SLANDER AND LIBEL. CHAPTER I. INTRODUCTORY. Language as a means of effecting injury-SlanderLibel-Defamation-Redress-The law of libelObject in view-Division of subject-Attempts to define libel. § 1. Among the means which one individual may employ to affect another or to affect society in general are sounds and signs. Language, in so far as it is the me dium for communicating or exciting ideas, consists of a system of sounds and signs, and is the chief among the sounds and signs which affect individuals or society in general. Language expressed in sound is oral language 1 As ringing bells, firing guns, beat- manufacturing steam boilers, Fish v. ing drums, clapping hands, hooting, 953: Trustees. &c. v. Barb. 313; Davidson v. Isham, I Stock. 186; Rogers v. Elliott, 25 The Reporter, 496; Supreme Court, Mass. Dodge, 4 Denio, 311; barking of dogs, Brill v. Flagler, 23 Wend. 354. See an article entitled "Noisy Nuisances," published in New York Daily Transcript, January 10th, 1871. In Lansing v. Smith, 8 Cow. 146, Sutherland, J., compares the action for a nuisance to an action for slander for words not actionable in themselves. 2 "There is nothing in nature but may be an instrument of mischief." (Ld. Chief J. Pratt, in Chapman v. Pickersgill, 2 Wils. 145.) "A very great part of the mischiefs. which vex the world arise from words." (Burke, in a letter to his son.) Incau-tious language is the dry rot of the or speech. Language expressed in signs is written lan world. "Among the abounding iniquities of this age, the iniquity of the tongue, that little member, set on fire by hell, is not least. And among the evils of the tongue is there any more pernicious and deadly, and yet more common and epidemical than backbiting and slander? And hence it is, I have been encouraged to engage in this work, which is nothing else but a naked and methodical collection of the remedies prescribed by the law against this malady." (Preface to Shepard on Slander.) Murder may be done lingua del facto. (14 Q. B. D. 282.) Hero was done to death by slanderous tongues. Words are contained under the general expression of a human act, as also signs which have the same effect with words. (Wood's Civil Law, 28.) A fraudulent representation is in effect a wrongful action. (Sharp v. Mayor of N. Y. 25 How. Pr. R. 396.) Scribere est agere. (The People v. Rathbun, 21 Wend. 509, 540.) On the trial of Algernon Sidney, the prisoner inquired, And is writing an act? to which Lord Jeffries replied, Yes, it is agere. Words spoken are a thing done. Murray v. McSwyney, 9 Ir. R. Com. L. 543. Words are things. Note to § 267, post. Language is not the only mode by which reputation may be injured. "Scandal signifies a report or rumor or an action whereby one is affronted in public." (Jacob's Law Dict.) Thus, in Brewer v. Day, 11 M. and W. 625, one cause of special damage was, that defendants, by causing plaintiff's goods to be seized on an unfounded claim for debt, occasioned his customers to think him insolvent; and in trespass for breaking and entering plaintiff's dwelling, upon false charge of having stolen property concealed therein, per quod she was injured in her credit, it was held that the jury might give damages as aggravated by the false charge. (Bracegirdle v. Orford, 2 Maule and Selw. 77. See Jeffries v. Duncombe, 11 East, 226; Spall v. Massey, 2 Stark. Cas. 559.) As to injury to reputation by act, see Beau mont v. Reeve, 8 Adol. and Ell. 483; and 1 Siderfin, 375, where one Cooper brought an action upon the case against Witham and his wife, for that the wife maliciously intending to marry him, did often affirm that she was sole and unmarried, and importuned et strenue inquisivit 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. He had a verdict, but no judgment; for by Twisden, J., the action lies not, because the thing here done is felony; no more than if a servant be killed, the master cannot have an action per quod servitium amisit, quod curia concessit; see also Vidian's Entries, where is a form of declaration for saying: Regard brothers went to a house which was a brothel and ought to be torn down, special damage that the house was torn down. As to defamation by deed, see Of Libels: An Institute of the Laws of England, by Thomas Wood, LL.D., 1720. 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. (Robinson v. Marchant, 7 Q. B. 918; and see Marzetti v. Williams, I B. & A. 415.) 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. (MS.) The following case occurred in Lower Canada: Lebeau sued Turcot for damages. arising out of the facts that both were members of the same church, that Turcot took up the collection in that church, and that Turcot intentionally, and for the purpose of humiliating Mr. Lebeau and holding him up to ridicule, passed him by without giving him the opportunity of making the usual contribution. The defendant plead that his services were gratuitous; that he was therefore un guage, or writing and effigy. By writing' is intended to be understood, every means of symbolizing language by alphabetic characters, with every kind of implement, as pen, pencil, graver, type; with every kind of pigment, as ink, lead, chalk; on any kind of substance, as paper, parchment, linen, wood, copper, steel, stone, or on any fence, wall or post. And by And by effigy being intended to be understood every other means of communicating or exciting ideas other than by speech or by writing. therefore, includes pictures, statues, gestures. Effigy, § 2. The effects of language may be beneficial or in der no obligation to take the collection from Lebeau, and that moreover it was through inadvertence that he omitted to pass the plate to that gentleman. The court held the latter allegation disproved; it was shown that defendant had spoken to several people about the affair, laughed with them about it, and told them to watch Lebeau and see what he would do. Even if defendant's services were gratuitous, he was bound to perform them in a right manner and without subjecting any one to ridicule. It was a very small matter, but the defendant was in the wrong. Judgment was given for $5, with costs. Language, however licentious and abusive, is not a trespass (Adams v. Rivers, 11 Barb. 397) nor an assault (Meade and Belts case, I Lewin C. C. 184), but language may aggravate a trespass. (Mirest v. Harvey, 5 Taunt. 442; Bell v. Midland Ry. Co. 10 C. B. N. S. 308.) Language may constitute an imprisonment (Homer v. Battyn, Buller's N. P. 62; Pike v. Hanson, 9 N. H. Rep. 491), and cruelty. (Durant v. Durant, 1 Hagg. Ecc. R. 769; Lockwood v. Lockwood, 2 Curteis Ecc. R. 281, cited and approved Bihin 7. Bihin, 17 Abb. Pr. R. 26.) A recognizance to keep the peace is not forfeited by reproachful words. (4 Bl. Com. ch. xviii.) As to speech being the foundation of a criminal prosecution, see 2 Bishop on Crim. Law, § 813, and note to § 8, post. If a man menaces my tenants at will, of life and member, per quod they depart from their tenures, an action upon the case will lie against him, but the threatening without their departure is no cause of action. (Vin. Ab. Actions on Case, N. c. 21.) Action lies for threatening workmen to maim and prosecute them, whereby the master lost the selling of his goods, the men not daring to go on with their work. (Garret v. Taylor, Cro. J. 567, pl. 4, A. D. 1621; Skinner v. Kitch, Law Rep. 2 Q. B. 393; see, however, Ashley v. Harrison, I Esp. 48, and post, § 201.) 1 Writing includes printing (Saunderson v. Jackson, 2 Bos. and Pul. 238; Henshaw v. Foster, 9 Pick. 318) and marks with a lead pencil (Geary v. Physic, 5 B. and C. 238; Classon v. Bailey, 14 Johns. 484), or chalk (Mortimer v. M'Cullan, 6 M. & W. 58). An English clergyman was tried for libelling another by sowing in his garden seeds in such a manner that when they germinated they exhibited the words Whitehead is a scamp." See Bouvier's Law Dict. tit. Effigy. 2 Austin 7. Culpepper, Skin. 123; Show. 314. 3 Reg. v. Sullivan, 11 Cox's Crim. Cas. 44; DuBost v. Beresford, 2 Camp. 512; Jeffries v. Duncombe, II East, 226; Mezzara's Case. 2 City Hall Recorder, 113; Johnson v. Commonwealth, 14 Atl. Rep. 425. jurious. If injurious, the injury may amount to a wrong, entitling the party wronged to redress by law. The designations of the wrong and of its remedy and of the wrong-doer differ according to the means employed to effect the wrong. § 3. One may be so injuriously affected by speech as to be what is termed slandered; and, in that event, the speech so affecting him is called slander1 or a slander, and the speaker is denominated a slanderer. 1 Slander is defaming a man in his reputation by speaking or writing words which affect his life, office or trade; or which tend to his loss of preferment in marriage or service, or to his disinheritance, or which occasion any particular damage. Introduction to the Law relative to trials at Nisi Prius. By a Learned Judge [Lord Bathurst]. Vol. I, p. 3). Slander is the imputation: I. Of some temporal offense for which the party might be indicted and punished in the temporal courts. 2. Of 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 lucrative possession [profession] or trade. 5. Any untrue words occasioning actual damage. (1 Hilliard on Torts, ch. vii, § 3.) Slander is defined to be "the publishing of words in writing or by speaking, by reason of which the person to whom they relate becomes liable to suffer some corporeal punishment, or to sustain some damage." (Bac. Abr.) 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." (Mirrour of Justices, ch. xi, § 22.) “In this same year the mysseles (lepers) thorowoute Cristendom were slaundered that they had made covenant with Sarasenes for to poison all Cristen men." (Capgrave's Chronicle of England, p. 186.) In a document addressed by the Dean and Chapter of Aberdeen to Bishop Gordon, dated January 5, 1558, is the following: "Imprimis, 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. Secundo, 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. lxi.) If any slanderously charge another with any false crime (Ridley's Civil Law, 31); and in the statute 3 Edw. I, ch. xxxiv, none are to publish false news whereby slander may grow between the king and his people. Mis-say, to slander, to speak ill. (Spencer.) $ 4. One may be so injuriously affected by writing or effigy as to be what is termed libeled; and, in that event, the writing or effigy so affecting him is called libel or a libel, and he who puts forth such writing or effigy (the publisher or venter) is denominated a libeler,1 "one whose heart is more dark and base than that of an assassin, or than his who commits a midnight arson."" § 5. So, too, formerly in England, one might be so injuriously affected by language, whether in the form of speech, writing, or effigy, as to be what was termed defamed; in which event the language so affecting him was "I would not, Have you so slander any moment's leisure As to give words or talk with the Lord Hamlet." (Shakespeare.) 1 "Libeler-he 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, is guilty of a libel." (Just. Inst.) "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." (Joseph Andrews, vol. II, 5.) "And indeed there is not in the world a greater error than that which fools are apt to fall into, and knaves with good reason to encourage, the mistaking a satirist for a libeler." (Pope, Anon. Satires and EpistlesAdvertisement.) "The early English satirists were mighty in their vocation against the lawyers, the regular and secular clergy, and the more eminent professors. The political ballad-mongers aimed higher. They stoutly supported Simon de Montfort against Henry the Third. This support was probably the occa sion for the statute of 1275, ' against slanderous reports or tales to cause discord betwixt king and people."" (See The Barons' War, &c., by W. H. Blaauw, M. A.; The Miracles of Simon de Montfort, Camden Soc. Pub.) A barrator is a mover of suits and quarrels in courts by spreading false rumors and reports to raise discord among neighbors. (I Coke's Inst. 368.) Lampooner, see 3 Lev. 248. 2 Oswald's Case, Dall. 329. Fielding gives the following description of a slanderer: Vice hath not, I believe, a more abject slave; society produces not a more odious vermin; nor can the devil receive a guest more worthy of him, nor possibly more welcome to him, than a slanderer." Defamed seems formerly to have been used in the sense of charged, thus in the form of indictment referred to in The Mirrour of Justices," we find it so used; as thus: "I say, Sebourge there is defamed by good people of the sin of heresy," &c., and in Lord Somers' Tract on Grand Juries, "the constitution intrusts such inquisitions in the hands of persons of understanding. that might suffer no man to be falsely accused or defamed." "Thieves openly defamed and known." (4 Bl. Com. ch. xxii.) 'There is a fame against Mr. Spencer for not burying Edward Merrick as a Christian ought to be." (Calendar of State Papers, Domestic Series, of the |