177 CHAPTER THE THIRD. OF LIBEL AND INDICTABLE SLANDER. I. Definition of, p. 177. II. Privileged communications, p. 180. V. Against the constitution, p. 197. VI. Against the King, p. 198. VII. Against the two Houses of Parliament, p. 200. VIII. Against the Government, p. 201. IX. Against the magistrates and the administration X. Against private individuals, p. 205. XI. Against foreigners of distinction, p. 208. XII. Indictment for, p. 209. XIII. Evidence-Plea, Trial, &c.-Lord Campbell's SEC. I. Definition Of. general are It appears to be well settled that publications blaspheming What publicaGod, or turning the doctrines of the Christian religion into contempt tions in and ridicule, may be made the subject of indictment; and it is now libellous. fully established, though some doubt seems formerly to have been entertained upon the subject, that such immodest and immoral publications as tend to corrupt the mind, and to destroy the love of decency, morality, and good order, are also offences at common law. (a) It is also a misdemeanor wantonly to defame or indecorously to calumniate that economy, order and constitution of things which make up the general system of the law and government of the country. (b) And it is especially criminal to degrade or calumniate the person and character of the sovereign, and the administration of his government by his officers and ministers of state, (c) or the administration of justice by his judges. (d) And the same policy which prohibits seditious comments on the King's conduct and government extends, on the same grounds, to similar reflections on the proceedings of the two Houses of Parliament. (e) Such publications also as tend to cause animosities between this (a) See the cases collected in 2 Starkie on Libel, 155. (b) Holt on Libel, 82. (c) Rex v. Lambert and Perry, 2 VOL. III. Campb. 398. (d) 2 Starkie on Libel, 194. N Of slanderous words. Of the mode of expression. country and any foreign state, by the personal abuse of the sovereign of such state, his ambassadors, or other public ministers, may be treated as libels. (f) With respect to libels upon individuals, they have been defined to be malicious defamations, expressed either in printing or writing, or by signs or pictures, tending either to blacken the memory of one who is dead, or the reputation of one who is alive, and thereby exposing him to public hatred, contempt, and ridicule. (g) Upon some of these subjects a publication by slander, or words spoken only, though not properly a libel, (h) may be the subject of criminal proceeding, as will be shown in the course of the chapter. A libel may be as well by descriptions and circumlocutions as in express terms, therefore scandal conveyed by way of allegory or irony amounts to a libel. As where a writing, in a taunting manner, reckoning up several acts of public charity done by a person, said, You will not play the Jew, nor the hypocrite,' and then proceeded, in a strain of ridicule, to insinuate that what the person did was owing to his vainglory. Or where a publication, pretending to recommend to a person the characters of several great men for his imitation, instead of taking notice of what great men are generally esteemed famous for, selected such qualities as their enemies accuse them of not possessing (as by proposing such a one to be imitated for his courage who was known to be a great statesman, but no soldier; and another to be imitated for his learning who was known to be a great general, but no scholar); such a publication being as well understood to mean only to upbraid the parties with the want of these qualities as if it had done so directly and expressly. (i) And, upon the same ground, not only an allegory, but a publication in hieroglyphics, or a rebus or anagram, which are still more difficult to be understood, may be a libel. (j) So a libel may be by asking questions; for 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. (k) Formerly it was the practice to say that words were to be taken in the more lenient sense; but that doctrine is now exploded: they are not to be taken in the more lenient or more severe sense, but in the sense which fairly belongs to them, and which they were intended to convey. (1) (f) Rex v. Peltier, Holt on Libel, 78. Rex v. D'Eon, 1 Blac. R. 517. (g) 1 Hawk. P. C. c. 73, ss. 1, 2, 3, 7. Bac. Abr. tit. Libel; R. v. Yates, 12 Cox, C. C. 233, and see as to libel by a picture, Du Bost v. Beresford, 2 Campb. 511. As to defaming one who is dead, see post, p. 208. 5 (h) A libel is termed Libellus famosus There is no other name but that of that name, as we know the offences of horse-stealing, forgery, &c., by the names which the law has annexed to them.' By Lord Camden in Rex v. Wilkes, 2 Wils. 121. (i) 1 Hawk. P. C. c. 73, s. 4. Bac. Abr. tit. Libel (A) 3. (j) Holt on Libel, 235, 236. (k) Gathercole's case, 2 Lewin, 255, per Alderson, B. (7) By Lord Ellenborough, C. J., in Rex v. Lambert and Perry, 2 Campb. 403. And in a case of libel, Rex v. Watson and others, 2 T. R. 206, Buller, J., said, 'Upon occasions of this sort Í have never adopted any other rule than that which has been frequently repeated by Lord Mansfield to juries, desiring them to read the paper stated to be a libel as men of common understanding, person libelled Upon the same principles it has been resolved that a de- Name of famatory writing, expressing only one or two letters of a name, in blanks. in such a manner that from what goes before, and follows after, it must needs be understood to signify a particular person, in the plain, obvious, and natural construction of the whole, and would be nonsense if strained to any other meaning, is as properly a libel as if it had expressed the whole name at large. (m) An indictment lies for general imputations on a body of men, though no individuals be pointed out, because such writings have a tendency to inflame and disorder society, and are therefore within the cognizance of the law. (n) And scandal published of three or four persons is punishable on the complaint of one or more, or all of them. (0) Indictment It appears to have been considered that the remedies by action Actions and and indictment for libels are co-extensive, and may be regarded as upon the same footing. (p) Formerly, upon an indictment or criminal prosecution for a libel the party could not justify that its contents were true. But the 6 & 7 Vict. c. 96, permits a defendant to plead to any indictment or information for a defamatory libel that the libellous matters are true, provided it was for the public benefit that such matters should be published. (q) The ground of the former rule, which still exists where no such plea is pleaded, is, in the case of libels against religion, morality, or the constitution, the public mischief, which libels are calculated to create in alienating the minds of the people from religion and good morals, and rendering them hostile to the government and magistracy of the country; and, where particular individuals are attacked, in causing such irritation in their minds as may induce them to commit a breach of the public peace. A libel against an individual may consist in the exposure of some personal deformity, the actual existence of which would only show the greater malice in the defendant; and even if it contain charges of misconduct founded in fact, the publication will not be the less likely to produce a violation of the public tranquillity. It has been observed, that the greater appearance of truth there may be in any malicious invective, it is so much the more provoking; and that, in a settled state of government, the party grieved ought to complain, for every injury done to him, in the ordinary course of law, and not by any means to avenge him and say whether in their minds it conveys the idea imputed.' See Woolnoth v. Meadows, 5 East, 463. Bac. (m) 1 Hawk. P. C. c. 73, s. 5. Abr. tit. Libel (A) 3, where it is said in the marginal note that if an application is made for an information in a case of this kind, some friend to the party complaining should, by affidavit, state the having read the libel, and understanding and believing it to mean the party. Du Bost v. Beresford, 2 Campb. 512. (n) Holt on Libel, 237. See Le Fanu v. Malcomson, 1 H. L. 637, post. See (0) Id. ibid. In Rex v. Benfield, 2 Burr. 980, it was held that an information lay against two for singing a libel lous song on A. and B., which first (p) Starkie on Libel, 150, 165, 550, 1st (g) See the Act, post, p. 227. indictments for libels coextensive. The party could not formerly justify that the libel he may now within the c. 96. It is no defence that it was copied from some other work. self by the odious proceeding of a libel. (") See further as to this, post, p. 205. A party will not be excused by showing that the libel with which he is charged was copied from some other work, even, though he may have stated it to be merely a copy, and disclosed the name of the original author at the time of its publication. (8) Petition to the King. Petitions to Parliament. Proceedings in courts of justice. SEC. II. Privileged Communications. But there are some circumstances which will prevent a publication from being deemed libellous. A petition to the King to be relieved from doing what the King has directed the party to do, if bona fide and in respectful terms, is no libel, though it call in question the legality of the King's direction. James II. published a declaration of liberty of conscience and worship to all his subjects, dispensing with the oaths and tests prescribed by statutes 25 & 30 Car. II., and directed that it should be read two days in every church and chapel in the realm, and that the bishops should distribute it in their dioceses that it might be so read. The Archbishop of Canterbury and six bishops presented a petition to the King praying that he would not insist upon their distributing and reading it, principally because it was founded on such a dispensing power as had ofted been declared illegal in Parliament, and that they could not in prudence, honour, or conscience, so far make themselves parties to it as to distribute and publish it. This petition was treated as a libel: they were taken up and tried for it. The publication was proved; and Wright, C. J., and Allibone, J., thought it a libel: but Holloway and Powell, JJ., thought otherwise, there not being an ill intention of sedition in the bishops, and the object of their petition being to free themselves from blame in not complying with the King's command. The jury found them not guilty. (t) It has been resolved that no false or scandalous matter contained in a petition to a committee of Parliament, or in articles of the peace exhibited to justices of peace, or in any other proceeding in a regular course of justice, will make the complaint amount to a libel; for it would be a great discouragement to suitors to subject them to public prosecution in respect of their applications to (r) 1 Hawk. P. C. c. 73, s. 6. Bac. Abr. tit. Libel (A.) 5. 4 Blac. Com. 150, 151. 2 Starkie on Libel, 251, et seq. Holt on Libel, 275, et seq. But whilst the truth was no justification in a criminal prosecution, yet in many instances it was considered as an extenuation of the offence; and the Court of King's Bench has laid down this general rule, that it will not grant an information for a libel unless the prosecutor who applies for it makes an affidavit asserting directly and pointedly that he is innocent of the charge imputed to him. This rule, however, may be dispensed with if the person libelled resides abroad, or if the imputa tions of the libel are general and indefinite, or if it is a charge against the prosecutor for language which he has held in Parliament. 4 Blac. Com. 151, note (6). Dougl. 271, 372. R. v. Aunger, 12 Cox, C. C. 407. (s) De Crespigny v. Wellesley, 5 Bing. 392. 2 M. & P. 695. See R. v. Sullivan, 11 Cox, C. C. 44, (Irish); Reg. v. Newman, post; M'Pherson v. Daniels, 10 B. & C. 263; Watkin v. Hall, 37L. J. Q. B. 125. (t) Case of the Seven Bishops, 12 St. Tri. 183; and see post, as to communications made bona fide, and in the proper course of proceedings in courts of justice, &c. a court of justice. (u) Thus where the defendant, in a certain affidavit before the Court, had said that the plaintiff in a former affidavit against the defendant had sworn falsely, the Court held that this was not libellous; for in every dispute in a court of justice, where one by affidavit charges a thing and the other denies it, the charges must be contradictory, and there must be affirmation of falsehood. (v) No presentment of a grand jury can be a libel, not only because persons who are supposed to be returned without their own seeking, and are sworn to act impartially, shall be presumed to have proper evidence for what they do, but also because it would be of the utmost ill consequence in any way to discourage them from making their inquiries with that freedom and readiness which the public good requires. (w) Where an action was brought against the president of a military court of inquiry for a libel contained in the minutes of such court, which had been delivered by the defendant to the commander-in-chief and deposited in his office, it was held that these minutes were a privileged communication, and properly rejected when tendered at the trial in proof of the alleged libel; and also that a copy of them had been properly rejected. (x) And where a court-martial, after stating in their sentence the acquittal of an officer against whom a charge had been preferred, subjoined thereto a declaration of their opinion, that the charge was malicious and groundless, and that the conduct of the prosecutor in falsely calumniating the accused was highly injurious to the service, it was held that the president of the court-martial was not liable to an action for a libel for having delivered such sentence and declaration to the judge-advocate; and Mansfield, C. J., in delivering his opinion, said: 'If it appear that the charges are absolutely without foundation, is the president of the court-martial to remain perfectly silent on the conduct of the prosecutor, or can it be any offence for him to state that the charge is groundless and malicious?' (y) It having been reported that the plaintiff, an officer in the army, had made charges against his brother officers, the commander-inchief directed that a court of enquiry should be assembled who should enquire into the matter, and report thereon to the commander-in-chief. A court was held, at which the defendant, an officer in the army, was required to attend as a witness. Being examined as a witness he gave vivâ voce evidence, and then handed in a paper containing in substance a repetition of his evidence, with some additions upon the subject, and this paper was received by the court. A report was made by the court to the commander-inchief. The plaintiff applied for a court-martial upon the defendant for such his conduct towards the plaintiff. The application was (u) 1 Hawk. P. C. c. 73, s. 8. Bac. Abr. tit. Libel (A.) 4. And see the judgment of Holroyd, J., in Hodgson v. Scarlett, 1 B. & A. 232. It is holden by some that no want of jurisdiction in the court to which the complaint shall be exhibited will make it a libel; because the mistake of the court is not imputable to the party, but to his counsel; see 1 Hawk. P. C. c. 73, s. 8, 1 Starkie on Libel, 254, 2nd edit. (v) Astley v. Younge, 2 Burr. 817. |