PART IV. CHAPTER VI

A libel of this kind may be briefly defined to be " any publication, without justification or lawful excuse, which is calculated to injure the reputation of another, by exposing him to hatred, contempt, or ridicule."(a)

The following language of eminent judges may be cited in support of the preceding definition. "In a libel" says Best, C.J.,(b) "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." (c)

"If

any

man'

says Wilmot, C.J., (d) "deliberately or maliciously (e) 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."(f) "In case upon a libel it is sufficient if the matter be reflecting, as to paint a man playing at cudgels with his wife." (g)

Thus it was held libellous to publish of a man that he stank of brimstone, and had the itch. (h)

It is chiefly with respect to the class of libels with which we are now dealing that the distinction between oral and written or printed defamation becomes important.

To publish, even orally, of anyone that he has cominitted an indictable offence, or that he has--i.., at the time the words are spoken of him-some contagious or infectious disorder which may exclude from society, (i) or anything referring to his trade, office (be it one of profit or not), or profession, and calculated to injure him therein, (j) is action(a) Per Parke, B., Parmiter v. Coupland (6 M. & W. 108). (b) Archbishop of Tuam v. Robeson (5 Bing. 21).

(e) See, as to imputations of immoral or unfeeling conduct, Clement
v. Chiris (9 B. & C. 172); Churchill v. Hunt (1 Chit. 480).
(d) Villers v. Monsley (2 Wils. 403).

() As to the meaning of malice, vide ante, pp. 389, 390.
(f) Per Holt, C.J., Cropp v. Tilney (3 Salk. 226).

(9) Per Holt, C.J. (11 Mod. 99).

(k) Villers v. Monsley (ubi supra).

(1) 7 Bac. Abr. tit. Slander, p. 266; 1 Roll. Abr. 44;; Carslake v. Mapledoram (2 T. R. 473); Bloodworth v. Gray (7 M. & Gr. 33.4). See also Cro. Eliz. 214, 289, 648; Cro. Jac. 430.

(j) 1 Vin. Abr. 463; Cro. Eliz. 328, 358; 1 Roll. Abr. 56; Herle v. Osgood (1 Vent. 50); Parrat v. Carpenter (Cro. Eliz. 502); Seaman v. Bigg (Cro. Car. 480); Peard v. Jones (Cro. Car. 382); Aston v. Blagrare (Str. 617): How v. Prin (Holt, 652); Thomas v. Jackson (3 Bing. 104); Southee v. Denny (1 Ex. 196); Tutty v. Alewin (11 Mod. 221); Robinson v. Marchant (7Q. B. 918); Morris v. Langdale (2 B. & P. 84); Brown

able. (a) But where the imputation of an offence against the law is made orally, in order to be actionable, it must, in the absence of special damage resulting from it, be of some offence liable to punishment in a criminal court otherwise than merely by fine, with imprisonment in default of payment. (b)

Calling a man a scoundrel, rascal, blackleg, or even rogue or swindler, will not support an action of slander without proof of special damage caused by the utterance. (c)

Neither will the oral imputation of unchastity to a woman, married or unmarried, however gross it may be, entitle her to maintain an action, unless she can prove that the slander has caused her special damage. (d)

The publication, however, by writing or printing, of any of these things is actionable per se, without proof of special damage, on account of the greater mischief said to be produced by this mode of publication, as well as the greater malice which it indicates on the part of the defamer. "A libel,” it has been said, (e) "is punishable both criminally

v. Smith (13 C. B. 596); Babonneau v. Farrell (15 C. B. 360); Irwin v. Brandwood (2 H. & C. 960).

(a) Gainsford v. Tuke (Cro. Jac. 536); Boston v. Tatam (1b. 623); Carpenter v. Tarrant (Cas. Temp. Lord Hardwicke, 339); Cuddington v. Wilkins (Hob. 81); Moor v. Foster (Cro. Jac. 65); Bendish v. Lindsey (11 Mod. 194); Roberts v. Camden (9 East 93); Fowler v. Dowdney (2 M. &. Rob. 119); Alfred v. Farlow (8 Q. B. 854); Williams v. Stott (1 C. & M. 675); Colman v. Godwin (3 Doug. 90); Richardson v. Allen (2 Chit. 657); Tomlinson v. Brittlebank (4 B. & Ad. 630); Huckle v. Reynolds (7 C. B. N. S. 114, 337); l'Anson v. Stewart (1 T. R. 748); Barnett v. Allen (3 H. & N. 381). As to the imputation of a mere fineable offence, see Ogden v. Turner (Salk. 696; 6 Mod. 104); M'Cabe v. Foot (15 L. T. N. S. 115).

(b) 4 Rep. 15; 2 Bulst. 150; 1 Vin. Abr. 404, 417; 1 Roll. Abr. 40, &c.; Holt v. Scholefield (6 T. R. 691).

(c) Barnett v. Allen (3 H. & N. 376 ; 27 L. J. 412, Ex.); Richardson v. Allen (2 Chit. 657); Saville v. Jardine (2 H. Bl. 531, &c.)

(d) Stainton v. Jones (Selw. N. P. 12th edit. 1259); Wilby v. Elston (8 C. B. 142; 18 L. J. 320, C. P.); Roberts v. Roberts (33 L. J. 249, Q. B.; 10 L. T. N. S. 602); Lynch v. Knight (9 H. L. Cas. 577). The state of our law on this subject is really disgraceful. Lord Campbell, a good while ago (Lynch v. Knight, ubi sup.), considered it "unsatisfactory" Lord Brougham, in the same case (p. 594), stigmatised it as "barbarous ;" and Cockburn, C.J., in another case, as 66 very cruel " (33 L. J. 250, Q. B.); notwithstanding which it still continues as above stated. The only exception is the calling a woman a whore within the city of London, that being by the custom of the city actionable. See Brand v. Roberts (4 Burr. 2418, and cases there cited); Robertson v. Powell (2 Selw. N. P. 1259, 5th edit. See also 1 Str. 741; 1 Vin. Abr. 395; Holt's Rep. 40; 12 Mod. 106.

(e) Per Gould, J., Villers v. Monsley (2 Wils. 404). See also Thorley v. Lord Kerry (2 Taunt. 358); and the note in 3 Camp. 214.

PART 1V. CHAPTER

PART IV.

and by action, when mere speaking the words would not be CHAPTER VI. punishable in either way."(a)

By the Scotch law the oral imputation of unchastity to a woman is actionable, without proof of special damage. (b) For speaking the words rogue and rascal of anyone, an action, as already observed, will not lie. "But if those words," says Gould, J.,(c) "were written and published of anyone, I doubt not an action would lie."

So, to publish of anyone that he is a swindler is a libel, and actionable, (d) or that he is "a dishonest man," (e) or a black-leg" or "black sheep," (f) or that he was blackballed at a club, and "bolted" the next morning, whilst some of the poor tradesmen had to lament the fashionable character of an entertainment which he had given.(g) So also is a letter written to a third party calling a person a villain.(h)

It was held to be a libel 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. (i) The libel in this

(a) The common law, in respect to our natural passions, gives no
action for mere defamatory words, which it considers as transitory abuse,
and not having substance and body enough to constitute an injury by
affecting the reputation. It confines, therefore, the action for slander to
such of the grosser kind of words as impute positive crimes, or, by
charging a man with contagious disorders, tends to expel him from
society; and to words which injure him in his profession and calling.
It does not consider words amounting to a breach of the peace, and,
therefore, gives neither indictment nor information for unwritten slander,
except in the case of seditious language or words reflecting on a magis-
trate in the immediate execution of his office. The reason of the law in
this distinction is simple enough. It was necessary to punish the grosser
and more palpable injuries, and it was equally convenient to pass over
the less. The law, therefore, by classing the greater injuries, established
the criteria of this distinction, and adhered to it closely in its practice.
This reason, however, ceased when the words, by being written, could
no longer be considered as the results of transitory passion or venial
levity, but therein gained the shape and efficacy of a mischievons malig-
nity. The act of writing is in itself an act of deliberation, and the
instrument of a permanent mischief. What before was mere convitium
and contumely grew into a deliberate charge and accusation. The law,
therefore, both with respect to the public peace and the prevention of
private injury, allowed an indictment and information, as well as an
action on the case, for words written which it denied to words spoken:"
(Holt. L. L. 211, 212.)
(b) Borthwick's Law of Libel, p. 185.

(c) Villers v. Monsley (2 Wils. 403).
(d) l'Anson v. Stuart (1 T. R. 748).

(e) Per Cur., Austin v. Culpepper (Skin. 124; 2 Show. 314).

(f) O'Brien v. Clement (16 M. & W. 159).

(h) Bell v. Stone (1 Bos. & P. 331).

(i) Archbishop of Tuam v. Robeson (5 Bing. 21).

(g) Ib.

case was contained in a letter from Dublin, published in the
Morning Herald; and it was contended, on motion to set
aside the verdict which had been given for the plaintiff, that
there was no imputation on the plaintiff's character in the
conduct ascribed to him; that to make converts, even by
purchase, is a praiseworthy effort of religious zeal, sanc-
tioned by Act of Parliament, and warranted by the practice
of our own and other Christian establishments; that the
imputation, if any, on the plaintiff was only of extraordinary
zeal. But Best, C.J., after laying it down that, in general,
any charge of immoral conduct in a libel is actionable,
although in matters not punishable by law, said: "Would it
be immoral in the archbishop if he attempted to bribe a
man to renounce his religion, and to endow such a prose-
lyte with a Church of England preferment? Would it be
immoral to employ in making hypocrites funds destined to
the support of the Protestant Church? If the seduced be
guilty it is impossible to say that the seducer is innocent.
But it has been urged that nothing immoral is imputed,
since the Legislature has held out
held out to Catholic priests
the same kind of temptation to become Protestants. Even
if that were so, it would not persuade me that such a
course was moral. But the Legislature has not done
this; it has only said that if a man be converted he
shall not be left to starve in the midst of a hostile com-
munity." "If," said Burrough, J., "we are to under-
stand the language of this attack as the rest of the
world would do, there can be no doubt it is a gross
and infamous libel. The plaintiff is charged with having
sought to induce an improper person to abandon his reli-
gious creed, not by reasoning but by a gross bribe."
to the merits," said Gaselee, J., "this is equally a libel
whether it proposed to impute to the plaintiff indiscretion
or dishonesty; the manifest object of it was to bring him
into disrepute."

66

As

A publication which charged an overseer of a parish with oppressive conduct towards paupers in compelling them to receive payment of their weekly allowance in orders for flour upon a particular tradesman, was held to be a libel; (a) and so was a placard stating of an overseer that when out of office he had advocated low rates, and when in office he had advocated high rates, and that the defendant would not trust him with 51. of his property. (b)

(a) Woodard v. Dowsing (2 M. & Ry. 74).

(b) Cheese v. Scales (10 M. & W. 488). Cf. Warman v. Hine (1 Jur. 820).

PART IV. CHAPTER VI.

PART IV.

In another case where an action was held maintainable, the CHAPTER VI. important part of the libel was, "I sincerely 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."(a)

It has also been held libellous to publish of any man that he has been guilty of gross misconduct, and insulted females in a barefaced manner. (b) The individual libelled in this case was a coachman, but the publication was not held libellous, because published of him in that capacity, the Court considering it only necessary to inquire whether the publication in question 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 libellous.

So it has been held libellous to publish of a person seeking assistance from a charitable society that she prefers unworthy claims, which it is hoped the members will reject for ever, and that she has squandered away money already obtained by her from the benevolent in printing circulars abusive of the society's secretary. (c)

A person was found guilty of publishing a libel for having caused the insertion in a newspaper of a paragraph imputing that the "myrmidons" of the prosecutor had poisoned some foxes in a country hunted over by the hounds of Sir W. M. S., and had hung their bodies up by the neck; and that the tenantry of Sir W. M. S., by way of retaliation, had hung up effigies of the prosecutor and his brother, with foxes' tails appended.(d)

The publication in a newspaper of a paragraph stating that, although the plaintiff was aware of the death of a lady occasioned by his furious and careless driving a carriage against that in which she had been driving, he nevertheless, on the very evening of the catastrophe, attended a public ball, was held actionable.(e)

Even 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

(a) Thorley v. Lord Kerry (4 Taunt. 355).

(b) Clement v. Chivis (9 B. & C. 192).

(c) Hoare v. Silverlock (12 Q. B. 624).

(d) Reg. v. Cooper (8 Q. B. 533; 15 L. J. 206, Q. B.).
(e) Churchill v. Hunt (1 Chit. 480).