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.

But the generality of these descriptions has received some limitation, so far as that State is concerned, by the decision of the Court of Errors in Stone v. Cooper, 2 Denio, 294, where the judgment of the Supreme Court was reversed. In that case, the chancellor stated a distinction between an actionable and an indictable libel. After acknowledging the wider range of liability for written than for spoken matter, he added, "Still, it is not every false charge against an individual, even when the same is deliberately reduced to writing and published to the world, which is sufficient to sustain a private action to recover a compensation in damages for a libel. Some publications are deemed libellous so as to render the authors thereof liable to be punished criminally, in consequence of their tendencies to disturb the public peace, although no private injury will probably result to any one from such publications. Such are the cases of libels upon the dead, whereby the feelings of surviving relatives may be deeply wounded; the consequence of which would probably be attempts to inflict summary justice upon the authors of such libels if the laws had not provided the more peaceful remedy of a resort to a criminal prosecution. But to sustain a private action for the recovery of a compensation in damages for a false or unauthorized publication, the plaintiff in such action must either aver and prove that he has sustained some special damage from the publication of the matter charged against him; or the nature of the charge itself must be such that the court can legally presume he has been degraded in the estimation of his acquaintance or of the public, or has suffered some other loss either in his property, character, or business, or in his domestic or social relations, in consequence of the publication of such charge." In an early Pennsylvania case, it was said that, "any written or *111] printed words, which render a man ridiculous, or throw contumely upon him, are actionable; but it is otherwise of words spoken; and this distinction has been long settled;" Runkle v. Myer et al., 3 Yeates, 518, 519; and in McCorkle v. Binns, 5 Binney, 354, Tilghman, C. J., defined a libel to be "any malicious printed slander which tends to expose a man to ridicule, contempt, hatred, or degradation of character." In Dexter et ux v. Spear, 4 Mason, 115, 116, Story, J., said that "any publication, the tendency of which is to degrade or injure another person, or bring him into hatred, ridicule, or contempt, or which accuses him or her of a crime punishable by law, or of an act odious and disgraceful in society, is a libel." The definitions adopted in some of the Tennessee cases are perhaps as satisfactory as any that have been offered: "Any malicious publication, expressed in printing, or writing, or by pictures or signs, tending to injure the character of an individual, or diminish his reputation, is a libel."(1) "A libel or written defama

66

(1) Dunn v. Winters, 2 Humphreys, 512, 513; Melton v. The State, 3 Id. 389, 395.

tion is the injurious detraction of any one by writing or equivalent symbols."(1) In Kentucky, in an early case, the rule was declared, that "words, when written, if they tend to degrade or disgrace, or to render odious or ridiculous the person of whom they are written, will be libellous and consequently actionable; and this distinction (it was said) between written and verbal slander, is abundantly established by the most unquestionable authorities;" McGee v. Wilson, Littell's Selected Cases, 187, 188; and in Shelton v. Nance, &c., 7 B. Monroe, 128, this rule is confirmed and enforced. In South Carolina, it has been declared that "The essential ingredient of a libel is, that it should be a malicious publication; and where the obvious design and tendency of such a publication is to bring the subject of it into contempt and ridicule, it will be a libel, although it impute no crime liable to be punished with infamy; "(2) but that to be actionable, the written or printed matter "must be such, as, in the common estimation of mankind, is calculated to reflect shame or disgrace upon the person, or hold him up as an object of hatred, ridicule, or contempt." Mayrant v. Richardson, 1 Nott & McCord, 348, 349; Fonville v. McNease, Dudley's Law, 303, 310. In The State v. Farley, 4 McCord, 318, where the definitions of Mr. Hamilton and of Ch. J. Wilmot were approved, it was said that nothing but what is criminal, immoral, or ridiculous, can be libellous. In Vermont, in Colby v. Reynolds, 6 Vermont, 489, 493, the court said that, "a publication which renders a person ridiculous merely, and exposes him to contempt, which tends to render his situation in society uncomfortable and irksome, which reflects a moral turpitude on the party and holds him up as a dishonest and mischievous member of society, and describes him in a scurrilous and ignominious point of view, which tends to impair his standing in society, as a man of rectitude and principle, or unfit for the society and intercourse of honorable and honest men, is considered as a libel." In Delaware, in the case of Rice v. Simmons, 2 Harrington, 417, 429, the subject was elaborately investigated, and it was decided "that written slander, to be actionable, must impute something which tends to disgrace a man, lower him in or exclude him from society, or bring him into contempt or ridicule; and that the court must be able to say from the *publication itself, or [*112 such explanations as it may admit of, that it does contain such an imputation, and has legally such a tendency; but mere general abuse and scurrility, however ill-natured and vexatious, is no more actionable when written than spoken, if it do not convey a degrading charge or imputation;" and Booth, C. J., referring to this case, subsequently, in Layton v. Harris, 3 Id. 406, 407, says, "a libel is a malicious publication in printing, writing, signs, and pictures, imputing to another some(1) Williams v. Karnes, 4 Id. 9, 11.

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(2) The State v. Henderson, 1 Richardson, 180.

thing which has a tendency to injure his reputation, to disgrace or degrade him in society, lower him in the esteem and opinion of the world, or bring him into public hatred, contempt, and ridicule." In Massachusetts and Connecticut, the notion of actionable and indictable libel seem to have been confused together. In Commonwealth v. Clap, 4 Massachusetts, 163, 168, the case of an indictment, Parsons, C. J., substantially repeating Serjeant Hawkin's definition of a libel in a criminal point of view, said "A libel is a malicious publication, expressed either in printing or writing, or by signs and pictures, tending either to blacken the memory of one dead, or the reputation of one who is alive, and expose him to public hatred, contempt, or ridicule;” and in Clark v. Binney, 2 Pickering, 113, 115, a civil action for libel, the court, per Lincoln, J., referred to this as embodying "the most clear and precise definition of a libel, as applicable to personal actions ;" and said, that "to the correctness of this definition no objection can now be urged." See, also, Commonwealth v. Wright, 1 Cushing, 46, 62. So in Hillhouse v. Dunning, 6 Connecticut, 407, which was an action for libel, the court, per Peters, J., said, "A libel is malicious defamation, expressed in print or writing, or by signs or pictures, tending to blacken the memory of the dead, with an intent to provoke the living, or to injure the reputation of one who is alive, and thereby expose him to public hatred, contempt, or ridicule ;" and in The State v. Avery, 7 Id. 267, 268, which was an indictment, the same judge said, in language not much varied from the other case, "A libel is a malicious defamation of any person by printing, writing, signs, or pictures, tending to blacken the memory of the dead, with intent to provoke the living, or injure the reputation of the living, provoke him to wrath, or expose him to hatred, contempt, or ridicule.” The latter appears to be a very correct definition of an indictable libel ; but it is clear that a publication tending to blacken the memory of the dead, for the purpose of provoking the living, though indictable, is not the subject of a civil action.

As instances of words which are actionable, when written or printed and made public, and which would not be, if merely spoken, the following may be referred to: A letter written to a third person calling one "a villain," was held to be actionable, in Bell v. Stone, 1 Bosanquet & Puller, 331; the court saying that "any words written and published, throwing contumely on the party, were actionable." To charge another, in a published writing, with having the itch and stinking of brimstone, was decided to be actionable, in Villers v. Monsley, 2 Wilson, 403, because it tends to hinder mankind from having intercourse with him; and Bathurst and Gould, Js., said that for speaking such words, without more, an action would not lie; and the latter said, that for speaking the words rogue and rascal of any one, an action will not lie, but if those words should be written of another, and published maliciously, he doubted