alleged libel, its tendency, and all the accompanying circumstances, that his intention was malicious, and therefore criminal; and after all he is not debarred from appealing to another tribunal, for the purpose of ascertaining whether that, which after conviction must be taken to have been published with a malicious mind, contains that intrinsic tendency to produce mischief, which constitutes it a libel in the criminal sense.

In these two circumstances, the necessity of a malicious intent, and the mode in which that intent is to be ascertained, is founded the liberty of communication in the most valuable sense of the word; the first forms the plain boundary between right and wrong, which no man, whose intentions are pure, needs fear to transgress; the other assures to him an impartial inquiry into those motives, should they be called in question. What other means could be devised for securing the liberty and restraining the licentiousness of the press at once so simple and effectual?

No declaimer was ever silly enough to contend that all publications, however malicious, or however mischievous, ought to pass unrestrained; but allowing restraint to be necessary where the intention is malicious and tendency mischievous, how can the existence of these be best ascertained? It is plain that mere tendency is too subtle in its nature to be defined by human laws; it depends upon circumstances infinitely combined and perpetually fluctuating, admitting no other means of ascertainment, than the application of a strong judgment to the subject matter, its context, and those extrinsic cir

cumstances which are capable of illustrating its meaning the intention too must be collected from the publication itself, and the accompanying facts; to refer, therefore, the alleged libel and its circumstances to the joint consideration of the Court and a Jury, by which means the latter are put in possession of the legal opinion and experience of the former, and are thereby assisted in forming a correct judgment upon the defendant's intention, appears to be the happiest expedient which ingenuity could suggest for at once arriving at the truth and securing the rights and liberties of the subject.

NOTES.

[ 1 ]

P. 2." The injury could seldom extend beyond," &c.

The rude member of a warlike tribe would quickly resent any reflection upon his courage, strength, or prowess: to restrain such would therefore be one of the earliest efforts exerted by a people beginning to substitute general laws, as the security for good manners, in the place of individual violence. By the ancient law of the Burgundians,

Si quis alterum concagatum clamaverit 120 denariis mulctetur. Si quis vulpeculam alterum clamaverit vel leporem eodem modo mulctetur. "These," as observed by a learned writer, "appear plainly to be the laws of a warlike nation, in which the calling another by a name, which implied cunning or flight, rather than courage and resistance, was thought a heinous infamy." Barrington on the penal statutes. What a different state of society is suggested by the following canon: "Si quis dixerit episcopum podagra laborare anathema sit." Menagian, T. 1. 16. It seems clear, that good breeding and polite manners cannot become the subject matter of legislation; mere injuries to the feelings are too unsubstantial and evanescent in their nature to bear definition; the very tone of voice and expression of countenance in such cases not unfrequently constitute the insult; nay, in some instances, even silence may wound more severely than the most abusive language. Against such affronts no legislative enactment can defend, and it is not difficult to conceive that a high sense of honour is a better security against gross manners than any penal laws, which must necessarily define the particular insults intended to be restrained, and of course leave a far greater number to be practised with impunity.

[ 2 ]

P. 13.-"Without proof of special damage," &c.

According to Vaughan, C. J. 2 Vent. 28, at one time no action lay without proof of special damage, unless the slander concerned the plaintiff's life; and it was not actionable to call another a villain, unless it were added he was lain in wait to be seized. The C. J. added, "The growth of these actions will spoil all communications; a man shall not say such an inn or such wine is not good."

[ 3 ]

P. 18.-" Criminal liability is not always the exclusive ground," &c.

To the confirming instances cited may be added, the class of cases in which it has been held, that a pardon granted after the commission of the offence, but before the speaking of the words, will enable the plaintiff to maintain his action. See Cuddington v. Wilkins, Hob. 81.

[4]

P. 22.-"The purpose or intent of a man without action," &c. See also Lord Ellenborough's dictum, 4 Esp. 219.

[ 5 ]

P. 25.-"To impute incontinency to a female in London," &c. Such an action is not removeable from London by habeas corpus. Cro. Car. 486.

[ 6 ]

P. 106.-"Of a member of parliament."

But words otherwise actionable are not the less so because applied to a candidate to serve in parliament. Harwood v. Sir J. Astley in error, 1 N. R. 47.

[ 7 ]

P. 113.-"Words imputing dishonesty to a tradesman," &c.

In Feise v. Linder, 3 B. and P. 372. The plaintiff stated, that he was a merchant, and had received a bill of lading relating to certain goods consigned to him, which bill of lading he produced to the defendant, and required the delivery of the goods, when the defendant maliciously published concerning the plaintiff in his business and the premises these words, " He has brought a false bill of lading for half the cargo already."

After a verdict for the plaintiff judgment was arrested on the ground, that the words without special damage were not actionable; but from the report of this case the attention of the Court seems to have been chiefly directed to the question, whether the words were actionable as imputing a crime? and it does not seem to have been much considered, whether they were not actionable as having been spoken falsely and maliciously concerning a merchant in his business, and tending to injure him in his means of livelihood.

Since this chapter was printed, the distinction between oral and written slander has been recognised in the Exchequer Chamber.

Lord Kerry founded his action upon a libel charging him with being a hypocrite, and using the cloak of religion for unworthy purposes. He had a verdict with 201. damages at the Kingston Spring assizes, 1809, and had judgment in

the Court of King's Bench without argument, whereupon a writ of error was brought in the Exchequer Chamber. Sir James Mansfield, C. J. on giving judgment for the defendant in error (East. T. 1812) observed, that this was cer tainly a libel for which the writer might have been indicted, but he had entertained considerable doubts, whether it could be the ground of a civil action? As to a civil action there seemed to be no well-founded distinction between written and unwritten slander. The reasons given in the books for the distinction are very insufficient. One reason is, that by writing the scandal becomes more diffused; but this is casual, for words may be spoken under circumstances which shall give them much more publicity and render them much more injurious than if they were committed to paper and shown to a third person; another reason is, that the writing of the scandal shows more malice in the defendant; but the true foundation of a civil action is some damage sustained by the plaintiff, and not the malice which actuates the defendant. It was with great difficulty his Lordship had brought his mind to yield to the authority of the cases upon the subject. There were cases, however, establishing this distinction above a century ago, and dicta to the same effect by Lord Hale, Lord Hardwicke, and other very learned and eminent judges, and the Court could not now venture to overturn a rule sanctioned by the practice of a century, and the authority of so many great names. Judgment affirmed, 3 Camp. 214.

To the cases cited in proof of the distinction may be added, Sir Baptist Hicks's case, Hob. 215.

King of Gray's Inn v. Sir E. Lake, 2 Vent. 28.

Harman v. Delany, Str. 888. D. L. L. 13. In the latter case the Court observed, that if bare words, affecting a man in his trade, wore actionable, it would be much stronger in the case of a libel in a public newspaper, which is more diffusive.

[ 9 ]

P. 138.-
.-"The general rule appears once to have been," &c.

See 1 Buls. 40. and supra p. 22. In 2 Vent. 28, Vaughan, C. J. observed, "in ancient books we do not read of an action for words unless the slander concerned life."

[ 10 ]

P. 154.-"Riding Skimmington," &c.

It has been held that this practice is not actionable, Lord Raymond. 201; but in 2 Show. 314. it was said, that the carrying a fellow with horns bowing at the plaintiff's door is actionable; and the case of Sir W. Bolton v. Dean was referred to.

[ 11 ]

P. 161.-"Loss of marriage," &c.

Upon the same grounds it is actionable, falsely and maliciously, to say that a person in treaty to marry is under a precontract, the marriage having by such words been defeated, 11 Mod. 99; for the loss of marriage is a temporal damage, and proceeds from the wrong of the defendant, viz. his false and malicious

assertion.