A person delivered a ticket up to the minister after sermon, wherein he desired him to take notice that offences passed now without control from the civil magistrate, and to quicken the civil magistrate to do his duty, &c.; and this was held to be a libel, though no magistrate in particular was mentioned, and though it was not averred that the magistrates suffered those vices knowingly.(f)

In a case where the defendant was prosecuted upon an information for a libel upon the government, his counsel contended that the publication was innocent, and could not be considered as libellous, because it did not reflect upon particular persons. But Holt, C. J., said, "They say nothing is a libel but what reflects on some particular person. But this is a very strange doctrine to say that it is not a libel, reflecting on the government, endeavoring to possess the people that the gov ernment is maladministered by corrupt persons that are employed in such stations, either in the navy or army. To say that corrupt officers are appointed to administer affairs is certainly a reflection on the government. If men should not be called to account for possessing the people with an ill opinion of the government, no government can subsist; nothing can be worse to any government than to endeavor to procure animosities as to the management of it; this has always been looked upon as a crime, and no government can be safe unless it be punished."(g) The doctrine was recognized in a case, where the defendant was charged with publishing a libel upon the administration of the Irish government, and upon the public conduct and character of the Lord Lieutenant and Lord Chancellor of Ireland. Lord Ellenborough, C. J., in his address to the jury, observed, "It is no new doctrine that if a publication be calculated to alienate the affections of the people, by bringing the government into disesteem, whether the expedient be by ridicule or obloquy, the person so conducting himself is exposed to the inflictions of the law. It is a crime; it has ever been considered as a crime, whether wrapt in one form or another. The case of Reg. v. Tuchin, decided in the time of Lord Chief Justice Holt, has removed all ambiguity from this question; and, although at the period when that case was decided great political contentions existed, the matter was not again brought before the judges of the Court by any application for a new trial." And afterwards his lordship said, "It has been observed, that it is the right of the British subject to exhibit the folly or imbecility of the members of the government. But, gentlemen, *we must confine ourselves within *341] limits. If in so doing individual feelings are violated, there the line of interdiction begins, and the offence becomes the subject of penal visitation." (h)

VII. As nothing tends more to the disturbance of the public weal than aspersions upon the administration of justice; contempts against the King's judges, and scandalous reflections upon their proceedings, have always been considered as highly criminal offences; and one of the earliest cases of libel appears to have been an indictment for an offence of this kind.(i)

Generally, any contemptuous or contumacious words spoken to the judges of any courts in the execution of their offices are indictable; and when reflecting words are spoken of the judges of the superior courts at Westminster, the speaker is indictable both at common law and under the statutes of scandalum magnatum, whether the words relate to their office or not.(k)

Any publications reflecting upon and calumniating the administration of justice, are, without doubt, of a libellous nature; and where a libel was published in a newspaper, in the form of an advertisement, reflecting on the proceedings of a court

(f) Bac. Abr. tit. Libel (A.) 2.

(g) Reg. v. Tuchin, 1704; Holt's R. 424; 5 St. Tri. 532.

(h) Rex v. Cobbett, 1804; Holt on Libel 114, 115; Starkie on Libel 193, where see in the note other cases referred to.

(i) Holt on Libel 153.

(k) 2 Starkie on Libel 195, where see the cases collected.

et seq.

And see 1 Hawk. P. C. c. 7,

The proceeding by writ of scandalum magnatum upon the statutes 3 Edw. 1, c. 34; 2 R. 2, st. 1, c. 5; 12 R. 2, c. 11, is of a civil as well as of a criminal nature; and was formerly had recourse to in case of defamation of any of the great officers and nobles. But the civil proceeding is now almost obsolete, the nobility preferring to waive their privileges in any action of slander, and to stand upon the same footing, with respect to civil remedies, as their fellow subjects.

of justice, it was characterized as a reproach to the justice of the nation, a thing insufferable, and a contempt of court.() So an order made by a corporation and entered in their books stating that A. (against whom a jury had found a verdict with large damages in an action for a malicious prosecution, and which verdict had been confirmed in the Court of Common Pleas), was actuated by motives of public justice in preferring the indictment, was held to be a libel reflecting on the administration of justice, for which an information should be granted against the members who had made the order. Ashhurst, J., said, that the assertion that A. was actuated by motives of public justice carried with it an imputation on the public justice of the country; for if those were his only motives, then the verdict must be wrong. Buller, J., said, "Nothing can be of greater importance to the welfare 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 jury may be mistaken: when 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 the very foundation of the constitution itself." (m)

*In a late case the same doctrine was acted upon: but it was at the same [*342 time clearly admitted that it would be lawful to discuss the merits of the verdict of a jury, or the decisions of a judge, provided it be done with candor and decency. An information was filed against the proprietors and printers of a Sunday newspaper, for a libel upon Le Blanc, J., and a jury, by whom a prisoner had been tried for murder and acquitted; and it was contended on the part of the defendants that they had only made a fair use of their right to canvass the proceedings of a court of justice. Grose, J., said, that "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 newspaper, 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 characters of individuals, and to bring into hatred and contempt the administration of justice in the country."(n)

It seems that no indictment will lie for contemptuous words spoken either of or to inferior magistrates, unless they are at the time in the actual execution of their duty, or at least unless the words affect them directly in their office; though it may be good cause for binding the offender to his good behavior. (o) This doctrine was recognized in a case, where the defendant was indicted for saying of a justice of the peace for the county of Middlesex, in his absence, that he was a scoundrel and a liar.(p) Lord Ellenborough, C. J., said, "the words not being spoken to the justice, I think they are not indictable. This doctrine is laid down by Lord Holt in a case in Salkeld ;(7) and in Rex v. Pocock(r) the Court of King's Bench refused to grant an information for saying of a justice, in his absence, that he was a forsworn rogue. However, I will not direct an acquittal upon this point, as it is upon the record, and may be taken advantage of in arrest of judgment. It will be for the jury now to say whether these words were spoken of the prosecutor as a justice of the peace, and with intent to defame him in that capacity; for if they

(1) Vin. Abr. tit. Contempt (A.) 44; Pool v. Sacheverel, 1720. (m) Rex v. Watson, 2 T. R. 199.

(n) Rex v. White, 1 Campb. 359. And see a note of another proceeding by information against the same defendants for a libel on Lord Ellenborough, C. J.; Holt on Libel 170, 171.

(0) 2 Starkie on Libel 195; 1 Hawk. P. C. c. 21, s. 13.

(p) Rex v. Weltje, 2 Campb. 142.

(9) Rex v. Wrightson, 2 Salk. 698.

(r) 2 Str. 1157. And see Rex v. Penny, 1 Lord Raym. 153.

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were not, this indictment is not supported; and it could not by possibility be a misdemeanor to utter them, although the prosecutor's name may be in the commission of the peace for the county of Middlesex "(s) But it has been holden to be an indictable offence to say of a justice of the peace, when in the execution of his office, "you are a rogue and a liar."() The Court will not, however, grant an information for calling a magistrate a liar, accusing him of misconduct in having absented himself from an election of clerk to the magistrates, and threatening a repe*343] tition of the same language whenever such magistrate came into the town, unless they tend to a breach of the peace.(u)

VIII. As every person desires to appear agreeable in life, and must be highly provoked by such ridiculous representations of him as to tend to lessen him in the esteem of the world, and take away his reputation, which to some men is more dear than life itself; it has been held that not only charges of a flagrant nature, and which reflect a moral turpitude on the party, are libellous, but also such as set him in a scurrilous, ignominious, or ludicrous(v) light, whether expressed in printing or writing, or by signs or pictures; for these equally create ill blood, and provoke the parties to acts of revenge and breaches of the peace.(w)

But it should be observed that there is an important distinction under this head between words spoken only, and words published by writing or printing. Words spoken, however scurrilous, even though spoken personally to an individual, are not the subject of indictment, unless they directly tend to a breach of the peace, as if they convey a challenge to fight.() But words, though not scandalous in themselves, if published in writing, and tending in any degree to the discredit of a man, have been held to be libellous.(y)1

Upon these principles it has been held to be libellous to write of a man that he

(s) Rex v. Weltje, 2 Camp. 142.

(t) Rex v. Revel, 1 Str. 420.

(u) Ex parte Chapman, 4 A. & E. 773 (31 E. C. L. R.).

(v) Cooke v. Ward, 6 Bing. 409 (19 E. C. L. R.) ; 4 M. & P. 99. .

(w) Ante, p. 322; Bac. Abr. tit. Libel (A.) 2. So in the case of Thorley v. Lord Kerry, 4 Taunt. 364, Mansfield, C. J., delivering the opinion of the Court, said, "there is no doubt this is a libel for which the plaintiff in error might have been indicted and punished, because, though the words impute no punishable crimes, they contain that sort of imputation which is calculated to vilify a man, and bring him, as the books say, into hatred, contempt, and ridicule; for all words of that description an indictment lies." And in Rex v. Cobbett, Holt on Libel 114, 115, Lord Ellenborough, C. J., said, "No man has a right to render the person or abilities of another ridiculous, not only in publications, but if the peace and welfare of individuals, or of society, be interrupted, or even exposed by types and figures, the act, by the law of England, is a libel."

(x) Reg. v. Langley, 6 Mod. 125; Rex v. Bear, 2 Salk. 417, by Holt, C. J.; Villars v. Monsley, 2 Wils. 403; and see 2 Starkie on Libel 208. In Thorley v. Lord Kerry, 4 Taunt. 355 (in the Exchequer Chamber), it was held, that an action may be maintained for words written for which an action could not be maintained if they were merely spoken. Mansfield, C. J., stated the arguments which would have prevailed in his mind to repudiate the distinction between written and spoken scandal, but that the distinction had been established by some of the greatest names known to the law, Lords Hardwicke, Hale, Holt, and others; and that Lord Hardwicke, C. J., had especially laid it down, that an action for a libel may be brought on words written when the words, if spoken, would not sustain it.

(y) Bac. Abr. tit. Libel (A.) 2.

1 It is libellous to publish of one in his capacity of a juror, that he agreed with another juror to stake the decision of the amount of damages to be given in a cause then under consideration upon a game of draughts: Comm. v. Wright, 1 Cush. 46. When a publication is malicious, and its obvious design and tendency is to bring the subject of it into contempt and ridicule, it will be a libel, although it imputes no crime liable to be punished with infamy: State v. Henderson, 1 Rich. 179.

An indictment for a libel charged the defendant with publishing of the plaintiff that he "was the most swindling and worthless speculator who ever brought ruin upon the city of St. Louis." On the issue of not guilty, the jury found a special verdict of "guilty of charging the plaintiff of being a visionary, worthless speculator," held, that the verdict found matter not charged in the indictment, and was also bad in not finding malice: Webber v. State, 10 Miss. 4.

had the itch, and stunk of brimstone.(z) And an information was granted against the mayor of a town for sending to a nobleman a license to keep a public house. (a) An information was also granted for a publication reflecting upon a person who had been unsuccessful in a lawsuit ;(b) and against the printer of a newspaper for publishing a ludicrous paragraph, giving an account of the marriage of a nobleman with an actress, and of his appearing with her in the boxes with jewels, &c.(c) *A defendant was convicted for publishing a libel in a review, tending to tra[*344 duce, vilify, and ridicule an officer of high rank in the navy; and to insinuate that he wanted courage and veracity; and to cause it to be believed that he was of a conceited, obstinate and incendiary disposition. (d) And an information was granted against a printer of a newspaper, for publishing a paragraph containing a libel on the Bishop of Derry, by representing him as a bankrupt.(e) But in an action for publishing a libel by posting it on a paper in the Casino-room at Southwold, containing these words: "The Rev. John Robinson and Mr. James Robinson, inhabitants of this town, not being persons that the proprietors and annual subscribers think it proper to associate with, are excluded this room;" the Court of Exchequer held, that the publication was not a libel, as it did not affect the moral character of the plaintiffs, nor state that they were not proper persons for general society; that the paper might import no more than that the plaintiff was not a social and agreeable character in the intercourse of common life. (f) But where a count alleged that the defendant published of the Duke of Brunswick the following libel: "Why should Theophilus be surprised at anything Mrs. W. does? If she chooses to entertain the Duke of Brunswick, she does what very few will do; and she is of course at liberty to follow the bent of her own inclining, by inviting all the expatriated foreigners who crowd our streets to her table, if she thinks fit;" the Court of Exchequer Chamber held that the matter stated was libellous, as it might be understood in such a sense as to be injurious to the prosecutor's character. (g) A publication reflecting upon a man in respect of his trade may also be libellous; as where A., a gunsmith, published in an advertisement that he had invented a short kind of a gun, that shot as far as others of a longer size, and that he was gunsmith to the Prince of Wales; and B., another gunsmith, counter-advertised, "That whereas, &c. (reciting the former advertisement), he desired all gentlemen to be cautious, for that the said A. durst not engage with any artist in town, nor ever did make such an experiment, except out of a leather gun, as any gentleman might be satisfied at the Cross Guns in Long Acre, the said B.'s house." The Court held, that though B., or any other of the trade, might counter-advertise what was published by A., yet it should have been without any general reflections on him in the way of his business: that the advice "all gentlemen to be cautious," was a reflection upon his honesty; and the allegation that he would not engage with an artist was setting him below the rest of his trade, and calling him a bungler in general terms; and that the expression "except out of a leather gun" was charging him with a lie, the word gun being vulgarly used for a lie, and gunner for a liar, and that therefore these words were libellous.(h)

So words spoken of a person in respect of his office or profession *are [*345 slanderous, if they impute incapacity, or misconduct, or want of some qualification necessary to carry on the office or profession of such person, but not otherwise.(i)

(z) Villars v. Monsley, 2 Wils. 403. The libel, the material part of which is stated in the text, was in rhyme, and very abusive.

(a) The Mayor of Northampton's case, 1 Str. 422.

(b) 2 Barnard 84.

(e) Rex r. Kinnersley, 1 Blac. R. 294. It was sworn that the nobleman was a married man; and the Court said, that under such circumstances the publication would have been a high offence even against a commoner, and that it was high time to stop such intermeddling in private families.

(d) Rex v. Dr. Smollet, 1759; Holt on Libel 224.

(f) Robinson v. Jermyn, 1 Price R. 11.

(9) Gregory v. The Queen, 15 Q. B. 957 (69 E. C. L. R.).

(e) Anonymous, Hill. T. 1812.

(h) Harman v. Delany, Barnard, K. B. 289; Fitzgib. 121; 2 Str. 898, S. C. (Lumby v. Allday, 1 Tyrw. 217; 1 C. & J. 301; Ayre v. Craven, 2 Ad. & E. 2 (29 E. C. L. R.); Doley v. Roberts, 3 B. N. C. 835 (32 E. C. L. R.); Brayne v. Cooper, 5 M. & W. 249; Gallway v. Marshall, 9 Exch. R. 294.

General imputations upon a body of men are indictable, though no individuals may be pointed out. (k) An information was prayed against the defendant for publishing a paper containing an account of a murder committed upon a Jewish woman and her child, by certain Jews lately arrived from Portugal, and living near Broad Street, because the child was begotten by a Christian.() It was objected that no information should be granted in this case, because it did not appear who in particular the persons reflected on were.(m) But the Court said, that admitting that an information for a libel might be improper, yet the publication of this paper was deservedly punishable in an information for a misdemeanor, and that of the highest kind; such sort of advertisements necessarily tending to raise tumults and disorders amongst the people, and inflame them with an universal spirit of barbarity against a whole body of men, as if guilty or crimes scarcely practicable, and wholly incredible.(n) And if some of the individuals affected by the libel are specified, it will be sufficient; as where it was objected that the names of certain trustees, who were a part of the body prosecuting, were not mentioned, Lord Hardwicke observed, that though there were authorities where, in cases of libel upon persons in their private capacities, it had been holden necessary that some particular person should be named, this was never carried so far as to make it necessary that every person injured by such libel should be specified.(0)

Where a publication stated that, upon the death of her late Majesty, none of the bells of the several churches at Durham were tolled; and ascribed this omission to the clergy, and then proceeded to make some very severe observations on that body, a criminal information was granted.(p)

A malicious defamation of one who is dead, if published with a malevolent purpose, to vilify the memory of the deceased, and with a view to injure his posterity, will be libellous; but it has been holden that an indictment for a libel, reflecting on the memory of a deceased person, cannot be supported, unless it state that it was done with a design to bring contempt on his family, or to stir up the hatred of the King's subjects against his relations, and to induce them to break the peace in vindicating the honor of the family.(g)

But there are some exceptions to the general rules and doctrines concerning libels, in the case of comments upon literary productions, *and also in the *316] case of communications considered as confidential, or made bonâ fide with a view of investigating a fact, or in the regular and proper course of a proceeding. A publication commenting upon a literary work, exposing its follies and errors, and holding up the author to ridicule, will not be deemed a libel, provided such comment does not exceed the limits of fair and candid criticism, by attacking the character of the writer, unconnected with his publication; and every one has a right to publish a comment of this description.(r) But if a person, under the pretence 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 is a libeller.(s) So

(k) Ante, p. 323.

(1) The affidavit set forth that several persons therein mentioned, who were recently arrived from Portugal, and lived in Broad street, were attacked by multitudes in several parts of the city, barbarously treated, and threatened with death, in case they were found abroad any more.

(m) Rex v. Orme, 3 Salk. 224; 1 Lord Raym. 486, as cited.

(n) Rex v. Osborne, Sess. Cas. 260; 2 Barnard 138, 166; Kel. 230, pl. 183.

(0) Rex v. Griffin and others, Holt on Libel 239.

(p) Rex v. Williams, 5 B. & A. 597 (7 E. C. L. R.); and this upon an affidavit merely stating the purchase of the paper, and that the defendant was the proprietor or publisher of it, without any affidavit of the charge being untrue.

(9) Rex v. Topham, 4 T. R. 126.

(r) Carr v. Hood, 1 Campb. 355. And in an action for a libel upon the plaintiff in his business of a bookseller, accusing him of being in the habit of publishing immoral and foolish books, the defendant, under the plea of not guilty, may adduce evidence to show that the supposed libel is a fair stricture upon the general run of the plaintiff's publications: Tabart v. Tipper, 1 Campb. 350.

(8) Nightingale v. Stockdale, 49 Geo. 3, cor. Ellenborough, C. J.; Selw. N. P. 1044.