*LEGAL DEFINITION OF LIBEL. DISTINCTION BETWEEN THE ACTIONABLE NATURE OF WORDS SPOKEN AND WRITTEN.

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STEELE v. SOUTHWICK.

In the Supreme Court of New York.

ALBANY, AUGUST, 1812.

[REPORTED 9 JOHNSON, 214-216.]

A. was a witness in a cause between B. and C., and C. afterwards printed and published the following words of A.: “Our army swore terribly in Flanders, said Uncle Toby; and if Toby was here now, he might say the same of some modern swearers. The man (meaning A.) is no slouch at swearing to an old story."

In an action brought by A. for a libel, it was held that these words, if they did not import a charge of perjury, in the legal sense, yet they were libellous, as they held up the plaintiff to contempt and ridicule, as being so thoughtless or so criminal as to be regardless of the obligations of a witness, and therefore, as utterly unworthy of credit. Where C. published a direct and positive contradiction of what a witness at a trial between B. and C. had sworn that A. had said; this was held not to be a libel, as it was not accompanied with any imputation of a crime in A.

THIS was an action for a libel. The first count stated that the plaintiff was sworn, and examined as a witness, in a cause tried at the circuit, in Albany, in which this defendant was plaintiff, and Harry Croswell defendant; that the plaintiff is a bookseller and stationer, in Albany, and has for a sign, a book lettered "Bible;" and that the defendant, maliciously intending, &c., on the 5th December, 1809, printed, &c., in "The Albany Register," a certain false, &c., libel, of and concerning the plaintiff, &c., as follows: “Affidavits. Our army swore terribly in Flanders, said Uncle Toby; and if Toby was here now, he might say the same of some modern swearers. The man at the sign of the Bible (meaning the plaintiff), is no slouch at swearing to an old story" (meaning, &c.). The second count stated that the plaintiff was examined as a witness in a cause between the defendant and Croswell, and testi

fied truly, &c.; that the defendant had told him, the plaintiff, that he, the defendant, *approved of Fox's maxim, to wit, *107] “That the public was a goose, and that he was a fool who did not pluck a quill when he had an opportunity." Yet the defendant, intending, &c., to cause it to be believed that the plaintiff, in giving the evidence aforesaid, was guilty of perjury, did on the 9th, of January, 1810, publish, &c., a certain libel in "The Albany Register," as follows, to wit, "As complete evidence of his candor (meaning his Honor Mr. Justice Spencer, before whom the cause was tried), in the present case, for error there was none, I (the defendant) need only mention, that he told the jury, emphatically, that it was proved by Steele, that I had declared to him, that I approved of Fox's maxim, that the public was a goose, &c.; that this was a very profligate sentiment, and that if they believed the testimony of Steele, they could not, in estimating damages, conceive anything due to the feelings of a man capable of entertaining it, for that such feelings could not be injured; but while I acknowledge the correctness of this decision, and most sincerely and heartily concur in it, I am bound to declare, which I now do most solemnly, in the presence of an all-seeing God, my firm conviction, that I never made to Steele the declaration above stated. It is utterly impossible, from the bare-faced absurdity, as well as from the abandoned profligacy, manifested by such a declaration, that I ever could have made it; and how that man's (the plaintiff's) imagination has wrought itself into a belief that I made it, is to me truly a subject of wonder, as it is of regret, that I find myself constrained, by what is due to my own honor, thus publicly and solemnly to deny what he has solemnly and publicly sworn to." By means whereof, &c.

There was a general demurrer to the whole bill, and a joinder in demurrer. The cause was submitted to the court, without argument.

Per Curiam. The words which form the subject of the first count, import that the plaintiff swore with levity, and rashly, and inconsiderately, without due regard to the solemnity of the oath, or to the truth and accuracy of what he said; and if they do not import perjury in the legal sense, they hold him up to contempt and ridicule, as being so thoughtless, or so immoral a person as to be regardless of the obligations becoming a witness, and,

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*therefore, to be utterly unworthy of credit. In this view, the words are actionable, for a writing published maliciously, with a view to expose a person to contempt and ridicule, is undoubtedly actionable; and what was said to this effect, by the judges of the C. B. in Villers v. Monsley (2 Willson, 403), is founded in law, justice, and sound policy. The opinion of the court, in the case of Riggs v. Denniston (3 Johns. Cas. 205), was to the same effect; and the definition of a libel is given by Mr. Hamilton, in the case of The People v. Croswell (3 Johns. Cas. 354), is drawn with the utmost precision. It is a censorious or ridiculing writing, picture, or sign, made with mischievous and malicious intent towards government, magistrates, or individuals. (Vide Root v. King, 7 Cowen, 613.) To allow the press to be the vehicle of malicious ridicule of private character, would soon deprave the moral taste of the community, and render the state of society miserable and barbarous. It is true, that such publications are also indictable, as leading to a breach of the peace; but the civil remedy is equally fit and appropriate, and as the jury assess the damages, it is, in most cases, the more desirable remedy, and one which gives most satisfaction.

The second count does not appear to contain actionable matter. The defendant confines himself to a denial of the charge, and a vindication of himself, and as that denial is not accompanied with any imputation of a crime to the plaintiff, or anything like malicious or wanton ridicule of him, it does not appear to be anything more than a lawful vindication. But as the demurrer is to the whole bill, the plaintiff is entitled to judgment.

Judgment for the plaintiff.

It has long been settled, that there is a material difference between slander and libel, and that many things are actionable when written or printed, and made public, which would not be actionable if spoken.(1) There is a marked distinction in the books between oral and written slander," says Bayley, J., in Clement v. Chivis, 9 Barnewall & Cresswell,

(1) See Villers v. Monsley, 2 Wilson, 403, 404; Thorley v. Kerry, 4 Taunton, 355; McGregor . Thwaites, 3 Barnewall & Cresswell, 24, 33; Van Ness v. Hamilton, 19 Johnson, 349, 367; Stone v. Cooper, 2 Denio, 294, 299; Hillhouse v. Dunning, 6 Connecticut, 391, 408; Colby w. Reynolds, 6 Vermont, 489; Shelton . Nance, &c., 7 B. Monroe, 128; Rice . Simmons, 2 Harrington, 417, 422, 423; McCorkle v. Binns, 5 Binney, 340, 349, 353; Williams v. Karnes, 4 Humphreys, 9, 11; Obaugh ". Finn, 4 Arkansas, 110, 121; Lansing . Carpenter, 9 Wisconsin, 542; Haskins v. Lumsden, 10 Id. 359.

172, 174. "The latter is premeditated, and shows design; it is more permanent, and calculated to do a much greater injury than slander merely spoken." There is an early case upon the subject, in which this distinction was adverted to, King v. Lake (Hardres, 470), where the libel charged the plaintiff with having presented a *petition to the House *109] of Commons, "stuffed with illegal assertions, inaptitudes, imperfections; clogged with gross ignorances, absurdities, and solecisms." A special verdict was found; and upon argument, Hale, C. B., held, that "although such general words spoken once without writing or publishing them would not be actionable, yet here they being written and published, which contains more malice, they are actionable." This appears to have been a cross action, arising out of the same dispute, as Lake v. King (1 Saund. 120, 131; 1 Siderfin 414); but in the latter case it was held, that the action could not be maintained, on the ground that the alleged publication was a privileged communication. In a subsequent case, Cropp v. Tilney, 3 Salk. 225, Holt, 426, Holt, C. J., says, “Scandalous matter is not necessary to make a libel; it is enough if the defendant induces an ill opinion to be had of the plaintiff, or to make him contemptible and ridiculous." Some judges, indeed, have doubted the good sense of the distinction; for example, Mansfield, C. J., in Thorley v. Kerry; Best, C. J., in Archbishop of Tuam v. Robeson, 5 Bingham, 17, 21; Gibson, C. J., in Deford v. Miller, 3 Pennsylvania, 103, 104; Williams, C. J., in Colby v. Reynolds, 6 Vermont, 489, 493; yet many others have considered it well founded in reason, and have assigned the most satisfactory grounds for the distinction. "Words," says Tilghman, C. J., in McClurg v. Ross, 5 Binney, 218, 219, "are often spoken in heat, in haste, and with very little reflection or ill intention, and frequently forgotten or repented of as soon as spoken. But writing requires deliberation, and is therefore more injurious to the character attacked. We are apt to suppose that before a man reduces an accusation to writing, he has satisfied himself of the truth of it; and if he has not satisfied himself, his conduct is certainly very reprehensible. Besides, the scandal is more permanent and more widely diffused. So that whether we consider the injury itself, or the mind of the person by whom the injury is committed, a libel is entitled to less allowance than a slander by words." In like manner, Hosmer, C. J., remarks in Stow v. Converse, 3 Connecticut, 325, 342: "It is because the imputations are written, and may circulate extensively, and never be forgotten, that the law respecting libel is so different as it is from the rules relative to verbal slander." See also remarks of Barlow, Senator, in Stone v. Cooper, 2 Denio, 294, 303; and see Fonville v. Mc Nease, Dudley's Law, 303, 310, and Runkle v. Myer et al., 3 Yeates, 518, 519. "Scandals merely oral," says Burke, "could spread little and must perish soon. It is writing, t is printing, more emphatically, that imps calumny

with those eagle wings, on which, as the poet says, 'immortal slanders fly. By the press they spread, they last, they leave the sting in the wound."

The legal description of a libel has been discussed in many cases, English and American. In Villers v. Monsley, 2 Wilson, 403, Wilmot, C. J., said "if any man deliberately or maliciously publishes anything in writing, concerning another, which renders him ridiculous, or tends to hinder mankind from associating or having intercourse with him, an action well lies against such publisher:" and Bathurst, J., said, "the writing and publishing of anything which tends to make a man ridiculous or infamous:" and Gould, J., said, "the publishing anything of a man that renders him ridiculous, is a libel and actionable;" and in the principal case, it will be observed that the court remark that what was said by the judges in this case is founded in law, justice, and sound policy. In Shipley v. Todhunter, 7 Carrington & Payne, 680, 689, Tindal, C. *J., said, that "any written communication which [*110 bears on the face of it any charge, or which tends to vilify another is a libel." In Woodard v. Dowsing, 2 Manning & Ryland, 74, Lord Tenterden, C. J., remarked that "in case of written slander whatever tends to bring a party into public hatred and disgrace is actionable;" and in the same case, Holroyd, J., said, "that which tends to disgrace is a libel." "Undoubtedly, to write of a man what will degrade him in society, is actionable," said Bayley, J., in Forbes v. King, 1 Dowling, 672, 674: and in McGregor v. Thwaites, 3 Barnewall & Cresswell, 24, 33, and Clement v. Chivis, 9 Id. 172, the same judge declared the rule to be, that the publication of any written or printed matter, which tended to bring a man into hatred, contempt or ridicule, was actionable. In Parmiter v. Coupland, 6 Meeson & Welsby, 105, 108, Parke, B., said “a publication without justification or lawful excuse, which is calculated to injure the reputation of another, by exposing him to hatred, contempt, or ridicule is a libel."

In Steele v. Southwick, it will be seen that the definition submitted by Alexander Hamilton, arguendo, in The People v. Crosswell, is approved of, and declared to be drawn with the utmost precision. In Cooper v. Greeley, 1 Denio, 348, 359, this definition was attacked by the counsel, as being too much extended, but was sustained by the court; and it was there said that "any written slander, though merely tending to render the party subject to disgrace, ridicule or contempt, is actionable;” and in Cooper v. Stone, 24 Wendell, 434, a libel was defined by Cowen, J., to be a contumelious or reproachful publication against a person; any malicious publication, tending to blacken his reputation, or expose him to public hatred, contempt, or ridicule:" see also Crawford v. Wilson, 4 Barbour's Supreme Court, 505, 515, and Perkins v. Mitchell, 31 Id. 465.

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