it tended to provoke a breach of the peace, and it was on this ground, that for a long time the courts so liberally and indiscriminately allowed, and indeed compelled, a libeller to enter into recognisances to keep the peace.1 And apparently the same assumption will be seen to have led the judges, before Fox's Act corrected it, into the anomaly of holding the guilt of libel an inference of law and not of fact. This mode of viewing libel was founded on the assumption, that libels were more than other wrongs, or indeed more than many breaches of contract, equivalent to a breach of the peace. In a rude state of society all things that are now illegal acts and give rise to actions more or less tempted to a breach of the peace. The man who could not get his money from an evasive debtor would strike a blow as readily and with as much propriety as he who had been accused of theft would strike his accuser. This notion, that the tendency of a libel to cause a breach of the peace is greater than the tendency of other wrongful acts, or even of a spoken slander, is obviously founded on misapprehension, and is no longer tenable.2

How far malice is an ingredient in libels.-The word malice is constantly resorted to in dealing with libels. As in the crime of murder malice is said to be an essential ingredient, and must be inferred from the circumstances and the conduct of the accused, so it is said, in the wrong of libel, malice is deemed an ingredient, and even in the face of facts which tend to prove an honest belief in the truth of what is stated, the law will imply this malicious ingredient from the nature of the wrong actually done. In short, as libels consist of words, and words have certain definite meanings known and read of all men, it is not so much what the person who used the words did in the secrecy of his own mind intend, as what those words when told to third parties will naturally mean, that the essence of the wrong consists. Certain reports will ruin a third person's character equally, whether used with the purest and almost benevolent wishes, or the most malicious and revengeful intentions. But in spite of the absence of any intention to injure, if words be used which in their natural meaning are libellous, and are damaging to private 1 See 1 Pat. Com. (Pers.) 191.

2 See further as to this, post, "Remedy by Indictment."

reputation, then the malice will be implied; for it is the business of all men so to act and so to speak, that the character and reputation of others, and which are the same as property, and a valuable possession, should not be wantonly, carelessly, or even inadvertently assailed. When the libel is uttered, not in the course of any honest and lawful business, which it will be seen the law protects, but without adequate cause or ground of self-defence, and by the person going as it were out of his way to say it, then malice is necessarily implied, and the cause of action is sufficiently established. Thus it may be said, that libel in fact is libel in law, whatever be the motive avowed or concealed, for the damage to the plaintiff is the real cause of action. And so entirely is it irrelevant in the ordinary action for libel, what was the motive or intention of the defendant, that a judge who told a jury to consider, whether the defendant intended to injure the plaintiff, was held to have misdirected them, it being necessarily presumed, that every man intends the natural and ordinary consequences of his own act; and if a third party is injured, it cannot matter to him, whether malice existed in the wrongdoer or not. 2

The inquiry into the existence of malice is only material, or rather is a short mode of expression in those somewhat

1 Bromage v Prosser, 4 B. & C. 255. “Malice, in its legal acceptation, means not personal spite, but conscious violation of the law, taken along with the maxim, that every one must be taken to intend the necessary consequence of his deliberate acts."—L. Campbell, Ferguson Kinnoul, 9 Cl. & F. 321.

"Everything written or printed which reflects on the character of another, and is published without lawful justification or excuse, is a libel, whatever the intention may have been.”—Parke, B., O'Brien v Clement, 15 M. & W. 437.

“An act unlawful in itself and injurious to another is considered, both in law and reason, to be done malo animo toward the person injured, and this is all that is meant by a charge of malice in a declaration, which is introduced rather to exclude the supposition that the publication may have been made on some innocent occasion than for any other purpose."-Duncan v Thwaites, 3 B. & C. 556.

LORD MANSFIELD told a jury that it was not necessary to prove an actual intent, which is the private operation of a man's mind, but they were to exercise their judgment from the nature of the act as to the intent with which it was done.-R. v Tooke, 20 St. Tr. 762. 2 Haire v Wilson, 9 B. & C. 643; Fisher v Clement, 10 B. & C. 472.

ambiguous cases where the person uttering the libel was honestly acting in self-defence or in furtherance or protection of his lawful rights, and these two rights clash-the right of the libelled person to have his character and reputation intact, and the right of the libeller to speak his mind if he is thereby pursuing his lawful business in the way which he thinks best fitted to promote his own interest. This class of cases are often indiscriminately classed under the head of privileged communications, though they would more properly, following by analogy the distinctions in manslaughter, be called excusable libels.

Construction of the libel or slander-Another important matter with regard to all libels and slanders is the construction to be given to the words. The rule is, that it is for the jury to consider, whether injury to character is the necessary consequence of the whole libel taken as one document. They are to construe the libel for this purpose, and to see, whether the effect of one part is not neutralised by another part; for if so, the bane and antidote must be taken together, and the result may be no libel at all.1 Or as Coke said, a man's words are not to be taken by parcels.2 When the libellous words are ambiguous, as they often are, it was once thought to be the duty of courts to construe them in the most favourable sense to the person using them. But that view has long been repudiated, and now there is only one just way of construing language, whether libellous or not libellous, namely, in the sense which it naturally bears; in other words, in the sense which the majority of people hearing or reading the language would attribute to it.3 As Lord Mansfield, C. J., said, "Where words from their general import appear to have been spoken with a view to defame a party, the court ought not to be industrious in putting a construction upon them

24 Rep. 18.

1 Chalmers Payne, 2 C. M. & R. 156. 3 Harrison v Thornborough, 10 Mod. 197; Roberts v Camden, 9 East, 96; Hawkinson v Bilby, 16 M. & W. 442. LORD HARDWICKE said, that in earlier times judges used their utmost endeavour to explain away opprobrious words, but that this was wrong, for the characters of men had the same claim on the protection of the law as their estates, and the sole question was, in each case, what the words meant.-Carpenter v Tarrant, Cas. t. Hardw. 339.

different from what they bear in the common acceptation and meaning of them." i

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The medium of the libellous act.-The medium by which the libellous act is committed is not confined to any one description of writing, printing, painting, gesture, or pantomime; all depends on the effect produced by the instrument or medium used on the public or the bystanders. The language may be ironical or metaphorical; as, for example, to call one "an honest lawyer." Hence it is idle to set up as a defence that the words were misspelled; * or were in the form of a question put to third parties; or that the defendants were only singing a song in front of a father's house (imputing dishonesty and immorality to two of his children); or that no individual was named, though a class was described (under which that individual was understood by everybody to be included), such as "some of the Irish factories"; or that the initial letter only was printed; or that it was only a fancy picture of " Beauty and the Beast (though the figures resembled a well-known man of fashion and his wife). And the libellous act may consist in mere gestures or conduct; as fixing a gallows before a man's door or somewhere near, which Coke said was an example of libel by signs.10 Holt, C. J., held that painting a man playing at cudgels with his wife was a libel;11 and so was putting up and burning a certain lamp at another's door, like that commonly used before disorderly houses; 12

1 Peake v Oldham, Cowp. 275.

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2 Hob. 215; 11 Mod. 86;

Hoare v Silverlock, 12 Q. B. 624; Fisher v Clement, 10 B. & C. 472. 3 Boydell v Jones, 4 M. & W. 446. 4 R. v Edgar, 2 Sess. C. 29. 5 Gathercole's Case, 2 Lew. C. C. 255. 6 R. v Benfield, 2 Burr. 984. 7 Le Fanu v Malcolmson, 1 H. L. C. 664. 8 Read v Huggonson, 2 Atk. 470.

9 Du Bost v Beresford, 2 Camp., 511. In one case Parson Prick in his sermon told a story out of Foxe's Martyrology, that one Greenwood, a justice and great persecutor, had great plagues inflicted on him and was killed by the hand of God. But it turned out that Greenwood was present listening to the sermon, and sued for damages. WRAY, C. J., however, told the jury, it was only delivered as a story with no intention to injure, and judgment was entered for defendant; and POPHAM said it was good law, and COKE also quoted the case as sound sense.- - Cro. Jas., 91. 12 Jeffries v Duncombe,

10 5 Rep. 125. 11 East, 226.

11 11 Mod. 99.

also carrying a man about dressed with horns and bowing at plaintiff's door.'

Libelling classes of persons, corporations, and firms. -Holt, C. J., said that a libel that points at nobody is like a shot at random, that seldom does any mischief. A defamatory libel is necessarily personal, yet it may be aimed ostensibly at individuals united in partnership, or described under the more general name of a class of persons. It is true that some descriptions are too wide to amount to libel, as where "men of the gown" are abused.3 But it is libellous to describe persons spoken of, though no more definitely than as partners of a firm;4 or a society which manages a nunnery.5 A chairman of a life assurance company was held entitled to sue on behalf of the shareholders of the company for a libel importing that their policies were insecure. And a shareholder in a company is not so identified with his fellow-shareholders, that he may not be sued for libelling the company to which they both belong. And on the other hand the managers of a company or voluntary society may so act as to make the company or society liable for libels issued under their authority, as where a telegraph company publish a telegram that a bank has stopped payment. The court on one occasion granted a criminal information for a libel on "the clergy residing in and near the city of Durham," and the verdict of guilty was in the same terms; though the point was raised afterwards, but never decided, whether this was not too vague and general a description of the persons libelled. And in a case where the libel was on "the Portuguese Jews," accusing them of burning a bastard child, the court granted a rule for a criminal information.10 And in a

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1 Bolton v Deane, 2 Show., 314. But riding Skimmington, a mode of insinuating that a man's wife had beaten him, and though injuring the plaintiff (a hackney coachman) in his business, was held not actionable.-Mason v Jennings, T. Raym., 401. It was said that the Greeks had no punishment for defamation by words and gestures, for it was pusillanimity not to resent it on the spot.-Hobbes' Leviath., c. 27. See Diog. Laert. Anach.

3 Shower, 314; 3 Salk. 224.

2 R. v Tutchin 14 St. Tr. 1118. 4 Haythorn Lawson, 3 C. & P. 196; Le Fanu v Malcolmson, 1 H. L. C. 637. 5 R. v Gathercole, 2 Lewin, C. 237. 6 Williams v Beaumont, 10 Bing. 260. 7 Metropolitan Co. v N. 87. 8 Whitfield v S. E. R. Co., E. B. & E. 115. Speeches. 10 Osborne, 2 Barn. 138.

Hawkins, 4 H. & 9 Brougham's