller compass, and, by rendering it less expensive,
and more convenient both to the time and use of
the reader, making the abridgment a new and meritorious work. In the case of an abridged edition
of an extensive work, which might be read in
a fourth part of the time, and all the substance preserved and conveyed in language as good or better
than in the original, and in a more agreeable and
useful manner, Lord Apsley said that he and Mr.
Justice Blackstone were agreed, " that an abridgment,
when the understanding is employed in retrenching
unnecessary and uninteresting circumstances, which
rather deaden the narration, is not an act of plagiarism
upon the original work, nor against any property of
the author in it, but an allowable and meritorious work." 2
But though a bona fide abridgment of another
work is no infringement of the copyright in that
work, a merely colorable abridgment may be. "Where
books are colorably shortened only," said Lord Hardwicke, "they are undoubtedly within the meaning of
the act of parliament, and are a mere evasion of the
statute, and cannot be called an abridgment;"' and
Curtis on Copyright, 247.'Lofft's Rep. 775.
Gyles v. Wilcox, 2 Atk. I42.




CH. IV.]       OF  ORIGINALITY.               34I
his lordship considered a book published by the defendant entitled " Modern Crown Law," not to be a
bona fide, but a mere colorable abridgment of Sir
Matthew  Hale's "Pleas of the Crown," with the
omission of some repealed statutes, and a translation
of the Latin and French quotations.
A mere selection or different arrangement of
parts of the original work, bringing it into a
smaller compass, will not be regarded by the law
as an abridgment. "There must be," said Mr. Justice Story,1 "real, substantial condensation of the
materials, and intellectual labor and judgment bestowed thereon; and not merely the facile use of the
scissors; or extracts of the essential parts constituting
the chief value of the original work." Many mixed
ingredients enter into the discussion of such questions. In some cases, a considerable portion of the
materials of the original work may be fused-if I may
use such an expression-into another work, so as to be
undistinguishable in the mass of the latter, which has
ot~her professed and obvious objects, and cannot fairly
be treated as a piracy; or they may be inserted as a
sort of distinct and mosaic work, into the general
texture of the second work, and constitute the peculiar excellence thereof, and then it may be a clear
piracy.
In the case from which the above remarks are
taken, the question was as to whether a "Life of
Washington," in two volumes of 866 pages, was an
invasion of the copyright in "Sparks's Life and
Writings of Washington," a work in twelve volumes;
353 pages of the former work being copied from the
latter, 64 pages being official letters, and 255 being
Folsom v. Marsh, 2 St. Rep. I07, and see Lewis v. Fullerton, 2 Beavan, 6, 8.




342         LAW  OF LITERA TURE.    [CH. IV.
private letters of Washington, first published  by
Sparks under a contract with the owners of the original papers of Washington.  It was held by Story,
J., to be such an invasion, and the injunction was
granted.'
The question of quotation will constantly arise.
In volumes of " Elegant Extracts," where the defendant published a book of specimens of modern English poetry, with criticisms and biographical notices,.and inserted therein entire poems and extracts from
the poems of Campbell, which were under the protection of copyright, an injunction was granted
against the publication, and the aizz'nusfuranzdi held
to be implied by law, from the taking.2 And said
Story, J.,3 If a person should, under color of publishing' Elegant Extracts' of poetry, include all the best
pieces at large, of a favorite poet, whose volume was
secured by copyright, it would be difficult to say why
it was not an invasion of that right, since it might
constitute the entire value of the volume."
The addition of words, prelude, and accompaniment to an old air was held to give the adapter a
copyright in the whole composition; and where a
a person adapted words to an old air and procured a
friend to compose an accompaniment, his assignee
was held entitled to describe himself, in an action for
piracy, as proprietor of the copyright in the entire
composition.4 And it was said in Bogue v. H ouls1 Folsom v. Marsh, 2 Story, Ioo.
Campbell v. Scott, ii Simons, 3I.
In Folsom v. Marsh, 2 Story R. IOO, 115, and see also
Mawman v. Feof, 2 Russ. 383, post chapters on legal reports
and piracy.
4 Leader v. Purdy, 7 C. B. 4. As to how far an arrangement for the pianoforte of the score of an opera is an orginal
work, see Wood v. Boosey, 7 B. & S. 869; 9 B. & S 175;




"CH. IV.]        OF  ORIGINALITY.                  343
ton,' that where there are designs forming portion of a.book in which a person has copyright under the act,
such copyright extends to the illustrations and de-:signs of the book, as well as to the letter-press. Where
the plaintiff had published a book, containing letterpress illustrated by wood-engravings, the engravings
being printed on the same paper as the letter-press
itself, and defendants published a work with a different title and different letter-press, but containing
pirated copies of the wood engravings-which  are,especially  excluded  from   the  English  statutes2
(the plaintiff having complied with the requisitions of 5 & 6 Vict. c. 45, but not with those of the
act for the protection of engravings, by printing the,date of publication and the name of the proprietor on
each copy), the vice-chancellor granted an injunction,
the plaintiff undertaking to bring an action to try the
xight at law. "It appears to  me," said Sir James
Parker, "that a book must include every part of the
-.book, it must include every print, design, or engraving
-which forms part of the book, as well as the letterpress therein, which is another part of it. Prints published separately do not appear to have been within
that act by that express definition. But the case now
before the court is not the case of separately published prints, but the case of designs forming part of
a book.  There is no decision of any court of law, or
of this court, either way upon this point."
I68. If one, not claiming any originality whatever, reduces to question and answer a certain science,or subject-matter, courts, as we have seen, will not
-L. Rep. 2 Q. B. 340; L. Rep. 3 Q. B. 223; i8 L. T. N. S.
JlO5.
5 DeG. & S. 275.'5 & 6 Vict. C. 45.




344          LAW W   OF  LITERA TURE.          [CH. IV_
travel behind it to ascertain whether the questions and.
answers were framed from the writer's own surmises,.
opinions, or recollections on the particular subject, or
from works consulted by him for the purpose; but.
will hold his work to be original, for the purposes of
copyright and protection.!
I69. We have seen that, where the sources from
which the material or subject-matter are common, and
of general availability and recourse-that is, inz med'oany novel arrangement of them can be the subject of
ownerships
But though any person may thus acquire a:
copyright in his own arrangement of common materials; the materials themselves remain, as always, open
to the next comer who chooses to have recourse to
them, and different copyrights may be acquired in different arrangements of the same common materials..
Different arrangements of common materials must,.
however, be independent.  A later arrangement must
not be a servile imitation or reproduction of an
earlier one.
In Kelly v. Morris,8 application was made for an,
injunction to restrain the publication of " The Imperial
Jarrold v. Houlston, 3 K. & J. Io8 ante, 40. See this
principle applied in the case of a book of chronology (Trusler
v. Murray; cited in note to Cary v. Longman, i East, 363);.
and to the case of an annotated catalogue of books published'
by a certain publishing house (Hatten v. Arthur, II W. R..
934); to a work on architecture (Wilkins v. Aikin, 17 Ves.
422); maps (Kelly v. Morris, I L. Rep. Equity, 697; Vid. also.
Carnan v. Bowles, 2 Bro. C. C. 80); and as to the protection
accorded (2 Story Eq. Jur. ~ 94I; Eden Inj.. ch. I3, 286;.
Vid. also Gray v. Russel, I Story, i; Emerson v. Davies, 3,
Id., 768.
2 Alexander v. Mackenzie, 9 Scotch Sess. Cass. 2nd ser
758; Vid. also Emerson v. Davies, 3 Story, 78i; Blunt v. Patten, 2 Paine, 395.
8 L. Rep. I Eq. 697; 35 L. J. 423 ch.; I4 L. T. N. S. 222z




Cry. IV.]      OF  ORIGINALIT Y.             345
Directory of London, 1866," on the ground that it was
a mere piracy of a work belonging to the plaintiff,.
entitled "Post-Office London Directory." The defendant set up, as defense, that from I862 to 1864, he
had published a work called " The Business Directory,'>
in which appeared the names of about ioo,ooo persons,
in trade or business, which had been obtained by a
large number of canvassers whom he had employed
for the purpose; that, wishing to extend his operations, and bring out " The Imperial Directory," which
should comprise street, conveyance, postal and other
sections, he acted on a similar principle to that which
had guided him in taking the names of persons in
business whom his canvassers were unable to see, and
procured his information from any source "where the
persons had made it public at their own expense, for
their own benefit"; that he considered that the name
of a private resident belonged to the public when that
resident had "gratuitously given it to the public
through some recognized medium of publicity," and
that the publisher merely " held it in trust for a purpose, receiving for his trouble any benefit he could
make of the information, but that the right of using
that information belonged to the public, as soon as the
information was made public"; that any person
might go round with a list of names already published,.
and ask permission to render the work of publication
more complete by reproducing it, and if any error had
been made in the first publication, it rested with the,
original owners of the names to point out the error
when submitted to them for permission to reproduce
which opportunity was afforded the residents by means
of circulars sent round to them through the defend
ant's canvassers, asking the residents to fill up a form
with their name and address for publication in "The



_346        LA W  OF LITERA TURE.    [CH. IV.
Imperial Directory."  It was admitted that one of
defendant's canvassers, afterwards discharged by him,
had not taken the trouble to make the necessary
inquiries, from house to house, so that most of the
errors in the defendant's directory, identical with those
in the plaintiff's, would be thus accounted for. On
the other hand, several instances were adduced of corrections and large supplementary additions to the
plaintiff's work contained in the defendant's, and the
manuscript of the latter work was produced.
In granting an injunction the lord chancellor said:'" The defendant has been most completely mistaken in
what he assumes to be his right to deal with the labor
and property of others. In the case of a dictionary, map,
guide-book, or directory, where there are certain common objects of information, which must, if described
<correctly, be described in the same words, a subsequent compiler is bound to set about doing for himself
that which the first compiler has done. In the case of
a road-book he must count the milestones for himself.
In the case put of a newly-discovered island, he must
go through the whole process of triangulation, just as
if he had never seen any former map; and generally,
he is not entitled to take one word of the information
previously published, without independently working
-out the matter for himself, so as to arrive at the same
result, from the same common sources of information;
-and the only use that he can legitimately make of a
previous publication, is to verify his own calculations
and results, when obtained. So, in the present case,
the defendant could not take a single line of the
plaintiff's directory for the purpose of saving himself
labor and trouble in getting his information. The
defendant, from the description of the way in which
he had in the first instance compiled his' Business




CH. IV.]        OF  ORIGINALITY.               347
Directory,' seems to have known exactly what he
might do.... The defendant goes on in his affidavit
to propound a most extraordinary doctrine as to the
right of publicity in the names of private residents,
who had, as he expressed it,'given their names for
public use.' What he has done has been just to copy
the plaintiff's book, and then to send out canvassers
to see if the information so copied was correct. If
the canvassers did not find the occupier of the house
at home, or could get no answer from him, then the
information copied from  the plaintiff's book was
reprinted bodily, as if it was a question for the
occupier of the house merely, and not for the
compiler of the previous directory.  Further than
this, the defendant tells us that he had a number of
new agents, and that one of them had performed his
part of the work carelessly, thus at once showing how
easy it would be, on the system adopted by the defendant, for any negligent agent to send back his list
all ticked as if correct, without having taken the
trouble to make a single inquiry..... The work of
the defendant has clearly not been compiled by the
legitimate application of independent personal labor,
and there must be an injunction to restrain the publi-cation of any copy of the defendant's work containing
the portions called  the'Street' and'Court' Directories, with liberty for the defendant to apply,
when he shall have expunged from such portions all
Imatter copied from the plaintiff's work."'
A compiler may not cut out slips from the former
work and go and see whether they are accurate, and
if accurate, copy them bodily into his own work, as' Vid. also Matthewson v. Stockdale, I2 Ves. 275; Cornish
-v. Upton, 4 L. T. N. S. 862; Morris v. Ashbee, L. Rep. 7 Eq.
34; I9 L. T. N. S. 550.




348          LA W  OF  LITERA T URE.          [CH. IV.
was done in both the cases referred to; but he is quite
justified in referring to the former book " in order to
guide himself to the persons on whom it would be
worth his while to call."' He is not -entitled to take
a single line of the plaintiff's directory for the purpose
of saving himself trouble in getting his information.2
Not that he may not look into the book for the purpose of ascertaining whether it was worth his while to
call upon that person or not; but he may not cut out
a slip or portion of the first work, and then take that
particular slip, and show it to the person, and get his
authority as to putting that particular slip in.3 He
must not take the passage of the directory and go
and see whether it happens to be accurate, and if it is
accurate, bodily copy the passage into his directory.
Nor will the fact that the publisher of the directory
receives payment from some of the persons whose
names are contained in it, for printing their names in
large letters, or with lines of additional description,
make those names, when so inserted, common property, so as to justify the compiler of a rival directory
in reprinting them from slips cut from the former.4
Nor the fact that the persons, whose names were so
printed, had been applied to by the compiler of the
second directory to verify the information contained
in the first, and had authorized the second insertion of' Morris v. Wright, L. Rep. 5 ch. app. 279; 22 L. T.
N. S. 78.
2 Kelly v. Morris, L. Rep. I Eq. 697; 35 L. J. 423 ch.; 14
L. T. N. S. 222.
3 Pike v. Nicholas, 20 L. T. N. S. 909; 38 L. J. 529 ch.
The decision of the vice-chancellor in this case was reversed
on appeal, but only as to the question of degree in which the
defendant had in fact made use of the plaintiff's work. L.
Rep. 5 ch. app. 25i; vid. also Stowe v. Thomas, 2 Amer. Law
Reg. 229.
Morris v. Ashbee, L. Rep. 7 Eq. 34; I9 L. T. N. S. 55o0




(H. IV.]        OF  ORIGINALITY.                 349
their names in capital letters and added lines,l make
tLe work an original,one.
The rule, as applied to dictionaries, is illustrated
in a late English case,2 holding, that labor having
been employed upon any subjects, however humble,
gave a copyright which no one had a right to interfere with; and that, "as to dictionaries, while there
might be a certain degree of skill exhibited as to order
and arrangement, and a certain amount of ingenuity
exhibited in the selection of phrases and illustrations
which were the best exponents of the sense in which
the word was to be used; there might also be great
labor in the logical deduction and arrangement of the
word in its different senses, when the sense of the
word departed from its primary signification; on the
other hand, there was always this to be said, that as
a large mass of the words admitted of only one
acceptation, and could be translated in one way only
(and the large mass of dictionaries were composed of
words of this description): numerous dictionaries had
necessarily been published from time to time, and the
new dictionary maker must, of necessity, use much of
the information and of the results of his predecessors..... Of course there could be no copyright in
much of the information contained in the numerous
dictionaries published, each necessarily having a large
number of words identically similar." In the case before it the court applied the test "whether there
was a legitimate use of the plaintiff's publication in
the fair exercise of a mental operation deserving the
character of an original work," and the result, after an
elaborate comparison of the two dictionaries, was an
opinion that though the defendant had taken a good'Morris v. Ashbee, L. Rep. 7 Eq. 34; I9 L. T. N. S. 550.' Speers v. Brown. 6 W. PR. 352.




350         LA W  OF  LITERA TURE.    [CH. IV.
deal from the plaintiff's work, yet a good deal of labor
had been bestowed upon what had been taken, and,
on the whole, it could not be said that the defendant
had gone beyond what the court would allow; havingproduced that which, in the result, was, in fact, a different work from the plaintiff's.'
170. Abridgments-possibly from the fact that their
spirit and tendency is by cheapening and making less
laborious the perusal of learned works, to diffuse more
widely education and culture have generally been regarded with favor by the law, and liberally protected.
"An abridgment," said Lord Hardwicke,2 "may,.
with great propriety, be called a new book, because
not only the paper and print, but the invention, learning, and judgment of the author is shown in them, and
in many cases are extremely useful, though in some
instances prejudicial, by mistaking and curtailing the
sense of an author."  The abridgment must not only
contain the arrangement of the book abridged; the
idea must be taken from the pages: it must be in good
faith an abridgment, not a treatise interlarded with.
citations: to copy certain passages from a book, omit —
ting others, is in no just sense an abridgment: the
judgment is not exercised in condensing the views of
the author; the language is copied, not condensed.'
"' Between a compilation and an abridgment," said
Mr. Justice Leavitt,4 " there is a clear distinction; and.
yet it does not seem to have been drawn in any opin-.
ion cited. A compilation consists of selected extracts.
from different authors; an abridgment is a condensa1The bill praying for an injunction was dismissed; but, on.
account of the doubtfulness of the case, without costs.
2 Gyles v. Wilcox, 2 Atk. I43; vid. also Tonson v. Walker3 Swanat, 68i; Bell v. Walker, I Bro. C. C. 45I.
3 Story's Executors v. Holcombe, 4 McLean, 3It.
4 Id.




CH. IV.]       OF  ORIGINALITY.                 351I
tion of the views of the author. The former cannot
be extended so as to convey the same knowledge asthe original work; the latter contains an epitome of
the work abridged, and consequently conveys substantially the same knowledge. The former cannot adopt
the arrangement of the works cited; the latter must
adopt the arrangement of the work abridged. The
formner infringes the copyright, if matter transcribed,.
when published, shall impair the value of the original
book; a fair abridgment, though it may injure the
original, is lawful."
And modern jurists have not been as unanimousas their predecessors in favorable regard for abridgments; and, perhaps, the greater cheapness and easewith which original works are now produced, render it
right that it should be so. In Tinsley v. Lacy,' Lord
Chancellor        said: " I do not agree in the reasons for upholding such a work, given by some
learned judges, viz., that an abridger is a benefactor.
I should myself regard him rather as a sort of jackall
to the public, to point out the beauties of authors";
and in the case of Story's Executors v. Holcombe,2
Mr. Justice Leavitt expressed himself to the same
effect, and observing that the same rule of decision
should be applied to a copyright as to a patent for a
machine. "The construction," he says, "of any other
machine which acts upon the same principle, however
its structure may be varied, is an infringement on the
patent. The second machine may be recommended
by its simplicity and cheapness; still, if it act upon
the same principle of the one first patented, the patent.
TI W. R. 876; I H & M. 747; 32 L. J. ch. 535. See post,,
chapter on Piracy.
2 4 McLean 3II. And see, to the same effect, Curtis on
Copyright, pp. 272, 273.




352         LAW  OF LITERATURE.    [CTI. IV.
is violated. Now an abridgment, if fairly made, contains the principle of the original work, and this constitutes its value. Why, then, in reason and justice,
should not the same principle be applied in a case of
copyright, as in that of a patented machine? With
the assent of the patentee, a machine acting upon the
same principle, but of less expensive structure than
the one patented, may be built; and so a book may
be abridged by the author, or with his consent, should
a cheaper work be wanted by the public. This, iat  y
judgment, is the ground on which the rights of the
author should be considered. But a contrary doctrine
has been long established in England, under the statute of Anne, which, in this respect, is similar to our
own statute; and in this country the same doctrine
has prevailed. I am, therefore, bound by precedent;
and I yield to it, in this instance, more as a principle
of law than a rule of reason or justice."'
The case of Story's Executors v. Holcombe, from
which the above remarks are taken, was one in which
the plaintiffs complained of an infringement of the
copyright in Judge Story's " Commentaries on Equity
Jurisprudence," the defense being that the work complained of (an " Introduction to Equity ") was a bona?fde abridgment of the Commentaries. It appeared
that the chapters and the subjects were the same in
both books; the former book contained I856 octavo
pages, including notes, the latter 348 octavo pages, including notes; a page in the latter contained a little
more than one in the former: reduced to the same
sized page, the ratio in the amount of matter in the
latter book to that in the former, was about two to
nine. In the entire work of Story there were 226
pages, constituting nearly an eighth part, on which
1Vid. also Curtis on Copyright, pp. 272, 273.




CH. IV.]       OF  ORIGINALITY.                353
there was some matter which had been extracted in
the same language, or very nearly so, into the defendant's book, this matter comprising 879 lines, or about
24 pages of his book, and 30 pages of Story, which
made one-fifteenth part of the defendant's book and
one-sixtieth of Story; this matter being found in scattered paragraphs in the first third of the defendant's
book: all the other portions of Judge Story's book
were abridged without any transcription of his common language, the part so abridged comprising twothirds of the defendant's book. The court, in granting
an injunction as to the first Ioo pages of the defendant's work, said:.'' What is the character of the work complained
of? Upon its title-page it does not purport to be an
abridgment, but'An Introduction to Equity Jurisprudence, on the Basis of Story's Commentaries';
and in the preface the author says,' It is not intended
to supply the place of the Commentaries with any
class of readers, but to serve simply as an introduction, a companion, and a supplement to their
study. The text is substantially an abridgment of that
work, &c.';.... but he also says that'he has felt at
liberty to make very considerable alterations and additions.' Alterations of the original work, and additions
to the text, are not appropriate to an abridgment. In
saying, therefore, that'the text is substantially an
abridgment,' Mr. Holcombe could have meant nothing
more than that, in writing his book, he followed the
arrangement of the Commentaries, extracting certain
parts, condensing others, with'very considerable alterations and additions' of his own. A supplement to
the Commentaries, which, Mr. Holcombe says, in some:sense, is the character of his work, may supply defects
in the original, but it can in no sense be considered an
23




354        LA W  OF LITERA TURE.    [CII. JIV.
abridgment. This remark seems to have been made
in reference to the notes added by the author. It may
not be essential to exclude extracts entirely from an
abridgment, but in making extracts merely there is no
condensation of the language of the author, and, consequently, there is no abridgment of it. Much looseness is found in the decisions upon this subject. Some
of the judges would seem to consider that where a
book is greatly reduced in the size, though made up
principally of extracts, it is an abridgment. In a book
of reports, such as' Bacon's Abridgments,' the language of the court is necessarily adopted often to
show the principle of the decision. But the same
necessity does not exist, and the same license can not
be exercised in abridging an elementary work....
Nearly one-half of the text, in the first hundred
pages of Mr. Holcombe's book, appears to have
been extracted from Story....  To class these
extracts under the head of'abridgments,' would
seem  to be a perversion  of terms.  Whatever
else this part of Mr. Holcombe's book may be
called, it is not an abridgment. With greater propriety
it may be called a compilation, as the extracts contained in it are taken from various authors. As a compilation, this part of the book must be considered an
infringement of the right of the plaintiffs, by the
copious extracts made from the Commentaries, and
the classification of the subjects copied from them.
Looking at the smallness of Mr. Holcombe's
book, in comparison of that from which it was principally taken, one might suppose that the former was
a short abridgment of the latter. But this comparison of size or number of pages affords no guide to a
proper decision. The character of the work must depend upon its matter; and it would seem from the




CH. IV.]       OF  ORIGINALITY.                355
considerations stated, that the first third part of Mr.
Holcombe's book, including one hundred pages, cannot be justly and legally called an abridgment, as it
does not possess the essential ingredients of such a
work; and that, viewing it as a compilation, it is an
infringement of the plaintiff's right, on the ground
that the plan of the Commentaries is copied; and
also for the reason that the extracts extend beyond
the proper limit of such a work. The remaining twothirds of the book may be comprehended under a liberal construction of an abridgment. The matter is
greatly condensed by Mr. Holcombe, in his own
language, and in a manner highly creditable to him."
The case of Dickens v. Lee,' is interesting as illustrating the extent to which publishers have ventured
to take advantage of the privileges of abridgers and
abridgments. In that case the defendant published in
a number of "Parley's Illuminated  Library" (a
weekly publication) a portion of a story entitled "A
Christmas Ghost Story, re-originated from the original by Charles Dickens, Esq., and analytically condensed expressly for this work," which, with the exception of a few colorable alterations, was in all respects similar to the "Christmas Carol" of Charles
Dickens, this was held to be a clear invasion of Mr.
Dickens's copyright in that work.
It was contended that the work was neither a
colorable imitation nor a piracy of the other, but a fair
abridgment, the result of the defendant's mental labor,
and falling within the principle of Dodsley v. Kinnersley; 2 and it was urged that-so far from any attempt
being made to induce the public to believe they were
buying, for one penny, what the eminent author of the
8 Jur. I83, ante, p. 339.
2 4 Esp. I69.




356        LAW  OF LITERATURE.    [CH. IV.
" Christmas Carol " had written and published for five
shillings the defendant, in his work, had a dedication
of his labors to Mr. Dickens himself. "The plaintiff,"
said the court, " appears to be the author, and to own
the copyright of a work of fiction-a novel-the copyright of which has not been contended to be not entitled to protection. The defendant has printed and
published a novel, of which, fable, persons, names and
characters of persons, the age, time, country, and scene,
are exactly the same; the style of language in which
the story is told is in many instances identical, in all
similar, except when certain alterations, by way of
extension or substitution have been made; as to which,
whether they improve or do not improve upon the
original composition, it is not necessary for me to express my opinion. Now this has been said to be an
abridgment, and as an abridgment to be protected. I
am not aware that one man has the right to abridge
the works of another. On the other hand, I do not
mean to say that there may not be an abridgment
which may be lawful, which may be protected; but to
say that one man has the right to abridge and so publish in an abridged form the work of another, without
more, is going much beyond my notion of what the
law of this country is. The expressions of Lord
Eldon, applied to a subject of copyright very different
from the present, but still applied to the subject of
copyright, are these:' The question upon the whole is,
whether this is a legitimate use of the plaintiff's publication in the fair exercise of a mental operation deserving
the character of an original work.' " And I agree that
there may be such an use of another man's publication
as, involving the exercise of a new mental operation,
may fairly and legitimately involve it. It does not appear
7 Ves. 4.26.




CH. IV.]        OF  ORIGINALITY.                 357
to me that there is anything in the present case which
brings that which the defendant had done within a
legitimate use of the plaintiff's publication, within the
terms'fair exercise of a mental operation,' or within
the expression of'deserving the character of an original work.' I think it, therefore, entirely excluded
from Lord Eldon's definition, if as a definition Lord
Eldon meant it. It appears to me to be a mere borrowing, with alterations and departures merely colorable; and when it is said that the difference of price
and other circumstances of difference belonging to it,
are such as to render the invasion of no practicable
mischief to the plaintiff, the person whose property has
been taken, is entitled to judge for himself how far he
will consider that abstraction of his property to be
prejudicial or not prejudicial.  It is a valuable property, and he is entitled to be protected from the unauthorized use of it by another. I do not, however,
as at present advised, at all accede to the argument
that, whatever may be the relative merit of the two
publications, whatever their relative prices, the publication and circulation of the cheaper may not in a
pecuniary point of view, at least, if not otherwise,
materially prejudice the plaintiff.  There are various
points of view into which it is unnecessary for me to
enter, in which such a case may be put, in which
material damage maNy arise from the subject, considered
merely and solely as a question of property, which is
the only point of view in which it is my duty or
business to consider it."
I7I. The case of Bradbury v. Hotten  applies the
principle of unlawful abridgment to pictures and engravings. Between the years I849 and 1867, there
appeared, in the London " Punch," nine cartoons, with' 8 L. R. Exch. I; 42 L. J. Exch. 28.




358          LAW   OF  LITERA TURE.            [CH. IV.
descriptive writing underneath, referring to the emperor Napoleon III.  In I87I, the defendant published
a work called " The Man of his Time," consisting, first,
of the " Story of the Life of Napoleon III., by James
M. Haswell," and, secondly, of "The Same Story as
Told by Popular Caricaturists of the Last Thirty
Years." Among the caricatures in Part II. were
copies in a reduced form, sometimes with, and sometimes without, the descriptive writings of the nine cartoons above mentioned. No consent from the proprietors of "Punch" to this reproduction had been
obtained. In an action by them for infringement of
their copyright in the several books or sheets of letterpress containing the cartoons, they were held entitled
to recover therefor.
A collection of indices of abstracts of titles to the
real estate in certain precincts, is an original work,
and entitled to protection as such.'
I72. An important aspect of this question presents itself in regard to school and college text-books,2
which in the United States are multiplied almost by
hundreds yearly, and form, perhaps, the most profitable
of publishers' ventures.
The originality of these productions consists entirely and exclusively in'the method of treatment or
arrangement of primary, cardinal, and fundamental
rules and principles, and they therefore present this
branch of our inquiry in its purest phases. As was
well said by Mr. Justice Story, in a leading case,3
1 Banker v. Caldwell, 3 Minn. 94. See further discussion of
this case in the chapter on Piracy.
2 As to school books, see also Lennie v. Pillans, 5 Sess.
Cas. 2 Ser. 416. Constable v. Brewster, B. S. 2I5 (N. E. I52).
Greene v. Bishop, i Cliff R. i86.' Emerson v. Davies, 3 Story, 786. Vid. also Gray v. Russel i Story, I7.  As to how far a re-arrangement of scientific



CH. IV.]         OF  ORIGINALITY.               359
"' The preparing and adjusting of such writings require
much care and exertion of mind....  It does not
require the exercise of original or creative genius, but
it requires industry and knowledge."
The case of Emerson v. Davies' is a leading one
-in the United States. In the year 1829, Frederic
Emerson published a text-book entitled " The North
American Arithmetic, containing Elementary Lessons, by Frederic Emerson." This book was extensively adopted; continued to be popularly used in
schools; and was several times revised, re-copyrighted
and re-published in various editions previous to the
year  843. In that year Professor Charles Davies
published a work entitled " First Lessons in Arith-metic, Designed for Beginners, by Charles Davies."
Mr. Emerson thereupon brought his bill against
Professor Davies for alleged piracy of his first-men-tioned work, claiming that its distinctive features had
been boldly pirated by Davies, in his work, and that
-the " First Lessons in Arithmetic, by Charles Davies,"
-was really and substantially "The North American
Arithmetic, by Frederic Emerson."
The complainant claimed among other, that the
-progressive steps by which he (Emerson) had proposed to teach children the elements of arithmetic,
was his own original invention. "That, in the execution of his plan he arranged a certain set of tables in
-the form of lessons, with a gradation of examples to
-precede each table, in such manner as to form, with
the table, a peculiar and symmetrical appearance of
each page;" and had further illustrated his lessons by
artistic matter (as, for example, the arrangement of the score
of an opera for the pianoforte), is an original work. See
Wood v. Boosey, 7 B. & S. 869; 9 Id. I75; L. Rep. 22 B. 340;
Id. 32 B. 223; I8 L. T. N. S. I45.' 3 Story, 786.




360         LAW  OF LITERA TURE.    [CH. IV..
attaching to each example unit-marks, representing
the numbers embraced in the example, which features
were his own original contrivance and invention. He
further alleged, that these peculiar features, i. e., the
tables, the examples, and the unit-marks, were imitated,.
copied, and employed in the work by Davies. The
defendant denied all the allegations, and claimed that,
whatever resemblance there was between the two
text-books, was owing to the identity of the subjects
treated.
The  ability and fullness of the arguments on,
both sides of this case, and the exhaustive opinion
therein by Mr. Justice Story, entitle it to be considered as one leading in questions of this kind.
In his opinion in that case, Judge Story said: " It
is a great mistake to suppose, because all the materials
of a work, or some parts of its plan and arrangements
and modes of illustration may be found separately, or
in a different form, or in a different arrangement in
other distinct works; that therefore, if the plan, orarrangement, or combination of these materials, in
another work, is new, or for the first time made, theauthor, or compiler, or framer of it (call him what you
please), is not entitled to a copyright. The reverse is
the truth in law, and, I think, in common-sense also.
It is not, for example, in the present case, of any im —
portance that the illustrating of lessons in arithmetic,
by attaching unit-marks representing the numbers
embraced in the example, may be formed by dots,
in'Wallis's Opera Mathematica,' or-in' Colburn's
Arithmetic,' in the form of upright linear marks, in a
pamphlet detached from the main work. That is not
what the plaintiff claims to found his copyright upon.
He does not claim the first use or invention of unitmarks for the purpose above mentioned. The use of




CH. IV.]       OF  ORIGINALITY.                36t
these is a part of, and included in, his plan; but it is
not the whole of his plan. What he does claim, isI. The plan of the lessons in his book. 2. The execution of that plan, in a certain arrangement of a set of
tables, in the form of lessons to illustrate those lessons.
3. The graduation of examples to precede each table
in such manner as to form with the table a peculiar
and symmetrical appearance of each page. 4. The
illustration of his lessons, by attaching, to each example,
unit-marks representing the numbers embraced in the
example. It is, therefore, this method of illustration
in the aggregate, that he claims as his invention, each
page constituting, of itself, a complete lesson; and he
alleges that the defendants have adopted the same
plan, arrangement, tables, gradation of examples, and
illustrations, by unit-marks in the same page, in imitation of the plaintiff's book, and in infringement of his.
copyright; and, in confirmation of this statement, he
refers to divers pages of the book of the defendants..
Now, I say that it is wholly immaterial whether each
of these particulars-the arrangement of the tables and
forms of the lessons, the gradation of the examples to
precede the tables, the illustration of the examples by
unit-marks-had each existed in a separate form, in
different and separate works, before the plaintiff's.
work; if they had never been before united in one
combination, or in one work, or on one page, in the
manner in which the plaintiff has united and connected them. No person has a right to borrow the
same plan and arrangement and illustrations, and
servilely to copy them into any other work. The.
same materials were certainly open to be used by any
other author; and he would be at liberty to use unit-,
marks, and gradations of examples, and tables, and
illustrations of the lessons, and to place them in the




362        LA W  OF LITERA TURE.    [CH. IV.
same page. But he could not be at liberty to transcribe the very lessons and pages, and examples and
illustrations, of the plaintiff, and thus to rob him of
the fruits of his industry, his skill, and his expenditures
of time and money."'
And in the case of Gray v. Russell,2 which was a
suit brought to protect the well-known " Adam's Latin
Grammar " against a so-called " improvement " thereon,
-the same eminent judge, with equal clearness, enuneciated the principles from which our courts would very
reluctantly depart. Said Story, J., in answer to the
argument that there was nothing really new or novel
~in Mr. Gould's notes to Adam's Latin Grammar, and
that all his notes were taken from works that had
been subsequently printed: " That is not the true
question before the court. The question is, whether
these notes are to be found collected and embodied in
any former single work. It is admitted, that they are
not so to be found. The most that is contended for,
is, that Mr. Gould has selected his notes from very
various authors, who have written at different periods,
and that any other person might, by a diligent examination of the same works, have made a similar selection.
It is not pretended, that Mr. Cleveland undertook or
accomplished such a task by such a selection from the.original authors. Indeed, it is too plain for doubt,
that he has borrowed the whole of his notes directly
from  Mr. Gould's work; and so literal has been his
transcription, that he has incorporated the very errors
-thereof."
"Now, certainly, the preparation and collection of
these notes from these various sources, must have been
a work of no small labor and intellectual exertion
3 Story, R. 782.
I Story, Ii.




ICH. IV.]      OF ORIGINALITY.              363
The plan, the arrangement, and the combination of
these notes-in the form in which they are collectively
exhibited in Gould's Grammar-belong exclusively to
this gentleman. He is, then, justly to be deemed the
author of them, in their actual form and combination,
and entitled to a copyright accordingly. If no work
could be considered by our law as entitled to the privilege of copyright-which is composed of materials
drawn from many different sources, but for the first time
brought together in the same plan and arrangement and
combination-simply because those materials might be
found scattered up and down in a great variety of
volumes, perhaps in hundreds, or even thousands ofvolumes, and might, therefore, have been brought
together in the same way and by the same researches
of another mind, equally skillful and equally diligent,
-then, indeed, it would be difficult to say, that there
could be any copyright in most of the scientific and
professional treatises of the present day. What would
become of the elaborate commentaries of modern
scholars upon the classics, which, for the most part.
consist of selections from the works and criticisms of
various former authors, arranged in a new form, and
combined together by new illustrations, intermixed
with them? What would become of the modern
treatises upon astronomy, mathematics, natural philosophy, and chemistry?  What would become of the
treatises in our own profession, the materials of whichif the works be of any real value-must essentially
depend upon faithful abstracts from the reports, and
from juridical treatises, with illustrations of their
bearing?  Blackstone's Commentaries is but  a
compilation of the laws of England, drawn from
authentic sources, open to the whole profession:
and yet it was never dreamed that it was not a work




364         LA W  OF LITERATURE.    [CH. IV.
in the highest sense original: since never before
were the  same materials so admirably combined
and exquisitely wrought out, with a judgment, skill,
and taste absolutely unrivalled."
I73. The principle already examined, which obtains in questions of this kind is, that the fact of the
imitation or infringement may depend upon the value
rather than the quantity of the selected and conveyed
materials, as where, for example, in a review or an
abridgment only the unimportant parts are omitted,
and the substance of the original work retained.
It is upon this principle that the decision in Low
v. Ward,1 assigning copyright in part only, of a work
which was only valuable as a whole, would seem to
depend. And so the addition of words, prelude, and
accompaniment to an old musical air, would give the
adapter a copyright in the whole composition;2 and
the rule will be the same if the adapter procured
another to compose the accompaniment instead of
doing it himself.3
In the case of Boucicault v. Wood,4 it was held
that a person who writes a play, and borrows certain
incidents from a published novel, will still be held to
be its author. "The mere copyist," said the judge in
that case (Shipman), " or the slavish imitator, who
produces old materials substantially in their old form,
without new combination, is entitled to no protection
under the statute. But the law rests upon no code of
comparative criticism. It protects alike the humblest
efforts at instruction or amusement; the dull productions of plodding mediocrity and the most original
and imposing displays of intellectual power. The'L. R. 6 Eq. 4I8, pst, chapter on Copyright.
Lover v. Davidson, i C. B. N. S. 182.
Leader v. Purday, 7 C. B. 4.     4 5 Blatchf. 87.




CH. IV.]        OF  ORIGINALITY.                 365
law should be liberally construed in favor of authors,
and, leaving their comparative merits to be settled by
critics, at the tribunal of public opinion, it should
protect and encourage their labors. The fiuits of
their literary toils should be secured to them by the
highest title, for they keep open the springs of
thought which  feed  the  intellectual life of the
nation."
I74. A question of some nicety, however, arises
as to translations. While a translation of a foreign
work, not under the protection of copyright in the
country where the translation is made, is, of course, an
-infringement of no one's rights, it is a matter of
some legitimate doubt whether or not, if the untranslated version is protected by copyright, the translation
would violate it. Translations are, it would seem, from
the considerations already submitted, original works,
although not productions de genie, but rather productions de l'esprit (to use the French distinction of
M. Merlin). They are laborious and diligent works,
involving the individual mental labor of the translator;
and as a no unimportant means of spreading and
diffusing knowledge, they are regarded with favor by
the law, and will be encouraged by the law as far as
possible, consistently with vested rights.'
The law of England unquestionably treats translations as original works, and this is probably the rule
in the United States. The particular question as to
where a work in a language classical, or " caviar to the
general," seems not to have met with any authoritative
decision in either country. A case exactly in point,
however, was that of Burnett v. Chetwood,2 where a
bill was brought to restrain the publication of a trans1 Curtis on Copyright, p. 187.
2 2 Meriv. 44I (note).




366         LA W  OF  LITERATURE.            [CH. IVY
lation of " Burnett's Archabologica Sacra,"-a book in,
which the complainant had a vested right under the
statute 8 Anne, c. 19. The opportunity for an enunciation upon this mooted point was all that could be
desired; but the lord chancellor (Parker) ignored the
question altogether, and granted an injunction to restrain its publication, upon entirely different grounds,.
namely, that the work was one not innocent in its.
character as tending  to  disturb religious  beliefs;
grounds which, to say the least, were gratuitously sug —
gested by his lordship, which, at the present day,
appear to be sufficiently absurd.'
The opinion seems to be, that in cases where a.
copyright of the original exists within the jurisdiction when the translation is made, that the unauthorized translation would be considered as an interference
with the rights of the proprietor.
Still, much is to be said in favor of an oppositeview. The translation would not only have given the
work a new dress, have increased its circulation and
influence, but it would be a new labor expended upon
old materials, which, as we have seen, cannot be forbidden. If the work was scientific in its character, however, the original writer in the foreign tongue might.' The lord chancellor said that, though a translation:
might not be the same with the reprinting of the original on
account that the translator had bestowed his care and pains.
upon it, and so not within the prohibition of the act, yet-this.
being a book which, to his knowledge (having read it in his
study) contained strange notions intended by the author to
be concealed from the vulgar in the Latin language, in which
language it could not do much hurt, the learned being better'
able to judge of it-he thought proper to grant an injunction
to the printing and publishing it in English; that he looked.
upon it that this court had a superintendence over all books,..
and might, in a summary way, restrain the printing or pub —
lishing any that contained reflections on religion or morality-.




CH. IV.]       OF  ORIGINALITY.                367
claim protection in the peculiar system, arrangement,.
and design of his treatise, under the well-known rule
of Judge Story,' who draws an analogy from the law
of patents. Said he, "A man who constructs a newmachine, is entitled to a patent therefor, if the combination and arrangements thereof are new and his
own invention, although he uses old materials and old
mechanical apparatus and powers, in constructing such
machine. He may use wheels, or levers, or screws, or
toggle-joints, or cranks, or any other known modes.
of accomplishing given mechanical ends, if he combines them in a new manner, and thus produces a
beneficial result.  The steam-engine, the steamboat,.
the cut-nail machine, the card machine, are all but
new combinations of old materials, old processes, and
old mechanical powers and apparatus. And so," he
argues, "although the last compiler or arranger,
does not, by his new arrangement, acquire the
right to appropriate to himself the materials which
were common to all persons before, so as to exclude
those persons from  a future use of such materials,
still he is entitled to use such materials, with his improvements superadded, whether they consist in plan,.
arrangement, or illustration, or combinations; for
these are strictly his own." And so, also, a patent will
be granted for an improvement, just as no inconsiderable number of the more useful and laborious works in
all the range of literature, are annotations of preceding
texts, and, of course, copyrightable.
I75. There may be cases, however, in which the
ownership of literary property centers in one, not its.
actual author, and not its proprietor by contract of assignment or purchase, though, undoubtedly, the' In Emerson v. Davies, 3 Story, R. 968; and see Gray v.
Russell, I Id. i i.




368         LA I  OF LITERATURE.    [CH. IV.
principle upon which they depend, is one of implied
contract.
Suck cases are those in which the real author, at
the time he produced the composition, was in the employment of another.  This principle is sometimes
called the law of literary accession, and is as follows:
where, in the course of the production or composition
of a literary scientific production, an author employs another or others to assist him, the product of
their individual labor will belong to him who is the
author or proprietor of the whole.'
The difference between the doctrine of literary
accession and the preceding cases, where the labor of
others was merged, consists in the fact of the employment. In the cases of the musical adaptation of an
old air, and of the plot of a novel in a play, the point
hinged upon, was, that ownership of the particular
features of these compositions became merged in the
ownership of the composition as a whole (and which
was only valuable as a whole), and it made no difference that the feature happened to be the theme of the
whole production, if, separated and isolated from the
production, that theme was of no market value.
Still another variety of this general principle is to
be found in what we have treated, further on in this
chapter, under the head of proprietary copyright.
I76. The doctrine of literary accession, however,
will only be applied in favor of innocent parties, and
those who have not willfully used or appropriated the
property of others.
A wrong doer will not be permitted to derive
benefit from the otherwise accessorial character of that
Pothier, propriet6, I70, 175. ilittoon v. Keene, 7 Corn. B.
N. S. 268, 29 L. J. 20 C. P.; I L. T. N. S. io. 9 Am. Law
Reg. 33. Vidi. Code Nap. 566, 567.




CH. IV.]        OF  ORIGINALITY.                   369
which he converts to his own use.1 And, as against
such, the accessorial part will be held to be the principal and vital part. Accordingly, the publication of a
book will be restrained or suppressed for piracy, where
the matter pirated is accessorial only to former compositions in which there could be no copyright, and
forms only a small portion of the whole contents.2
The law of literary accessions is well illustrated in
the case of a calico printer,3 who had discharged his
head color-man. The color-man brought suit against
him  in trover for a book of entries of processes of
mixing the colors used in his employ, which he had kept
while in the defendant's employ. It was held that,
even though many of the processes therein set forth
were of the plaintiff's own invention, he could not
recover, because they were the result of his employment; and that the master had a right to something
beside the tmere manual labor of the servant in the
mixing of the colors; and though the plaintiff invented them, yet they were to be used for his master's
benefit.
So where the plaintiff, an artist, accompanied an
expedition to Japan, fitted out by the United States
government, as a master's mate, and signed the shipping articles, and drew and received his pay as such,
with the understanding that all sketches and drawings
that he might make were to belong to, and become
l Sweet v. Bunning, 2 T. J. ch. 9go; 2 S. & S. i; i6 Com.
B. 459; 3 Jur. 217; 5 Carr. & P. 58. Merlin: Questions de
Droit, " Contrefacon," ~ II. vol. 2, p. 659; " Proprietee Litterraire," ~ II. vol. 6, p. 498, 4th ed.; Keene v. Wheatley, 9
Am. Law. Reg. 33; Keene v. Clarke, 5 Rob. 38.
2 3 Swanst, 68o, 68i; 5 Ves., 709; 3 Mylone & Co., 736, 737,
738; Sweet v. Benning, i6 Corn. B. 459; Hatton v. Keene,
29 L. J. N. S. C. P. 20; 7 Corn. B. N. S. 268; Keene v.
Wheatley, 9 Am. Law. Reg. 33.
a Makepeace v. Jackson, 4 Taunt. 770.
24




370         LA W  OF LITERA TURE.    [CH. IV*.
the property of, the government,-and he did make
certain sketches and drawings, which were afterwards
incorporated in a report of the expedition to the
navy department, and ordered printed by congress, —
it was held, that he was not the " author or proprietor"
of the prints and engravings, in such a sense as to be
capable of taking out a copyright, after the publication
by government.'
In another case, where an inventor, in the course
of his experimental essays, had employed an assistant,,
who suggested and adapted a subordinate improvement, it was held an incident or part of the employer's main invention.2 Where an actor in the employ
of a manager of a theater, who was also the proprietor
of a manuscript play, took the leading part in the representation of the play on the stage, and in so doing
introduced many new and original "gags" and interpolations, consisting of words, phrases, and sentences, some of which were written in pencil on the
margin of the manuscript copy of the play, and some
of which were retained only in the memory of the
actor,-it was held that these "gags" and interpolations were the property of the proprietor of the play,
and not of the actor in her employ.3 And, upon a
like principle, in the case of a musical composition,
it was held that a person who adapted words to an old
air, and procured a friend to arrange an accompaniment, would acquire a copyright in the whole.4
This principle, however, will be exercised with
great care, and should be considered in connection with
Heine v. Appleton, 4 Blatchf. r25.' And see Lover v. Davidson, I Com. B. (N. S.) 82; Maclean v. Moody, 20 Scotch Sess. Cas. 2d series, II64.' Keene v. Wheatley, 9 Am. Law. Reg. 33.
~ Cocks v. Purday, 2 Car. & Kirw. 269.




CH. IV.]        OF  ORIGINALITY.                371
the rules before noticed, namely, that to constitute one
an author he must, by his own intellectual labor, applied to the materials of his composition, produce an
arrangement, combination, or performance new in
himself.t He cannot become entitled to its proprietorship by merely procuring another to do the work.2
I77. A question has arisen whether a greater degree of originality is necessary to sustain a claim to
a copyright than would be sufficient to support a title
to a patent. In the case of patent inventions, suggestions of servants employed in perfecting a discovery, tending to facilitate its practical application,
may be adopted by the employer and incorporated
into his design without detracting from his claim to
originality. In Barfield v. Nicholson,3 Sir John Leach
suggested the application of a similar principle to
copyright. Chief Justice Jervis, however, leaned to a
different opinion in the case of Shepherd v. Conquest,'
remarking that the enactments upon which literary
property and patents for inventions are respectively
founded, differ widely in their origin and details; and
that in order to show that the position and rights of
an author within the copyright acts are not to be
measured by those of an inventor within the patent
laws, it is only necessary to bear in mind that, whilst
on the one hand a person who imports from abroad
the invention of another previously unknown here,
without any further originality or merit in himself, is
an inventor entitled to a patent; on the other hand, a
person who merely reprints for the first time in this
country a valuable foreign work, without bestowing' Atwill v. Ferrett, 2 Blatchford, 46. Antepp. 360, 362. Per
Story, J.
t Id. Pierpoint v. Fowle, 2 Wood & Minn. 46.
2 Sim. & St. I; 2 L. J. go, I02 ch.
4 17 C. B. 444.




372        LAW  OF LITERATURE.    [CH. IV.
upon it any intellectual labor of his own, as by translation, which to some extent must impress a new
character, cannot thereby acquire the title of an
author within the statutes relating to copyright. The
chief justice proceeded: "We do not think it necessary, in the present case to express any opinion
whether, under any circumstances, the copyright in a
literary work, or the right of representation can become vested ab ini/io in an employer, other than the
person who has actually composed or adapted a
literary work. It is enough to say in the present case,
that no such effect can be produced where the employer merely suggests the subject, and has no share
in the design or execution of the work, the whole of
which, so far as any character of originality belongs to
it, flowed from the mind of the person employed. It
appears to us an abuse of terms, to say that in such a
case the employer is the author of a work to which
his mind has not contributed an idea; and it is upon
the author in the first instance that the right is conferred by the statute which creates it."'
Or again: as in the case of succeeding essays or
treatises upon identical subjects, or of new and improved editions of standard works, the same question,
founded on a supposed analogy between patents and
copyright, occurs.
It has seemed to us, however, that such an analogy,
from the very nature of the things treated, cannot and
does not exist.
The thing patented is actual, palpable, and material. The thing copyrighted is an invisible, impalpable
idea-a thought clothed in words. The idea is the
common property of him to whom it shall occur; the
language is the common heritage of the race. Does' Shortt, L. L. p. 85.




CH. IV.]       OF  ORIGINALITY.               373
it not follow, therefore, that there must be a difference
in their treatment, and that, because the subjects Of
patent and copyright will generally be found treated
of together-bound together in the same treatise; or
because both are alike a property created by the state;
or even because authors and inventors have common
and analogous rights, and seek the identical remedies
or protection-there is any analogy (except, possibly,
an analogy of treatment) between them?
The theory of copyright recognizes the possibility
of a new work, arising from a re-arrangement or republication of old matter, without an interference with,
or infringement upon, the former, which is a case unknown to the theory of patents.
For instance: the patentee of a sewing-machine, in
1874, which employs the needle of a sewing-machine
patented in I862, must pay to the owner of the patent
on the needle a royalty for every one of his needles
used. But the writer of a legal work in I874, who
treats a branch of the subject-matter in identically the
same method; making, perhaps, identically the same
remarks, in the same order and even in almost the
precise words as a treatise-writer on that same subject,
who published ten years before him-since, as we have
seen, he could not copyright the subject-matter-so
long as his work is not a mere conveyance of the
preceding one, is not bound to pay a royalty for the
method.
The explanation is, that a work is copyrighted
simply because it cannot be patented. If the law
of patents was capable of protecting every possible
product of intellectual labor, there would be no necessity for a law of copyrights; and, so far from their
being similar, it is only because they are dissimilar that
they exist separately, or that copyright exists at all.




374          LA W  OF  LITERA TURE.    [CH. IV.
I78. The question of proprietory copyright
(which, perhaps, is only a variation of the doctrine of
literary accession, and reduceable to that head), arises
principally in considering as to how far the proprietor of a periodical containing translations made from
foreign works, by persons employed and paid by him,
or from works imported by him at considerable expense, seems to be settled in favor of the proprietor,'
So, any assistant, employed to compile matter for catalogues or other works of reference, will be held to
have no claim to authorship in the labor thus performed at their principal's instance. As, for example,
persons employed by publishers of a shipping list to
compile from books of a custom-house, to which the
publishers had the sole right of access, for purposes of
publication, will not be held to be authors.2
But, on the other hand, a person employed as a
performer and stage manager of a theatre, who agrees
to write a play to be performed in the employer's
theatre, so long as it continues to draw good
audiences, and  who  thereupon  does  write  such
play, will not be held by the agreement as to its
performance to have parted with his ownership
therein.3
One who merely procures a drawing or design to
be made,4 or who procures alterations to be made in'Wyatt v. Barnard, 3 Ves. & B. 77.
2 McLean v. Moody, 20 Scotch Sess. Gas. 2nd ser. II64.
Roberts v. Myers, 13 Month. L. Rep. 400; post, chapter on
Dramatic Copyright.
4 The plaintiff has not made a case for relief within the
statute (8 Geo. 2 C. I3) which was made for the encouragement of genius.         If he is any author, then any person who employs an engraver or printer, is an author. Lord
Hardwicke in Jeffreys v. Baldwin, Amb. i64; vid. also Pierpont v. Fowle, 2 Wood & Min. 46, and Binns v. Woodruff, 4
Wash. 53.




CH. IV.]        OF  ORIGINALITY.                  375
a musical composition not original with himself,'
-will not be, in either case, an author. And the employment of an author to write a play, even where the
employer suggests the subject, does not constitute
the employer the author of the play.2
To constitute a joint authorship the work must
have been the result of a preconcerted joint design
between  two  co-workers, and the mere introduc-tion of alterations, additions, or improvements  by
asnother person, whether with or without the real
author's sanction, will not entitle the other person to
be considered a "joint anthor" of the work in ques-;tion.3
I79. The important inquiry as to what will constitute a new edition of a work, is one of constant
importance. This question was ably discussed in the
late Scotch case of Black v. Murray,4 which held that
a person may, by publishing a reprint of a work of
-which the copyright has expired, with notes and illustrations from other works, create a new copyright,
-which will be protected from piracy; and that it is a
piratical use of such copyright work to borrow from
-it any considerable number of those illustrations.
It was contended on behalf of the defenders in
this case (which was an action for infringing the pursuers' copyright in the works of Sir Walter Scott, by
publishing what purported to be a reprint of the
original edition of the "Minstrelsy of the Scottish
Border"), that the copyright claimed by the pursuers
was a copyright of an edition of a work, not of the
original text, the copyright in which had admittedly
1Lover v. Davidson, i C. B. N. S. i82; Leader v. Purday,;7 C. B. 4.
2 Levi v. Rutley, L. R. 6 C. P. 523.'Id.
4 9 Scotch Sess. Cas. 34I, 3d series.




376         LA W  OF LITERA TURE.    [CH. IV
long since expired; that the pursuers' claim to copyright was chiefly based on notes contributed to their
alleged copyright edition; that to make notes the subject of copyright, they must, in a reasonable sense,,
form a " book," and must constitute the value of the
new edition; that that was not the case with the pur —
suers' edition, the notes added by their edition being
200 in all, many of them unimportant, and not extending to 25 small pages; that only 40 were taken
by the defenders, io of them being found in editions.
not copyright; and, finally, that it was open to the de —
fenders to quote, even from copyright books, for the
purpose of illustration; but the court of session
affirming the interlocutor of the lord ordinary, held:
the defenders liable for piracy.
" Questions of great nicety and difficulty," said the
Lord President, "may arise as to how far a new edition
of a work is a proper subject of copyright at all; but
that must always depend upon circumstances. A new
edition of a book may be a mere reprint of an old
edition, and, plainly, that would not entitle the authors
to a new term of copyright running from the date of
the new edition. On the other hand, a new edition'
of a book may be so enlarged and improved as to
constitute in reality a new work, and that, just as.
clearly, will entitle the author to a copyright running
from the date of the new edition. Take for example,
in illustration of this, a new edition of a scientific
work which is published twenty or thirty years afterthe date of the first edition. The progress of science
in the interval necessarily leads to the new edition being
a very different book from the old. That old edition
will, probably, in the course of these twenty or thirty
years, have become comparatively worthless, while the
new edition, particularly if it is the production of the




CII. IV.]      OF  ORIGINALITY.                377
original author himself, will be as valuable, at the later
period, as the original edition of the book was at the
time when it was published.  But there are many
cases between these two extremes; and the difficulty
will be to lay down any general rule as to what
amount of addition, or alteration, or new matter will
entitle a second or a new edition of a book to the
privilege of copyright, or whether the copyright extends to the book as amended or improved, or is
confined only to the additions or improvements themselves, as distinguished from the rest of the book. I
think, in the present case, that we shall not find that
we are in reality much troubled with such difficulties."
" It is not necessary," observed Lord Ardmillan,
"that a work shall be entirely a new work in order to
be the subject of copyright. A new edition is not
necessarily a subject of copyright, but it may be so.
There must be some originality in it; it may be in new
thought, or in new illustration, or in new explanatory
and illustrative annotation, or even, in some peculiar
instances, in simply new arrangement. If, in any of
these respects, there is independent mental effort, then
in the result of that mental effort, there may be copyright."
Lord Kinloch said: " I think it clear that it will not
create copyright in a new edition of a work, of which
the copyright has expired, merely to make a fewemendations of the text, or to add a few unimportant
notes. To create a copyright, by alterations of the
text, these must be extensive and substantial, practically making a new book. With regard to notes, in
like manner, they must exhibit an addition to the
work which is not superficial or colorable, but imparts
to the book a true and real value, over and above that
belonging to the text. This value may, perhaps, be




378         LAW  OF LITERA TURE.    [CH. IV.
rightly expressed by saying that the book will procure
purchasers in the market on special account of these
notes. When notes to this extent and of this value
are added, I can not doubt that they attach to the
edition the privilege of copyright. The principle of
the law of copyright. directly applies. There is involved in such annotation, and often in a very eminent
degree, an exercise of intellect and an application of
learning, which place the annotator in the position
and character of author, in the most proper sense of
the word. The skill and labor of such an annotator
have often been procured at a price which cries shame,on the miserable dole which formed to the author of
the text his only remuneration. In every view, the
Addition of such notes as I have figured, puts the
stamp of copyright on the edition to which they are
attached. It will still, of course, remain open to publish the text, which, ex hypoohesi, is the same as in the,original edition; but to take and publish the notes
-will be a clear infringement of copyright."
It is not necessary that the notes should be original. If skill and labor are bestowed in their selection
and application, the annotator is entitled to copyright
in them.
" Of the 200 notes," said the lord president, in the,case just referred to, " the defendants' counsel tells us
further that fifteen only consist of original matter, and:are the composition of Mr. Lockhart himself, while
the remaining I85 are quotations from other books
and authors. Now this seems to be considered, also,:to be a sort of disparagement of the value of the
notes, in which I cannot at all agree. It seems to
me that notes of this kind are almost chiefly valuable
-in bringing together, and in combination, the thoughts
of the same author in different places, or the thoughts




CH. IV.]        OF  ORIGINALITY.               379
of other authors, or of critics, bearing upon the point
that is under consideration; and nothing could better
illustrate it than a number of the notes which we see
in these very volumes, and which are exceedingly
interesting and valuable as matter of literary and
critical taste and judgment. The quotations are, in
many places, most apposite, and highly illustrative of
the text, and exceedingly interesting to the reader;:and, certainly, the selection and application of such
quotations from other books may exercise as high
literary faculties as the composition of original matter.'They may be the result both of skill and of labor;and of great literary taste; and, therefore, I think the
circumstance that the notes consist, to a great extent,
of quotations, is anything but a disparagement of their
value."  So Lord Kinloch: " It was, perhaps, thought
that to repeat quotations from well-known authors
was not piracy. If so, I think a great mistake was
committed. In the adaptation of the quotation to the
ballad which it illustrates-the literary research which
discovered it-the critical skill which applied it-there
was, I think, an act of authorship performed, of which
no one else was entitled to take the benefit for his own
publication, and thereby to save the labor, the learning, and the expenditure, necessary even for this part
of the annotation."
This question would arise more properly under the
consideration of the subject of piracy, to which chapter we refer the reader for a further discussion of the
question of originality.
I80. An examination of the subject of originality
in literary matter, drawn from the decided cases on
the subject, is more or less an examination of the subject of piracy; for piracy is the name which the law
gives to the wrongful appropriation of intellectual




380         LAW  OF  LITERA I'URE.           [CH. IV.
property, in which the ownership has been asserted in,
accordance with, its own rules, just as larceny is the'
wrongful appropriation of personal and tangible
property: the solitary difference being thati, while the
latter is a criminal, the former is only a civil offense.l
Though, indeed, why this should be, there is no
logical reason. And, as the recognition by the law in any
form, of this species of property is still comparatively
new and recent, the day may not be far distant when
even this last distinction will be rejected.
Resulting from the fact that literary and intellectual
matter is property in the eyes of the law, and can,.
therefore, be transferred from man to man, it follows
that the ownership may exist in others than its author;
were it not for this, the subject of originality and
of piracy might well be treated concurrently. The
cases not examined, therefore, in this chapter will be
found treated of further on, in the chapter on Piracy.
This is, however, not the case in all countries. In France,
Holland, and other kingdoms, piracy is a misdemeanor. See
synopsis of copyright in different nations in chapter on Copyright, post.




BOOK II.
OF PROPERTY IN LITERARY COMPOSITION BEFORE PUBLICATION.
CHAPTER I.
OF MANUSCRIPTS.
i81. We have stated that, as soon as the author's
property in ideas is put into any tangible, visible
form, and the "airy nothings" have taken to themselves a " local habitation:" the law, from that instant,
asserts its recognition and protection, and will, if appealed to, take measures to enforce it.
The first form  which literary composition must
take outside the composer's brain, is evidently the
form assumed upon its being written upon a surface,
and this occupied surface is called a manuscript,
which, as the name implies, means something written
with the hand,' as contradistinguished from a printed
or published " book."
Lord Ellenborough seemed to think2 that the
word " book," as used in the statute of Anne, implied
a plurality of sheets, and would not cover words
printed upon a single sheet. But in Beck v. Long1 Latin:-Afanuscriptum from manus, the hand, and scribere,
to write.
2 Hime v. Dale, 2 Camp. 27 (note); Clementi v. Golding,
Id. 25.




382         LAW  OF LITERATUR-E.            [CH. Iman,' it was decided that musical compositions,.
printed upon a single sheet, might come under the
definition of that word. If a different construction,
were put upon the act, many productions of the
greatest genius, both in prose and verse, would be excluded from its benefits. The papers of the " Spectator," or " Gray's Elegy," might have been pirated as
soon as published, because they were first given to the.
world on single sheets. The voluminous extent of a
production cannot, in an enlightened country, be the
sole title to the guardianship the author receives
from the law. Everybody knows that mathematical
and astronomical calculations, which will confine thestudent during a long life, in his cabinet, are frequently
reduced to the compass of a few lines. And is all
profundity of mental abstraction-on which the security and happiness of the species in every part of the
globe depend-to be excluded from the protection of
jurisprudence? There is nothing in the word " book"
to require that it shall consist of several sheets, bound
in leather or stitched in a marble cover. " Book " is.
evidently from the Saxon "bot;" and the latter term
is from the beach-tree, the rind of which supplied theplace of paper to our German ancestors. The Latin
word "i ber" is of a similar etymology, meaningoriginally only the bark of a tree. "Book" may,
therefore, be applied to any writing, and it has often
been so used in the English language. Sometimes 
the most humble and familiar illustration is the most
fortunate. The horn-book, so formidable to infant
years, consisted of one small page protected by an
animal preparation; and in this state it has universally —
received the appellation of a "book." So in legal
proceedings, the copy of the pleadings, after issue
Cowp. 623.




CH. I.]        OF  MANUSCRIPTS.                  383'
joined, whether it be long or short, is called the paper" book," or the demurrer " book."  In the court of exchequer, a roll was anciently denominated a "book,"'
and so continues, in some instances, to this day. An
oath as old as the time of Edward I. runs in this.
form: "And you shall deliver into the court of exchequer a book fairly written," &c.  But the book
delivered into court, in fullfillment of this oath, has.
always been a roll of manuscript.' The present familiar
form of a book, or folio of two pages, was invented by
Julius Caesar, who adopted that form for his letters to
the senate., instead of the ordinary roll in use amongthe Romans. But before the law the import of the
term " manuscript " will doubtless be less derivatively
exact, and the distinction disregarded, and by " manuscripts " the law will imply any unpublished work.
I82. A literary composition may be a book entitled to copyright without being printed. Mr. Justice
Yates, one of the jurists who rendered an opinion in
the greatest case of literary property that English
jurisprudence has ever seen,2 in a peculiarly felicitous.
illustration compared the ideas of an author to birds.
in a cage, "which none but he can have a right to let
fly. For, till he thinks proper to emancipate them,
they are under his own dominion. It is certain every
man has a right to keep his own sentiments as he
pleases. He has certainly a right to judge whether he
will make them public, or commit them only to the
sight of his friends, In that state, a manuscript is, in,
every sense, his own peculiar property;  and no man
can take it from him, or make any use of it which he
has not authorized, without being guilty of a violation' Erskine for plaintiff in Hime v. Dale, 3 Camp. 27 (note)>' Millar v. Taylor, 4 Burr, 2378.' Roberts v. Myers, I3 Month. Law. Rep. (N. S.) 396.




384          LAW   OF  LITERATURE.               [CH. I.
of this property."' The cage is the manuscript, and
the slightest public use, is an invasion. Its contents
are sacred from notice, in whole or in part,2 or even
from the publication of a resume, synopsis, abridgment, description, or even a catalogue of its contents.3
This incorporeal right to publish will be most zealously
guarded, nor can it be construed as belonging even to
a creditor who has seized an author's manuscripts,4 or
as passing to assignee in bankruptcy.'  He has a right
to them as chattels, but he cannot publish their contents.6  Neither can an author be forced to publish
his works for the benefit of his creditors.  Even under
such circumstances, the author's right of withholding
the publication will continue till the very moment his
book is actually given out to the public. Even the
printer of the book will not be entitled to sell it for
his payment, although there is not the smallest doubt
that he has a complete lien over it till delivery, to
prevent the author or his creditors from taking advantage of the publication till he shall be paid. When a
book is published, the property of it forms a subject
which creditors are entitled to attach and sell; and
the price unpaid by the bookseller is as completely
open to the diligence of creditors,'as the price of any
other commodity or piece of merchandise. And so,
Per Yates, J. 4 Burr, 2378.
2 Wheaton v. Peters, 8 Pet. 657. Hoyt v. Mackenzie, 3 Bart.
ch. 323. Bartlett v. Chittenden, 4 McLean, 30I. Prince Albert
v. Strange, I3 Jur. 12, I M. & G. 42. Maughan on Literary
Property, 74, I37. Webb v. Rose, 4 Burr, 2330. Pope v. Curl,
2 Atk. 342. Manly v. Owens, Burr, 2320. Southey v. Sherwood, 2 Meriv. 342. 2 Story on Eq. ~ 943.
3 Prince Albert v. Strange, 13 Jur. II2, I Mac. & T. 42.
4 I Bell's Corn. 268. Curtis on Copyright, 85.
6 I Bell's Com. 68. 4 Burr, 2396, 2397. Curtis on Copyright, 2i8. Dodson on Patents and Copyright, 2nd ed. 430.
~ I Bell's Com. 68.




CH. I.]         OF  MANUSCRIPTS.                   385
where one had compiled an abstract of public records
of title, with great labor and care, it was held, in a very
recent case, that although a sheriff might seize them
upon execution, he would have no right to publish
them to satisfy the judgment.'
And a sculptor may distribute plaster casts of his
model, among his friends, without losing a right to
first publish it.2 The public exhibition of a picture,
for the purpose of obtaining subscriptions to engrav-ings of it,3 and even the publication of a representation
of a picture, accompanied by a description in a periodical, has been held to abridge no author's rights therein.4
The author may even li'mit the circulation of his
manuscript to his own particular friends, guests, or pupils,5 and such private circulation will not be construed
to license the appearance of either a catalogue description or a copy of it, for the benefit of any one else.6
For the purposes of their regulation, the law will
make no discrimination between the forms of unpublished works; so, whether in manuscript or in print (i.e.
privately printed), both will be controlled by the law
relating to manuscripts. In either case, a mere possession will not imply a right to publish.
The principles of the common law are mainly
invoked in dealing with manuscripts. In this country,
however, they are protected also by statute.
The act of Congress of July, I870,7 which was
passed to revise, consolidate, and supersede all existing
statutes of copyright, provides that any person who
Banker v. Caldwell, 3 Min. 94. See this case discussed
post, in chapter on Contracts, &c.' Turner v. Robinson, Io W. ch. Rep.
3Id.                                      4Id.
Bartlett v. Chittenden, 5 McLean, 32.
Prince Albest v. Strange, 13 Jur. II2; I Mac. & T. 42.
U. S. Stat. at large.
25




386          LA W  OF  LITERASTURE.             [CH. I.
shall print or publish any manuscrips whatever, with —
out the consents of the author or proprietor first
obtained (if such author or proprietor be a citizen of
the United States, or resident therein), shall be liable
to said author or proprietor, for all damages occasioned
by such injury, to be recovered by action in any court
of competent jurisdiction.-And this protection was.
held (in the similar enactment in the statute of I83I,.
to extend to any part of, as well as to the whole of
a manuscript),2 but that it did not operate to take
away the right of property which the auther possesses
in his unpublished works by common law.3 This
right of an author to his manuscripts is often alluded
to as "copyright before publication," and is often so
spoken of by writers upon literary property. This
copyright before publication is the more ancient of thetwo. It is the exclusive privilege of first publishing
any original material product of intellectual labor.
Its basis is property, and it depends entirely on the
common law.4
The first question settled in the leading case of
Donaldson v. Becketts was, that the author has theprior right to the publication of the contents of his
own manuscript under all circumstances.  Eleven
judges, including Lords Mansfield and DeGray, and
Messrs. Justices Blackstone and Yates, were unequivocal as to this point.'The act of i83I (now repealed) required this consent to
be in writing, signed in the presence of two or more credible
witnesses; but the provision is retained in section 4964 of the
revision of I873-74.
2 Wheaton v. Peters, 8 Pet. 657; Woolsey v. Judd, 4 Duer,
385; Bartlett v. Chittenden, 5 McLean, 30I; Jones v. Thorne,
I N. Y. Leg. Obs. 409; Hoyt v. Mackenzie, 3 Barb. ch. 320.
Id.
Phillips on Copyright, 2.'Maughan on Literary Property, p. 37.




CH. I.]        OF MANUSCRIPTS.                  387
183. The whole gist and substance of the law of
literary property, as relating to unpublished works,
consists solely in the right to first publish. And in
this the law has a regard to the nature of the property itself. It assumes that the only value of an unpublished work is the power to publish,-either by
oral delivery, exhibition, expression by gesture, pantomime, or by the multiplication of its contents by
mechanical processes, such as transcribing, printing,
engraving, and the like. There are exceptional cases,
indeed, where the value of the unpublished work in
the author's hands, seems to be insisted on, as apart
from a right to publish. As, for instance, where men
of culture and wealth have accumulated collections of
their own sketches or descriptions, which they exhibit only to personal friends.' But it is submitted
that the principle is not affected by these exceptions.
The right claimed here is in reality the same as in all
other cases, differing in degree rather than in kind.
It is still the right to a first publication; that is to
say, if the matter is to be published at all, the author
claims the right to publish it himself; the exhibition to personal friends being nothing more or less
than a publication where the public or audience is
chosen by the exhibitor.  Of course, a manuscript,
like any other chattel, may have a historical or sentimental value. It may be an antique or a curiosity,
like a palimpsest or a parchment; it may be an heirloom, a souvenir, or an ornament. In such cases it will
not be considered under the head of literary property,
but rather of property personal, like any other.
184. The earliest case in which a court was called
upon to adjudicate concerning the common-law
rights of an author to his manuscript, was prob bly
As in the case of Prince Albert v. Strange, I3 Jur. I12.




388         LAW  OF LITERA TURE.           [CH. I.
the case of the famous Dr. Priestley, already examined.' On the trial of an action brought by him
against a hundred, to recover damages sustained by
him in consequence of the riotous proceedings of a
mob at Birmingham, amongst other property alleged
to have been destroyed, and for the loss of which he
claimed compensation, were certain unpublished manuscripts. It was alleged, by way of defense, on behalf
of the hundred, that the plaintiff was in the habit of
publishing works injurious to the government of the
state, but no evidence was produced in support of that
allegation.  Lord Chief Justice Eyre is stated to
have observed, however, that if such evidence had
been produced, he should have held it was fit to
be received as against the claim made by the plaintiff.
But we have taken the liberty 2 to question if such
a rule would be followed to-day. A man's manuscript
is a chattel, and we doubt if a possible and prospective damage that its publication might do, would
destroy its owner's property therein.  If this case
decided anything, it decided that there can be property in a manuscript.
Another early enunciation upon the subject was
in Webb v. Rose,3 in I732, where equity granted an
injunction to restrain the clerk of a deceased conveyancer from printing certain conveyancing drafts,
which had been used by the latter. In 174I an injunction was granted against the printing of plaintiff's notes surreptitiously abstracted from him;4 and
in I 755, certain printers who had purchased, from the
lord mayor of London, the copy of the sessions paper
Cited 2 Meriv. 437. Ante, pp. 25, 27.
Ante, p. 25.
s Cited 4 Burr, 2330.
Forrester & Walter, Id.




Crr. I.]       OF MANUSCRIPTS.                  389
of trials, were granted an injunction restraining other
parties from printing the same.'
In I820, Lord Eldon enjoined the performance
of a comedy called "The Young Quaker," of the
manuscript of which the plaintiffs were possessed.2
This decision is remarkable as foreshadowing the
tendency of the law which resulted in the first English dramatic copyright act,8 coming many years later,
which gave to authors of plays the sole right of
representing them, and therefore could only have
rested on the common-law ground of proprietorship
in the manuscript, including the matter written
thereupon.
The common law or statute right of an author in
his manuscript being conceded, the whole question,
then, in treating of this branch of the subject, will be:
has the author relinquished his right to say when,
how, and where his compositions shall be published;
or, in legal language, has he dedicated it to the public;
and what damage has he suffered by the publication
against his will?
i85. I. Such a dedication to the public as will
overcome an author's right to first publish his own
manuscript, must be positive and actual. It must be
the sole and voluntary act of the author himself. An
act which amounts to a publication, if it be entirely or
partially the act of another than the author; or, if the
author begin and the other complete the act which is
construably a publication, it will not be the author's
own act, nor amount to a dedication.
For instance: it will not matter how the unpub-' Manley v. Owen, cited 4 Burr, 2329.
2 Morris v. Kelly, I Jac. & W. 48I; vid. also Macklin v.
Richardson, Amb. 694.
3 & 4 Will. 4, C. 15




390         LAW   OF LITERATURE.             [CH. I.
lished work of any one who does not intend to publish,
may have come into the hands of another person; that
other person cannot publish it without the author's
consent.'' If any person takes it to the press without
his consent, he is certainly a trespasser, though he
came by it by legal means, as by a loan or by devolution; for he transgresses the bounds of his trust, and
therefore is a trespasser."' And the law is the same
whether the case be mechanical or literary; whether it
be an epic poem or an orrery. The inventor of the
one as well as the author of the other has a right to
determine " whether the world shall see it or not." 2
The leading case of Southey v. Sherwood 8 might
at first appear to overrule this principle. In that case
a motion was made on the part of the poet Southey
to restrain the defendants from printing or publishing
a poem called " Wat Tyler," which had been composed
by the plaintiff about twenty-three years previously;
and had lain unpublished during the whole of that
period in the hands of the bookseller, to whom
Southey had first sent it for his perusal and consideration as to the advisability of publishing it. But the
decision of Lord Eldon, in refusing the injunction,
was expressly on the ground that the poem  in question, from its libelous tendency, was of such a nature
that there could be no copyright in it. Lord Eldon,
in refusing the injunction, remarked, "that, in some
cases, the refusal of the court to interfere by restraining such may operate so as to multiply copies of
mischievous publications; but to this my answer is,
that, sitting here as a judge, upon a mere question of
property, I have nothing to do with the nature of the
Millar v. Taylor, 4 Burr, 2379.
2Id. 2386
2 Meriv. 438



CH. I.]        OF  MANUSCRIPTS.                  391
property, nor with the conduct of the parties, except
"as relates to their civil interests; and if the publication
be mischievous, either on the part of the author or
of the bookseller, it is not my business to interfere
-with it." I
This decision of Lord Eldon's, however, has not
commanded universal assent, and appears to have
been somewhat hasty and ill-considered. A single
glance at the case of Southey v. Sherwood, and its
supposed precedent in Dr. Priestley's case, must be,sufficient to disclose the difference.
In the latter case (the reports of which are principally traditionary, after all), we have said that the most
that the court in that case actually ruled, was that, if
Dr. Priestley's manuscripts were not innocent in
their character, he could have had no property in
their contents, had those contents been published,
which the law would have recognized, and that it certainly could not be expected to award damages for
presumptive profits, which, if they had accrued at all,
would have accrued from a positive injury done to the
morals of the community. Surely, this ruling does
not justify the publication of the contents of a doubt-:ful or non-innocent manuscript, against its author's and,owner's will and protest.  Mr. Curtis2 criticises this
decision or dictum of Lord Eldon's with much reason,.saying:
" There is, or ought to be, some difference between
the publication of an author's manuscript, against his
will and protest, and the case of Dr. Priestley's MSS.,
which was destroyed by the act of a mob. There are:two kinds or degrees of property in a literary work,
12 Meriv. 343. Lord Eldon expressly states that he followed tile case of Dr. Priestley in this ruling. See Wolcot v.
XValker, 7 Ves. I.          2 On Copyright, p. 157.




392         LA W  OF  LITERA TURE.            [CH. i_
one consisting in the right to take the profits of a.
book when published, the other in the right to the
exclusive possession and control of a manuscript, or'
the right to publish or withhold from publication
altogether.  In no case has it been considered that the
author's right depends on his intention to publish and
to make a profit; but the cases proceed upon the
ground of a right of property, by which seems to be
intended, a right to the possession and control of the:
manuscript, and to publish or to withhold it from.
publication; and this holds equally in the case of a.
non-innocent and an innocent xwork. When, therefore, an author has not published, or does not intend
to publish, a work existing in manuscript, but, on the.
contrary, desires.and intends to withhold it from publication, the question as to its innocence does not.
arise, because that question affects only so much of
his right of property as consists in the right to take
the profits of the publication."'
The mere parting with the possession of a' manuscript, or intrusting its possession to another; or even,
a permission to another to take and hold a copy of
the manuscript, will not amount to an authority to
that other person to publish. All such acts will be:
construed strictly in favor of the author, and against;
the recipient, by the intention of the supposed licensor,,
and the circumstances of the act; and unless it is the
express intention and effect of the gift, to pass-with itself-permission to use the contents of the manuscript.
for purposes of publication, profit, or gain, at the
pleasure of the recipient, no such permission will be
inferred by construction of law.
"To make a gift," said the court, in a leading case,
Curtis on Copyright, cited Shortt, I L. L. 7, (note).
Bartlett v. Crittenden, 4 McLean, 5 McLean, 3o0.




CH. I.]         OF  MANUSCRIPTS.                    393
"of a copy of the manuscript, is no more a transfer of
the right, or abandonment of it, than it would be a.
transfer or an abandonment of an exclusive right to
republish, to give the copy of a printed work."'
I86. An author may loan, or even, perhaps,
present his manuscript to another, or may print its
contents for private circulation, without waiving his
right therein, or dedicating it for the purpose of publication.2
Neither can the rights of an author be lost by the
publication of anything else than the thing itself..
And the author will not be deemed to lose his rights.
in the literary property itself, even if he publish an
abridgment of it before the thing itself. 8
The author of a manuscript may deliver the contents of his manuscript in the form of lectures, to his,
pupils, or others; or may loan it to them, to copy in
portions or entirely, without being held to have published it.4
I87. The question as to this right of an oral lecturer to restrain the publication for profit of lectures.
delivered by him,5 first came before the courts in
I824, when Abernethy, the distinguished surgeon, delivered a series of lectures on the principles and practice of surgery to the medical students of St. Bartholomew's Hospital.   "The Lancet" newspaper proceeded to publish these lectures; and, besides publishing some, it contained an announcement that the reid. also Story Eq. Jur. 943.
2 Jeffreys v. Boosey, per Erle, J. 4 H. S. 867. Bartlett v.
Crittenden, 5 McLean, 37. But see Duke of Queensbury v.
Shebbeare, 2 Eden, 329.' Prince Albert v. Strange, 2 De G. & S. 652; I Mac. & C..
25; I3 Jur. 45, I09, 507~
45 McLean, 33.' T. L., 19.




394         LA W  OF  LITERA TURE.            [CH. I.
maining lectures would also be published as they were,delivered. A bill was filed by Abernethy against
the proprietor of "'The Lancet," to restrain the publication.' It was contended, on behalf of the defendants, that no man could have any right of property in
ideas and language not reduced into writing; and it
was acknowledged by Mr. Abernethy, that although a
good deal of the materials for his lectures had been
reduced by him to writing, yet, at the time of deliverin, the lectures he did not read or refer to any
writing before him, but that he delivered them orally..As the written notes were not produced, the lord,chancellor,2 when the case first came before him, treating the lecture as orally delivered, refused to grant an
injunction, on the ground of a right of property in
sentiments and language not deposited on paper, because no case had determined that there was such
copyright in unpublished productions not reduced to
writing; although the injunction was granted on an-other ground, namely, the existence of an implied
contract, between the lecturer and his hearers, that the
latter. would make use of the lectures only for their
*own information; and not publish, for profit, that which
they had not the right of selling.3  The lord chancellor is reported to have stated his reasons to be, that,
where the lecture was orally delivered, it was difficult
to say that an injunction could be granted upon the
same principle upon which literary composition was
protected; because the court must be satisfied that
the publication complained of was an invasion of the
written work, and this could only be done by com-'- Abernethey v. Hutchinson, I H. & T. 39; 3 L. J. 209 ch.,:and see Morrison v. Moat, 9 Hare, 257.
2 Lord Eldon.
8 And see Webb v. Rose, cited 4 Burr, 2330; 2 Bro. P. C.,
1338; where the reports "cases temp. Talbot," were pirated.




CH. I.]         OF  MANUSCRIPTS.                   395
paring the composition with the piracy. But it did
not follow that, because the information communicated by the lecturer was not committed to writing,
but orally delivered, it was, therefore, within the power
of the person who heard it to publish it. On the contrary, he was of opinion that, whatever else might be
done with it, the lecture could not be published for
profit. He had no doubt whatever that an action
would lie against a pupil who published these lectures; and whether an action would or would not lie
against a third person obtaining the lectures from a
pupil, an injunction undoubtedly might be granted;
because, if there had been a breach of contract on the
part of the pupil who heard the lectures, and if the
pupil could not publish for profit, to do so would be
regarded by the court as a fraud in a third party.l'But now a distinct property in lectures is given to the
lecturer by Stat. 5 & 6, Will. 4, c. 65. After stating that printers, publishers, and other persons have frequently taken the liberty of printing and publishing lectures delivered upon divers
subjects without the consent of the authors of such lectures,
sect. I enacts, " that from and after the first day of September,
one thousand eight hundred and thirty-five, the author of any
lecture or lectures, or the person to whom he hath sold or
otherwise conveyed the copy thereof, in order to deliver the
same in any school, seminary, institution, or other place, or
for any other purpose, shall have the sole right and liberty of
printing and publishing such lecture or lectures, and that if
any person shall, by taking down the same in shorthand or
otherwise in writing, or in any other way, obtain or make a
copy of such lecture or lectures, and shall print or lithograph
or otherwise copy and publish the same, or cause the same to
be printed, lithographed, or otherwise copied and published,
without leave of the author thereof, or of the person to whom
the author thereof hath sold or otherwise conveyed the same,
and every person who, knowing the same to have been printed
or copied and published without such consent, shall sell, publish, or expose to sale, or cause to be sold, published, or exposed to sale, any such lecture or lectures, shall forfeit such
printed or otherwise copied lecture or lectures, or parts there



396          LA W   OF  LITERA TURE.               [C I. T.
Closely following this case is Bartlett v. Chittenden,' decided in the United States circuit court for
the seventh circuit.   There the  complainant was a
teacher of the art of book-keeping, who had reduced
of, together with one penny for every sheet thereof which
shall be found in his custody, either printed, lithographed, or
copied, or printing, lithographing, or copying, published or
exposed to sale, contrary to the true intent and meaning of
this Act, the one moiety thereof to His Majesty, his heirs or
successors, and the other moiety thereof to any person who
shall sue for the same, to be recovered in any of His Majesty's
Courts of Record in Westminster, by action of debt."
Sect. 2 enacts, " that any printer or publisher of any newspaper who shall, without such leave as aforesaid, print and
publish in such newspaper any lecture or lectures, shall be
deemed and taken to be a person printing and publishing
without leave within the provisions of this Act, and liable to
the aforesaid forfeitures and penalties in respect of such printing and publishing."
And sect. 3 provides, "that no person allowed for certain
fee and reward, or otherwise to attend and be present at any
lecture delivered in any place, shall be deemed and taken to
be licensed or have leave to print, copy, and publish such lectures only because of having leave to attend such, lecture or
lectures."
Sect. 4 makes an exception in the case of lectures published
with leave of the authors or their assignees, and of which the
statutory term of copyright had expired, and also in the case
of lectures published before the passing of the Act (9th September, i835).
Sect. 5 makes a further exception. It enacts " that nothing
in this Act shall extend to any lecture or lectures, or the printing, copying, or publishing any lecture or lectures, or parts.
thereof, of the delivering of which notice in writing shall not.
have been given to the justices living within five miles from
the place where such lecture or lectures shall be delivered two
days at least before delivering the same, or to any lecture orlectures delivered in any university or public school or college,.
or on any public foundation, or by any individual in virtue of
or according to any gift, endowment, or foundation, and that
the law relating thereto shall remain the same as if this Act
had not been passed."-Shortt, L. L., p. 2I.'4 McLean, 300.




CH. I.]         OF  MIANUSCRIPTS.                 397
to writing, upon separate cards, the system of instruction he was in the habit of pursuing, for his own convenience and the convenience of his pupils. He had
at various times permitted his pupils to copy these
cards, with a view to their own instruction, and to
enable them to instruct others. One Jones, having
been qualified in the complainant's instruction, and,
having copied these manuscripts or cards, engaged, in
connection with him, to open a similar school in another city; and the defendant, having entered this latter school, and having been permitted to copy these
manuscript cards, composed from them, with certain
alterations, the first ninety-two pages of a work denominated "An Inductive and Practical System  of
Double Entry Book-keeping, on an Entirely new
Plan," which was thereupon published. This book the'complainant sought to restrain.  The defendant contended that the complainant, by suffering copies of his
manuscript to be taken, had abandoned them to the
public. That the principle was the same in regard to
copyrights as in regard to patents; and that permission or consent of the author to use the manuscript,
is as fatal to his exclusive right, as the consent of an
inventor to use the thing invented.' The court, however, said, " There was no consent of the complainant
that his manuscripts should be printed. That they'To sustain this view the defendants cited Rundell v. Murray, Jac. 3I4; Barfield v. Nicholson, 2 Sim. & S. i; Whittmore v. Carter, I Gall. 478; Miller v. Sillsbee, 4 Mason, io8;
Wyeth v. Stone, i Story R. 282; Act of March 3rd, I839,
which declares that a purchaser from the inventor of the
thing invented before a patent is obtained, shall continue to
enjoy the same right after the obtainment of the patent as
before it; and that such sale shall not invalidate the patent,
unless there has been an abandonment, or the purchase has
been made more than two years before the application for the
patent.




398        LA W  OF LITERA TURE.         [CH. I.
were not prepared for the press is admitted. They
were without index or preface, although, as alleged,.
they may have contained the substantial parts of the
complainant's system-which, in due time, he intended
to print. Copies of the manuscripts were taken for
the benefit of his pupils, and to enable them to teach
others. This, from the facts and circumstances of thecase, seems to have been the extent of the complainant's consent.
" It is contended that this is an abandonment to,
the public, and is as much a publication as printing
the manuscripts; that printing is only one modeof
publication, which may be done as well by multiplying
manuscript copies. This is not denied; but the inquiry is: does such a publication constitute an abandonment? The complainant is, no doubt, bound bythis consent; and no court can afford him any aid in
modifying or withdrawing it. The students who,
made these copies have a right to them, and to their
use as originally intended. But they have no right to,
a use which was not in the contemplation of the complainant and of themselves when the consent was first
given. Nor can they, by suffering others to copy the
manuscripts, give a greater license than was vested in.
themselves.  Popular lectures may be taken down
verbatim, and the person taking them down has a.
right to their use. He may not print them. The
lecturer designed to instruct his hearers, and not the
public at large. Any use, therefore, of the lectures,
which should operate injuriously to the lecturer,
would be a fraud upon him for which the law would
give him redress.  He cannot claim a vested right in
the ideas he communicates, but the words and sentences, in which they are clothed, belong to him."
Analogous to this was a case where a parliamentary



CH. I.]        OF  MANUSCRIPTS.                   399,
agent has noted down at different times in the course of
business, various observations as to the methods of
passing bills through parliament, and his clerk, who had
access to his papers, purloined them and published
them with some trifling alterations, under the title,
"Practical Instructions for  Passing  Private  Bills
Through Parliament. By a Parliamentary Agent." It
was held, that, although the substance of the plaintiff's manuscripts might not have been original, hewas entitled to an injunction against the publication
of an edition of the above-entitled work by a third
party.'
I88. The protection afforded by the common lawto unpublished compositions cannot be evaded by
translation, abridgment, summary, or even review.2
How complete the right of the author is to prevent even the slightest infringement of the property
in his unpublished production is forcibly shown by
the case which may now be considered the leading one
on the subject. In Prince Albert v. Strange,3 it appeared that the queen and the prince her husband had
occasionally, for their amusement, made drawings and
etchings,4 principally of subjects of private and domestic interest to themselves, and procured lithographic
impressions thereof to be struck off by means of a
private press kept for that purpose, for their own use,' Stevens v. Sherwood, cited Maugham on Literary Property, 139.
2 5 & 6 Vict. c. 45, sec. 20.
Per Knight Bruce, V. C., in Prince Albert v. Strange, z
DeG. & Sm. 693.
4 2 DeG. & S. 652; I Mac. & G. 25; I3 Jur. 45, I09, 507.
There was also an information filed by the Attorney-General
v. Strange, for the purpose of protecting the interests of Her
Majesty in those portions of the etchings which were the
property of Her Majesty, and praying relief as to them similar
to that prayed in the bill of Prince Albert.




400        LAW  OF LITERATURE.            [CH. I.
and not for publication. Some few impressions had
indeed been given to private friends, but no further
publication was intended or desired. Some further
copies being required, the plates for the purpose of
printing them were sent to a printer at Windsor, and,
while in his possession, one of his workmen surreptitiously took some impressions of them. These surreptitiously-procured impressions were subsequently
obtained by one Judge, and from his possession they
passed into that of the defendant, Strange, a London
publisher. Strange printed a catalogue of the etchings,
in which was expressed an intention of publicly exhibiting the impressions of them, which had come
into his possession through Judge. The catalogue
was entitled " A Descriptive Catalogue of the
Royal Victoria and Albert Gallery of Etchings," and
contained, after a long introduction stating the general nature of the subjects, a detailed list of sixtythree etchings, with observations upon them. The bill
prayed that the defendant might be ordered to deliver
up to the plaintiff all impressions and copies of the
said several etchings made by the plaintiff; and that
they, their servants, &c., might be restrained by injunction from exhibiting the said gallery or collection of etchings, and from selling or in any manner
publishing, and from printing the said descriptive catalogue, or any work being or purporting to be a cat.
alogue of the said etchings, and that all the copies of
the said catalogue in the possession or power of the
said defendants might be given up to be destroyed.
An interim injunction having been granted, extending to J udge as well as Strange, the defendant Strange
answered, stating, amongst other, his original be.
lief that the impressions had come honestly into
Judge's hands: that Judge wrote the descriptive cata



CH. I.]       OF MANUSCRIPTS.                40r
logue, which he (Strange) then printed, striking off
only fifty-one copies, after which the type was broken
up: that the catalogue had never been published or
sold, or exposed for sale, and that on receiving the
first information that the contemplated exhibition was
disapproved of by her majesty and the prince, he had
abandoned the whole scheme; and expressly denied.any intention to make such exhibition, or to make
any copies or engravings of the etchings. Upon motion made to dissolve the injunction granted against
Strange, so far as it sought to restrain him from selling, or in any manner publishing or printing the descriptive catalogue of the etchings-leaving unquestioned the remaining portion of the injunction against
exhibiting, publishing, or parting with the etchings
described in the catalogue-it was contended, that
although the owner of a print might prevent another
from publishing a copy of it, it was impossible to prevent the other from describing it, and printing and
publishing such description; that the law of England
could not prevent a party obtaining knowledge
through the medium of perceiving these etchings,
from using that knowledge, and from conveying that
information to others; nor could a court of equity,
in the absence of contract, interfere with the use
of that knowledge; that no one's rights could be interfered with by the making of a catalogue describing
the articles and making remarks upon them in the
shape of friendly, if not flattering criticism (for such
appeared to be the general character of the observations); that if a spectator had a right to contemplate
any of the productions of so exalted a personage
(which he might do without any invasion of domestic
privacy), he had a right to communicate full information connected with those productions; and this, sub26




402         LA W  OF LITERA TURE.           [CH. KT
stantially, was all that had been done by the descrip —
tive catalogue; that privacy was not essential to the
right of property, for though the owner of anything
may use every means in his power to prevent that
thing been seen by another, yet, if that other person
sees it, the owner can have no right of property in the
notion or idea created in the mind of the person who
has seen it; that there is no property in the ideas
created by seeing the etchings-the property is con —
fined to the etchings; and no regard could be paid to
a mere injury to private feelings, and that in substance
the complaint is of an offense not against law but.
against manners.
Notwithstanding, however, the distinction between
the publication of copies of the (unpublished) etchings themselves and that of a mere descriptive cata —
logue of them sought to be established, it was held
that the plaintiff was entitled to restrain the publication of the one as well as the other. Though the
fraudulent manner in which the impressions of the
etchings had been originally acquired formed one of
the grounds on which the decision rested, the right of
the plaintiff to restrain the publication of the catalogue on the sole ground of his property in the
things described, was unmistakably asserted by the
judges. " Property in mechanical works or works,
of art," said the court, "executed by a man for his
own amusement, instruction, or use, is allowed to subsist certainly, and may, before publication by him, be
invaded, not merely by copying, but by description orby catalogue, as it appears to me. A catalogue of
such works may in itself be valuable. It may also as
effectually show the bent and turn of the mind, feelings, and taste of the artist, especially if not professional, as a list of his papers. The portfolio or the




CH. I.]        OF MANUSCRIPTS.               403
studio may declare as much as the writing-table. A
man may employ himself in private, in a manner very
harmless, but which, disclosed to society, may destroy
the comfort of his life, or even his success in it. Every
one, however, has a right, I apprehend, to say that the
produce of his private hours is no more liable to
publication without his consent, because the publication must be creditable or advantageous to him, than
it would be in opposite circumstances. Addressing
the attention specifically to the particular instance
before the court, we cannot but see that the etchings
executed by the plaintiff and his consort for their
private use; the produce of their labor, and belonging
to themselves, they were entitled to retain in a state
of privacy-to withhold from publication. That right,
I think it equally clear, was not lost by the limited
communication which they appear to have made; nor
confined to prohibiting the taking of impressions,
without or beyond their consent, from the plates, their
undoubted property. It extended also, I conceive, to
the prevention of persons unduly obtaining a knowledge of the subjects of the plates, from publishing
(at least by printing or writing, though not by copy
or resemblance) a description of them, whether more
or less limited or summary, whether in the form of a
catalogue or otherwise." And said Lord Cottenham,
upon the appeal: " It being admitted that the defendant
could not publish a copy-that is, an impression-of
the etchings, how in principle does a catalogue, list, or
description, differ?  A copy or impression of the
etching would only be a means of communicating
knowledge and information of the original, and does
not a list and description do the same? The means
are different, but the object and effect are similar; for
in both, the object and effect is to make known to the




404         LA W  OF LITERA TURE.           [CH. I.
public more or:l'ess of the unpublished work and
composition of the author, which he is entitled to
keep wholly for his private use and pleasure, and to
withhold altogether, or so far as he may please, from
the knowledge of others..... Upon the first question, therefore-that of property-I am  clearly of
opinion that-the exclusive right and interest of the
plaintiff in the composition or work in question being
established, and there being no right or interest whatever in the defendant-the plaintiff is entitled to the
injunction of this court to protect him against the
invasion of such right and interest by the defendant,
which the publication of any catalogue would undoubtedly be."
"The elaborate judgments in this important case,"
says Shortt,' in his valuable work, "have established
the following points:- That the right of property of
the author or composer of any works of literature,
art, or science, in such works, so long as they remain
unpublished, is so complete and absolute that no one
else, without his permission, may publish even a list
or descriptive catalogue of them; that the circulation
amongst a few private friends of impressions of
etchings not otherwise published, is not such a publication of them as disentitles the owner to the protection of the aforesaid right, and that this right is but
part of the general common-law right of property."
I89. A manuscript being, as we have seen, the
personal property of its author, that peculiar value,
differing from the value of other personal property,
which is in the future, and which it is to derive from
publication of some sort, is also the property of its
author. He can part with it by barter or sale; in
which case the right to publish most probably would' L. Lit. 54.




CH. I.]         OF  MANUSCRIPTS.                   405
go with the manuscript, unless reserved by contract.
The question does not appear even to-day to be fully
settled. As nearly, perhaps, as the rule may be stated,
it will doubtless be, that the license to publish must
be express and unmistakable. The present copyright
law of the United States, however, has stepped in to
settle the question, enacting, "That any person who
shall print or publish any manuscript whatever, without the consent of the author or proprietor first
obtained (if such author or proprietor be a citizen of
the United States, or resident therein), shall be liable
to said author or proprietor for all damages occasioned
by such injury, to be recovered by action on the case
in any court of competent jurisdiction."' 
Under a like provision in the English statute,
Lord Macclesfield, C., is said to have held that the author might grant the right of the copy to a subsequent
publisher, after it had been once published by the
person to whom he had originally delivered the
manuscript, the bare delivery amounting only to a
license to print the first edition.2 In a more modern
case, Lord Ellenborough said, that "the statute
having required that the consent of the proprietor, in
order to authorize the printing or reprinting of a book
by any other person, shall be in writing, the conclusion
from  it seemed irresistible that the assignment must
also be in writing; for if the license, which is the
lesser thing, must be in writing, a fortiori the assignment, which is the greater thing, must also be."
Rev. Stat. U. S. (Rev. i873-74) ~ 4967. And this consent
must be in writing, signed by two witnesses. And see the
English act, 8 Anne. c. I9, ~ I; 54 Geo. III. c. I56, makes the
consent of the proprietor first had and obtained in writing,
signed in the presence of two or more credible witnesses, a
requisite of the lawful publication of a manuscript.
2 Vin. Abr. 278.




406         LA W  OF  LITERA TUR.E.         [CH. I.
But if he part with it by gift merely, or loan it, or
allow it to be copied, without express license to publish, it will not be implied to be dedicated. Even in
the case of a manuscript work that is too extensive and
elaborate for mere personal perusal in that form (such
as a history, for example), the gift of, or license to,
copy the manuscript will not imply a right to publish.
Where the son of the Earl of Clarendon gave
permission to a Mr. Gwynne to take a copy of the
manuscript of his deceased father's " History of the
Reign of Charles II.," and Mr. Gwynne's son and
administrator sold it to a Dr. Shebbeare, the court of
chancery, at the suit of the Duke of Queensberry
(the personal representative of the Earl of Clarendon
and his son), restrained Dr. Shebbeare from printing
and publishing the copy of the manuscript.  Lord
Keeper Henley said, " It was not to be presumed that
Lord Clarendon, the younger, when he gave a copy of
his work to Mr. Gwynne, intended that he should have
the profit of multiplying it in print; that Mr. Gwynne
might make every use of it except that."'
We have seen, however, that where the author of a
poem had sent it to a bookseller, and had allowed it
to remain in his hands unpublished for twenty-three
years, Lord Eldon was of opinion that the writer had
abandoned his right, as an author, and refused to grant
an injunction to prevent the publication of the poem
by the bookseller.'
I90. A prior publication by the author himself, in
a foreign country, or in the country itself, if without a
copyright, is a dedication of the second publication to
the public in the country in which it is made.
Duke of Queensberry v. Shebbeare, 2 Eden, 329.
2 Southey v. Sherwood, 2 Meriv. 434; and see Rundell v.
Murray, Jacobs, R. 3II.




CH. 1.]         OF  MANUSCRIPTS.                  407'
This question will be found to mainly arise in the
case of dramatic manuscripts.
In the case of manuscripts other than dramatic, a
publication of their contents by their author, or any
one entitled to publish them, through the press, without a formal compliance with the statutes of copyright,
would be a waiver of the author's rights therein.' But
-in the case of dramatic copyright, the question as to
what amounts to a waiver is more complicated.
Publication may be either a publication to the ear.or to the eye. To the latter, through the medium of
printing, or of some other art; or to the former, from
the rostrum, the stage, or the pulpit.
The value of a literary work, such as a novel, a
history, an essay, or a poem, intended for the perusal
of the public, is measured by, and depends upon, the
ability of the publisher to multiply and circulate
copies of it over as extensive a territory as possible.
The value of a dramatic work, on the contrary,
consists entirely in the ability of its author to prevent
-the multiplication of copies thereof; to prevent its
publication, through the printing-press, absolutely;.and to limit its publication, by word of mouth, to one
-or more particular places and occasions, and to the
knowledge and audience of the comparatively few who
shall have obtained, for value, the license to witness it.
Hence, to prevent any other publicity to his work,
it is manifestly to the interest of the dramatic author
to confine literal copies of his production to a manu-:script form; or if he print it, to do so privately, and
for his own use alone.2
Seepost, chapters on Copyright and Piracy.
2The value of dramatic productions, in these days, has
largely increased, and the dramatic author is now more or less
protected by statute, as well as by common law, in the enjoy



408          LA W  OF' LITERA TURE.             [CH. I
So, although the public exhibition of a picture at
a picture-gallery is, in one sense, a publication of it,,.
yet it is a publication which may be restricted by therules of the place of exhibition, by which the managers
may preclude any use being made of their rooms forthe purpose of copying; and an exhibition, under such
circumstances, would not disentitle the proprietor to,
an injunction to restrain the piracy of the picture;l
and musical compositions in manuscript, engravings,.
etchings, maps, and charts, also, while unpublished,>
stand on a like footing with literary matter unpub —
lished, and so do in England, both by common law
and by express statute.
A strong ruling in their favor occurs in White
v. Geroch,2 where  it was held  that, even  though
the  author of a  musical composition  had  sold
several thousand copies of it in manuscript, a year
before it was printed, he had not, thereby, lost the;
copyright. Abbot, Ch. J., in that case, was of opinion,
that it was not the intention of the legislature, in conferring a copyright upon authors, to impose on them,.
as a condition precedent, that they should not sell
their compositions in manuscript before they were
printed.
191. It seems to have been settled long since that
the representation upon a stage of a dramatic produc —
tion, will not dedicate the contents of its manuscript to,
ment of his franchises. The subject of dramatic productions,
both in manuscript and copyright, has been thought of sufficient importance to merit a chapter by itself, further on in this,
treatise. It is necessary, however, to glance, under the general
subject of manuscripts, at the treatment which they will
receive by common law; referring for more extended treatment of the subject to that chapter.
1 Turner v. Robinson, io Tr. Ch. Rep. I2I, 5I6.
2 B. & Aid. 298.




CH. I.]         OF  MANUSCRIPTS.                   409
the public, unless that first representation takes place
abroad.'
In Macklin v. Richardson 2 as early as I 770, it was
decided that the public performance of a play, by the
author's permission, is not such a publication of it by
him as disentitles him  to restrain the unauthorized
printing or publishing of it by any other person, and
is not a dedication to the public. The plaintiff in
that case was the author of the farce called "Love
a la Mode," which was performed, by his special permission, at the different theatres several times in I 760,
and the following years, but never printed or published by him; and it appeared that, when the play
was over, the plaintiff used to take the copy away
from the prompter. The defendants employed a shorthand writer to go to the playhouse and take down the
words of the farce from the mouths of the actors.
These notes having been corrected, by one of the defendants, from his own memory, the first act of the
farce was published by them in a magazine called the
" Court Miscellany," of which they were the proprietors,
and notice was given that the second act would be
published in the next month's "Miscellany."  The
plaintiff filed a bill to restrain this publication; and'Boucicault v. Delafield, i H. & M. 597; 9 L. T. N. S. 709;
39 L. J. 38 ch. This point is further enunciated in England
by statute. Sect. I9 of 7 Vict. c. I 2, now enacts that " neither
the author of any book, nor the author or composer of any
dramatic piece or musical composition, nor the inventor,.
designer, or engraver of any print, nor the maker of any
article of sculpture, or of such other work of art as aforesaid,.
which shall, after the passing of this Act, be first published
out of her majesty's dominions, shall have any copyright
therein respectively, or any exclusive right to the public:
representation or performance thereof, otherwise than such, if
any, as he may become entitled to under this act."
2 Amb. 694.




4IO          LA W  OF  LITERA TURE.           [CH. I.
the Lord Commissioner (Smythe) granted an injunction. He said, " It, has been argued to be a publication by being acted, and therefore the printing is no
injury to the plaintiff; but that is a mistake, for besides the advantage from the performance, the author
has another means of profit from  the printing and
publishing; and there is as much reason that he
should be protected in that right as any other author."
And in the equally leading case of Coleman v.
Wathen,- decided in I 793, it was ruled that the acting
of a piece is in no case a publication thereof.
In the cases of Keene v. Kimball2 and Keene
v. Wheatley,3 it was said that "The sole proprietorship of an author's manuscript and of its incorporeal contents, wherever copies exist, is, independently of legislation, in himself and his assigns, until he
publish it. Where a copyright under statute exists, the
publication can not affect this right, but where a copyright does not exist, an unqualified publication and
one unrestricted by any condition, such as the making,or sanctioning its literary or dramatic representation,
is a dedication to the public, and its proprietor can
not thereafter maintain an objection to such representations or representation as others are enabled, either
directly or secondarily, to make from  its having been
retained in the memory of any of the audience. In
other words, the public acquire a right to the extent
of the dedication, whether complete or partial, which
the proprietor has made of it to the public."
" It is to be carefully observed, however, that the
distinction between a general and a limited publica-tion, is not affected by this ruling," said Judge Hoar.4
5 T. R. 245.              2 I6 Gray (Mass.), 543.
89 Amer. Law Reg. 33; vid. also Keene v. Clarke, 5
-Rob. 38                 Keene v. Kimball, zbi supra.




"CH. I.]       OF MANUSCRIPTS.                   4II
"There may be a limited publication by communication of the contents of the work, by reading, repre-.sentation, or restricted private circulation, which will
not abridge the rights of the author to the control of
ihis work, any further than necessarily results from the
nature and extent of this limited use which he has
made or allowed to be made of it.
"These principles," continued the judge, "sustain
the demurrer in the plaintiff's bill. She has publicly
represented the play,'Our American Cousin,' before
audiences consisting of all persons who chose to pay:the price charged for admission to her theater. She,has employed actors to commit the various parts to
memory, and, unless they are restrained by some contract, express or implied, we can perceive no legal
reason why they might not repeat what they have
learned, before different audiences and in various
places. If persons, by frequent attendance at her
theater, have committed to memory any part or the
whole of the play, they have a right to repeat what
-they have heard to others. We know of no right of
property in gestures, tones, or scenery, which would
forbid such reproduction of them, by the spectators,:as their powers of imitation might enable them to
accomplish."'
I92. The publication of a work in a foreign coun-try disentitles the author to a copyright in it in England. This, before the legislature interfered in the
matter, had been judicially determined in several cases..In Clementi v. Walker,2 it was decided that if an
author first published abroad, and then, instead of'We doubt the value of this ruling, however, at least under
later authorities; see a fuller examination of the three cases,
Keene v. Wheatley, 9 Am. Law Reg. 33; Keene v. Clarke, 5
Rob. 38; Keene v.'Kimball, 6 Gray, 545; see chapter on
Dramatic Composition, post, vol. ii.  a 2 Barn. & C. 86i.




412          LA W  OF LITERA TURE.            [CH. Ir
using due diligence to publish here, forebore to publish
until some other person had honestly published here,
the author could not insist upon his privilege, and at
a distance of time stop a publication which, in the
interim, had taken place here, or treat the continuance
of that publication as a piracy. " Whether the act of
printing and publishing abroad," said the learned judge
who delivered the judgment of the court in that case,
" makes the work at once pubzcijzris, it is not necessary now to decide; but we have no doubt that it
becomes publici juris, if the author does not take
prompt measures to publish  it here."'   And  in
Guichard v. Mori,2 an  injunction was refused on
the ground that there had been a publication
abroad before there was any publication in this
country.
But where there was a contemporaneous publication abroad and in England, it was held that the copyright of the author here was not infringed by the
foreign publication.3 And Clementi v. Walker is in
favor of the author's title to copyright, provided he
print and publish here "promptly," and with due "diligence," after the publication abroad.4
In Keene v. Wheatley,5 it was expressly held that
the ninth section of the act of Congress (Act of I83 I,
C. i6) which gave redress for the unauthorized printing or publishing of manuscripts, operated in favor of
a resident of the United States who had acquired the
proprietorship of an unprinted literary composition
1 Vid. also Page v. Townsend, 5 Sim. 395, as to publication
abroad of prints and engravings.
2 9 L. J. (I83I), 227 Ch. See also Hedderwick v. Griffin,
3 Sess. Cas. 2nd ser. 383.' Erle, J., Cocks v. Purday, 2 Car. & K. 269, N. P.
2 Barn. & C. 870.
9 Am. Law Reg. 33. Vid. chapter on Dramatic Copyright




CH. I.]         OF  MANUSCRIPTS.                    413
from a non-resident alien author.' The publication in
order to be such as will amount (in the absence of the
copyright) to a dedication, must be a publication of
the thing itself, and not the publication of something
else that resembles it; so that the author of a literary
work does not lose his common-law right of property
in it before its publication, by previously publishing an
abridgment of it.2
The distribution, by a sculptor amongst his friends,
of copies of a plaster cast taken from  the bust of a
statue is not a publication of the statue itself.' The
exhibition of the picture itself, for the purpose of
obtaining subscribers to an engraving of it, is not a
publication of the picture.4 The private circulation
among   friends,  of  lithographic  impressions  or
drawings, is not a publication of the drawings themselves.5 Nor is the publication of an engraving of a
picture in a magazine, with an article describing the
picture, a publication of the picture itself.6
The case of Boucicault v. Delafield,7 where the
plaintiff prayed for an injunction to restrain the defendant from producing a drama ("The Colleen
Bawn ") written by the plaintiff, and, as it appeared on
the hearing of the case, represented by the plaintiff at
1The property which an author has in his unpublished
ideas embodied in a tangible shape being independent of
statute, it should seem that an alien friend might prevent
the unauthorized publication here of any of his unpublished
works (Shortt, L. L. 36).' Prince Albert v. Strange, 5 De G. & S. 652; I Mac. & G.
25; I3 Jur. 45, I09, 507.
3 Turner v. Robinson, io Jr. Ch. Rep. I34.
Id.' Prince Albert v. Strange, ubi sujpra.
6 Turner v. Robinson, io Jr. Ch. Rep. r I, 5i6.
I H. & M. 597; 9 L.T. N. S. 709; 33 L. J.; 38 Ch. This
was, however, under and by virtue of the statute.




4I4          LA W  OF  LITERATURE.              [CH. I.
New York prior to its being represented in England,
where the vice-chancellor refused to grant the injunction and dismissed the bill with costs, was decided upon_
statutory grounds, and will be considered hereafter.'
The principle of literary accessions treated in the:
chapter on Originality2 is also applicable to manu —
scripts. So, where one contracts for hire and reward
to write certain portions of a book to be published by
another, equity will not aid him by injunction to pre —
vent his portion of the work being printed and pub —
lished in an altered or mutilated form.3  Wood, V. C.
intimated an opinion, though the point did not arise
in the case before him, that, unless there be a special
contract, either express or implied, reserving to the:' The vice-chancellor being of opinion that the words of'
the g9th section of 7 & 8 Vict. c. I2, took away whatever rights.
the plaintiff might otherwise have had. If he had first represented his drama here, he would have been entitled to the provisions of the dramatic copyright act. Then 7 & 8 Vict. c. 12,
was passed, enabling her majesty to make arrangements conferring on other nations the privileges accorded to all people
who first publish their works here. If the plaintiff had this
sort of double right, it was the very thing which the 7 & 8.
Vict. c. i2, was intended to extinguish. The statute says in,
effect (sect. I9) that "if any person, British subject or not,,
chooses to deprive this country of the advantage of the first
representation of his work, then he may get the benefit of
copyright, if he can, under the arrangement which may have
been come to pursuant to 7 & 8 Vict. c. I2, between this country and the country which he so favors with his representation;
but if he chooses to publish his performance in a country
which has not entered into any treaty or made any such arrangement with regard to copyright, then this country has
nothing more to say to him; he must be taken to have elected
under which of the two statutes with respect to copyright hewishes to come, by performing his work in one country instead of the other; and he is thereby excluded from all ad..
vantage of publishing in the other" (Shortt, L. L. 35).
2 Ante
Cox V. Cox, I  Hare, ii8.




CH. i.]         OF  MANUSCRIPTS.                    4I5
author a qualified copyright, the purchaser of a manuscript is at liberty to alter and deal with it as he
thinks proper. The court is not moved in such a case
by the possible effects of the alterations as affecting
the writer's reputation.'
But it seems that if a publisher puts forth an inaccurate edition of an author's work, purporting to be
executed by him, the author may maintain an action
against the publisher for injury to his reputation,.
even where the publisher is the owner of the copyright.2
I93. I. As to the injury sustained by the author
from the trespass upon his manuscripts or unpublished
works, until the case of Prince Albert v. Strange, it
seemed to be settled that such injury would consist in
the loss of his right or the frustration of his intention3 to first publish himself, and of his prospective
profits thereof, to arise from such publication, and that.
no measure of damages could be considered looking
to his own personal feelings of sensitiveness, or difference, or reputation.4 But that case appears to hold
exactly the reverse, and as going further than its predecessors, may be looked upon as leading upon thesubject.
A manuscript going through the press is as we
shall see  at the owner's risk, and unless the printers
Archbold v. Sweet, I M. & Rob. i62; S. C. & P. 2I9.
2 Id.' Bartlett v. Chittenden, 4 McLean, 301.
4 In Cox v. Cox, 2 Hare. IIo. "The possible effect on
reputation," said Wood, V. C., "unless connected with property, is not a ground for coming to this court, though it may
be an ingredient for the court to consider, when the question.
of a right of property also arises." But see Archbold v.
Sweet, I M. & Rob. I62; post Southey v. Sherwood, 2 Meriv. 437.' Mawman v. Gillett, 2 Taunt. 325, and see post chapter on
Contracts concerning Literary Property.




4I6         LA W  OF  LITERA TURE.            [CH. I.
expressly insure it, they would not be liable in damages for its loss, to the author. It might be a damage
to an author, also to have his art or method of trade
disclosed as we have seen,' but the publication of his
private opinions, sentiments or doings, even though
by such disclosures he were rendered unpopular in
certain quarters, or were defeated in an election or
choice to a position of emolument or influence,
would probably be no ground for an action of
damages.
The question as to damage by such publication
will be found to arise mainly in the case of letters of
persons living, or of deceased persons, in the hands of
their executors, and others.
As to the manuscripts of deceased persons in
other hands than those of the executors, it has been
held in England that a right on their (the executors,)
part to restrain a publication of such manuscripts can
only depend upon whether the estate will suffer damage by such publication.2 The right to prevent such
publication is no part of the assets in the executor's
hlands.Y This question, therefore, will be treated as
incidental to our examination of the general rules of
law applicable to letters and correspondence.
194. The most difficult question with regard to,the property and proprietorship of literary composition embodied in manuscripts, arises in the case of
those manuscripts which, from their nature, pass from
one ownership and possession to another, and may be
said, at times, to have more than one owner: i.e.,
letters.
Bartlett v. Chittenden, 4 McLean, 300.
Stevens v. Sherwood, cited Maugham L. Prop. I39.'Id. I40.




CH. I.]          OF  MANUSCRIPTS.                    417
Gerard Vassius,' remarking on the surprising discovery of the art of letter-writing,2 a phenomenon which
De Quatuor Artibus Popularibus, iii. i.
2 Next to the invention of printing, the invention of paper
has done most toward educating and enlightening the world.
The earliest races of men probably used to plant groves and
set up pillars or heaps of stones, or to institute games or
festivals to recall or perpetuate the memory of events. The
composition and singing of historical songs was a still more
popular way of accomplishing the purpose (Tac. Mor. Germ.
2). Small cords, sometimes variously colored and regularly
knotted, were used by the Chinese in ancient times before the
reign of Fo-hi, and by the Peruvians (Quipos) at a later
period; notched or marked sticks were also employed.
Probably the next step in the communication of thought, was
the use of pictorial representation. When Cortez had his first
interview with the Aztec chiefs he found that news of his
arrival on the coast had already been conveyed to them by
means of pictures of ships, strangers, horses, and artillery.
Nor could they have more rapidly comprehended the power,
mission, and intentions of the Spaniards, by means of language
itself. The probability is that, next to pictures came hieroglyphical characters, which, without doubt, originally were
abbreviations of pictures, each character meaning a word, or
perhaps more than one. The Hebrew alphabet, for instance,
betrays marks of this origin. The first letter, aleph, signifies
an ox, and the picture. of the head and horns of that animal
very probably suggested its form. A zigzag line is a natural
symbol for water as expressing undulation-and the Hebrew
letter M, pronounced mem, is the word for water. The waving line is also the symbol of aquarius in the zodiac. So the
Arabic numerals were originally the simple form of marks;
a single stroke or mark meaning the digit one; two marks,
forming a right angle, the digit two; a second downward
stroke, attached to the right angle, the digit three, and so on
And so, too, the Chinese characters disclose in their formation
-their natural derivation from the like simple sources. The
more these symbols were employed, of course, the greater the
-tendency to abbreviate them; and when, from these initiative
methods, the art emerged, from the historical and representative system, to the employment of mere marks and dots to
express ideas or letters, a great step had been taken, and the
time ha'- co.ie for a material to present itself  At first these
mnaterials wed::: of so rude a description as to render the appli-,, f..i




418          LAW   OF  LITERA TURE.               [CH. I.
has lost its hold upon our admiration only by its frequency and familiarity, relates a pleasant story to show at.
what an elevation it stands above the vulgar apprehencation of the character very laborious and wearisome, and while
we wonder at the slow progress of improvement in an art of
such urgency in the commonest affairs of life, we are
forced, at the same time, to admire the refinement and
perfection to which some of the languages of primitive
antiquity were matured and polished in spite of all these
discouragements and difficulties. The language of Homer is
as graceful as it is vigorous and comprehensive, and yet, in the
public and private transactions with which his poems have to
do, very little occurs which indicates that the art of writing
was known and practiced. The story of Prcetus, Jobates, and
Bellerophontes, in the sixth book of the Iliad, is the only instance in which such allusion is made; and even there the
word used to denote what was carried was oazara, which may
mean " signs," as well as written characters.  Judicial decisions, civil compacts, stipulations, pledges, obligations of
kindred, rights of inheritance, conditions of combats, suspensions of hostility, treaties of peace-all appear to havebeen verbal. Witnesses, symbols, sacrifices, and libations were
in most cases relied upon as memorials and ratifications of themost solemn and weighty transactions. When lots were cast
to see who should answer the challenge of Hector, the marks
and not the names of the heroes were cast into the helmet of
Agamemnon (Iliad, vii. I75). It was on hard materials that
the art of inscription was first practiced. According to Pliny,
the Babylonians wrote their astronomical observations on
bricks. Tables of stone are among the most ancient monuments of Chinese literature, though it would seem that the
Chinese in very early times manufactured a sort of silk paper.
There are traces of Abyssinian writings which were inscribed
on clay, this clay being afterwards baked into bricks. The
Decalogue, and Joshua's copy of the Law, were on stone,
and metal was often substituted. In Job allusion is made to.
writing on lead with a style of iron; and plates of copper
were also used in early days (Plin. xxxiv. ~ 2I; Ovid, Metam.
I. v. 91, 92). Themistocles writes a letter on stone, to be conveyed to the Ionians (Herod, Uram. 22), while Xerxes wrote
to the Lacedemonians by means of the tablet of wood covered
with wax, such as the Roman authors used to compose upon
at a much later day —only for greater secrecy Xerxes wrote
upon the wood itself, and covered his writing with the wax




CIi. I.]        OF  MANUSCRIPTS.                   419
sion of an uncultivated mind. In the country of the
Brazils, he says, a slave was sent by his master to a nobleman, his friend, with a basket of figs as a present, accom(Herod, Polym. 239). The skins of animals, the leaves of
plants, or the bark of trees came next in order. The Cumean
Sybil wrote her prophesies upon leaves. Under the words
ExpvNocpop7o'raz and ExtpvXAopopE8z  in Suidas, we are
told by him that the votes expelling a senator from his rank
and office were taken on leaves. "Senatores nomina eorurn
in foliis olee scripta in echinos demittebant, argumentis et
rationibus latme sententioa simul adscriptis." Avrz -ri75 V/<ipov
RvAkoz; erzoufLafrzve8 rpv avrov ycou171,  eJ(YtcrOro  xtat
ehAeyero r8ro exp3vAoqopra16taz. The Hindoos also used
leaves for purposes of transcribing. In the time of Cyrus the
interior barks or membranes of trees, especially of the lindentree, were used; and that monarch, to prevent ennui (z'voa,ut a2cv7,) always carried a tablet of that material with him on
his journeys (iElian, Var. Hist. xiv. I2). It would seem, from
many passages in the Greek and Latin classics, that these
tablets were sometimes waxed, and sometimes polished, to enable the scratching of letters readily upon its surface; and for this
purpose the box-wood seems to have been employed. lCaozaT
yap nrote 7rzvrazv, 17roz oavzoz,  az ravaz'ri eJ 7rvou,uaXz16ra, Ta ypapyara EVeiotaZTrrov' Maz ro ypapezv 6e
traXaza  evepyeza5 ovouyac' $vuoz5 yap rzazv Ervrouvro
r-ozxezca, to 6'e  vezv ypapezv e6eyero. "Tabellke autem
istae etiam scalpendo et radendo poliebantur, quod itidem voce
-eezv et $vezv dentabatur."  These writing tablets were compactly folded, whence they were called by the Romans pugillares, since they could be carried within the grasp of the fist.
The manufacture of the Egyptian papyrus was a great step
forward into the world of letters, and its discovery was almost
immediately followed by the beginning of the great libraries
of Alexandria and Pergamus. The manufacture of papyrus
is said by Varro to have been begun soon after the building of
the city of Alexandria by Alexander; but others say that
papyrus was manufactured at Memphis three hundred years
before the reign of Alexander. The reed papyrus grew plentifully on the banks of the Nile, the Tigris, and the Euphrates,
but appears only to have been manufactured in Egypt. The
Egyptians themselves, however, often used linen cloth for
writing; much of which is found in their mummies. As the
demands of literature increased, the supply became inadequate,,
and we are told that, in the age of Tiberius, there was such a




420          LA4      OF  LITERA TURE.          [CH. I.
panied with a letter. Tempted by the excellence of
the fruit, the bearer of the present devoured it. The
plunder, however, was detected, of course, by means
scarcity of paper in Rome that its use, even in contracts, was
dispensed with by a decree of the senate.
Pliny the elder, who says he saw in the house of Pomponius Secundus the books of the Gracchi, written with their
own hands on papyrus, and that the works of Virgil and
Cicero were written in the same manner, treats expressly of
the Egyptian papyrus in three chapters of his thirteenth
book, upon which Guilandrinus has based his copious and
curious commentary; which, however, is criticised severely by
Scaliger. The Roman paper was often very finely wrought
and polished, the charta dentata being paper made smooth
by polishing with the tooth of a boar, or other'animal. There
was a famous factory for dressing Egyptian paper in Rome,
conducted by one' Fannius (Plin. xiii.). This paper was prepared by dividing the pellicles or fillaments of the plant, laying them in sheets transversely, and pressing them together by
a machine, or with blows of mallets. Nondum flumineas Memphis contexere biblos noverat (Lucan). Besides this, papyrus
had other properties, and was sometimes eaten for food. The
Egyptians were often called ra7tupocypoYoz, or papyrus-eaters.
It has an insipid taste, and was eaten by the Cossacks and the
inhabitants of Oxai and Tscherchaskoy, according to Dr.
Clark, in modern times. Vospiscus says that Firmus, who
owned vast regions of papyrus-growing country, boasted that
he could support an army with its revenues; but Salmasius
says the emperor meant that he could feed them on the
papyrus itself. (For an elaborate account of the manufacture
of papyrus into paper for writing, see Roberts, 21-22, et sea.).
In the rolls or volumes of papyrus, the sheets or leaves
were glued to each other at the- edges and carried out in
successive lengths) the first sheet or scheda, on which was
usually nothing but the manufacturer's mark, or the title of
the book, being first fastened or glued, and called on that
account the 7rpcGroxoAlov, whence comes the word protocol,
in such frequent diplomatic use. The same term also denotes
the prima scheda of the books composed of membraneous
leaves, whether skin or bark. The papyrus being cut at the
middle, the first pellicle or strip was the finest, and was
known in Rome as Augusta (from the time of Augustus to
that of Claudius); the second strip, which was the next finest,
was called Livia, from Augustus' wife, and so on to the out




CH. I.]         OF  MANUSCRIPTS.                  421
of the letter, and the slave found it of no avail to deny
the fact, against the evidence of the letter, though
utterly unable to comprehend the way in which the
side of the plant, which was so coarse as only to be used for
the commonest purposes. The paper called Augusta was too
fine for ordinary purposes, however, often being penetrated
by the reed or Roman pen (calamus) and showing the writing
on the other side; and the Emperor Claudius caused a mixed
paper to be made to remedy this defect. There are accounts
also of a paper made in Madagascar from the papyrus growing in that country, which is manufactured by putting the
leaves into a mortar, beating them to a paste, washing this
paste with clear water on a frame of bamboos, expanding
them into sheets, and glazing the surface with a decoction of
rice water.
Large numbers of manuscripts of papyrus wvere found in
Herculanean, and out of 1,756 found in one room, some 2Io were
successfully unrolled; a process, from the fact of the vegetable juices of the material having been thoroughly baked by
the heat, of no little difficulty; once opened they are quite
legible and, but for the utter want of punctuation, which
appears to be a mod rn invention, could be easily read. The
manuscripts discovered at Pompeii crumbled upon exposure
to the air, or upon being touched. The Herculanean manuscripts were unrolled by the use of goldbeater's skin being
applied to the b tck.
As we have said before, the Chinese appear to have been
familiar with the process of making silk paper at a very
early day. In the time of Confucius they wrote on the
finely-pared bark of bamboos with a style, and at about
A. D. 95 appear to have invented paper. About the middle
of the seventh century, they introduced it to Samarcana;
when the Saracens took that city they found the art, which
they transported to Mecca, where cotton was afterwards substituted for silk, and paper made therefrom in that city, early in
the eighth century. From this source the manufacture found its
way into Spain, and in the twelfth century a flourishing manufactory of paper was established at Valentia, where flax, which
grew abundantly in that region, was substituted for cotton.
Monfancon considered that cotton paper was familiar in
E troi e for six or seven hundred years before his time, and it
is known to have been in common use in the tenth century.
It had the name of charta bombycina.,Some very ancient
manuscripts in Arabic and other oriental languages are writ



422          LA W  OF  LITERA TURE.             [CH. I.
communication had been made. Some time after, he
was again dispatched with some figs and a letter to
the same person.  Being again  overcome  by the
ten upon a paper apparently made of silk, linen, or cotton
intermixed (Prideaux, Conn. i, B. 7).  The patronage of
literature by the kings of Pergamus, which began about the
middle of the third century before the Christian Era, in the
reign of Eumenes, excited the envy of one of the Ptolemies,
who interdicted the exportation of papyrus. Invention thus
being stimulated among the subjects of Eumenes, the present
mode of preparing the skins of animals was discovered and pergamenum or parchment became the surface upon which books
were written. Papyrus, however, continued to be the favorite,
whenever procurable; but after the Saracens overran Egypt,
in the eighth century, it ceased to be procurable, and it was
about this time that the art of manufacturing paper from
linen rags made its appearance. This great invention has
been claimed by almost every civilized nation in turn, though
the testimony procurable seems to assign the honor to the
Chinese. Not only did the invention of paper open the way
to the civilization, culture, and learning of modern times to an
extent which it is perfectly impossible to calculate, but it has
preserved to us a vast storehouse of the learning of the ancients;
since for many centuries before its appearance, the practice of
erasing from parchment books the classical remains of antiquity,
in order to write upon the surface thus obtained, the legends
and chronicles of monkish invention, was in general vogue,
and the palimpsests of the middle ages are among the most
curious of its vestiges.
The style used by the ancients was an instrument made
of wood, metal, or other material, pointed at one end and
blunt at the other. With the sharp end they wrote upon their
tablets, covered with a sort of wax, using the obtuse end to
obliterate the writing, or any part of it, when necessary. But
when they wrote upon parchment or papyrus, they made use
of a reed dipped in some staining or coloring liquor. Baruch
is said, in the thirty-sixth chapter of Jeremiah, to have written
his prophesies with ink, which is probably the earliest mention of this method of writing to which we can refer, though
there is reason for supposing that the use of the reed (Du
Halt. Descr. Chin. vol. I. p. 363; Phil. Trans. No. ccxxvii. p.
155) dipped in some marking liquor existed in very ancient
times in China, and other parts of the East (called by the
Romans stylus, or graphium). It is the instrument at this




C(i. I.]        OF  MANUSCRIPTS.                     423
temptation, and conscious of the tattling propensities
of the letter, he was determined that it should have,
this time, no knowledge of his roguery; so, putting it
day used in writing by the Turks, Persians, and Arabians.
The Indian, or more properly, the Chinese ink, needs only to
be slightly rubbed in water to afford a substance rather solid
than fluid, well adapted to the purpose of writing. In the
work on " The Empire of China and its Inhabitants, by John
Francis Davis, Esq., late his Majesty's Chief Superintendent
in China," I836, will be found the following information on
-this subject: " The date of the invention of paper seems to
prove that some of the most important arts connected with the
progress of civilization are not extremely ancient in China.
In the time of Confucius they wrote on finely-pared bark of
the bamboo with a style. They next used silk and linen. It
-was not until A. D. 95 that paper was invented. The materials which they use in the manufacture are various. A coarse
yellowish paper, used for wrapping parcels, is made from ricestraw. The better kinds are composed of the liber or inner
bark of a species of the morus, as well as of cotton, but principally of the bamboo." And we may extract the description
of the last from the Chinese Repository, vol. iii. p. 265: " The
stalks are cut near the ground, and then sorted into parcels
according to age, and tied up in small bundles. The younger
the bamboo the better is the quality of the paper which is
made from it. The bundles are thrown into a reservoir of,mud and water, and buried in the ooze for about a fortnight
to soften them. They are then taken out, and cut into pieces
of a proper length, and put into mortars with a little water, to
be pounded to a pulp with large wooden pestles. This semifluid mass, after being cleansed of the coarsest parts, is transferred to a great tub of water, and additions of the substance
are made until the whole becomes of a sufficient consistence
to form a paper. Then a workman takes up a sheet with a mold.or frame of proper dimensions, which is constructed of bamboo
in small strips, made smooth and round like wire. The pulp
is continually agitated by other hands, while one is taking up
-the sheets, which are then laid upon smooth tables to dry. This
paper is unfit for writing on with liquid ink, and is of a yellowish,color. The Chinese size it by dipping the sheets into a solution
of fish-glue and alum, either during or after the first process of'making it. The sheets are usually three feet and a half in
length, and two in breadth. The fine paper used for letters is
polished after sizing, by rubbing it with smooth stones."




424          LA W   OF  LITERA TURE.              [CH. I..
underneath a large stone, he sat upon it and regaled.
himself with the figs, when he proceeded on his errand
and delivered the letter.  He was again accused, and,.
"c What is commonly known in this country under the name of
Indian ink, is nothing more than what the Chinese manufac —
ture for their own writing. The writing apparatus consists of
a square of their ink; a little black slab of schostus, or slate,.
found in the mountains called Leu-Shin, on the west side of
the Poyang lake (where the last embassy saw quantities of
these slabs manufactured for sale), polished smooth, with a.
depression at one end and hold water; a small. brush orpencil of rabbit's hair, inserted into a reed handle, and a.
bundle of paper." The Chinese, or, as it is miscalled, Indian.
ink, has been erroneously supposed to consist of the secretion
of a species of sepia or cuttle-fish. It is manufactured from
lampblack and gluten, with the addition of a little musk to,
give it a more agreeable odor. A black dye is also obtained
from the cup of the acorn, which abounds in gallic acid.
Pere Contanein gave the following as a process for making
the ink: "A number of lighted wicks are put into a vessel
full of oil; over this is hung a dome or funnel-shaped coverof iron, at such a distance as to receive the smoke. Beingwell coated with lampblack, this is brushed off and collected
upon paper. It is then well mixed in a mortar with a solu —
tion of gum or gluten, where it receives those shapes and
impressions with which it comes into this country. It is.
occasionally manufactured into a great variety of forms and
sizes, and stamped with ornamental devices, either plain or in
gold and various colors. They consider that the best ink is.
produced from the burning of particular oils, but the commoner and cheaper kinds are obtained, it is said, from fir'
wood. The best ink is produced at Hoey-chow-foo, not far
from Nanking; and a certain quantity annually made for the
use of the emperor and the court, is called Koong-me,.
"tribute ink." The best ink is that which is the most intensely
black, and most free from  grittiness.  In the Himalayan
provinces there is a plant found in the greatest abundance,.
called Sitabhoua, from which a coarse paper is made by first.
detaching the bark of the stem and branches, and then submitting the same to the process of boiling, pounding it into a.
paste, straining it through a cloth to get rid of the coarser
fibres, drying it in the sun, and finally spreading it upon a
cotton cloth stretched upon a frame; and this has probably
been practiced for centuries.  The fabric is coarse, but




CH. I.]          OF  IANUSCRIPTS.                     425
with greater confidence than before, denied the charge,.
"until," says the narrator, "a smart castigation concapable of great improvement. See the description of theplant Daphne Cannavina, by Dr. Wallich, Asiatic Researcher,
vol. i. I3; and of the mode of making paper from it, in Journ.
of the Asiatic Society, vol. i. 8. Paper is said to be manufactured in Kashimire, in considerable quantities, from old cloth
of the Janhemp and from cotton rags. See Travels of Moorcroft and Trebeck from I8I9 to I825."-Murray.
ink-stands, with pens (reeds) lying by them, are represented in pictures found in Herculaneum. Those reeds were
dipped in some liquid substance, various in its composition
and color, but for the most part black, and expressed by the
word atramentfum, in Latin.  It sometimes had the name
cepia among the Latins, which signified the black or dark
liquor emitted by the cuttle-fish. In Greek it had the general
name of ypavpzxorv uteav. St. John, in his Third Epistle,
says he did not intend to write with pen (reed) and ink.
Allusions also to this mode of writing occur in most of the
authors of the Augustan history, and their literary successors.
Sometimes, in order to make the writing more visible, where
the person addressed labored under an infirmity of eyesight,.
the letter was written with black ink (atramento) upon ivory;.
and these epistles were called pugillares eborei (Armido, fistula,.
and canna, split at the point). Thus the Roman epigramatist:
Languida ne tristes obscurent lumina cerae,
Nigra tibi niveum littera pingat ebur.
Mart. lib. XIV. Ep. 5.
The Romans found it generally convenient, in compos,ing
to write their thoughts first upon waxen tables, for the facility
of making alterations or corrections, and perhaps also for expedition, as they had no occasion to leave off for dipping thepen; and when the draft was thus made correct, it was transcribed upon paper or parchment. They had also a blottingpaper of a coarse contexture, which they called charta deletitia,,
and which had also the Greek name of zractzuItbearo5 from
7raX2zv, rursus, and pacP, rado, from which what was written
upon it might be easily rubbed out or erased (Cic. Farrs, lib.
VII. Cicero to Trebatius). The better sort usually carried
about them their Jugillares, or small writing-tables, on which
they set down anything which occurred. Thus Pliny, in his.
agreeable letter to his friend Tacitus, tells him that he took
care to have about him, even when hunting, his stylus et pugil-.
lares, " ut si manais vacuas, plenas tamen ceras reportarem'




426          LA W OF LITERA TURE.
vinced him that he had not escaped the scrutiny of
the letter."
{Plin. lib. I. Ep. 6). As the Romans wore neither sword nor
dagger when in the city, they sometimes had recourse to the
inon style, which they carried about their persons as a
weapon of defense, Accordingly, we read in Suetonius, that
Julius Caesar, when assaulted by the conspirators, upon receiving his first wound pierced the arm of the assassin with
his stylus, or graphium. Quintus Antyllius, one of the lictors,of the consul Opimius, who offended the followers of Caius
Gracchus, in the forum of Rome, by his pushing them aside
with contempt, as they were supporting their friend, was fallen
upon by them, in the fury of their resentment, and slain with
their styles, or writing instruments (Florus, 1. iii. c. I5). We
are told that the friends of Caius Gracchus and Fulvius were
greatly exasperated by his rejection, on his standing for the
tribuneship the third time. His disappointment was followed
by the elevation of his great enemy, L. Opimius, to the consulship, who exerted the whole power of his office to procure
the repeal of Caius's popular laws. Caius, it is said at the instigation of Fulvius, the triumvir, collected his friends, to defeat the consul's measures. On the day for proposing the:abrogation of the laws in question, both parties repaired early
in the morning to the capitol. While the consul was performing the customary sacrifices, Q. Antyllius one of the lictors,
while carrying away the entrails of the victims, said to the
friends of Caius and  Fulvius, "Make way, ye worthless
*citizens, for honest men." And it is addcd, that he accompanied these words with a contemptuous motion of his hand.
Whereupon, they fell upon him and killed him with their
styles, or pens of their tables. Seneca, in his tract on Clem-.ency, makes mention of a Roman knight, who, having whipped
his son to death, was himself put to death by the people in the
forum, who stabbed him with their styles. " Populos in foro:graphiis confodit (Seneca, de Clement, lib. i. cap. I4). From
which occasional use of this instrument it is probable that the
word "stiletto," in the modern language of Rome, had its,origin.
The case for holding the implements of writing was called
by the Romans scrinium, or capsa (Horat. Sat. lib. i. 4 lin. 22),:and by the Greeks xiz/3coro~ or zq3corzov-, a very essential part
of the furniture or equipment of a person or any rank or
importance in the more polished nations of antiquity. The'use of black lead pencils, both for writing and drawing, is




CH. I.]          OF  MANUSCRIPTS.                    427
Letters are said to have been invented by Atossa,
the daughter of Cyrus, wife of Cambyses and Darius
Hystaspes, and mother of Xerxes.' Pliny considered
of old standing, though hardly, if at all, traceable to the times
of Greek and Roman antiquity. There is, indeed, a hint of it
in the works of Pliny, where we have the words argento, aere,
plumbo, lineae, ducuntur (Plin. lib. xxxiii. I36). But the
passage seems to signify nothing more than the use of these
substances in making lines by the help of the rule. This
application of these materials, and especially of lead, as being
soft and easily rubbed out, appears to have been in practice
many centuries ago. We know that above a thousand years.ago transcribers made their writings even and regular by
means of parallel lines, to be erased after having answered
their purpose. In very old MSS. the traces of those lines are
very visible; but, according to Beckman, this practice became
rare after the fifteenth century, about which period the MSS.
exhibit a want of the parallelism which is characteristic of the
more ancient specimens.
The use of the lead pencil in writing has an early date in
modern history. Gerner, in his book on Fossils, printed at
Zurich, I565, says, that pencils for writing were used in his
day, with wooden handles and pieces of lead, or, as he rather believed, an artificial composition, called by some stimmi angliamum (De Rerum Fossilium Figuris, Io04). Towards the end of
the same century, Imperati mentions the graffio plombino, and
says it was more convenient for drawing than pen and ink.
The mineral, he says, was smooth, greasy to the touch, had
leaden color, and a sort of metallic brightness.  One kind
was mixed with a clay, which they called rubrica (Del.
HIistoria Naturale di Ferrante Imperato, el Napoli, 1599, I22).
1 Aul. Gell. xv. 23; Strom. i. I32. 1lp7cr7/ e8TrzoroAa5
dvvY'raaz Aroooav lrip eTpoicov fiaozAevo'ravrv qp7ozvr TE)avzxo;. Tatian, in his oration against the Greeks, says that
none of those institutions of which the Greeks were so boastful, were of their own invention, but came invariably from the
Barbarians.  eOrz ovc6E'' TcoY  e~Irzi7(YevatYrcov o~~ EAAi7ve;
x aAXcitrzLovraz EAXt/I'zxov alta eJx Bapfi/3apcv'ripv evpeozv
eo'?r/poS. Quod nihil eorum quibus Graeci gloriantur studiorum apud ipsos natum, sed omnia a Barbaris inventa sunt.Bentley fixes Alossa as having lived 70 years after Phalaris,
tyrant of Agrigentum, who died, according to him, Olymp.
lvii. 3.




428          LA WI   OF  LITERATURE.             [CH. IL
as epistles only those letters which were inscribed on
paper, as distinguished from the ancient codicilli'the term he gives to the writings that Bellerophontes
But the pencils principally in use in Italy, at the period of the
revival of letters, were composed of lead and tin, the proportion being two parts of the former to one of the latter; which
pencil was called a style. It seems that the oldest certain
account of the use of the quills in writing, which has reached
us, occurs in a passage in Isidorus Hispalensis, who died in
636. He mentions reeds and feathers as instruments employed
in writing. There is besides, a small Latin poem on a writing
pen, to be seen in the works of Anthelmus; the first Saxon,
says Beckman, who wrote Latin, and who made the art of
Latin poetry known to his countrymen. He is said also to
have inspired them with some taste for compositions of this
kind. He died in 709. The poem De Penna Scriptoria, begins
thus:
" Me pridem genuit candens onocrotalus albam,"which, if
not descriptive of a goose-quill, at least supposes an implement
furnished by a feathered animal. Writing pens are mentioned
by Aleuin, who lived in the eighth century, somewhat later
than Anthelmus, and composed poetical inscriptions for every
part of a monastery, and, among others, for the writing study;
of which, he says, that no one ought talk in it, as it was very
important that the pen of the transcriber should go correctly
on without mistake.
Tramite quo recto penna volantis eat.
Mabillon saw.a MS. of the Gospels written in the ninth
century, in which the Evangelists were represented with quills
in their hands. In the curious little work of Hericus Ackerus,
called " Historia Pennarum," in which he treats of the pens
of the famous Academicians, published at Altenburgh, in
1726, we read of the one pen of Leo Allatins, with which he
wrote his Greek for forty years, and on losing which, he is
said to have with difficulty refrained from tears. "' Et eo tandem amisso tantum non lacrymasse." P. Holland, the translator of Pliny, performed his work with a single pen, and he
has handed down the fact in the following verse:
1 The epistola were always sent to. the absent. Codicilli
were given to those present as well, as sent to the absent, as
were also the libelli, as for example Caesar's letters to the
Senate, in the form of our present book, which form was adhered to by the other emperors.




CH. I.]          OF  MANUSCRIPTS.                     429
carried from  Proetus to Jobates,' enjoining the death
of the bearer.  Licinius Mucianus, a writer of the time
of Vespasian, mentions having seen, when governor
With one sole pen I wrote this book,
Made of a gray goose-quill;
A pen it was when I it took,
A pen I leave it still.
Cicero, in a letter to his brother Quintus, makes some
pleasant allusions to his bad pen, in which he tells him that he
is apt to snatch up whatever pen (calamus) comes first to hand:
"'Calamo et atramento temperate, charta etiam  dentata res
agetur. Scribis enim te meas litteras superiores vix legere
potuisse: in quo nihil eorum mi frater, fuit, quae putas. Neque
enim occupatus eram, neque perturbatus, nec iratus alicui:
sed hoc facio semper, ut, quincumque calamus in manus meas
venerit, eo sic utar tamquam bono" (Ad Quint. Frat. lib. ii.
ep. xv.)
Haerlem, Mentz, and Strasburg seem to have the best pretensions to the original invention of the art of printing. Venice
has a better claim to the improvement than to the first rudiments. For Nicolas Jenson, who is generally supposed to have
first taught it to the Venetians, did not begin printing there
till the year 1470; and if John de Spiras's claim should be
allowed, who says " that he was the first who had ever printed
in that city," yet his pretensions go only a year or two further
backward. And even admitting that another book was printed
at Venice before John de Spiras's " Cicero's Epistles ad Familiares," in 1469; (namely, " Fr. Maturantii de Componendis
Versebus Hexametro et Pentametro," by Ranolt, Venet.
1468 "), yet that would carry it back but one year more in
support of the Venetian claim; whereas the first rudiments of
1        ]IOpEY 6" Oy7 W7JaTra ]vypa!r'patsa; eY ZtZYaVZ 7ttVTrcZ OvUJOp9Opa ZroLAa.
Hom. Iliad, 8'. i68.
Thucidides relates a similar story of Pausanias, and similarly David sent a letter by Uriah to Joab, and Hamlet wrote letters for Rosencrantz and Guildenstern.  And the like is
told of Giangiacomo.  But Homer's rzva6 7rzrvxro5 would
seem rather to correspond to the Latin " tabellae," or " pugillares," rather than litterae or epistolae. Pliny, while distinguishing pugillares and codicilli from epistolae, assumed on
the authority of the above passage: Pugillarium  usum fuisse
etiam ante Trojana tempora.




430          LA W   OF  LITERA TURE.              [CH. I-.
of Lycia, in a temple, an epistle from Sarpedon, written
on paper. But Pliny distrusted the account; " since,"
says he, "even in Homer's time, and therefore long
the art, the first rough specimens, the first essay with separate
wooden types, if not elsewhere, yet at least at Haerlem, was
about thirty years anterior to those dates.
At Haerlem, the use of separate type blocks appears to have
been first thought of, by Laurentius, about I430, and practiced.
It was afterwards practiced at Mentz with metal types, first cut
and then cast, invented by one of the two brothers of the name:
of Geinsfleich-probably by elder John Geinsfleich, about
the year I442, when he published his first essays on wooden.
types, which did not answer his expectations. However, both
the brothers have been called protocharagmatici.  This in —
vention of printing with metal types was called " Ars char —
acterizandi." The cut metal types were further improved by
John Faust, of M entz, who, in I462, completed the art by the help.
of his servant, Peter Shoeffer, whom he adopted for his son,
and to whom he gave his daughter in marriage, pro dignA.
laborum  multarumque ad inventionum  remuneratione. So,
that the original foundation of the art of printing, in general,
seems to have been laid at Haerlem, and the improvements
made at Mentz. As to Strasburg, it can have no pretensions.
nearly equal to either Haerlem or Mentz. Gutenberg endeavored to attain the art whilst he resided in that city, and his
first attempts were made, in I436, with wooden types. But heand his partners were never able to bring the art to perfection.
He quitted Strasburg in I444 or I445, greatly involved in
debt, and obliged to sell all that he had.
The true inventor of printing seems to have been Lauren —
tius, of Haerlem, son of John, who was son of anotherLaurence. This Laurence, the grandson, was born at Haerlem, about 1370, and died in I440. He was 2Edituus or Custos.
of the cathedral of Haerlem; and was called Custer from his
office, not from his family name. His descent is said to have
been from an illegitimate branch of the Gens Brederodia.
He was a man of large property, and his office was both
respectable and lucrative. Hadrian Junius gives a full narra —
tive of the accident which led Laurentius into the happy train
of this useful invention (see his Batavia, Ed. Ludg. Bat. I588,
253). This Laurentius being a man of ingenuity and judgment, he proceeded step by step, inventing a more glutinous.
ink, and then forming whole pages of wood with letters cut
upon them; pasting the backsides of the pages together, thus.,




Cir. I.]        OF  MANUSCRIPTS.                     431
after Sarpedon, the part of Egypt which produces.
paper was nothing but sea, being afterwards thrown
up by the Nile."
making a single sheet printed on both sides. He changed
his original beechen letters for leaden ones, and those again for
a mixture of tin and lead, as a less flexible and more solid and
durable substance. In one of his first works, the " Speculum
Salutis," he introduced pictures on wooden blocks, printed
on separate movable wooden types, fastened together by
threads.
He did not live to see the art brought to perfection, as he
died in I440, aged 70; and was succeeded, either by his son-inlaw, Thomas Peter, who married his only daughter, Lucia, or
by his immediate descendants, Peter, Andrew, and Thomas,,
who seem to have acquired the art of printing, neatly with
separate wooden types. Their last known work was printed
at Haerlem, in I472; soon after which they disposed of all
their materials, and probably quitted their employment.
Laurentius' types were stolen soon after his death. The thief
was one of his workmen, named John, a native of Mentz; to
which place he conveyed them, and settled there; it is not so,
certain what was his surname. John Fust or Faust has been
suspected; but it seems to be an unjust charge upon him. So
also, upon John Gutenberg, whose residence was at Strasburgh, from I436 to I444, endeavoring with fruitless labor and
expense to attain the art. Neither does it seem just to suspect
John Meidenbachius, an assistant to the first Mentz printers;.
nor John Petersheimius, some time a servant to Fust and
Schoeffer, who set up a printing house at Frankfort, in I459.
It is most probable that the culprit was John Geinsfleich,
senior, elder brother of Gutenberg, who was born at Mentz,
but had resided in other places. He took the shortest route,
through Amsterdam and Cologne, to Mentz, where he fixed
his residence, in the year 1441, and in I442 published two small
works. Ulric Zell, in his Chronicon Coloniae, 1499, attributes
the invention, or at least the completion of the art, to Guten —
berg, at Mentz, though he admitted that some books had been
published in Holland earlier than in that city; and from Mentz,
he says, it was first communicated to Cologne; next to Strasburg; then to Venice. There is no certain proof of any book
having been printed at Strasburg till after I462, after which
period printing made rapid progress in Europe. In I490, it
reached Constantinople. In the middle of the next century
it advanced into Africa and America, and about I56o was in



432          LA W   OF  LITERA TURE.            [CH. I.
The age of Homer, synchronizing with the time
of Solomon, may be regarded as preceding the Christian Era by about one thousand years.' But the Scriptroduced into Russia. After this it was even carried into
Iceland, the farthest north (as Mr. Bryant observes) of any
place where arts and sciences have ever resided. We find
mention of a book, written in Latin, by Arngrim Jonas, a native of Iceland, and printed (" Typris Hollensibus in Islandia
Boreali, Anno, r612, entitled Anatome Blefkiniana "). It was
formerly the general opinion and belief, and seemed to be
agreed by all our historians, that the art of printing was introduced and first practiced in England by Mr. William Caxton,
a citizen of London, who had been bred a mercer, having
served an apprenticeship to one Robert Large, who died in
1441, after having been sheriff and lord mayor of London,
leaving a legacy to Caxton, in testimony of his good character
and integrity. From the time of his master's death Mr. Caxton spent the following thirty years (from I441 to I47I) beyond
sea, in the business of merchandise. In I464, he was employed
by King Edward the Fourth in a public and honorable negotiation, to transact and conclude a treaty of commerce between
that king and his brother-in-law, the Duke of Burgundy. By
his long residence in Holland, Flanders, and Germany, he had
opportunity of being informed of the whole method and process of this art; and returning to England, and meeting with
encouragement from great persons, and particularly from the
then abbot of Westminster, be first set up a press in that
abbey (in the almonry or ambry), and began to print books
soon after the year I47i, and is said to have pursued his business there till the year 1494, or, as some affirm, until the year
149I. He was probably upwards of four-score years of age
when he died. The "Recuyel of the Historyes of Troye," is
supposed to have been the first book that he had printed in
England. All English writers before the Restoration, who
mention the introduction of the art of printing, give Caxton
the credit of it, without any contradiction or variation. For
1According to Theopompus, Homer lived 500 years after
the siege of Troy (684 B. C.)-Clem. Alex. Strom. I. i. s. 2I,
p. 389. According to Plutarch, some affirmed that Homer
lived at the time of the Trojan war, II84 B. C. Plut. in V.
Hom. 44.  So that if, as Mr. Roberts suggests, we take a
mean between these extremes, the age of Homer must stand
at about Ioo years after the age of Solomon.




iHa. I.]         OF  MANlUSCRIPTS.                  433
-ures mention a letter from David to Joab, sent by the,hand of Uriah;1 and, about forty years after, one from
Jezebel, written in Ahab's name.2 The king of Syria
example, Stowe, Trussell, Sir Richard Baker, Leland, and
Howell, and the more modern authorities of Mr. Henry
Wharton and M. Du Pin-are all in favor of this opinion.
In opposition, however, to all these great and seemingly in~vincible testimonies and authorities on behalf of Caxton-a book which had been scarcely observed before the Restoraition, was soon after that time taken notice of, and looked upon
~as a strong argument, if not a full and clear proof, "that the,art of printing had been exercised "in the university of Ox-,ford before Caxton exercised'it at Westminster, in 147I.'"
This book bears for its title, " Expositio Sancti Jeronimi in
Simbolum Apostolorum ad Papam Lamentium;" and at the
tend, "Explicit," Expositio, &c. Impressia Oxonie, & finita
Anno Domini M.CCCC.LXVIII., xvii. die Decembris."
A record which had long lain obscure and unknown at Lamibeth Palace, in the register of the See of Canterbury, which
record is mentioned by the reporter in a note to Miller v. Taylor,
4 Burr. 2345, as apparently drawn up at the very time, stating
6'that Thomas Bouchier, Archbishop of Canterbury, moved
King Henry the Sixth to use all possible means for procuring
a printing mold to be brought into this kingdom. The king
ireadily hearkened to the motion, and, taking private advice
5how to effect his design, concluded that it could not be
brought about without great secresy and a considerable sum
of money given to such person or persons as would draw off:some of the workmen of Haerlem, in Holland, where John
Gutenberg had newly invented it, and was himself personally'at work. It is resolved, that less than one thousand marks
-would produce'the desired effect, towards which sum  the:said archbishop presented the king three hundred marks. The
management of the design was committed to Mr. Robert
Turnour, of the robes to the king, and much in favor with
him. Mr. Turnour took to his assistance Mr. Caxton, a citizen
tof good abilities, who, trading much into Holland, might be a,credible pretense, as well for his going, as staying in the low,countries. Mr. Turnour was in disguise (his beard and hair
shaven quite off), but Mr. Caxton appeared known and
public. They went first to Amsterdam, then to Leyden, not
12 Sam. xI. 14, I5.
2 I Kings, xxi. 8, 9.
28




434          LA W  OF  LITERA TURE.             [CH. I.
wrote to the king of Israel, by Naaman, the leper,"
nine hundred years before the Christian Era; and
about twenty years later, Jehu wrote letters and sent
daring to enter Haerlem itself; for the town was very jealous,.
and had apprehended and imprisoned divers persons who had
come from other parts for the same purpose. They stayed till
they had spent the whole thousand marks in gifts and expenses; so as the king was fain to sent five hundred marks
more. Mr. Turnour had written to the king, that he had almost done all his work; a bargain being struck betwixt him,
and two Hollanders, for bringing off one of the under workmen, whose name was Frederick Corsells (or rather Corsellis);who, late one night, stole from his fellows in disguise, in a
vessel prepared for that purpose, and got safe to London. It
was not thought prudent to set him on work in London, but
by the archbishop's means (who had been first vice-chancellor,.
and afterwards chancellor of the university of Oxford), whose:
guard constantly watched this Corsellis, to prevent him from
any possible escape till he had made good his promise in teaching them how to print."
"So at Oxford printing was first set up in England, which:
-was before there was any printing-press or printer in France,.
Spain, Italy, or Germany, except the city of Mentz, which
claims seniority as to printing even of Haerlem itself, calling
her city Urbem Moguntinum, artis typographicae inventricem
primam, though it is known to be otherwise, that city gaining
that art by the brother of one of the workmen of Haerlem,.
who had learned it at home, of his brother, and after set up for
himself, at Mentz. The press at Oxford was afterwards found:
inconvenient to be the sole printing place of England, as
being too far from London and the sea; wherefore, the king
set up a press at St. Alban's, and another in the city of Westminster, where they printed several books of divinity and
physic. For the king (for reasons best known to himself and,
council) permitted then no law-books to be printed; nor did
any printer exercise that art, but only such as by the king's.
sworn servants, the king himself having the price emolument
for printing books." Upon the authority of this record, all
our latter writers have declared Corsellis to have been the
first printer in England. This is admitted by Dr. Middleton;
and he specifies Antony Wood, Mattaire, Palmer, and Bag —
ford, by name, as persons who were clear in that opinion.
2 Kings, v. 5-7; ch. x. 1-2, 6-7.




CH. I.]         OF  MANUSCRIPTS.                   435
them to Samaria. Then there were the threatening
letter from the king of Assyria to Hezekiah,l and the
complimentary letter from Berodact-Baladan to the
But he says, " it is strange that a piece so fabulous, and carrying such evident marks of forgery, could impose upon men so
knowing and inquisitive." He asserts, that as it was never
heard of before the " publication of Atkyns's books, so it has
never since been seen or produced by any man." He cites
Palmer himself as owning "that it is not to be found there
now; and he thinks it clear that Archbishop Parker must have
very carefully examined the registers of Canterbury, and that
it was not there in his time. In fine, he declares in express
terms, "that we may pronounce this record to be a forgery."
But though he seems to exult in having cleared his hands of
this record, yet he admits "that the book itself stands firm as
a monument of the exercise of printing in Oxford six years
older than any book of Caxton with date." He acknowledges
the fact to be strong, and "what in ordinary cases passes for
certain evidence of the age of books;" but he says, "that in
this there are such contrary facts to balance it, and such circumstances to turn the scale, that he takes the date in question
to have been falsified originally by the printer, either by design or
mistake, and an X to have been dropped or omitted in the age of
its impression;" and he argues, with sagacity and acuteness,
to show not only the possibility of his conjecture, but the
probability of it, and (as he says) "to make it even certain."
Mr. Bowyer, whose general learning and particular knowledge
in his profession seem to qualify him for being at least as good
a judge of this dispute as any man that ever lived, does by no
means agree with Dr. Middleton in this point of Caxton's
priority to the Oxford book, or in the arguments adduced by
the doctor in support of his opiuion, anymore than he does in
the former point, of the place where the art was first invented
and practiced abroad. He is of opinion that the Oxford press
was prior to Caxton's, and thinks those who have called Mr.
Caxton the "first printer in England," and Leland in particular, meant that he was the first who " practiced the art with
fusile types, and consequently first brought it to perfection;"
which is not inconsistent with Corsellis's having printed, earlier
at Oxford, with separate cut types in wood, which was the only
method he had learned at Haerlem. The speaking of Mr.
Caxton as the first printer in England, in this sense of the'2 Kings, xix. I4.




436         LA W  OF  LITERA TURE.              [CH. I.
same king, after his sickness;' and Hezekiah himself
wrote letters to the tribes of Ephraim and Manasseh,
summoning them to Jerusalem.2 Cyrus, after decreeing to the Jews liberty to return to their own country
and rebuild the house of the Lord at Jerusalem, wrote
letters recommendatory to the governors of several
provinces to assist them in their undertaking, one of
which Josephus8 has recorded as being directed to the
governors of Syria, and commencing with the usual
epistolary salutation: " Cyrus, the king, to Sysina and
Sarabasan, sendeth greeting." And during the rebuilding (about 520 B. C.), there was a frequent correspondence between the enemies of the Jews and Artaxerxes,
king of Persia, on the subject.4
"The Greek, epistles of heathen,writers which
have come down to us, which are entitled to be considered as genuine, are, for the most part, studied and
elaborate compositions, the vehicles of argument or
disquisition on matters of general interest or contemplative inquiry,' and as different as possible from
our modern ideas of a letter. Thirteen of these letters are ascribed to Plato,6 though two of the number
are sometimes assigned to Dion. The letters which
have been ascribed to Themistocles were first printed
at Rome, in the year i626, from a manuscript in the
expression, is not irreconcilable with the story of Corsellis."Note to Millar v. Taylor, 4 Burr., p. 2418.
2 Kings, ch. xx. I2.
12 Chron. xxx. I, 6.
3 Jew. Antiq. lib. xi. c. I.' Ezra, iv. 8, II, i8; Nehemiah, ii. 8, 9, vi. 17, I9; Esther,
iii. 13, viii. 5, ix. 25; Isaiah, xxxvii. I4, xxxix. I; Jeremiah,
xxix. I, 25, 29. And Mordecai wrote and sent letters to the
Jews. Esther, ch. ix. 20.' Roberts, p. 9I.
E7rzoTro0laz  1Ozx0raz, xiii., according to Fabricius, I Dionis, 2.




CH. I.J         OF  MIANUSCRIPTS.                  437
Vatican, and although doubted as spurious by most
authorities, are received by some as genuine. They
all bear date posterior to his banishment, and from
places to which the general is supposed to have
retired during his exile, such as Argos, Corcyra,
Epirus, Ephesus, and  Magnesia.  The epistles of
Socrates and his scholars, Xenophon, Aristippus, and
others, were collected and published in the year I637,
also from a Vatican manuscript, by the celebrated Leo
Allatius. But, from internal evidence, these have been
rejected as spurious.2 Besides these, there were also
Plato to Dionysis; 4 to Dion; 5 to Perdiccas; 6 to
Hermias, Erastus, and Corsicus; 7 and 8 to the friends of
Dion; 9 to Archytas of Tarentum; Io to Aristodorus (or according to Laertius, Aristodemus); I  to Leodamus; 12 to
Archytas; 13 to Dionysius. Siudas acknowledges thirteen
under Evnparrezv which was the salutation used by Plato;
the others using Xzpezv, yaOezv, ev6zayezvn or evAoyezv.
Laertius mentions Io and I2 as above. The third is said by
Bentley to be genuine; but Meinursius declares that, and all
the others as well, to be spurious, " in judico de quibusdam
Socraticorum reliquiis." —See Comment. Socrat. regiae Gottingensis, Ann. 1783, Classis. Histor. et Philog. But Guil.
Gottlieb Tenneman contra Meinursium disputans, maintains
their genuineness (p. 17, et seq.), except as to a part of Ep. 13, all
of which Wesseling contends is genuine. Roberts, p. 84.' The correspondence of Socrates with the King of Macedon
has the air of puerile romance. In one of these letters Xenophon invites some friends to come and see him at his plantation, near Olympia, informing them that Aristippus and
Phaedro have been visiting him there, to whom he had been
reciting his memoirs of Socrates, which both had approved of:
Now, this Aristippus was always on the worst terms with
Xenophon, and could hardly have given his approbation to a
book which, says Bentley, was a satire against himself.-The
letters abound in manifest anachronisms and errors, assigning
two wives to Socrates, and but one, indiscriminately.
A curious letter from Xenophon to Xantippe, after her
husband Socrates' death, runs as follows:
" I have committed to the hands of Euphron, the Megarite,
six small measures of wheaten cakes, and eight drachms,
also a new cloak for winter wear. Accept these trifles, and be




438          LA W  OF  LITERA TURE.             [CH. I.
five epistles alleged to have been written by Euripides,
which, however, were said by Apollonides, who wrote
a treatise on false history, to have been forged by
Sabirius Pollo, "the same who counterfeited the letters
of Aratus." I Every one of these letters, as has been
assured that Euclid and Terpsion are very good and worthy
persons, full of kind-feeling toward you, and of respect to the
memory of Socrates. When the children show an inclination
to come to us, do not oppose their wishes, as it is but a little
way for them to come to Megara. My good lady, let the
abundance of the tears you have shed, suffice. To mourn
longer, will do no good, but rather harm. Remember what
Socrates said, and endeavor to follow his precepts and counsels. By incessant grief you will greatly injure yourself and
the children. These are young Socrateses, and it not only
becomes us to support them while they live, but to endeavor
to continue in life for their sakes. Since, if you or I, or any
other who feels a tender concern for the children of the deceased Socrates, should die, they will suffer loss by being deprived of a protector and a contributor to their support and
subsistence. Therefore try to live for these children, which
can only be done by attending to the means of preserving
your life. But grief is among the things opposed to life, as
those can testify, who experience its hurtful effects.  The
gentle Apolliodorus, for so he is called, and Dion, give you
praise for not receiving assistance from anybody standing
in no particular relation to you. You say you abound, and
you are much to be commended for so speaking of yourself
as far as I and your other intimate friends are able to assist
you, you shall feel no want. Take courage then, Xantippe,
and let none of the good instructions of Socrates be lost, for
you know in what honor that great man was held by us; and
consider well the example he has left us by his death. For
my own part, I really think his death was a great benefit to us
all, if it be regarded in the light in which it ought to be."Now Xenophon did not return from his Asiatic expedition,
until some time after Socrates' death, and so could hardly
have been at Megara, as recently after the event as this letter
appears to have been written. Nor does it seem probable that
he was at Megara at all after his return, since he did not leave
Agesilaus, until he went to settle at Scyllum (See Diog. Laiert.
ii. 52).-Roberts.'The Letters of Aratus are not extant.




'CH. I.]        OF  MANUSCRIPTS.                   439
pointed out,1 contains unquestionable evidence of
its spurious nature.2
"The  letters  attributed  to  Phalaris  are  also,doubted, as are the letters attributed to Pythago-ras, his wife Theano, and certain of his immediate
scholars.3
" In the works of Herodotus, Thucydides, and
other Greek historians, however, letters of statesmen,
sages, princes, governors, and military commanders,
are not infrequent.4
" Little or nothing in the shape of letters or letterwriting has survived to us, friom among the Romans,
until the time of Cicero. Their military ardor and
warlike customs, their absorbing  ambition, restless
political agitations, and their addiction to brutal
shows, left the Romans small leisure or taste for the
refinements of epistolary intercourse.'Those Republicans,' says Roberts,'were characterized by a dryness
1 Roberts, 87, citing Bentley and others.
2 As, for instance, one of them appears to have been writ-ten fromf the court of Archelaus, King of Macedonia; in this,
in answer to some reproaches which had been cast upon him for
leaving Athens, the writer expresses himself as paying no
-regard to what might be said of him at Athens, by Agatho or
Mesatus. Now, this Agatho, unfortunately, was all the time.himself at the court of Archelaus with Euripides. Again, the
injury done to Euripides by Cephisophon, seems to have been
overlooked by the fabricator, since Euripides is made to.address one of his letters to that personage.
Roberts, 67.
There are very few examples of such among the Romans.'Plutarch, in his life of Pyrrhus, gives a letter from Fabricius
-to that monarch, communicating to him the proposal of
Nicias, his physician, to poison him; also mentioned by Livy.'The letter is as follows: "You seem to be unhappy in your,choice both of your friends and your enemies. When you
have read the letter sent us by one of your own people, you
will perceive that you are making war with good and honest
mnen, while you are trusting to the dishonest and wicked. We




AAo          LA W   OF  LITERA TURE.             [CH. L
of genius, and certain coarse and homespun habits of
thinking, which ill-qualified them for the graceful,
play of thought and expression which properly belongs to good letter-writing.  Nor do letters of business and grave affairs appear, but very rarely, amongthe transactions recorded  by the historians of theRoman Republic.  The mind of the nation took a.
sudden spring under the influence of Cicero's genius,.
who at once gave and completed the pattern. With.
the pen of Cicero, letter-writing began to take its rank.
in polite literature as a specific head or department of
composition."'
make you acquainted with these things, not out of regard to.
you, but lest your destruction should bring a slander upon us,.
and we should appear to have accomplished this war by
treachery, for want of ability to conclude it by valor." Upon
receipt of this letter, Pyrrhus is said to have exclaimed, "This..
is a man whom it is harder to turn aside from the ways of jus —
tice than to divert the sun from its course."  P. II4, ii8.
1 The Romans sealed their letters usually with some deviceor symbol, to notify the writer and identify the person written.
to. Plautus makes the bearer of a letter thus accost the person.
to whom he brings it:
Nosce imaginem; tute ejus nomen memorato mihi,
Ut sciam te Ballionem esse ipsum (Plaut. Pseud. i).
The wax, with the impression, kept the letter closed, hence.
the phrase, Solvere Epistolam: and as the impression or signum was generally defaced or broken in opening the letters,.
the messenger or bearer usually required the person to whom
it was to be delivered to acknowledge the signum, and name,
the writer, that it might with the more certainty appear that
he was the person to whom the letter belonged. Thus Cicero,_
in his third oration against Catiline: "Ostendi tabellas Len-.
tulo, et quaesivi cognosceretne signum."
Alexander Severus, according to Lampridius, after mid-..
day, always gave his attention to the reading and dispatch of'
letters, when he was regularly attended by the three principal
officers " ab epistolis, et libellis, et a memoria," who generally
continued standing in his presence, unless laboring under any
indisposition, when they were permitted to be seated.
Augustus Caesar at first adoptied a sphinx for the device of




CH. I.]         OF  MANUSCRIPTS.                      441
The earliest English correspondence extant, is
that of the Paston family, written between 1422
and  I485.  Letters of familiar correspondence  are
his seal both in his public acts and in his epistles; afterwards
the figure of Alexander the Great; and ultimately his own
likeness, engraved by Dioscordes; which impression his successors continued to use; and we are imformed by his
accurate biographer, that he was so precise in dating his,
letters, that he added the hour of the day or night in which
they were written (Suet. Aug.).
It was not unusual with the great men among the Romans
to use one of the alphabetical characters in the place of the
other, where it was their design to convey certain intelligence
or orders to be understood only by the person written to; the
transposition having been previously concerted. Upon these
occasions Julius Caesar, instead of the proper letter, made use
of the letter that came fourthly after it in the alphabetical
order; as D for A, and so on. And Augustus used the letter
immediately following the letter which should properly have
been used (Suet. Jul. Aug. Aul. Gell. xvii. 9).
The Romans always put their own names first in the prae
logium, and afterwards the person to whom the letter was to
be sent, as " L. Catilini, Q. Catullo, S., Claudius Lycius, unto
the most excellent governor Felix, send the greeting " (Acts,
xxiii. 26). Paulino Ausonius; metrum sic suasit ut esses tu
prior, et nomen progrederere meum (Aus. ep. xx). Seu leviter
noto, seu caro misso sodali; omnes ista solet charta vocare
suos (Mart. Epig. xiv. ii).
Sometimes, in flattery to the emperors, the writer added
"Suus," as an expression of peculiar homage and devotion,.
to his name.  Similar, as Casaubon observes, to the Greek O
avorov z6zo5. —Epithets expressive of any peculiar dignity in
the receiver, or of esteem, or affection, such as " optimo dulcissimo," and the like, were not unfrequently added.  The
Roman letter began with Saluternz, like the Greek Xazpezv, following the writer's names, and ended with Vale, like the Greek
epcp/couo. Often the Roman letter closed with" Cura ut valeas,"'
take care of your health; "fac ut diligentissime te ipsum
custodias;" or " Deos obsecro ut te conservarint," Heaven preserve you. In the East letters often began with " Thus says,"
cde Aey7ez. In this manner begins the letter of Amasis, the
Egyptian king, to Polycrates, and of Orcetes to the same tyrant
of Samos, as given us in the Third Book of Herodotus; Ajua~zs; HOXvuxparEZ, c68?EyEz,7 Opozr/5~ ffoXvuparEz, at A~8



442           LA W   OF  LITERATURE.               [CH. I.
rarely met with in Scotch records before the sixteenth
century.
yez; and to the letter in Thucydides, i. I29, c68 Aeyez  6aozA8evs; ep'r5 1I'avuvza. The letter of the king of Assyria to
the king of Jerusalem is commenced with similar introductory
words: "Thus saith the king of Assyria," 2 Kings, xviii. 31.
Wesseling, in his note on the passage in Herodotus, above
cited, says of this epistolary form of commencement, " Nihil
simplicius et per Orientem olim probatius hac in Epistolis et
Regum edictis formula."
lElian, in his Book of Various Histories, 1. xii. c. 5i, has a
pleasant story, of which we are here reminded. " Menecrates
a physician of Syracuse, was so elated with the extraordinary
cures performed by him, that he assumed the title of Jove, as
being the dispenser of life to man; and accordingly, in a letter
to Philip, king of Macedon, he adopted the following address:
ziznz7rrco M8ve)xperrS  o Zev ev r pctrrezv:'To Philip Menecrates Jupiter sends felicity;' to which the monarch replied,
heading his letter thus:'I02z;znrzro Mevexpoarez vyzarvezv;' Philip to Menecrates sends sanity."' The anecdote which
follows is amusing. Philip having ordered a sumptuous banquet, invited the celestial physician. The invitation was condescendingly accepted by Menecrates, who being introduced,
was respectfully seated by himself at a separate table, with a,censer placed before him; in which situation he was left to
regale himself with the fumes of the incense. At first he was
much pleased with the homage shown him; but after a
while growing hungry, and finding nothing more substan-;tial proposed to him, he left the place with much dissatisfaction.
The first use of the salutation XcZzpezv is ascribed by many
of the Greek grammarians to the demagogue, Cleon, who, they
*say, prefixed it, instead of ev 7rparrezv, to his letter informing
the Athenians of his victory at Pylum. But Xenophon, who
would not have borrowed from Cleon, prefixed it to the pleasing letter which he makes Cyrus write to Cyaxares; Kvpov
_Hazb'. lib. iv. Artemidorus, who wrote about a century before
Christ, says, that the words Xazpezv and Ep/j3Jco'o were the
familiar beginning and ending of every epistle, zdzov nrao'77.?7rzzroXj75. And Horace alludes to the custom in lib. i. ep. 8:
"Celso gaudere et bene rem gerere Albinovano
Musa rogata refer."
According to Lucian, Plato censured the practice as,uox



CH. I.]         OF  MANUSCRIPTS.                    443
A letter is an object of property.' There is nothing
a man may so emphatically call his own, or more incapable of being mistaken, than his ideas thrown upon
paper.2 By the Roman law, a messenger detaining a
letter was prosecuted as for forgery. Nuntzis non
resz'tuens zlileras ei, cum  mandatum  rest'tuere susepfer/I, incz'dt in crimen fals/.3
The laws of France recognize a letter as a chattel
which may be the object of larceny. An action lies;
and even a criminal proceeding may be instituted
against a person who, having undertaken to carry a
letter, detains it. " I1 y a action en justice, et mame on
peut prendre la voie extraordinaire contri celui qui
s'etant charg6 de porter une lettre, se n'est point
acquitte de son message et la retient."4
"It is said to have been the opinion of Lord Hardwicke," says Waddeston,5 "that the receiver of letters
has no legal rights -I speak not of the delicacy or
propriety of such a measure-to publish them; beOi1pov (poor and vulgar), though he himself uses it in his
third epistle to Dionysius. He prefers the word 6coppovez,
or the words yvrcOz obavrov, as a better salutation. But he
did not banish the word Xozzpezv. It is prefixed to the letter
sent by the apostles and elders to the brethren at Antioch, to
-which 83/cooro is subjoined; and so also the letter from Claudius Lysias to Felix, Acts xxiii., which letter has a claim, from
the situation in which we find it, to be regarded as genuine;
the words 7repzEXovoa7v Tov rvoyov rov-ro7/, being properly
translated in our Bible, "after this manner," and not " in this
form," or "tenor."  Diogenes Laartius notices the different
salutations prefixed to the letters of the Greek philosophers.
-Diog. Laert. lib. iii. s. 6I.
1 Denis v. Leclerc, I Miller (La.) 294.
2 Millar v. Taylor, 4 Burr. 2345.
3 Bartolus in lege Titio, 36 n. 3.
4 3 Collection de Jurisprudence, 312.
2 Atk. 345.
4 Lectures, vol. 3, p. 7I5, ~ 56.




444         LA W  OF  LITERA TURE.             [Cal. I.
cause, at most, he has but a special property in them,
jointly with the writer. The same doctrine' has been
since confirmed and established. But the reason, attributed to Lord Hardwicke, that a special property
is left in the writer, seems, at least, so equivocally
expressed as to need explanation, for surely every
receiver of letters may destroy them. It is, however,
a different thing to publish them to the world, without
the writer's consent, from which mischievous consequences might ensue."
As to the question whether the sender and receiver
of a letter have each a joint property therein, and as to
Lord Hardwicke's2 opinion that such a joint property
existed, a late writer8 says: " If his lordship used this
language, it serves to show that he had not considered
the subject so as to have formed a definite opinion.
A special property, and a joint property, are two very
different things. It may not be amiss to note that
the case came up on motion, and may, therefore, have
had less consideration than it would have had on a
regular hearing." 4
"Again, if the receiver and the sender have,a'joint
property' in the letter, they would enter joint tenants
or tenancy in common."
" If such were the case, how could one burn a letter
received by him. If he were only a tenant in common he would be accountable in law and in equity,
from the moment he received the letter, for its cus-'Amb. 737.
2 Pope v. Curl, 2 Atk. 34I.' Am. Law Reg. vol. I, p. 437.
Vi. Gyles v. Wilcox, 2 Atk. I43, where Lord Hardwicke
said, in relation to Reade v. Hodges, cited before him, "that
case was upon a motion only, and at that time I gave my
thoughts without much consideration, and therefore I shall not
lay any great weight upon it."




(H. I.]         OF  MANUSCRIPTS.                  445
tody and its use, and who would be a correspondent,on those terms? There is certainly no suggestion of,any such right anywhere that we know  of.  The
Roman law asserted that the owner of the manuscript
was the owner of the thing written upon it, except
that it directed that the manual labor of writing
should be recompensed for to the scribe,1 but no intimation was made of any "joint property."
"Neither," says the same writer above quoted, " it
seems to us, is there a general or a special property
remaining in the writer of matter not literary, which
he has sent to its destination. If he has a special
property, who has the general, and if he has the general, who has the special? Letters in regard to matters
of business or friendship-aside from the question
whether they had a literary value, although they pass
to the executor or administrator, are not assets in
their hands, and cannot be made the subject of sale
or assignment by them, but belong to the widow
or next of kin. If the writer has the special property and the receiver the general, then the writer
is the bailee of the receiver, which is absurd; and if
the writer has the general and the receiver the special
property, then the receiver of a letter is, from the
moment of its reception, the bailee of its writer, and
liable to respond to him in law and in equity, which,
it appears to us, is equally absurd."
Clearly the only right to be enforced by the sender
of a letter against the holder, is a right to prevent
publication of literary matter in which he has a property. The receiver may read it aloud, recite its contents to others; he may perhaps copy it (if he do not
Inst. 2, I, 33; 3 Inst. og9; and the same law provides for
the case of one man's painting on another's canvas (Inst. 2,
1, 34). See ante, p. 14.




446          LA W   OF  LITERA TURE.             [CH. L.
print it), and distribute copies; he may sell it, if he
efface the contents, but it seems he should not do so,
otherwise.'
In Eyre v. Higbee, 2 where the plaintiffs were the,
executors of Colonel Tobias Ford, private and military
secretary to General Washington (and whose letters:
to Colonel Lee are the subject-matter of the controversy), it was also  held that (says Story, J.) "the
mere sending of letters to third persons is not to be
deemed, in  cases of literary  composition, a  total
abandonment of the right of property therein by the
sender; a fortiori the act of sending them cannot be
presumed to be an abandonment thereof in cases
where the very nature of the letters imports, as matterof business or friendship, or advice, or family or personal confidence, the implied or necessary intention:
and duty of privacy and secrecy."'
And the same learned jurist, sitting in the case of
Folsom v. Marsh,4 summed up on the whole law in,
the words following:
"The author of any letter or letters, and his.
representatives, whether they are literary compositions or familiar letters, or letters of business, possesses.
the sole and exclusive copyright5 therein; and no
Am. Law Reg. vol. i, p. 437.
2 22 How. Pr. I98.?Vid. also Gee v. Pritchard, 2 Swans..
402; 2 Story Eq. ~ 945; Eden on Inj. 2 Am. ed. 324, 325;
Drannard v. Dunkey, I Rol. & Beat. 209.
3i Eq. Jur. 947.
42 Story's Rep. iiI.
I Z.e., the right to copyright. We think in this case JudgeStory unquestionably uses the word in this sense, as identical
with the word " copy," in the common law. "I use the word'copy,"' said Lord Mansfield,in Millar v. Taylor, 4 Burr. 2396,
"in the technical sense in which that name or term has been
used for ages, to signify an incorporeal right to the sole printing and publishing of somewhat intellectual, communicated by



CH. I.]         OF  M/ANUSCRIPTS.                   447
persons-neither those to whom they are addressed, nor
other persons-have any right or authority to publish.
the same upon their own account, or for their own
benefit.  But, consistently with this right, the persons
to whom they are addressed may have-nay, must, by
implication possess —the right to publish any letter or
letters addressed to them, upon such  occasions as
require or justify the publication or public use of
them; but this right is  strictly limited  to  such
occasions. Thus, a person may justifiably use and
publish in a suit at law or in equity such letter or
letters as are necessary and proper to establish his.
right to maintain the suit, or defend the same. So,,
if he be aspersed or misrepresented by the writer, or
accused of improper conduct in a public manner, he
may publish such parts of such letter or letters (but.
no more) as may be necessary to vindicate his character and reputation, or free him from unjust obloquy
and reproach. If he attempt to publish such letter
or letters, on other occasions not justifiable, a court.
of equity will prevent the publication by an injunction, as a breach of private confidence or contract, or
of the rights of the author, and a for/tori if heattempt to publish them for profit; for then it is not.
a mere breach of confidence or contract, but it is a
violation of the exclusive copyright of the writer. In
short, the person to whom letters are addressed has.
but a limited right or special property (if I may so
call it) in such letters, as a trustee or bailee for
particular purposes, either of information or protection, or of support of his own rights and character.
letters."  "The'copy' of a book," said Aston, J., in the same
case, Id. 2346, "seems to have been not familiarly only, but
legally used as a technical expression of the author's sole right
of printing and publishing that work." See also per Willes,.
J., Id. 23II.




448          LA W  OF  LITERA TURE.            [CH. I.
The general property, and the general rights incident
to property, belong to the writer, whether the letters
are literary compositions, or familiar letters, or details
of facts, or letters of business. The general property
in the manuscripts remains in the writer and his
representatives, as well as the general copyright. A
forhtori, third persons standing in no privity with
either, party are not entitled to publish them, to subserve their own private purposes of interest, or curiosity, or passion."'
I 95. We have seen that the mere parting with the
possession of a manuscript, or intrusting its possession
to another person, or a permission to that person to take
and hold a copy of the manuscript, will not amount to
an authorization of its publication by that other person. Such acts must be deemed strictly limited, in
point of effect, to the very occasions expressed or
implied, and ought not to be construed as a general gift
or authority for any purposes of profit or publication to
which the receiver may choose to devote them.2
And yet, nobody has ever called in question the:ight of the recipient of a letter to burn, or otherwise
lestroy it, to sell it for waste-paper, or to part with it
to a collector of autographs or chirographical specimens; and yet, if the writer of that letter have still a
property in the composition, which, if not valuable in
his lifetime, might become so after his death, what is
there, logically, to prevent the recipient's being called' Vid. also Wetmore v. Scoville, 3 Edw. Ch. 543; Woolsey
v. Judd, 4 Duer, 379.
2 St. Eq. Jur. 943. See Bartlett v. Crittenden, 4 McClean,
303; 5 Id. 41, where the court says, "To make a gift of a copy
of the manuscript is no more a transfer of the right or abandonment of it than it would be a transfer or an abandonment
of an exclusive right to republish, to give the copy of a printed
work."




CH. I.]        OF MANUSCRIPTS.                419
upon to answer for the property which was in his possession without being his, and of which he was, if anything, only a trustee, or at least an involuntary bailee,
liable only for gross negligence in the custody of
property deposited with him?
Such a principle as this-the accompaniment of:all other property-it is very evident cannot exist in
the case of the special property of the receiver in
letters sent to him in the course of correspondence.
*Such a rule would convert the most ordinary of all
human procedure into a nice and complicated transaction, reviewable by the strict rules of equity, and render every individual, who received a letter from his
friend, liable at any time to account, in a court of,chancery, for the disposition made by him of an
inchoate and impalpable property, undefinable and
immeasurable, which existed by theory of a careful
law, and with which he never sought any connection.
To escape this logical deduction and result, we
must either assume that the property of the author in
his sentiments and expressions, has never left his pos-:session, or that it is a property sui generis, to which
the ordinary rules and principles governing property
will not be applied.
Both of these hypotheses are in some measure
correct. In one sense, the ideas of the author never
leave his possession, being still his, and capable of
being used by him alone. And as we have seen in
its every phase, literary property is a property unlike
all other sorts and kinds, and capable of being construed by comparison with no other.
So, therefore, if the receiver of a letter destroys it,
even though he may have thereby destroyed its contents as well as its material, he has done no wrong
and no action can lie.




450          LA W  OF  LITERA TURE.            [CH. I.
If, after its destruction, his memory still retains its
contents, he cannot be summoned to repeat such contents to the writer.' And, if, on the other hand, the
writer recollect the contents of the letter, or have retained a copy, the letter in his possession does not
differ in any respect from any other manuscript, and
he has the same rights that he would have in any
manuscript, not in the least altered or abridged, or
affected by the fact that the composition was origin —
ally written and despatched in the form of a letter.
There is nothing, in the law, to prevent one per —
son's possessing the original, and the other a copy of a
thing, and both having a property in that which they
possess, the one in what his original contains, and the
other, in what his copy contains. If the manuscript
of a work should be retained by the author, after its
contents had been published in book form, the manuscript would be none the less his own, because a
thousand others possessed copies of his book. Nor
does the original of a famous picture possess a lessened value, because a copy has been made and sold,
nor are the visitors to the Rospigliosi Gallery and the
" Aurora" of Guido any less numerous, because the
author's countrymen, from his day to ours, have assiduously copied his masterpiece.
I96. The rights, therefore, of the sender and receiver
of letters are entirely distinct and independent, each of
the others.2 What rights the sender has, he retains,
If, however, the receiver remember the contents, and pub —
lish them from memory, can equity prevent or interfere? If
the ruling of Buller, J., in Coleman v. Wathen, 5 T. R. 245,
that the transportation of anything in one's memory is not apiracy thereof, he evidently could, but this ruling has been
doubted. See De Witt v. Palmer, 7 Amer. 480, 47 N. Y.
532, M.; post, vol. ii. Dramatic Copyright.
But if it were even held that there could be but one prop




CI. I.]         OF  MANUSCRIPTS.                 451
subject to no special right of the receiver; and what
rights the receiver obtains in the reception, he enjoys
and will continue to enjoy, subject to no rights of the
sender.
The rights of the sender of a letter are, then, to
recapitulate: First. The receiver has a title by gift to
everything that passed into his possession when he
received the letter. The paper, the characters, the
autograph, the ink, the envelope, the superscriptionthe postage stamp, the postal mark.  Whatever value
these may have-actual, or historical, or otherwise-is
his, and his only.
Second. The writer of the letter has his title by
occupation (according to Blackstone) to the literary
composition, the sentiment and the thought of the
letter, as separated from all its above enumerated or
other material adjuncts, and whatever value these
may have-actual, personal, literary, or historical-is his
and his only, and vests in him  and his executors or
assigns, until he shall have parted with that title by
the various methods of abandonment (i.e., by alienation, publication, or dedication) to which we have
alluded.
197. While the material upon which the transmitted letter is inscribed is undoubtedly in the nature
erty in the ideas or contents, as a literary composition, and
that the entire property did not pass to the receiver, then that
whole property must remain in the writer as an entire thing;
for it seems very clear that if in such case he has not transferred the entire property, in what is sent, to the receiver, he
has not given him any special property to which his own general
property is subject, making his right in the nature of a reversionary or servient interest. There may be general right
of property, and there may be one or more special rights or
properties in the same thing, yet all these will but constitute
the whole property, and the general will be subject to the
special right (r Am. Law Reg. p. 460).




452         LAW  OF  LITERATURE.             [CH. T.
of a gift to the recipient, from the impracticability
of its ownership still centering in the sender after its
leaving his possession; the law, at a very early day,
recognized the injustice of allowing the writer's
private matters, if forming the theme of his letter,
from becoming the property of another. Of the offense
against common decency committed in the publishing of
private letters, Cicero spoke with much earnestness in
his oration against Philip: " Quis enim unquam, qui
paulum modo bonorum consuetudinem nosset, literas,
ad se ab amico missas, offensione aliquh interposita,
in medium protulit, palamque recitavit? Quid est
aliud, tollere e vith vitae societatem quam tollere
amicorum colloquia absentium? Quam multa joca
solent esse in epistolis, quae prolati si sint, inepta
videantur! Quam multa seria, neque tamen ullo modo
divulganda! "'
But, unfortunately for the species, it was found
that it would not answer to trust this valuable right,
upon which, not private feelings alone, but the peace
of families or of the state itself might depend, to any
general sense of decency, or taste, or manners. It
was enunciated, at a very early day, that the gift of the
manuscript of a letter carried with it no license to
publish.  But for a long time courts based this ruling
upon a right of "literary" property in the writer; and
hesitated to do more than protect letters which, as
they expressed it, were "literary in their character,"
from  unlicensed publication.2   Equity declined  to
interfere in the case of merely friendly or commercial
letters; holding, as one judge expressed it, that
"though the form of familiar letters might not pre-'Cic. Orat. Philip, ii. c. 4. See Sir S. Romily; 2 Swans.
4I9.' Percival v. Phipps, 2 V. & B. I9; and see ante, p. 447.




CIu. I.]       OF MANUSCRIPTS.                 453
vent their approaching the character of literary works,
every private letter, upon any subject, to any person, is
not to be described as a literary work to be protected
upon the principle of copyright. The ordinary use of
correspondence by letters," he continued, " is to carry
on the intercourse of life between persons at a distance from each other in the prosecution of commercial or other business, which it would be very extraordinary to describe as a literary work in which the
writers have a copyright."
I98. The old rule that letters, to be protected,
must be literary in their character, was laid down by
Plumer, V. C., in the year 1813, in Percival v. Phipps.'
In that case, the defendant was proprietor of a newspaper, called "The News," in which were published,
from time to time, articles and paragraphs on a subject which then engrossed the public attentionwhich articles and paragraphs were supplied to Phipps
by a Mr. Mitford, but were written, as Mitford informed Phipps, by Lady Percival, and in her handwriting.  A  piece of intelligence in one of these
published articles being found to be false, Phipps
applied to Lady Percival on the subject, who denied
that the intelligence had ever been sent, and stated
that the papers containing it were forgeries. Mitford
positively asserted the contrary; and to enable Phipps
to justify himself to the public, delivered to him
several letters written by Lady Percival to Mitford,
upon similar subjects, materially tending to show that
the false intelligence, published in "The News," had
come from Lady Percival through Mitford. Phipps
published in "The News" one of the letters given to
him by Mitford, and announced an intention of publishing the others. A bill was filed, on the part of
I2 V. & B. i9.




454         LAW  OF  LITERA TURE.            [C1. I.
Lady Percival, to restrain the publication of those
letters written by her to Mitford, as being of a private
nature, and having been sent to him in confidence
that he would not part with them or communicate
their contents to any other person. The answer denied
that the letters had been sent in any such confidence.
It was urged, on behalf of Phipps, that a gross imputation had been cast upon him; and that, though he
might derive a profit from publishing the letters in his
own paper, his object was not profit, but the vindication of his character from the imputation thrown upon
it, and to effect that object he was entitled to use the
letters. The vice-chancellor held that he was entitled
to make this use of the letters. " Whatever degree of
confidence," he said, " or reservation of property may
be implied, from the transmission of a private letter, it
would be too much to hold that the individual who
receives it can in no case use it for the purpose of
protecting himself from an unfounded imputationstating that to be the sole and bona fide object of the
publication; and, upon the answer, in this case, it must
be taken that the defendant has no purpose of gain, or
to deprive another of the benefit derived from a literary
composition; but that his only object is, by proving
agency, to answer the imputation cast upon him."
"An injunction," continued the vice-chancellor,
"restraining the publication of private letters must
stand upon this foundation: that letters, whether of a
private nature or upon general subjects, may be considered as the subject of literary property; and it is
difficult to conceive in the abstract that they may not
be so.            We find  Lord Eldon, however,
five years later, criticising this case severely, when
cited before him,' on the ground of the' difficult and'Gee v. Pritchard, 2 Swanst. 422.




CH. I.]         OF MANUSCRIPTS.                455
endless questions of literary character which it would
be forced upon courts to decide."'
And the distinction has long since been abandoned
-as impracticable and absurd. The right which every
man  has to  the  control of the product of his
own hands, can hardly be discriminated against on
account of the character or merit of the production.
"tWihy should a writing of inferior composition be
precluded from being a subject of property. To establish a rule that the quality of a composition must
be weighed previous to investing it with the title of
property, would be forming a very dangerous precedent. What reason can be assigned why the illiterate and badly-spelt letters of an uneducated person,
should not be as much the subject of property as the
elegant and learned epistle of an author. The essence
of the existence of the property is, the labor used in
the concoction of the composition, and the reduction
of ideas into a tangible and substantial form; and
can it be contended that the labor is less in the former
-than in the latter case? Every letter is, in a general
acceptance, a literary composition, however defective
it may be in style, grammar, or orthography, or however trivial or elaborate in design or composition.
The result of literary labor may differ widely in merit:and value, but the basis upon which it rests in regard
to the law of property, all kinds and sorts are alike.
The property of the author is the labor he has
expended on his manuscript; which, in the case of the
-illiterate, might be even greater in amount than that
expended by the fluent and facile and cultivated. No
matter how labored or crude or inartificial the attempt
to set down thoughts in words, the law will protect
the author's right to it, however valuable or valueless.'To a volume of burlesques-like the collection of




456         LAW  OF LITERA TURE.            [CH. I.
sketches, by " Artemus Ward "-nobody would deny a
copyright, yet they were burlesques of the letters of
an illiterate person-and why should we protect a.
burlesque more than the thing burlesqued?
Again, mere printing and publishing cannot make
a composition literary. If it be not literary in manuscript, it will not become so between covers. If the
rule as to " literary character" would apply to letters,.
it would apply equally to more extensive works. We
have already seen that the question of the value or merit
of a literary production, will not be considered in
granting it the privilege of copyright."'
No matter how trivial or how finished, we incline
to think that the writer of a letter is the owner of
its substance-and so long as he continues to be —
can control the multiplication of copies of the same.
Again, were a destinction between literary and,
non-literary property allowed to exist, what would
be the test, and who would apply it? Is it a question
of law  or of fact? Would the court decide the:
question itself, or would it cite experts to appear, and.
leave their testimony to a jury?
Clearly it could do neither; for the decision of
the judge or the testimony of the expert, could onlybe the assertion of his own taste or appreciation; and
the one or the other would be compelled, under oath,.
to decide upon a question de guslibus, which-it is a
proverb-is non disputandum.
Must the test be whether the letters had been, orcould, or might be published, or whether any one
wanted to publish them? Clearly not, since the appeal
is to equity to prevent their being published at all.
If an author's title to the copyright of his own
work were to rest upon its intrinsic merit, our judges
Ante, p. 316.




CH. I.]        OF  MANUSCRIPTS.                  457
must labor to prepare themselves to be critics as well;
our courts must be stocked with miscellaneous as
well as legal libraries, and become lyceums and debating societies, instead of the solemn tribunals of impartial justice.
The jurisdiction of a court of equity must evidently rest upon the right of the author in whatever
original ideas he has written down for preservation
upon his manuscript, and it is quite immaterial, even
could everybody agree upon that point, whether they
are worthy of such preservation or not.
I99. Again, a man's reputation and honor are as.
much his own as his manuscripts, or anything else that is
his, and that courts of equity have a right to restrain
his reputation from injury and his private feelings.
from outrage,' as in the case of Cadell v. Stewart,2
where letters written by Robert Burns, the poet, to a
lady whom he designated as Clarinda, had been given
by her to a bookseller, who published them, and
where the poet's family were held-as interested in his:
literary reputation-entitled to enjoin their appearance.
Equity also might interfere to stay the publication of letters, on the ground that such publication
would be a breach of contract or of confidence, and,
a fortiori, when they are intended to be made a
source of profit, in addition to all that would be a
violation of the author's actual or presumptive copy-.
right.3
So, upon the principle of breach of contract, an'Copinger on Copyright, 30; Dodsley v. McFarquhar
(Feb. 27, 1775), which was the case of Lord Chesterfield's
letters (Mor. Dict. of Dec. Lit. Prop. App. I, 5; Bro.
Sup. 509).
2June I, I804, Mor. Dict. of Dec. Lit. Prop. App. 4.
Copinger on Copyright, 30.




_458         LAW  OF LITERA TURE.             [CH. I.
injunction  was granted to restrain  publication  of
letters written by an old lady to a young man to
whom she had been foolishly attached, there being an
agreement not to publish them, but to surrender them
for a valuable consideration.'
" Were the court of chancery," says Copinger, " to
interfere on any other principle than that already
stated, individuals would be deprived of their defense
in proving agency; orders for goods; the truth of an
assertion, or some other fact, merely because the testimony establishing the true and genuine circumstances'was contained in letters in which a pretended copyright was claimed."2
" Independent of property," said Vice-Chancellor
McCoun,3 "and disconnected therefrom, there is no:ground or principle on which the jurisdiction to
restrain the publication of private letters can properly
rest....  The publication of letters having relation
exclusively to matters of private concern, written in
the confidence of friendship, and being of a private'and confidential nature, not intended for the public
eye, carries with it the evidence of a wicked, depraved,
and sinister purpose, and its own dishonor; for I
know of no other law, than that which may be found
in a just sense of propriety and honor, to forbid the
publication of private letters or papers, not having the
character of property about them.....   It is a gross
breach of honor and trust.....   After all that can'be done by the judicial tribunals of the country, much
must be left to the dictates of conscience, to the usages
1 Anon.'v. Eaton, cited 2 V. & B. 247. Vid. also Story Eq.
Jur. 2 Esp. 944, 950; Denis v. Lecierc, i Martin (La.), 297; Eyre
a. HIigbie, 35 Barb. 502.
2 On Copyright, 3o; Godson on C. 330.
Wetmore v. Scoville, 3 Edw. Ch. 5X5.




CH. I.]         OF  MANUSCRIPTS.                  459
of society, and to the corrective influence of public
sentiment and opinion."' And Chancellor Walworth
cites these words approvingly in a later case in the
same state; and, while characterizing the violation of
good morals and good manners,-which, however, a
court of chancery cannot undertake to enforce-says
further: "It is evident however, in relation to  all
these letters, that the complainant could never have,considered them as of any value whatever as literary
productions; for a letter cannot be considered as of
value to the author, for the purpose of publication,
which he would never have consented to have published,2 either with or without the privilege of copyright.  But we have already seen that the doctrine
upon which the vice-chancellor proceeded must now
be abandoned as impracticable, and that the sender's
literary property in a letter cannot be restricted by the
pupular meaning of the word " literary."
The case of Earl of Granard v. Dunkin,3 seems
very distinctly to sustain and to protect the doctrine
of property in the receiver of a letter. In that case,
it was sought to restrain the defendant from publishing letters from Lady Moira and Lady Granard to
Lady Tyrawley during her lifetime.  Lady Granard
claimed these letters, not as their writer, but because
she was the executrix of Lady Tyrawley; and it was
These rights are, however, reciprocal; for if a letter contain private and confidential matter, which it would be scandalous or injurious to publish, it cannot make any difference,
if it be published at all, whether it be published by writer or
sender; and if the writer could enjoin the receiver from publishing such matter, the receiver could equally have his remedy
to restrain its publication by the writer.
" This was before the doctrine laid down in Prince Albert
v. Strange, however, which would seem to hold emphatically
the reverse (2 De G. & Sm. 694, &c.).
3 I Ball. & Beat. 207.




460         LA W  OF LITERA TURE.             [CH. I.
decreed that her own, as well as Lady Moira's letters,
being Lady Tyrawley's, vested in her executrix.
200. Neither will equity leave the firm ground
and province of contracts and borrow  jurisdiction
from its sister courts, for the purpose of punishing a
crime,' nor can it enforce, apart from the right of property of which alone it will take cognizance, the performance of purely moral duties.2 She will only
restrain the publication of letters, written and sent in
the course of epistolary correspondence, when there
is a right of property in the writer, upon which its
jurisdiction can rest.
So, in the case of an application 3 for an injunction
to restrain publication of a pamphlet, entitled " The
Life, Exploits, Comical Adventures, and Amorous
Intrigues, of Benjamin Brandling, M.D., V.P.L.V.S.,
a distinguished pill-vendor, written by himself, &c.,"
the court held, that, as it did not appear to be an
invasion of any right of either literary or medical
property, although unquestionably a gross libel upon
the complainant, equity could not interfere to grant
one.
" It is very evident," said Chancellor Walworth in
that case, "that this court cannot assume jurisdiction
of the case presented by the complainant's bill, or of
any other case of like nature, without infringing upon
the liberty of the press, and attempting to exercise a
power of preventive justice which, as the legislature
has decided, cannot be safely intrusted to any
tribunal." "The court of star chamber in England,"'
said the chancellor, "once exercised the power of cutting off the ears, branding the foreheads, and slitting
Ante, p. 29.' Hoyt v. Mackenzie, 3 Barb. Ch. 320; 2 Story Eq. 948, a..'Brandreth v. Lance, 8 Paige, 24.




CH. I.]        OF  MANUSCRIPTS.                 46r
the noses of the libelers of important personages.
And, as an incident to such a jurisdiction, that court
was undoubtedly in the habit of restraining the publication of such libels by injunction. Since that court
was abolished, however, I believe there is but one case
upon record in which any court either in this country
or in England has attempted, by an injunction or
order of the court, to prohibit or restrain the publication of a libel, as such, in anticipation. In the case
to which I allude, the notorious Scroggs, chief justice
of the court of king's bench, and his associates, decided that they might safely be intrusted with the
power of prohibiting and suppressing such publications as they might deem to be libelous. They accordingly made an order of the court prohibiting any
person from printing or publishing a periodical entitled
4The Weekly Packet of Advice from Rome, or a
History of Popery.' The house of commons, however,
considered this extraordinary exercise of power on the
part of Scroggs, as a proper subject of impeachment,
and I believe no judge or chancellor, from that
time to the present, has attempted to follow that
precedent."'
In case, however, of an explicit agreement by its
receiver to refrain from  publishing a letter, courts
might interfere to prevent its publication upon other
grounds, namely, to enforce and uphold a trust, or to
decree a specific performance of the agreement.
That is, where the agreement was made before the
receipt of the letter.3
201. The leading case upon the subject of letters' Hudson's Star Chamber, 2 Collect. Jurid. 224; 8 Howell's
State Trials, I98.
X Gee v. Pritchard, 2 Swans. 402.' I Am. Law Reg. 456.




462         LA W  OF LITERA TURE.            [CH. I.
still continues to be Pope v. Curl,V decided in I741,.
in which Lord Hardwicke continued an injunction,
obtained by the poet Pope, to restrain the defendant
from publishing a collection of his letters.
"The first question," said Lord Hardwicke, "is.
whether letters are within the grounds and intention
of the statute.2 I think it would be extremely mischievous to make a distinction between a book of
letters, which comes out into the world either by permission of the writer or the receiver of them, and
any other learned work..... Another objection
has been made by the defendant's counsel, that, where
a man writes a letter, it is in the nature of a gift to
the receiver. But I am of opinion that it is only a
special property in the receiver. Possibly the propertyof the paper may belong to him, but this does not
give a license to any person whatsoever to publish
them to the world, for at most the receiver has only a
joint property with the writer." And to the objection
insisted on by the defendant's counsel, that this was a
sort of work which did not come within the meaning
of the act of parliament, because it contained only
letters on familiar subjects, and inquiries after the
health of friends, and therefore could not properly be,
called a learned work, his lordship replied: " It is cer —
tain that no works have done more service to mankind than those which have appeared in this shape,
upon familiar subjects, and which, perhaps, were never
intended-to be published, and it is this makes them so.
valuable; for I must confess, for my own part, that
letters which are very elaborately written, and originally intended for the press, are generally the most
insignificant, and very little worth any person's read —
1 2 Atk. 342. See remarks of Lord Mansfield in Millar v
Taylor, I4 Buir, p. 2397.' 8 Anne, c. I9.




CH. I.]        OF  MANUSCRIPTS.                 463
ing." The injunction was continued, by the lord
chancellor, only as to those letters in the book which
were written by Pope, and not as to those which were
written to him.
This ruling, however, militates against Lord Ellenborough's declaration in Du Bost v. Beresford,1 that,
upon an application, he would have granted an injunc —
tion to restrain the exhibition of a libelous painting.
A  note to Horne's Case,2 says that this declaration
"excited great astonishment in the minds of all thepractitioners in the courts of equity."
Subsequent to Pope v. Curl, the next leading case
in this branch of the law is that of Thompson v. Stanhope,3 wherein the executors of Lord Chesterfield, in
I774, brought suit against Stanhope,-his natural son,
-to restrain the publication, by him, of his lordship's
famous " letters."
These letters were written, as is well known, to
Lord Chesterfield's natural son, Philip Stanhope, who
lived abroad, and was "a public character." On the
latter's death, his widow came to England, where she
was affectionately received by Lord Chesterfield, to
whom she delivered certain of the letters in which his.
lordship had drawn the characters of different living
persons (first keeping copies of the same), but retainingthe others which treated of politics, education, and
manners. After his lordship's death, the widow agreed
with one Dodsley, a publisher, to deliver to him the
letters treating of education, manners, &c., for publication; and accordingly these were, from time to time
announced. Lord Chesterfield's executors, upon seeing
the announcements, brought suit to restrain the publi2 Camp. R. 5II.
2 20 Howell's State Trials, 779.
Amb. 737.




464         LA W  OF LITERA TURE.            [CH. I.
cation of the letters.  The widow Stanhope, in her
answer, stated that, being frequently in conversation
with his lordship, she had one day mentioned to him
that she thought the letters he had written her late
husband would form a fine system of education if published, to which he had answered: " Why, that is true,
but there is too much Latin in them;" but did not
express any disapprobation of the plan, only stating
that he wished to destroy the letters in which he had
sketched the characters of persons then living; that
these letters had thereupon been restored to him, but
that he had given her permission to keep the others.
But the court seemed to hold that permission to keep
the letters did not imply permission to publish themand granted the injunction sought.
202. There are, however, it is to be noticed, circumstances under which the law will not allow a
writer of private letters to insist on his special property in them, and to hinder their publication by
others. He may, by his own acts, disentitle himself
to prevent the publication of his letters to another
person, and justify that other person in giving them
to the world. A  false accusation, brought by the
writer against the recipient of the letters, which may
be disproved by their publication, for example, will
justify such publication; and courts of equity have
refused to aid, by injunction, the writer of the letters
in such a case. Sir Thomas Plumer, V. C.,1 refused an
injunction to prevent the publication of the letters,
under such circumstances, where the receiver was forced
to the publication, in his own justification, against
charges of dishonesty and a circulation of false news.
Lord & Lady Perceval v. Phipps, 2 V. & B.. 19. Vid. also
Gee v. Pritchard, 3 Swanst. 4I6, 419, and Folsom v. Marsh,
2 Story, Ioo-I I I.




CH. I.]         OF MANUSCRIPTS.                  465
"The distinction in that case," says Shortt, " between
the publication of private letters without the writer's
consent, for the purpose of profit or gain, and publication for a different purpose, is treated by Lord Eldon,
in Gee v. Pritchard,2 as of no moment. His lordship
considered the previous cases to have decided that,
ultra the purposes for which the letter was sent, the
property was in the sender.' If that is the principle,'
he observes,' it is immaterial whether the publication
is for the purpose of profit or not. If for profit, the
party is then selling; if not for profit, he is giving that,.a portion of which belongs to the writer.' The defendant in this case was the illegitimate son of the
plaintiff's deceased husband, and had received many
letters from the plaintiff during her husband's lifetime. After her husband's death, the plaintiff ceased
to be on terms of friendship with the defendant, and
denied the truth of statements made by him as to the
expectations which he had been led to entertain from
the plaintiff and her husband. The defendant returned
to the plaintiff the original letters which she had
written to him, but took copies of the letters before
returning them, without the plaintiff's knowledge,
and advertised his intention to publish the letters,
but, as he stated in his answer, for private circulation
only. This he did, as he alleged, in order to clear his
character from the charge of want of veracity which
the plaintiff had brought against it. In this case the
defendant, by returning the originals, had abandoned'whatever property he had-for if he had any right of
property it was in the originals-and Lord Eldon restrained the threatened publication. In giving judgment he observed,' I do not say there may not be a' L. Lit. i6.
2 2 Swanst. 415.
80




466         LA W  OF LITERA TURE.            [CH. I.
case, such as the vice-chancellor (Sir T. Plumer)
thought the case before him, where the acts of the parties supply reasons for not interfering; but that differs
most materially from this case. In April last, the
defendant having so much of property in these letters
as belongs to the receiver, and of interest in them,rs,
possessor, thinks proper to return them to the person
who has in them, as Lord Hardwicke says, a joint
property, keeping copies of them without apprising
her, and assigning such a reason as he assigns for the
return [his "being unworthy of the sentiments andl.
expressions of kindness contained in them "]. Now I
say, that if, in the case before the vice-chancellor,
Lady Percival had given to Phipps a right to publish
her letters, this case is the converse of that; and that
the defendant, if he previously had it, has renounced
the right of publication.'
"Lord Eldon was careful to rest his decision in
this case on the ground of the plaintiff's property in
the letters (as determined by previous cases), and not
on any considerations as to wounded feelings.
When reference was made to such considerations by
the defendant's counsel, his lordship interposed:' I
will relieve you from that argument. The question
will be, whether the bill has stated facts of which the
court can take notice, as a case of civil property,
which it is bound to protect. The injunction cannot
be maintained on any principle of this sort, that if a
letter has been written in the way of friendship,
either the continuance or the discontinuance of that
friendship affords a reason for the interference of the
court.'" 1
203. We have seen that-by what has been
5 T. R. 245. Vid. also Wetmore v. Scoville, 3 Ed. Ch. 527;
Woolsey v Judd, 4 Duer, 382.




CH. I.]        OF MIANUSCRIPTS.                467
called the law of literary accession-if the literary
composition is the result of labor performed by one
in the employ of another, the literary property
therein belongs to the employer.
So, if the writer of a letter be employed by a
principal, and write a letter in the course of the employment, and concerning its subject-matter: that peculiar property in letters which we have ascertained
to remain in the writer, would, by the same rule, inhere in the principal. And if the principal be also
the recipient of the letter, the principal would own
not only the paper and material part of the letter,
but also the property of the writer thereof. So, if the
agent or servant of a company write a letter, apparently on behalf of the company, to a shareholder, it is
the property of the company, and the agent or servant
cannot prevent the company from publishing the letter.' Where the solicitor of an insurance company
established in London, wrote a letter not marked
" private " or " confidential," to one of the shareholders
in the country, in reference to certain shares allotted
to the country shareholder, he was held not entitled
to restrain the publication of this letter in a pamphlet,
published after the winding up of the company by its
late manager, to whom a copy of it had been sent by
the shareholder. "If the solicitor of an insurance
company established in London," said the master of
the rolls, in this case, " by the direction of the directors,
wrote a letter to one of the shareholders in the country, it is clear that such letter is not the property of
the solicitor, and that he cannot say that the company
have not a right to publish it. Take it a step further,
and assume that the solicitor wrote a letter, but not
by the direction or on behalf of the directors, though' Howard v. Gunn, 32 Beav. 465.




468         LA W  OF LITERA TURE.            [CH. I.
it had all the appearance of being written on their
behalf, and by their direction. Thus, if it were written
to a person who proposed to take shares in the company, and it related to the affairs of the company, and
contained authoritative information on behalf of the
company, in answer to an application for shares, and
the person who receives it treats it as such, and sends
back to the company, objecting to its contents, shall
the solicitor be allowed to complain of its publication,
and to insist that it is a private letter, though it appears
to be written on behalf of the directors? The answer
is, if that be so, it ought not to have been written.
It has all the appearance of having been written
by the plaintiff, on their behalf, and the shareholder
to whom it is addressed so treats it, for he writes
to the manager in answer to it. Can the plaintiff be
allowed to say that the company have no right to
publish it? and if they have, is not the defendant
entitled, as regards the plaintiff, to bring it forward?
It is obvious that this was not a private letter, and
was not intended to be a private letter."
But all manuscript letters and communications
sent expressly or impliedly for publication to any
periodical,-such as a newspaper, review, or magazine,
-and received by its editors or proprietors, become
the property of the person or periodical to whom they
are addressed or directed, and cannot be published by
any other person obtaining possession of them.' Book
manuscripts are ranked as third-class matter by the
United States post-office department; can be sent
by mail, to the publisher, at the same rates as transient
printed matter, proof-sheets, and corrected proof-sheets,
&c., at the prepaid rate of one cent for each ounce or
fraction of an ounce. All matter of this description' Copinger on Copyright, 32; Hogg v. Kirby, 8 Ves. 2I5,




CH. I.]        OF  MANUSCRIPTS.                  469
which is inclosed in an envelope, which conceals it so
as to prevent the post-office authorities examining it,
without breaking the envelope, will be charged letter
postage.' It has been held that publishers are liable
for the loss of manuscripts sent them-even when they
have not requested them from their authors, or are not
in the habit of paying for those accepted-where the
author's address accompanied the manuscript, and no
notification was sent him that it would be returned to
him on receipt of the postage which it was necessary
to prepay.
A dramatic manuscript can be copyrighted at any
time, even though its contents have been previously
represented on the stage; and such representation will;n no case be a dedication of its contents to the
public.2
204. A manuscript written in another country, if
brought to this, will not lose its character of personal
property which it possessed in that.3 But if such
manuscript, or a copy thereof, be brought against the
will of its proprietor, the literary property in its
contents will not vest in the possessor of the manuscript.
And the manuscript may be a personal chattel on
this side of the water, although its contents have been
copyrighted on the other.4
205. If an author sell and dispose of his manuscript,
in specie, to a publisher, with the express agreement
and understanding that he parts with its possession, he
U. S. Official Postal Guide.
2 Roberts v. Myers, 13 Month. Law Rep. N. S. 396.
3 Story Conf. L. ~ 376, et seq.; Keene v. Wheatley, 9 Am. Law
Reg. 33; Keene v. Clarke, 5 Rob. 38; Keene v. Kimball, 6 Gray
(Mass.) 542; Palmer v. De Witt, 47 N. Y. 532; Crowe v.
Aiken, 2 Biss. 208.
4 Id.




470         LA W  OF  LITERA TURE.            [CH. I.
cannot afterwards copyright the work in his own name,
but the copyright belongs to the publisher.'
206. The right to take out copyright of a work, as a
rule, belongs to the owner of the manuscript.2 Copyrights of manuscripts may be entered, at any time, by
depositing a printed title thereof; and the time of
completion of the manuscript work does not affect the
title. In the case of unprinted dramatic compositions,
the notice of copyright, required by the act, does not
apply; neither does the requirement of two copies of
the publication. But if the title, once deposited, is
changed, or in any way altered, a distinct entry must
be made; and there must continue to be a distinct
entry for every such change in the title. This rule
also applies to photographs, prints, and engravings, of
every description. The librarian of congress is not at
liberty to record or issue certificates of copyright upon
written titles. The law explicitly requires a printed
copy of the title of the article, for which the copyright
is desired, to be sent to the office of the librarian,
before the author or proprietor can be entitled to
receive his copyright. The particular form or style of
type is immaterial; and only the precise words of the
title need be printed. It does not appear to be necessary that the whole title-page shall be filed.3
207. It may not be out of place, in connection with
the subject of property in letters, to allude to postal
facilities, regulations, and laws.  The conveyance of
dispatches, and royal letters and messages, by regular
couriers, was a feature that appears, at a very early
date, to have entered into the policy of every ancient
state. In the book of Job, which is conceived, by
some, to be a fragment of the earliest literature, the
Paige v. Banks, 7 Blatchf. I52.          2 Id.
Post, chapter on Copyright, Vol. II.




(CZtI. I.]     OF.MANIUSCRIPTS.               47r
transitoriness of life is compared to the fleetness of a
post' the Hebrew word there employed signifying a
runner or courier. And again, in Jeremiah,2 we read:
"One post'shall run to meet another, and one messenger to meet another, to show the king of Babylon
that his city is taken." So, in the third chapter of the
book of Esther,3 we read that " letters were sent by the
posts into all the king's provinces." In Persia, more
especially, the institution of regular posts appears to
have been an object of attention, as early, at least, as
the reign of Cyrus. A passage in the Cyropaedia of
Xenophon is very clear and particular on this head:
W' We have been informed, also, of another invention of
Cyrus for promoting the prosperity of his empire,
by providing a method of communication whereby
intelligence might be brought of what happened
in  places the most remote.  Having  considered
what journey a horse was capable of performing,
-in the course of a day, he ordered stables, accordingly, to be prepared at the proper distances from.each other, and stationed horses in each of them,
-with persons to take care of them, and have
them  in readiness.  He placed  also a person  at,each of these stations, who might receive the letters
brought to them and hand them over to the others,
-taking due care of the tired men and horses, and providing others fresh and prepared for going forward.
In this manner the conveyance was to be carried on
successfully by night as well as by day,-an arrangement so complete, that Xenophon continued: "Some
say the progress was more rapid than the flight
of cranes. If this be an over-statement, it is, however'Job, ix. 25.
a Jeremiah, ii. 3I.
3 Verse I3.




472         LA W  OF LITERA TURE.             [CH. KI
certain, that no journey by a human being, made on,
land, was ever so expeditious.'"  The same institution.
of posts in the Persian empire, as it existed in the
time of Xerxes, is thus noticed in Herodotus. A man
and horse were posted at the regular intervals of a.
day's journey, to deliver the letters to each of the
succession, till they reached the place of their destination. From one relay to the other, the journey was
to be performed in the time prescribed, whatever
might be the state of the weather or the obstacles of
the way; and the historian remarks, "that nothing
mortal was ever known to proceed with greater
celerity."2 This institution is expressed by the word
ayyapezov; in the Ionic idiom of Herodotus ayyap7'ovr,
a term borrowed from the language of Persia, where
it appears, if not to have had its origin, at least to,
have attained to great perfection. The messengers,
employed had the name of ayyOxoi, angari; and the;
noun, from its primary use in designating the institution and conduct of the posts, came at length to indicate any compulsory service, but especially a journey
by constraint. The verb ayya pevezv, has also its derivative sense, and is used by St. Matthew:3, Whosoevershall compel thee to go (ayyapevwoez) a mile, go with.
him twain." The force of which word in the original.
is not properly understood but by adverting to the au —
thority of the aryapoz, to press others into their service by way of expediting the post.4  The principal
couriers, or postmasters of Persia, appear to have been'
persons of some importance in the dominions of the
Persian monarchs, and, if we may credit Plutarch,..
1 Xenoph. Kvpov //az6eza5, fpz/2N. H. 642; Ed. Hutch. I7272 Herod. Uran. 98.
3 Matt. v. 41.
4 Roberts, p. 40.




CH. I.]       OF MANUSCRIPTS.                473
Darius Codomannus, was originally  one of that
order; a circumstance, among many others, affording
some confirmation to the testimony which history
bears to the pains bestowed in this quarter of the
globe, at an early period, on the means of conveying
intelligence and instruction between places at great
distances from each other. Throughout the eastern
states a similar attention to the establishment of posts,
or the provisions for the rapid conveyance of important despatches, appears to have been paid, and continued to modern times. In the dominion of the
Mogul emperors, as well as in provinces subjugated
by the Turks and Tartars, the speed of couriers on
foot, or on the backs of horses or dromedaries, has
been always an object of great importance. A modern traveler, who in i 840 published accounts of
travels in British India and Bochara, alludes to the
post as follows: " We continued our march to Tugduluk, and passed the Soorkh road, or Red river, by
a bridge, with a variety of other small streams, which
pour the melted snow of the Sufued Kob into that
rivulet. On our way we could distinguish that a road
had once been made, and also the remains of the posthouses which had been constructed every five or six
miles by the Mogul emperors to keep up a communi —
cation between Delhi and Cabool. They may even
be traced across the mountains of Balkh; for both
Humaioon and Aurungzebe, in their youth, were governors of that country.  "What an opinion," adds
the traveler, " does this inspire of the grandeur of the
Mogul empire; it had a system of communcation
between the most distant provinces as perfect as the
posts of the Caesars."
Up to this time, however, and, indeed, for a longperiod thereafter, we find no traces of any provision.




.474        LA W  OF LITERA TURE.           [CH. I.
for the employment of the post by private parties or
by the public, even had there been (as there prob-:ably was not) a disposition on their part to take
advantage of it. These conveyances were contrived
only for the service of the state, or rather of the
court, and for the transmission of instruction and
dispatches; and  if they were  occasionally  made
use of by private persons, or for personal communication, the risk of disclosure must have made it an unfit'and unsafe vehicle. Servants, hired messengers, or
traveling friends, furnished the only means of carrying
on a free correspondence; and it is easy to imagine
how greatly the uncivilized, unsettled, and tumultuous
state of those ancient communities multiplied the
chances of miscarriage, not to mention the negligence
or treachery of the private, irresponsible hands to
which the charge was necessarily committed. The
old historians record numerous instances of subtle
expedients and contrivances to transmit intelligence.so as to avoid the danger of treachery or discovery.
Mention of a table, covered with wax after the letters had been engraved on the wood, and sent by
Demaratus to the Lacedemonians, is made by Herodotus,' who abounds in similar anecdotes.
The transmission of information by letters was
always attended with risk or uncertainty in the disorderly state of ancient manners-the establishment of
posts remaining for a long period the organ of courts.and governments rather than a medium of general,communication.
Private hands and special messengers were perpetually betraying their employers, as we may learn:from the history, as well as the drama, of the ancients.
BHerodotus records a striking instance of treachery in
Herod. Polym. 239.




CH. I.]        OF MANUSCRIPTS.                 475
the conduct of the internuncius of Histioaus, who,
instead of carrying the epistles of that general to
his friends, in Ionia, who were plotting with him
against the Persian government, delivered them to
Artaphernes, the great. Persian satrap and com-:mander in that province.' The stratagem of Harpa-;gus, who dispatched a letter in the body of a hare to
the young Cyrus, to persuade him to take up arms
against his grandfather, Astyages, is one among several curious methods of eluding discovery, in the conveyance of secret intelligence, which we meet with
in the same historian.2 The story of Artabazus is as
follows: That general having laid siege to Potidaea,
was informed that Timoxenus was disposed to deliver
up the city by treachery; and it being a matter of the
greatest difficulty and danger to interchange intelligence with him, the following expedient was adopted:
A letter was written on a scroll, and wound round an
arrow, which was shot from a bow so as to reach a
certain place agreed upon, and an answer was sent
back by the same method. On one occasion, however, Artabazus missed the mark; and the arrow,
instead of falling where it was intended, struck the,shoulder of one of the citizens. The people, gathering round him and taking up the arrow, on which
they found the letter, carried it to the proper authorities, and thus the plot was discovered.3
Another more subtle method4 is related of Histimus. Being detained at Susa, by the Persian king,
and wishing to convey to Aristagoras, at Miletus, in
Ionia, information of his intended defection, he shaved
the head of one of his servants on whose fidelity he
1Herod. Lib. vi. s. 4.   2 Id. Lib. i. s. 123-4.
a Id. Lib. viii. s. I28   Id. Lib. v. S. 95.




476          LAW   OF  LITERA TURE.             [CH. I.
could rely, and wrote, or rather engraved, upon his
skull, a letter containing the secret. After this was
done, the hair was suffered to grow again; and as soon
as the head was covered, the man was sent to Miletus,
where he safely arrived, and delivered his message
to Aristagoras, who was to cause his head to'Humboldt, in his " Vues Pittoresques des Cordilleres,'.
relates, that in order to maintain postal communication,
between the shores of the South Pacific and the province of
Jaen de Brancamoros, Indians are employed, who, during two;
days, descend the river Guancabamba, or Chamaya, and afterwards the Amazon river, as far as Tomependa. The courier?.
before he commits himself to the water, wraps the few letters,.
with which he is charged monthly, sometimes in a handkerchief, and at other times in a species of drawers called guayuco,.
and this he disposes in the form of a turban round his head. In
this turban he also places the large knife or cutlass with which
he is always provided, less as means of defense than to assist him
in making his way though the underwood, for the Guancabamba
is not navigable throughout, by reason of the great number
of falls and rapids; these the postman passes by land, taking
again to the water as soon as all danger from them is over.
To assist him in swimming, the Indian provides himself with
a log of very light wood, generally the trunk of the bombax.
These men, who are known in the country as the swimming
couriers-el coreo que nada-have no occasion to encumber
themselves with provisions, their wants being abundantly
supplied by the hospitable inhabitants of the cottages which
they pass on the banks of the rivers. A similar mode of
securing the letters entrusted to their care, is adopted by the
couriers of Hindostan. When compelled, as they frequently
are, to cross a river by swimming, they deposit their letters inr
the turban, and thus convey them safely to the opposite shore.
One of these men having failed to make his appearance at the
appointed time, messengers were dispatched to search for him.
On the banks of a river which flowed across the route lay the
dead body of an alligator, with its jaws distended as if it had
suffered a violent death. They proceeded to examine it more
closely, and discovered the head of the unfortunate courier
completely choking up the passage of the throat, so that the
animal had died from strangulation; the letter was found
uninjured in the turban.




CH. I.]        OF MANUSCRIPTS.               477
be again shorn, and to read  what was inscribed
upon it.'
The scytale of the Spartans was a contrivance
made of two small cylinders of wood, smoothed and
polished, and of the same length and size. One of
these was taken by a general on his departure for
service, and its fellow retained by the magistrates at
home. Round one of these pieces of wood a leather
strap was wound, the edges touching each other in
every part with a perfect adjustment, and ending
exactly with the wood at each extremity. When a
secret despatch was to be sent, it was written
along the cylinder and over the places where the
edges of the strap were in contact. When the strap
was removed, the letters and words were detached so
as to fall into illegible disorder and confusion; and
in this state it was sent to the general, who alone
could make out the sense, by winding the strap
round his own cylinder, which brought again all
the letters into their proper places, making them
coincide as they had done when they were written
upon the cylinder in the hands of the council at
Sparta; and thus secrecy was maintained between the
parties.'
It was customary with the Roman generals, when
writing to the senate the news of a victory gained by
their valor and conduct, to fold their letters in laurel
leaves. A report had reached Rome of a defeat supposed to have been sustained by Posthumius, in a battle with the IEqui, which spread great consternation
through the city.  But the tide of success was
turned; and the Romans achieved so complete a
victory as nearly to annihilate the army of the AEqui.
1Aul. Gell. Noct. Att. lib. xvii. c. 9.




478          LAW   OF  LITERATURE.              [CH. IO
Litterie laureatae announced the event, and proclaimed
that the enemy's army was routed.'
The Romans were far behind the eastern nations
in adopting the convenience of the post. It does
not appear, even in the time of Cicero, that any public provision had been made for the conveyance of
letters of any description. The carriage was committed to some private hand, or special messenger,
usually a slave, who was called tabellarius. Men of
high condition often employed slaves, for freedmen, to
write their letters, called amanuenses; which domestics were held in great consideration, as persons of
a very confidential character. Sometimes, indeed,
the proper and expedient time for the delivery
of the letter was left to the discretion of thetabellarius.2
It appears, from Suetonius, that Augustus Coesar
felt the inconvenience arising from the want of a pub —
lic provision for the transmission of important
despatches; and that, in order to establish a speedy
intercourse with the provinces of the empire, he first
stationed young men at moderate intervals along the
high roads, and afterwards chariots, to facilitate the
transport of letters, and oral intelligence?  And this
"" Equorum exercitum  deletum" (Tit. Lib. I. v. c. 28).Roberts.
2 Cicero writes to Brutus (Cic. ad Fam. lib. xi. ep. xvi.;
and see Harat. lib. i. ep. xiii.): " Permagni interest, quo tibi hmec
tempore epistolareddita sit: utrum cum sollicitudinis aliquid
haberes, ad cum ab omni molestia vacuus esses. Itaque ei proecepi, quem ad te misi, ut tempus observaret epistolae tibi reddendae. Nam quemadmodum coram qui ad nos intempestive adeunt,
molesti saepe sunt; sic epistole offendunt non loco redditae. Si
autem ut spero, nihil te perturbat, nihil impedit: et ille, cui
mandavi, satis scite, et commode tempus ad te cepit adeundi: 
confido me, quod velim, facile a te impetraturum."
3Sueton, August.




CH. 1.]       OF MANUSCRIPTS.                 479g
continued to be the practice of his successors. The
word post is Roman, if we suppose it, as is probable,
to be derived from positus, the carriers being placed,
or posted, at certain settled distances from each other.
Its does not seem, however, that regular relays of
horses were part of the institution. The messengers
seized any horses they could find, till Trajan appointed regular horse-stations for the conveyance of
despatches and intelligence, of which a particular
mention is made in the Theodosian Code, "de Cursu
Publico." It was not, however, till in quite modern
times, that this most useful provision came under a
regular and general management, so as to be a system
of popular economy and common convenience. Lewis
Hornigk, who has furnished, in the German language,
a full and accurate treatise on posts, tells us that they
were first settled on this large scale, by the Count de
Taxis, at his own expense; in acknowledgment ofwhich the Emperor Matthias, in I6i6, gave him in
fief the charge of postmaster under him and his
successors.
It is said that Charlemagne established stations.
for couriers, who rode upon horseback, delivering
messages and parcels; but that the custom lapsed at
his death, and was revived in France by Louis XI.,
who made his stations four French miles apart.
But Rollin relates that France was indebted, for the
great conveniency of the post, to the university of
Paris. That university being at the time of its institution the only one in the kingdom, and having great
numbers of scholars resorting to it from all parts of
the country, took into its employment messengers,
whose business it was, not only to bring clothes, silver,
and gold for the students, but also to carry bags of
law proceedings, informations, and inquests; and, inr




480        LAW  OF LITERA TURE.               [CH. I.
process of time, to conduct all sorts of persons, indifferently, to and from Paris, finding horses and diet; as
also to convey letters, parcels, and packets for the
public, as well as the university. In the university
registers of the faculty of arts these messengers are
often styled nunczi volanles.  Until, in I576, by a
royal edict, Henry III. granted certain privileges to
royal messengers, similar to those which his predecessors had granted to the messengers maintained at
the charge of the university, the students were the
only post-riders, and the university the only postal department of France. It was in recognition of its services that Louis XV., by his decree of the council of
state, of the I4th of April, I 7I9, and by his letters patent, registered in parliament, and in the chamber of
accounts, ordered that, in all the colleges of the university, the students should be taught gratis; and to that
end, for the time to come, appropriated to the university one-twenty-eighth part of the revenue arising
from the general lease or farm of the posts and messengers of France, which twenty-eighth amounted in
that year to  184,000 livres, or about $37,000.  In
England we find but little trace of anything like a
post establishment till about the twenty-third year of
Elizabeth. In the early stages of society, private
persons departed but seldom fiom their homes or
families, and the business of commerce was transacted
with very little complication. The king's letters and
writs to summon his barons, command his sheriffs,
and collect his revenues, were carried, by special messenger, through the medium of a general establishment, charges for the conduct and expenses of which,
make frequent: items in the records of the royal household; and this practice was imitated by the more powerful nobles, who had their nuncii among their retainers.




CHE. I.]       OF  M3ANUSCRIPTS.                48r
For these nuncii, by degrees, fixed posts and stations
were established, for the maintenance of regular relays;
and in the time of Edward IV., during the war with
Scotland, certain posts, twenty miles apart, are said to
have been fixed for a succession of carriers, who were
so well equipped and furnished with means, as to
expedite the conveyance at the rate of one hundred
miles per diem. By statute 2 and 3 Edw. VI., ch. 3,
"' the rate for the hire of post-horses, for the conveyance
of letters, was fixed at one penny per mile."
In I58I, Thomas Randolph was appointed chief
postmaster-general of England, and seems to have
occupied himself more with the establishment and
supervision of post-houses, than with the introduction
of any great improvements in the transmission of the
mails.' There was no complete organization of mail
service, in England, until during the reign of James I.,
who constituted the office of postmaster of England
for foreign parts, and appointed Matthew Le Quester the first postmaster, with reversion to his son.
Le Quester appointed William Frizell and Thomas
Witherings his deputies. The latter became postmaster-general in I635, and was directed to establish
running-posts between London and Edinburgh, to go
night and day, and come back in six days. In i644,
Edmund Prideaux, a member of the house of commons, was appointed master of the posts, and first
established a weekly conveyance of letters into all
parts of the nation. In i656 an act was passed to'When the Spaniards invaded Peru, fifty-four years before
Randolph's appointment, they had found an admirable system
of postal communication in operation from Quito to Cuzco,
the couriers winding around their waists the quipu, a species
of sign-writing by means of knotted cords. News of the invaders was thus transported to the capital, as it had been by
pictures, when the Spaniards landed in Mexico.




482          LA W   OF  LITERA TURE.             [CIi. I.
settle the postage of England, Scotland, and Ireland,.
fixing the rates of letter postage and the prices for
post-horses.' Rowland Hill proposed, in a pamphlet,.
the sweeping changes which have connected his nameillustriously with the postal service in I837.
Parliament adopted the changes in I839, and they
went into operation in I840, under Hill's supervision..
Inland postage was reduced to the uniform rate of one
penny for a single half ounce; the franking privilege
was abolished, and to the dispatch of the mails at more
frequent periods, and increased speed in the delivery
of letters, was added prepayment, by stamps. In I84&8
the transmission of books by post was granted, at first,
at 6d. per lb. This was subsequently modified so as.
to give increased facilities for forwarding proofs, pictures, &c., at low  prices.2  The money-order system
"The rates of postage, previous to the act of I64.5, were,
for a single piece of paper: Under 80 miles, 2d.; between 8o
and I40 miles, 4d.; above I40, 6d'.; and on the borders and in
Scotland, 8d. That act raised the rates to 14d. for a distance.
of more than 300 miles, from which sum they were diminished
according to the distance, down to 2d. for 7 miles and under.
Between this period and i838, although a multitude of acts
relative to postal affairs were passed, the rates were not materially changed. All manner of devices for avoiding the payment of postage were adopted. The franking privilege was
at an early period granted to members of parliament and
officers of the government, and was much abused; and franks.
were sold openly.."-American Encyclopaedia.
2 In i849, the French mail tariff was fixed as follows:
For letters within Paris, 2 sous (2 cents nearly) when the
weight is under I3 grammes (not quite half an ounce), 4 sous.
if over I5 and under 30 grammes, &c.; for letters to or from
other parts of France, Algeria, and Corsica, 4 sous if under 15
grammes, &c. If not prepaid, one-half is added to these rates.
Newspapers must always be prepaid, but throughout France.
the postage is only I sou, and if treating on questions of political or social economy, only half that price.  For foreign
countries, the weight prescribed for single postage is 7i
grammes, or about I oz. In I859, the total number of Frenclh




CH. I.]         OF  MANUSCRIPTS.                  483
was copied from the Germans. In the colonies a
postal system was projected as early as I692, and introduced into Virginia under Sir Edmond Andros.
An act, passed shortly after his arrival, in i693 sets
forth a royal patent to Thomas Neale to establish a
post in the American colonies for the transportation
of letters and packets, " at such rates as the planters
should agree to give," or proportionable to the rates of
the English post-office.  Rates of a postage were
accordingly authorized, and the establishment of a
post-office in each county. Similar laws being passed
in Massachusetts and other colonies, —not, however,
without the exhibition of some doubts and jealousy,a colonial post-office system, though of a very limited
and imperfect character, was presently established
under this patent.' Neale's patent for colonial posts
having expired, an act of parliament extended the British post-office system to America. A chief office was
established at New York, -to which letters were to be
conveyed by regular packets across the Atlantic.
The same act regulated the rates of postage to be
paid in the plantations, exempted the posts from ferriage, and enabled postmasters to recover their dues
by summary process. A line of posts was presently
established on Neale's old routes, north to the Piscataqua, and south to Philadelphia, irregularly extended,
a few years after, to Williamsburg, in Virginia, the
post leaving Philadelphia for the south as often as
letters enough were lodged to pay the expense. The
post-offices was 3,703; the total number of persons employed
in the postal service was about 28,000. In i821, the receipts
were 24,000,000 francs ($4,732,000); in I859, 58,308,000 francs
($II1,256,444). The number of letters conveyed by post in
France in i859 was 259,450,ooo; 90 per cent. of the whole
number being prepaid.-American Encyclopcedia.
Hildreth's History of the United States, ii. I8I.




484          LA W  OF  Li'ERA TURE.           [CH. I.
postal communication subsequently established with
the Carolinas was still more irregular,' but was not
organized till 17Io. By act of parliament of that
year, the postmaster-general of the colonies was " to
keep his chief letter office in New York, and other
chief offices, at some convenient place or places, in
other of her majesty's provinces or colonies in America." The revenue was of course very small. In 1753
Benjamin Franklin was appointed postmaster-general
for the colonies, and was guaranteed the sum of'6oo per annum  for the salary of himself and his
assistant.2
After Franklin was dismissed from his office of
postmaster, by the royal government, one William
Goddard seems to have traveled from  colony to colony, exerting himself to get up a "constitutional
post-office " in opposition to the royal mail, which, by
this time was nearly broken down from failure of
postages. Finally the Congress of the Confederation
established a post-office system of its own, and appointed Franklin postmaster-general.
In I789, the reorganization of the general postoffice was delayed till more complete information
could be obtained, the establishment being, meanwhile, continued as it then stood.  Franklin, the first
continental postmaster-general, had been succeeded in
that office by his son-in-law, Richard Bache, and he by
Ebenezer Hazard, who still held it. President Wash1 Hildreth's Hist. of the United States, 262.
2 Franklin's first astounding innovation was in 176o, when
he startled the colonies by proposing to run a stage-wagon, to
carry the mail from Philadelphia to Boston, once a week,
starting from each city on Monday morning, and reaching its.
destination by Saturday night!
Hildreth's History of the United States, iii. 89.
Id. 2 ser. i. I05.




CHI. I.]       OF MANUSCRIPTS.                  485
ington appointed Samuel Osgood postmaster-general
upon his inauguration in I 789.
"Upon a bill," says Hildreth,1 "for the organization of the post-office system, the same difference of
opinion arose which had defeated any organization of
that department by the preceding congress. The propriety of vesting in the president, or the postmastergeneral, authority to designate and establish postroads was urged, on the ground of the better knowledge of the subject likely to be possessed by an officer
whose whole attention was devoted to it, and free
from those local influences to which members of congress might be subjected. But in the act as passed,
this authority was reserved to congress. A power,
however, by way of compromise, was vested in the
postmaster-general, to establish cross post-routes-the
contractors undertaking to carry the mail for the
postage. The postmaster-general was also authorized
to appoint his assistants, and all deputy postmasters;
and, after advertising for proposals, to make contracts
for carrying the mail by stage-coaches or on horseback, as he might judge convenient; but the whole
expenses of the department were to be paid out of the
income. The postmaster-general was to settle quarterly with his deputies, and himself as often with the
secretary of the treasury. The postage was fixed at
rates varying from six cents, for distances of thirty
miles or less, to twenty-five cents, for distances of four
hundred and fifty miles or over, with like amounts for
each inclosure-rates persevered in for more than fifty
years, till the danger of private competition led to
more moderate charges."
" Newspapers were to pay one cent each, for every
hundred miles or less, and a cent and a half for greater
History of the United States, 2 ser.,485.




486         LA W  OF LITERA TURE.           [CH. I.
distances. The franking privilege was given to members of congress, during the session and twenty days
afterward; also to the principal executive officers.
An attempt was made to strike out this provision,
but without success.  Robbery of the mail, or embezzlement, by any officer of the post, of letters containing money or valuable papers, was made a capital
offense; the opening, obtaining, or destroying other
letters was made punishable by a fine of three thousand dollars, and six months' imprisonment. The
salary of the postmaster-general was fixed at two thousand dollars, and that office, upon the resignation of
Osgood, was conferred on Timothy Pickering. The
deputy postmasters were to be paid, as theretofore,
by a commission on their receipts; but none were
to receive more than eighteen hundred dollars.
Though considered, at first, as an inferior office, not
entitling the holder to a seat in the cabinet, the extent
to which its patronage has reached has since made the
station of postmaster-general, in the eyes of politicians
at least, one of the most important posts in the government. Perhaps it was a perception of the influence
thus to be exerted, that made Jefferson so urgent, with
the president, that the general superintendent of the
post-office should be annexed to his department, rather
than to Hamilton's-a request which he backed with
the suggestion that the treasury department possessed
already such an influence as to swallow up the whole
executive powers, and to threaten to overshadow even
the office of president.' Return J. Meigs, the governor of Ohio, was appointed postmaster-general, in
the place of Granger, long distrusted as of the discontented faction, and who now provoked his dismission
by giving to Leib, a conspicuous leader of the same
Hildreth's History of the United States, 2 ser.




CH. I.]          OF  MANUSCRIPTS.                      487
clique, the lucrative office of postmaster of Philadelphia." 1
The postmaster-general was first made a cabinet
officer, under President Jackson.
The present postal regulations of the United
States provide as follows:
Hildreth's History of the United States, 2 ser.
2 Following is the act of congress approved June 23d,:I874, and sections explanatory thereof:
Sec. 5. That on and after the ist day of January, I875, on.all newspapers and periodical publications mailed from a
known office of publication or news-agency, and addressed to
regular subscribers or news-agents, postage shall be charged,at the following rates: On newspapers and periodical publications, issued weekly and oftener, two cents a pound or fraction
thereof; less frequently three cents a pound or fraction there-of: Provided, That nothing in this act shall be held to change,or amend section 99 of the act entitled, " An act to revise,
consolidate, and amend the statutes relating to the post-office
department," approved June 8th, I872.
Sec. 6. That on and after the ist day of January, I875,:upon the receipt of such newspapers and periodical publications at the office of mailing, they shall be weighed in bulk,.and postage paid thereon by a special adhesive stamp, to be,devised and furnished by the postmaster-general, which shall,be affixed to such matter, or to the sack containing the same,,or upon a memorandum  of such mailing, or otherwise, as the
postmaster-general may, from time to time, provide by reg-ulation.
Sec. 7. That newspapers, one copy to each actual subscriber
-residing within the county where the same are printed, in
whole or in part, and published, shall go free through the
-mails; but the same shall not be delivered at letter-carrier,offices or distributed by carriers, unless postage is paid thereon.as by law provided.
Sec. 8. That all mailable matter of the third class, referred
-to in section I33 of the act entitled " An act to revise, consolidate, and amend the statutes relating to the post-office
department," approved June 8th, I872, may weigh not exceeding four pounds for each package thereof, and postage shall
-be charged thereon at the rate of one cent for each ounce or:fraction thereof; but nothing herein contained shall be held to




488          LA W   OF  LITERATURE.               [CH. I.
Letters in the United States cannot be carried out
of the mail except in postage-stamped envelopes..
One not acting  as a common carrier, may carry a
change or amend section I34 of said act. (Amended by act of
March 3d, I875, making it read one cent for each ounce.)
Sec. 9. That the postmaster-general, when in his judgment
it shall be necessary, may prescribe, by regulation, an affidavit
in form, to be taken by each publisher of any newspaper or
periodical publication sent through the mails under the provisions of this act, or news-agent who distributes any of such
newspapers or periodical publications under the provisions of
this act, or employee of such publisher or news-agent, statingthat he will not send, or knowingly permit to be sent, through,
the mails, any copy or copies of such newspapers or periodical
publications, except to regular subscribers thereto, or newsagents, without prepayment of the postage thereon at the rateof one cent for each two ounces or fractional part thereof;
and if such publisher or news-agent, or employee of such.
publisher or news-agent, when required by the postmastergeneral or any special agent of the post-office department
to make such affidavit, shall refuse so to do, and shall thereafter, without having taken such affidavit, deposit any newspapers in the mail for transmission, he shall be deemed guilty
of a misdemeanor; and, on conviction, shall be fined not exceeding one thousand dollars for each refusal; and.if any such.
person shall knowingly and willfully mail any matter without
the payment of postage as provided by this act, or procure the
same to be done with the intent to avoid the prepayment of
postage due thereon; or if any postmaster or post-office official
shall knowingly permit any such matter to be mailed without_
the prepayment of postage as provided in this act, and in vio-.
lation of the provisions of the same, he or they shall be deemed
guilty of a misdemeanor, and, on conviction thereof, shall be
fined not more than one thousand dollars, or imprisoned not
exceeding one year, or both, in the discretion of the court.
Sec. i. That the sixty-third, eightieth, eighty-first, eighty —
second, eighty-third, eighty-fourth, and eighty-sixth sections.
of the said " act to revise, consolidate, and amend the statutes.
relating to the post-office department," approved June 8th,.
I872, be amended to read as follows:
" Sec. 63. That the postmasters, except the postmaster at:
New York city, whose annual salary is hereby fixed at six
thousand dollars, shall be divided into four classes, as follows:
The first class shall embrace all those whose annual salaries




CH. I.]          OF  MANUSCRIPTS.                     489
sealed letter, whether in a stamped envelope or not;
but to continue so to do, for hire or profit, will subject
to a penalty of one hundred and fifty dollars. Newsare not more than four thousand dollars nor less than three
thousand dollars; the second class shall embrace all those
whose annual salaries are less than three thousand dollars but
not less than two thousand dollars; the third class shall embrace all those whose annual salaries are less than two thousand dollars but not less than one thousand dollars; the fourth
class shall embrace all postmasters whose annual compensation, exclusive of their commissions on the money-order
business of their offices, amounts to less than one thousand
dollars.
" Sec. 8c. That the postmaster at New York City and postmasters of the first, second, and third classes, shall be appointed and may be removed by the president, by and with
the advice and consent of the senate, and shall hold their
offices for four years, unless sooner removed or suspended according to law; and postmasters of the fourth class shall beappointed and may be removed by the postmaster-general, by
whom all appointments and removals shall be notified to theauditor for the post-office department.
" Sec. 8i. That the compensation of the postmaster at NewYork city shall be six thousand dollars per annum, and the
respective compensations of postmasters of the first, second,
and third classes shall be annual salaries, assigned in even
hundreds of dollars, and payable in quarterly payments, to be
ascertained and fixed, by the postmaster-general, from their
respective quarterly returns to the auditor for the post-office
department, or copies or duplicates thereof, for four quarters
immediately preceding the adjustment or readjustment, by
adding to the whole amount of box-rents, not exceeding two
thousand dollars per annum, commissions also not to exceed
two thousand dollars per annum on the other postal revenues,
of the office, at the following rates, namely: On the first one
hundred dollars per quarter, fifty per centum; on all over one
hundred dollars and not over four hundred dollars per quarter,
forty per centum; on all over four hundred and not over two,
thousand four hundred dollars per quarter, thirty per centum;
and on all over two thousand four hundred dollars per quarter,
ten per centum. And in order to ascertain the amount of the:
postal receipts of each office, the postmaster-general may require postmasters to furnish duplicates of their quarterly returns to the auditor, at such times and for such periods as he:




.490          LAW   OF  LITERA TURE.                CH. I,
papers, magazines, and periodicals, may be carried out,of the mail for sale or distribution to subscribers, but
may deem necessary in each case: provided, that whenever,.ly reason of the extension of free delivery of letters, the boxrents of any post-office are decreased, the postmaster-general
may allow, out of the receipts of such office, a sum sufficient
to maintain the salary thereof at the amount at which it had
been fixed before the decrease in box-rents.
" Sec. 82. That the compensation of postmasters of the
fourth class shall be the box-rents collected at their offices, and
commissions on other postal revenues of their offices at the
rate of sixty per centum on the first one hundred dollars or
less per quarter; fifty per centum on the next three hundred
dollars or less per quarter; forty per centum on the excess
above four hundred dollars per quarter; the same to be ascertained and allowed by the auditor, in the settlement of the
quarterly accounts of such postmasters: provided, that when
-the aggregate annual compensation, exclusive of commissions
~on money-order business of any postmaster of this class, shall
amount to one thousand dollars, the auditor shall report such
-fact to the postmaster-general, in order that such postmaster
may be assigned to his proper class, and his salary fixed as
heretofore provided.
"Sec. 83. That the salaries of postmasters of the first,
-second, and third classes, except that of the postmaster at New
York city, shall be readjusted by the postmaster-general once
in two years, and in special cases as much oftener as he may
deem expedient.
"Sec. 84. That the postmaster-general shall make all
orders assigning or changing the salaries of postmasters in
writing, and record them in his journal, and notify the change
-to the auditor; and any change made in such salaries shall not
*take effect until the first day of the quarter next following
such order: provided, that in cases of not less than fifty per
*centum increase or decrease in the business of any post-office,
the postmaster-general may adjust the salary of the postmaster
tat such office, to take effect from the first day of the quarter or
period the returns for which form the basis of readjustment.
" Sec. 86. That the postmaster-general may designate offices:at the intersection of mail routes as distributing or separating,offices; and where any such office is of the third or fourth'class he may make a reasonable allowance to the postmaster
for the necessary cost of clerical services arising from such
duties."




CH. I.]          OF  MANUSCRIPTS.                      491
if put into a post-office for delivery, postage must be
paid thereon.
Sec. 12. That section 245, section 246, section 247, section:25I, and section 253 of the act entitled " an act to revise, consolidate, and amend the statutes relating to the post-office department," approved June 8th, i872, be amended to read as
follows:
Sec. 245. That every proposal for carrying the mail shall
be accompanied by the bond of the bidder, with sureties approved by a postmaster, and in cases where the amount of the
bond exceeds five thousand dollars, by a postmaster of the
first, second, or third class, in a sum to be designated by the
postmaster-general in the advertisement of each route; to
which bond a condition shall be annexed, that if the said bidder shall, within such time after his bid is accepted as the postmaster-general shall prescribe, enter into a contract with the
United States of America, with good and sufficient sureties, to
be approved by the postmaster-general, to perform the service
proposed in his said bid, and, further, that he shall perform the
said service according to his contract, then the said obligation
to be void, otherwise to be in full force and obligation in law;
and in case of failure of any bidder to enter into such contract
to perform the service, or, having executed a contract, in case
of failure to perform the service, according to his contract, he
and his sureties shall be liable for the amount of said bond as
liquidated damages, to be recovered in an action of debt on
the said bond. No proposal shall be considered unless it shall
be accompanied by such bond, and there shall have been affixed
to said proposal the oath of the bidder, taken before an officer
qualified to administer oaths, that he has the ability, pecuniarily, to fulfill his obligations, and that the bid is made in
good faith, and with the intention to enter into contract, and
perform the service, in case his bid is accepted.
Sec. 246. That before the bond of a bidder provided for in
the aforesaid section is approved, there shall be indorsed
thereon the oaths of the sureties therein, taken before an
officer qualified to administer oaths, that they are owners of
real-estate, worth, in the aggregate, a sum double the amount
of the said bond, over and above all debts due and owing by
them, and all judgments, mortgages, and executions against
them, after allowing all exemptions of every character whatever.
Sec. 247. That any postmaster who shall affix his signature
to the approval of any lond of a bidder, or to the certificate




492          LAW   OF  LITERA TURE.               [CH. I,
To insure the forwarding of a letter through the
post-office, it must have not less than three cents in
postage-stamps affixed.  The word "paid" endorsed
of sufficiency of sureties in any contract before the said bond
or contract is signed by the bidder or contractor and his sureties, or shall knowingly, or without the exercise of due diligence, approve any bond of a bidder with insufficient sureties,
or shall knowingly make any false or fraudulent certificate,
shall be forthwith dismissed from office, and be thereafter disqualified from holding the office of postmaster, and shall also
be deemed guilty of a misdemeanor, and, on conviction
thereof, be punished by a fine not exceeding five thousand
dollars, or by imprisonment not exceeding one year, or both.
Sec. 251. That after any regular bidder whose bid has
been accepted, shall fail to enter into contract for the transportation of the mails according to his proposal; or, having
entered into contract, shall fail to commence the performance
of the service stipulated in his or their contract as therein
provided, the postmaster-general shall proceed to contract
with the next lowest bidder for the same service, who will
enter into a contract for the performance thereof, unless the
postmaster-general shall consider such bid too high, in which
case he shall re-advertise such service. And if any bidder
whose bid has been accepted, and who has entered into a contract to perform the service according to his proposal; and, in
pursuance of his contract has entered upon the performance
of the service, to the satisfaction of the postmaster-general,
shall subsequently fail or refuse to perform the service according to his contract, the postmaster-general shall proceed to
contract with the next lowest bidder for such service, under
the advertisement thereof (unless the postmaster-general shall
consider such bids too high), who will enter into contract and
give bond, with sureties, to be approved by the postmastergeneral, for the faithful performance thereof, in the same penalty and with the same terms and conditions thereto annexed
as were stated and contained in the bond which accompanied
his bid; but in case each and every of the next lowest bidders
for such service whose respective bids are not considered too
high by the postmaster-general shall refuse to enter into contract and give bond as herein required for the faithful performance of his contract, the postmaster-general shall immediately advertise proposals to perform the service on said route.
Whenever an accepted bidder shall fail to enter into contract,
or a contractor on any mail route shall fail or refuse to,




CH. I.]         OF  MANUSCRIPTS.                    493
on a letter is not regarded at the office of delivery;
letters so marked, and not having any stamp affixed,
are treated as unpaid.
perform the service on said route according to his contract,
or when a new route shall be established, or new service
required; or when, from any other cause, there shall not be a
contractor legally bound or required to perform such service,
the postmaster-general may make a temporary contract for
carrying the mail on such route, without advertisement, for
such period as may be necessary, not in any case exceeding
six months, until the service shall have commenced under a
contract made according to law: Provided, however, That
the postmaster-general shall not employ temporary service on
any route at a higher price than that paid to the contractor
who shall have performed the service during the last preceding regular contract term.  And in all cases of regular
contracts hereafter made, the contract may, in the discretion
of the postmaster-general, be continued in force beyond its
express terms for a period not exceeding six months, until a
new contract with the same, or other contractors, shall be
made by the postmaster-general.
Sec. 253. That hereafter all bidders upon every mail route
for the transportation of the mails upon the same, where the
annual compensation for the service on such route at the
time exceeds the sum of five thousand dollars, shall accompany their bids with a certified check or draft, payable to the
order of the postmaster-general, upon some solvent national
bank, which check or draft shall not be less than five per
centum on the amount of the annual pay on said route at the
time such bid is made, and, in case of new or modified service,
not less than five per centum of the amount of the bond of the
bidder required to accompany his bid, if the amount of the
said bond exceeds five thousand dollars. In case any bidder,
on being awarded any such contract, shall fail to execute the
same with good and sufficient sureties, according to the
terms on which such bid was made and accepted, and enter
upon the performance of the service to the satisfaction of the
postmaster-general, such bidder shall, in addition to his
liability on his bond accompanying his bid, forfeit the amount
so deposited to the United States, and the same shall forthwith
be paid into the treasury for the use of the post-office department; but if such contract shall be duly executed and the
service entered upon as aforesaid, such draft or check so
deposited, and the checks or drafts deposited by all other




494           LA W   OF  LITERA TURE.             [CH. IA double rate of six cents for each half ounce
or fraction thereof, is chargeable on letters reaching:
their destination which have not had  one full rate
bidders, on the same route, shall be returned to the respective
bidders making such deposits. No proposals for the transportation of the mails where the amount of the bond required
to accompany the same shall exceed five thousand dollars,
shall be considered, unless accompanied with the check or
draft herein required, together with the bond required by a
preceding section: Provided, That nothing in this act shall
be construed or intended to affect any penalties or forfeitures.
which may have heretofore accrued under the provisions of
the sections hereby amended.
Sec. I4. That hereafter the postage on public documents.
mailed by any member of congress, the president, or head of
any executive department, shall be ten cents for each bound,
volume, and on unbound documents the same rate as that on
newspapers mailed from a known office of publication toregular subscribers, and the words "public document,"
written or printed thereon, or on the wrapper thereof, and
certified by the signature of any member of congress, or by
that of the president, or head of any executive department
shall be deemed a sufficient certificate that the same is a public document; and the term "public document" is hereby
defined to be all publications printed by order of congress, oreither house thereof: Provided, That the postage on each
copy of the " Daily Congressional Record " mailed from the
city of Washington as transient matter shall be one cent.
The following additional sections and parts of sections
of an act approved March 3rd, i875, making appropriations
for the service of the post-office department, &c., relate to thefranking privilege, and other matters necessary to be noticed:
Sec. 3.... That the provisions of section thirteen of the
act of June 23rd, i874, entitled " an act making appropriations for the service of the post-office department for the fiscal
year ending June- 3oth, I875, and for other purposes," shall
apply to ex-members of congress and ex-delegates for the
period of nine months after the expiration of their terms as
members and delegates, and postage on public documents.
mailed by such persons shall be as provided in said section.
Sec. 5. That from and after the passage of this act, the
"Congressional Record," or any part thereof, or speeches
or reports therein contained, shall, under the frank of a.
member of congress or delegate, to be written by himself




ClI. I.]        OF  MANUSCRIPTS.                   495
prepaid at the mailing office. If a one or two cent
stamp has been affixed at the mailing office the
amount will be deducted, and the rest charged.
After a letter has passed from  the mailing office
the delivering of it cannot be delayed or prevented
by an alleged writer; but if the writer thereof request
the return of a letter placed in a post-office which has
not left in the mail, the postmaster must deliver it,.
provided he is furnished with proper evidence that
the party applying is the writer; and, if the application be made before the stamp is canceled it may be
returned without canceling the stamp. But a request
to return, on a drop-letter, will only be regarded, however, when the address, to which it is to be returned, is
within the delivery of the office into which such letter
has been dropped. For instance, if a letter prepaid at
the drop rate is deposited in the New York postoffice, having indorsed thereon a request if not delivered in ten days to be returned to some address in.
Boston, such request cannot be regarded.
When a letter-carrier delivers a letter at a designated address, in the absence of instructions tobe carried in the mail free of postage, under such regulations as the postmaster-general may prescribe; and that publicdocuments already printed, or ordered to be printed, for the
use of either house of congress may pass free through themails upon the frank of any member or delegate of the present
congress, written by himself, until the Ist day of December,.
A. D. i875.
Sec. 7. That seeds transmitted by the commissioner of
agriculture, or by any member of congress or delegate receiving seeds for distribution from said department, together with
agricultural reports emanating from that department, and sotransmitted, shall, under such regulations as the postmastergeneral shall prescribe, pass through the mails free of charge,
and the provisions of this section shall apply to ex-members
of congress and ex-delegates, for the period of nine months
after the expiration of the terms of members and delegates,




496         LA W  OF LITERA TURE.           [CII. I.
the postmaster to the contrary, it is a legal delivery,
and such letter cannot be remailed unless prepaid
anew; but parties may insure their letters being forwarded without additional charge, by advising the
postmaster in writing. To leave word with a janitor,
landlord, or clerk, or any person upon the premises
except the postmaster, will not be considered a notice
to him.
A letter received by mail, may, in the absence of
the principal person named in the address, be delivered
to any person to whose care it is directed, who in that
case becomes in the nature of an agent of the writer
in its delivery. All connection with and responsibility for such letter, on the part of the post-office department, cease and determine upon its passage into
the possession of either of the persons named in the
address; and the department has no jurisdiction in
any questions arising, between the parties, as to the
opening or other use of such letter, or of its contents.
Delivery of a letter at a designated address, it the
absence of any instructions to the postmaster to the
contrary, is a legal delivery, and such letter cannot
be remailed unless prepaid anew.
Postmasters are not obliged to accept in payment
for postage stamps or stamped envelopes, wrappers,
&c., any currency so mutilated as to be uncurrent, or
the genuineness of which is at all questionable, nor
to receive more than twenty-five cents in copper or
nickel coins, nor to affix stamps to letters, nor to make
change, except as a matter of courtesy, or to give
credit for postage.
Cut postage stamps, stamps cut from stamped envelopes, mutilated postage stamps, and internal revenue
stamps cannot be accepted in payment of postage. Letters deposited in a post-office having such matter affixed




CH. I.]        OF  MANUSCRIPTS.                497
will be held for postage; and the use or attempted
use, in payment of postage, of a postage stamp or:stamped envelope, or any stamp cut from such
stamped envelope, which has been before used in
payment of postage, is punishable with a fine of fifty
dollars.
Postal cards are cards issued by the post-office
department,' having one blank side upon which messages may be written, for transportation any distance
through the mails. These cards are to be treated by
the mail service as sealed letters; with the exception
only that, if remaining uncalled for by the person to
whom they are directed for sixty days, they will not
be sent to the dead letter office, or returned upon
request, but will be burned by postmasters. In using
postal cards care should be taken to write or print
nothing upon the side reserved for the address; as, if:anything but the address be inscribed upon that side,
they are unmailable. They are unmailable likewise if
anything be pinned, pasted, gummed, or otherwise
attached to them, or if two postal cards be pinned or
pasted together.  No card is a postal card except
such as are issued by the post-office department.
(Cards issued by private parties, containing anything
written besides the address, are ratable as letters, and
will be sent subject to letter postage.
The postal regulations prohibit the mailing of
postal cards containing writing of an indecent character, or scurrilous epithets, but there is nothing to
prohibit the mailing of a postal card containing a bill
or notice of indebtedness; and such communications
on postal cards mav be written or printed, or both.2
Postmasters have the right to read communications on postal cards, and to exclude them from the
U. S. Postal Laws, ~ 170, p. 77.    2Post, page 5Io.
32




498         LA W  OF LITERA TURE.           [CH. L.
mail when they contain obscene, scurrilous, or abusive
epithets, but they should not disclose information
obtained by reason of such perusal.
A postal card reaching its destination, and having
been delivered to the person named in the address, has
performed its functions as a postal card. In order to
again pass in the mails it must be prepaid at letter
rates of postage.
A postal card with one address erased and another
substituted, is mailable at letter rates only; and a
postal card on which anything is written, printed, or
attached for the purpose of concealing the message, or
any part thereof, is mailable only at letter rates.
The post-office department has no authority to
issue postal cards of any other denomination than
one cent. For all other purposes of correspondence
postage stamps are issued.
All postage stamps of the department issues of
I86i, and subsequent dates, are still available for the
payment of postage.  Stamps issued prior to I86I
have been declared obsolete, and will not be received
in payment of postage.
Postmasters are not allowed to exchange postage
stamps for goods, or to traffic in them in any manner
whatever; nor has the post-office department facilities
for the redemption or exchange of postage stamps in
the hands of private parties.
Under the present regulations nothing is allowed
to pass through the mail without stamps; and thepost-office officials themselves, writing upon public
business, are required to employ the stamps now
issued for the particular department to which they are
attached.
In printed matter sent througl  the mails, no written
matter is permitted to be inclosed, with the exception




CH. I.]        OF MANUSCRIPTS.                  499
that bills or receipts for subscription to regular subscribers to a newspaper, may be covered within them. A
regular subscriber to a periodical has been pronounced
to be one who regularly receives-through a designated
and certain post-office, mailed from a known publication office or news agency, and at the post-office for
the district in which such office is situated, or the
nearest thereto, and at stated intervals-a newspaper,
magazine, or other periodical, for which he has paid
or undertaken to pay a subscription price, or for whom
some other person has paid or undertaken so to pay.
But, in the latter case, such payment must have been
made or undertaken to be made, with the previous
consent or request of the receiver. One to whom a
publication is sent without his request or consent is
not understood to be a"regular subscriber" within
the meaning of the regulation. Matter printed for
gratuitous circulation, or specimen copies of newspapers, will not be received at regular subscription rates.
" Should a postmaster suspect that a publisher is
in the habit of mailing his periodicals to persons who
are not regular subscribers thereto, without prepayment
of postage as for transient printed matter, he should
require such publisher to take and subscribe the oath
in the form set forth in the 9th section, act of June
23, I874.1  If the publisher, after having been requested to take the oath, shall, either by himself or
any of his agents, repeat the offense, the postmaster
should present a written statement of all the facts of
the case to the United States attorney for the judicial district in which his office is situated, in order
that the offender may be prosecuted for the penalty
named in the law-'$I,ooo. Upon receipt of news.
papers or other periodicals at a post-office, addressed
Ante, p. 488.




500         LA W  OF LITERA TURE.           [CH. 1.
to persons who disclaim being subscribers thereto,
and upon which postage has not been paid by stamps,
as required for transient printed matter, the fact should
be promptly reported to the postmaster at the mailing
office, giving the name and date of the periodical,
the place of its publication, name of the publisher
and of the person who denied being a subscriber
thereto, with a request that such publisher be required
to take the oath referred to in section 9, act of June
23, I874. Should the offense be repeated by the same
publisher, after notice given to the mailing office,,
the case should be fully reported to the post-office
department." 
Any concealment or inclosure of written within
printed matter, will subject the sender to a fine of five
dollars; unless the party to whom it is addressed
consent to pay letter postage thereon. If he decline
so to do, the matter must be returned to the sending office in order that the sending postmaster may
cause the offender to be prosecuted for the penalty.
Anything written upon the envelope or wrapper
which covers the printed matter, more than is absolutely necessary to insure its accurate delivery-even
such a request to return as is allowable in the case of
letters-subjects the printed matter to letter postage.
But a professional card imprinted upon the wrapper,
or pen marks upon the inclosed printed matter;designed to call attention to a portion thereof or to
correct a typographical error-is permissible.  The
rule seems to be that no information, additional to
that printed in the printed matter, shall be conveyed
with a pen. A mark calling attention to a portion
of the print or correcting a typographical error therein,
it appears, is not considered additional matter-though
United States Official Postal Guide, p. 23.




CH. I.]        OF MANUSCRIPTS.                5o0
if the price of an article mentioned in the print, or
if signs which conveyed any meaning to the writer
or receiver, were added with a pen, such pen marks
would be. The wrapper of this printed matter may
be transparent and sealed; or open at the ends; or
secured by a rubber band, or twine, or it may be of
any such other character, form or condition, as to permit the examination of its contents by the postoffice officials; the regulation being that the wrapper must be such an one as to allow of the examination without being destroyed. Postmasters are not
at liberty to destroy a wrapper; therefore, if the scrutiny is not facilitated without, the matter must pay
letter postage.
Publishers of newspapers are allowed to fold within
their newspapers any printed supplement theretothat is to say, any matter crowded out of the paper
itself, or that, from want of time, or for greater convenience, is separately printed. Such a supplement is
considered and required to be a genuine accompaniment of the paper; printed with the intent and purpose
of supplying an omission in the particular issue of the
paper which it accompanies, and not for any distinct
purpose, without which the newspaper itself would be
complete (such as a tradesman's advertisement, a postal
card, or the like). A package of papers from a publishing-office sent to any one address, cannot be considered as being sent in the course of regular subscription.  Newspaper-dealers, however, may return
surplus papers to the publication-office at pound rates.
When a subscriber to a newspaper or periodical
changes his post-office, he cannot have his publications forwarded from the old office to the new, free of
postage. A request to forward printed matter should
be accompanied with an amount sufficient to prepay




502         LA W  OF LITERA TURE.           [CH. I.
the postage at third-class rates. Publications borrowing the name, and having some of the characteristics
of a newspaper, printed for gratuitous circulation, and
depending on their advertisements for support, cannot
be sent by mail, gratuitously, —to persons not actual
and bona fide subscribers,-upon the footing of newspapers sent from a known office of publication and to
regular subscribers.
Publications printed in weekly parts, but not
offered for mailing until bound in monthly parts, must
be prepaid at the rate of three cents per pound, or
fraction thereof, and will be classed with publications
issued less frequently-than once a week. There is no
Daw authorizing the free exchange of publications
between publishers. Such exchanges may, however,
oe included with the bulk mail, and be prepaid at the
pound rates of two or three cents, according to frequency of issue.
Ready printed outsides ("patent outsides") can
only be sent in the mails at the rate of postage, and
under the rules, governing third-class matter, and will
not be considered as newspapers.
The delivery, in the United States, of postal matter, is not controlled by acts of congress, or by statutes, but by the rules and regulations of the post-office
department. The object of the department being to
facilitate, by every means in its power, the delivery of
mailed matter to the persons for whom it is intended.
Where a mail arrives at a post-office after closing, on
Saturday night, a postmaster is not obliged to keep
the office open on Sunday, except for an hour or more,
if public convenience seem to require it. In the case
of registered letters and money-orders, postmasters are
expected to exercise a sound discretion, and require
such proofs of identity of persons unknown to them,




CH. I.]         OF  MANUSCRIPTS.                   503
who claim the money, as are ordinarily required in
banking institutions, from persons presenting checks
or drafts. And in the case of advertised letters, parties
should be interrogated as to from  whence they are
expecting correspondence, &c., &c.
Each post-office box or drawer, in all post-offices,
is restricted to the use of one family, firm, or company,
and the rent therefor must be paid at least one quarter
in advance. A person hiring a post-office box may
have the letters of his family, firm, or company, or letters addressed to his friends stopping temporarily with
him-if directed to his care or to the number of the
box-put into it. But letters addressed to other persons residing in the same place, and living and doing
business separate and apart from a box-holder, will not
be placed therein.
In every case of loss by mail, the department
should be notified of the particulars, as the name of
the office in which the letter was posted, and the date
of mailing, and by whom; the names of the writer
and the person addressed; the amount and a description of the inclosure; the office to which addressed;
whether mailed direct or for distribution-if the latter,
to what distributing office it was mailed, and whether
registered or unregistered, with any other particulars
that may aid in making a thorough investigation.
Communications on this subject are to be addressed:
"Second Assistant Postmaster-General, Division of
Mail Depredations."
Printed matter, merchandise, and other third-,class' matter cannot be forwarded from the office' Mailable matter in the United States is divided into three,classes, for convenience of regulation. The first class consists
of letters: i.e., all correspondence wholly or partly in writing,
excepting book-manuscript, and corrected proof-sheets sent'between publishers and authors; all local or " drop " letters,




504          LAW   OF  LITERA TURE.              [C. CH. I
to which  it is addressed, unless the postmaster isg
furnished with postage at the rate of one cent for each
ounce, or fraction thereof, for such purpose. Neithercan a postmaster regard a request to return indorsed
on such matter, except he is furnished with postage as.
above.
Only matter subject to letter postage will beregistered by the department.  Packages of mutilated
currency sent for redemption to the treasurer of the
United States may be registered free of charge, but
postage must be paid at letter rates, and so copyright
matter for the librarian of congress must be nowprepaid at regular post-office rates.
Letters addressed to initials or fictitious names arenot deliverable, unless the address contains a desig —
and postal-cards issued by the department, written visitingcards, music-manuscript, and architects' drawings; though it
has been held that photographs of such drawings are third-class,
matter. The second class consists of matter exclusively in
print, regularly issued, at known intervals, from a fixed officeof publication, bearing no written addition of writing, sign,.
or mark. The third class includes all pamphlets, occasional
publications, magazines, transient newspapers, handbills, post-.
ers, prospectuses, books, book-manuscript (By U. S. O. P. G.
No. I, manuscript for publication in newspapers, magazines,,
or periodicals are subject to letter-postage; and any notation,
made on corrected proof of book-matter, asking for, convey —
ing, or giving information will be subject to letter-postage),.
proof-sheets, corrected proof-sheets, unsealed circulars, maps,
engravings, prints, blanks, flexible patterns, articles of merchan —
dise, phonographic paper, sample-cards, letter-envelopes, postal
envelopes, and wrappers, cards, plain and ornamental paper,.
photographic representations of different types, seeds, cuttings,
bulbs, roots, scions, merchandise, almanacs, and all other matterwhich may be declared mailable by law, and all other articles..
not above the weight prescribed by law, which are not, from
their form or nature, liable to destroy, deface, or otherwise injure the contents of the mail-bag, or the person of any one engaged in the postal-service; but no written matter, or request
to return must be written upon matter of this class.




CH. I.]        OF  MANUSCRIPTS.                  505
nated place of delivery, for example: Letters addressed A B, station G, New York, are not deliverable; but a letter addressed A B, stating street and
number, or a box number, is deliverable.
Packages containing liquids, poisons, glass, live
animals, sharp-pointed instruments, sugar, explosive
chemicals, or any other matter liable to deface or
destroy the contents of the mail, or injure the person
of any one connected with the service, must be
rigidly excluded from the mails. If such matter be
found in any post-office, or in any mail pouch or sack,
it must be retained by the postmaster, and the department (third assistant postmaster-general) notified
of the fact, when instructions will be given as to its.
disposition. If found by a postal clerk or route agent,.
it must be delivered to the post-office at the end of
the route, where it will be treated as above directed,
All books, pamphlets, circulars, prints, &c., of an
obscene, lewd, lascivious, vulgar, or indecent character;all letters, or circulars concerning illegal lotteries.
(though lottery schemes, sanctioned by enactments
of state legislatures, are held to be legal, and letters.
and circulars concerning such will be transported
through the mails); so-called gift concerts, or other
similar enterprise offering prizes, or concerning schemes,
devised and intended to deceive and defraud the
public, for the purpose of obtaining money under
false pretenses; letters upon the envelope of which,.
or postal card upon which, scurrilous epithets have
been written or printed, or disloyal devices printed or
engraved, must be withdrawn from the mails by
postmasters at either the mailing or the delivery office,.
marked unmailable, and sent to the dead-letter office.
Postmasters will promptly notice violations of this
section, and where the party by whom such matter is.




50o6         LA W   OF  LITERA TURE.            [CH. 1.
mailed is known, the attention of the United States
attorney for the district must be called to the case, and
the evidence necessary for conviction, including the
matter in question, placed in his hands.' The case
must also be reported to the special agent of the
department for the district, and all the facts at once
communicated to the department (second assistant
postmaster-general, division of mail depredations and
special agents). If the party sending be unknown,
the matter must be sent to the third assistant
postmaster-general, in a securely-sealed package, with
a letter advising him  of the transmission  of the
package, sent by the same mail, but in a separate
envelope. The weight of any package to be sent in
the mail must not exceed four pounds, except secondclass matter, documents printed by order of congress,,or emanating from any of the executive departments.2
1Sections 148, I49.  See United States Official Postal
Guide: New York, Hurd & Houghton.' The present postage rates of the United States are as
follows:
A single rate of three cents is uniformly established on domestic letters: i.e., letters within the various states and terri*tories of the United States, not exceeding half an ounce;
double rate if exceeding half an ounce, but not exceeding an
ounce; treble rate if exceeding an ounce, but not exceeding,an ounce and a half; and so on, charging an additional rate
for every additional half ounce, or fraction of half an ounce.
At the post-office where letters brought by vessels or steamboats not employed in carrying the mail from any domestic or
foreign port are deposited, they will be charged with double
rates of postage, to be collected at the office of delivery-that
is to say, six cents for the single weight if mailed, and four,cents the single weight if delivered at the office; but if such
letter has been prepaid by United States stamps at such double
rate of postage, no additional charge will be made. If only
partly prepaid by stamps, the unpaid balance will be charged
<and collected on delivery.
On first-class matter (letters, sealed packages, mail-matter




CH. I.]          OF  MANUSCRIPTS.                    507
The  post-office is a department of the general
government, created by statute, and its officers are
paid by the government, and cannot be understood
wholly or partly in writing, except book-manuscript and corrected proofs passing between authors and publishers, and except local or drop-letters, or United States postal-cards; all
printed matter so marked as to convey any other or further
information than is conveyed by the original print, except the
correction of mere typographical errors; all matte: otherwise
chargeable with letter-postage, but which is so wrapped or secured that it cannot be conveniently examined by postmasters
without destroying the wrapper or envelope; all packages containing matter not in itself chargeable with letter-postage, but
in which is inclosed or concealed any letter, memorandum, or
othei thing chargeable with letter-postage, or upon which is
any writing or memorandum; all matter to which no specific
rate of postage is assigned; and manuscript for publication in
newspapers, magazines, or periodicals), three cents for each
half ounce, or fraction thereof.
On local or drop-letters, at offices where free delivery by
carriers is established, two cents for each half ounce, or fraction thereof.
On local or drop letters at all offices where there is no
free delivery by carriers, one cent for each half ounce or fraction thereof.
On all second-class matter the postage is as follows: On
all newspapers and periodicals, mailed under the definition
above given, to regular subscribers or news agents, which are
issued weekly or oftener, two cents for each pound or fraction
of a pound; and on all such issued less frequently than once
a Week, five cents for each pound or fraction of a pound.
The 6th section of the act of June 23d, I874, which provided
that the above regulations should take effect on and after
the first day of January, I875, also provided "that on and
after the said first day of January, upon the receipt of such
newspapers and periodical publications at the office of mailing, they shall be weighed in bulk, and postage paid thereon
by a special adhesive stamp, to be devised and furnished by
the postmaster-general, which shall be affixed to such matter,
or the sack containing the same, or upon a memorandum of
such mailing, or otherwise, as the postmaster-general may,
from time to time, provide by regulation. Under this regulation, publishers and news dealers must present their newspapers and periodicals at the post-office, sorted into the



508          LAW   OF  LITERATURE.               [CH. I..
as entering into any contract with the community
or with individuals. The postmaster-general is therefore responsible only to the government of which he
is an agent, and all contracts made by him are made
by and binding upon the government, and not by or
upon himself personally.' But-while the postmastergeneral is not responsible either for his own default
or for the default of his deputies'2yet his deputies
themselves have been held liable, for want of diligence, or for fraud of their subordinates, when they
themselves have not exercised a reasonable caution
and discretion in their selection of agents.3 Generally mail contractors will be held to make no personal contracts with the senders of letters, and to be
responsible only to the government from which they
receive their remuneration;  but it has been  held
otherwise.'  No law  of the United States, in reference to the postal service, makes it a legal channel of
above indicated classes, that they may be separately weighed,
and the adhesive stamps above indicated must be affixed
either by the department or by the proprietors. Ordinary
postage stamps cannot be used for the purpose, nor can these
special newspaper stamps be used for any other purpose. —U.
S. Official Postal Guide.
1 Rowning v. Goodchild, 3 Wills. 443; Whitfield v. Le
Despencer, Cowp. 754; Story on Cont. ~ 979; on Agency, ~~
302-307; on Bailments, ~~ 462, 463, 464; I Bell Comm. ~
468; Dunlop v. Munroe, 7 Cranch, 242; Bolan v. Williamson,
2 Bay, 551; Schroyer v. Linch, 8 Watts, 632.
Story on Cont. ~ 970; Wiggins v. Hathaway, 6 Barb. (N.
Y.) 632.
M Iaxwell v. McIlroy, 2 Bibb. 211; Bishop v. Williamson,
2 Fairf. 495; Dunlop v. Munroe, 7 Cranch, 242; Bolan v.
Williamson, 2 Bay, 55I; Dox v. Postmaster, I Pet. 318;
Christy v. Smith, 23 Vt. (8 Wast.) 663; Teall v. Felton, 3
Barb. (N. Y.) 5I2; I Comst. (N. Y.) 537; Coleman v. Frazier,.
4 Rich. 146; Fitzgerald v. Burrill, Io6 Mass. 446.
Conwell v. Voorhies, 13 Ohio, 523; Hutchins v. Brackett
2 Fost. (ii) 252.     5 Sawyer v. Coral, I7 Gratt. 233.




CH. I.]          OF  MANUSCRIPTS.                   509
communication, which a party may adopt as compulsory upon  his  correspondent.'  When  a letter is
placed in a post-office, it is within the legal custody
of the officers of the government, and no one has
the authority to open it, even though it comes from a
criminal and is suspected of containing improper information,2 but it is the duty of the postmaster, if the
person to whom it is directed live in the same place
where his office is situated (or if his office be the
nearest post-office) to deliver it to that person.!
The postmaster is the only judge of the fact as
to which paper has the largest circulation; under the
act of congress of March 3, I845, obliging him  to
advertise a list of letters non-called for in such a paper,
and he is not responsible in a state court for the results of his judgment.4  Nor will an action lie against
a postmaster by publishers for refusing their proofs
as to the circulation of their newspaper.5
Tanner v. Hughes, 53 Pa. St. 289.' United States v. Eddy, I Bess. 527; Id. v. Pond, 2 Curris
C. C. 265.
Nevins v. Bank, Io Mich. 547.
Foster v. McKibben, 4 Pa. L. J. Rep. 303: 14 Pa. St. (2
Harris) i68.
5 Strong v. Campbell, ii Barb. (N. Y.) I35. And see besides generally as to post-office and postmasters, U. S. v. Bank
of Necropolis, I5 Pet. 378; Postmaster-General v. Rice,
Gilpin, 544; U. S. v. Hart, Pet. C. C. 390; Trafton v. U. S., 3
Story, 646; Boody v. U. S., I W. & M. i5o; U. S. v. Davis,
Deady, 294; Foster v. McKibben, 4 Pa. L. J. Rep. 303;
Fitzgerald v. Burrill, io6 Mass. 46; U. S. v. Driscoll, I Low.
303; U. S. v. Crow, i Bond. 5; Farnam v. U. S., I Col. T.
309; Chouteau v. Steamboat St. Anthony, I Miss. 226; U. S.
v. Hedges, I3 How. (U. S.) 478; Ware v. U. S., 4 Wal. (Id.)
6I7; Trafton v. U. S. 3 Story, 646; U. S. v. Brown, 9 How.
(U. S.) 487; Id. v. Roberts, Id. 501; Id. v. Rice, 9 Gilpin,
554; Id. v. Foye, i Curtis C. C. 364; Id. v. Fisher, 5 McLean,
23; Id. v. Kean, 5 Id. 509; Id. v. Tanner, 6 Id. I28; Id. v.
Whitaker, Id. 343; Id. v. Emerson, Id. 406: Id. v. Sander, Id.




io:. LA W   OF  LITERATURE.                   [CH. I.
We have already seen that the doctrine of innocence will be insisted upon by the United States.
postal department, and that no scurrilous, obscene, or
libelous matter will be allowed in the mails. The.
offense of sending scurrilous postal cards through
the mails will be prosecuted by government, and
heavy penalties visited upon offenders. One Chamberlin, who was indicted in the  United  States circuit
court for the southern district of New York, for sending
such postal cards, was found guilty and sentenced by
the court to pay a fine of five thousand dollars.1
598; Id. v. Beatty, i Hemp. (U. S.) 487; Id. v. Parsons,- 2
Blatchf. 104; Id. v. Marselis, Id. Io8; Id. v. Collingham, Id.
470; Id. 4. Mulvaney, 4 Parker (N. Y.) I64; Id. v. Collins, 4
Blatchf. 142; Id. v. Kirby, 7 Wall. (U. S.) 482; Tanner v.
Hughes, 53 Pa. St. 289; Sawyer v. Corse, I7 Gratt. (Va.) 230;
Wingate v. McNamar, 28 Ind. 481. As to what is mailable
matter, see U. S. v. Bromley, I2 How. (U. S.) 88; Teal v.
Felton, Id. 284.
A common carrier cannot on the ground of its employment by government set up that it is an agent of the govern —
ment, so as to escape liabilities for the negligence of its own:
servants. Truex v. Erie Ry. Co., 4 Lans. (N. Y.) I98.
1 This case is as yet unreported. The indictment was filed
June 3oth, I875. The trial began December 15th, 1874, and
lasted nine days. The indictment contained fourteen different
counts (four of which were afterwards consolidated); upon one
of which counts, the jury finding the defendant guilty, he was,
sentenced to pay the above fine.  See New York Times, December I5-24, I874. And the offense of writing defamatory
matter on a postal-card is also one civilly cognizable, and
sounding in damages. In Crane v. Walker, in the Marine
Court of the city of New York, the plaintiff, a collector of
past-due claims, applied to the defendant, a tailor, on Fifth —
avenue, in I871, with a letter of introduction, for employment.
A number of bills were given him, upon which a percentage
was to be paid in case of collection, rising to thirty per cent. if
suit had to be brought, the plaintiff, however, to pay all expenses. Two or three bills were collected and returned, the plaintiff"
in the meantime ordering and receiving a pair of pants,
which remain unpaid for, although defendant claimed that pay —




CH. I.1         OF  MIANUSCRIPTS.                 gI 
The same rule will be applied to the sending of
messages by private telegraph companies. A telegraph company would have the right to decline the
transmission of all messages of an illegal or immoral
character, or such as were in furtherance of fraud or
against public policy; or where the message was for
the purpose of aiding or concealing crime, or would
in any other way tend to thwart the. course of public
justice. If this were not so, the agents of the company would, in some cases, become J5arliceps cr'miz's; and would, in all such cases, be lending theiraid, for a reward, to purposes not sanctioned by the
law. The same moral and legal obligation rests upon
the company as upon individuals, in reference to theircontracts and dealings with each other; and whatever
the law would not compel it to perform, it has the
ment was promised within a month. Among the claims was.
one against a person named Salmonson, against whom suit
was brought, judgment obtained, and examination on supplementary proceedings had, the plaintiff in the end getting forty
dollars from Salmonson, not in reduction of the judgment, but
in payment of referee's fees, costs, &c. This collection comingto Mr. Walker's ears, and supposing it to have been a payment on account of the bill, of which no return was made to
him, and, as he says, being unable to get an explanation, he
wrote the following words on a postal-card, and sent it to the,
plaintiff through the mail: —" It seems to me you are acting
like a regular fraud in your treatment of me. You admit of
having collected forty dollars from Salmonson, and yet you
have made no return to me, and not on your own account
which you got on false pretenses. It is more than thieving to,
do as you have done, and if it is possible I'll have you put in
jail for collecting my money without making any return." It
was shown that this was read by several parties while lying'
on the plaintiff's desk before his arrival at his office. Thecourt charged the jury that a publication was established, and
that the amount of their verdict would be governed by the
injury done and the intent of the defendant in writing it.
A verdict was rendered for the plaintiff for three hundred
dollars.-N. Y. Herald, May g9th, I875.




5I2         LA W' OF  LITERA TURE.            [CH. I.
right to refuse.  In some of the American states the
transmission of such messages is expressly prohibited by statute, and in some of them  it is made a
criminal offense so to do.' By the California statute'
it is provided: "If:any agent or operator in any
telegraph office shall knowingly send by telegraph
any false or-forged message, purporting to be from
such officer (or telegraph company), or any other person, or if any other person or persons shall furnish,
or conspire to furnish, to such operator, to be so sent
any such message knowing the same to be false or
forged, with the intent to deceive and injure, or defraud'any individual or corporation, or the public,
such agent, operator, or persons, shall be deemed
guilty of a misdemeanor and shall be punished by
fine not exceeding five hundred dollars, or imprisonment, not to exceed six months, or both, such ~ine
and imprisonment, in the discretion of the court."
There is a similar provision in Pennsylvania3 and
in Oregon.4  In Ohio,' it is provided that if any agent
officer, or manager of any telegraph line, operating in
this state, or any other person, shall knowingly transmit, by such telegraph line, any false communication
or intelligence, with intent to injure any one, or to
speculate in any article of merchandise, commerce, or
trade, or with intent that another may do so, or shall
knowingly send or deliver any dispatch that is thereto,
he shall, on conviction, pay a fine not exceeding five
hundred dollars. By the California act of April I8,
I862, sec. 4, it is provided that nothing in the act
1Scott & Jarnagin on the Law of Telegraphs, ~ II9.
2 Act of April 22, I850.
Purdons's Digest, i86i, Crimes, I85.
Compilation of i866, ch. 54, ~ I9.
~ Act of March 31, i865.




CH. I.]        OF  MANUSCRIPTS.                  5I3
contained shall require the sending, receiving, or
delivering of any message counseling, aiding, abetting, or encouraging treason against the government
of the United States or of this'state, or other resistance to the lawful authority, or any message calculated to further any fraudulent plan or purpose,
o to instigate or encourage the perpetration of
any unlawful act, or to fac"'.tate the escape of any
criminal or person accused of crime. By the Revised
Statutes of Kentucky,l "If an agent, officer, or manager of a telegraph line, constructed in this state, or
other person, shall knowingly transmit, on or through
the same, any false communication or intelligence,
with intention to injure any one, or to speculate on
any article of merchandise, commerce, or to trade, or
with intent that another may do so; or if any agent,
officer, manager of a telegraph line,. from corrupt or
improper motives, or willful negligence, shall withhold
the transmission of messages or intelligence, for which
the customary charges have been paid or tendered, he
shall be fined not less than ten, nor more than five
hundred dollars."
I86o, vol. I, pp. 394, 395; and other states have enacted to
the same effect.
END OF VOL. L
88