may be slanderous only, when spoken or uttered so as to reach the ear, upon being so published as to reach the eye, becomes libellous. These two wrongs are so intermixed that a knowledge of one is necessary to an understanding of the other, and we have, therefore, treated them together in this chapter. To one bearing the above simple distinction in view, no confusion can possibly arise from such a method, which, unless we presented a separate treatise upon each, appears to be unavoidable. It is to be noticed that while libel is, besides being actionable, an indictable offense,' slander is not criminally cognizable, the party injured being left to his civil remedy, which, as will be seen, is ample, and all that he could desire."

The word defamation, when occurring in this chapter, is to be taken in its ordinary popular signification of matter tending to injure one's good name, charac ter, or occupation': and not as intending any allu sion to the technical and now obsolete crime of defa mation, which was an ecclesiastical offense, cognizable only in the ecclesiastical courts, such as laying violent hands on a clerk, or the like.

4

Satire is a form of speech, which is sometimes,

ing that it was a house of ill-fame, is a libel (Jefferies v. Duncombe, 2 Camp. 3; 11 East, 226).

1

2

Bailey v. Dean, 5 Barb. 297.

Except in cases of high treason; and we have seen (ante, p. 76) that, in the United States, in time of war, individuals may be proceeded against for words spoken, which tend to weaken the authority of government. In the reign of queen Anne, words reflecting on a magistrate in the discharge of his duties, as such, were held indictable; but on account of their seditious character as against the government, rather than as an offense against the individual (Reg. v. Langley, 2 Lo. Raym. 1060; Holt L. 654).

* Blackstone, adopted by Webster.

Abolished by statutes 18 & 19 Vict., ch. 12.

2

perhaps, permitted to approach the verge of libel, but. which, nevertheless, is to be carefully distinguished from it: "For," as said Pope, "there is not in the world a greater error, than that into which fools are apt to fall into, and knaves with good reason, to encourage; the mistaking of a satirist for a libeler."1 And in "Joseph Andrews," Fielding says: "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;" which perhaps is sufficiently exact to be adopted as the legal distinction.

46. We have alluded, further on, to the difficulties experienced in defining the word "libel." A similar difficulty did not seem to occur in the case of slander, that wrong being defined closely by common law. It consisted in the imputation of: 1. Some temporal offense for which the party might be indicted and punished in the temporal courts. 2. 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 lu

1 Pope. Anon. Satires and Epistles. Advertisement. Other forms of speech were formerly brought under the scrutiny of the law. Thus, scolding often repeated, to the disturbance of a neighborhood, was indictable (Reg. v. Foxby, 6 Mod. 145). And so profanity, calumny, and perjury, are forms of offenses by words. As to brawling, see Stephen's Ecclesiastical Statutes, p. 336; Jacob's Law Dict., tit. Cuckinstool.

2 Vol. ii., p. 5.

crative profession, calling, or trade.

1

5. Any untrue words occasioning actual damage. It is only with this slander when written down, and thereby constituted a libel, that the author is concerned, in preparing his labors for publication.

47. The punishment for injuries done by means of words has at different times varied in severity. Pascal charges the Jesuits of his day with sanctioning killing for slander, particularly for slander of one in

"But

1 Hilliard on Torts, ch. 7, § 3. The word slander, in former times, appears to have been synonymous with accused. because some are wrongfully slandered (accused), king Henry I. ordained that none should be 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" (Mirror of Justices, ch. 11, § 22). “In this same year the mysseles (lepers) thorowoute Cristendom were slaundered that they had made covenant with Sarasenes for to poison all Christen men" (Capgrave's Chronicle of England, p. 186).

In an address 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. 61.

If any slanderously charge another with any false crime (Ridley's Civil Law, 31); and in the statute (3 Edw. I., ch. 34), none are to publish false news whereby slander may grow between the king and his people (Townshend on Libel and Slander, p. 60, note).

"I would not

Have you so slander any moment's leisure

As to give words or talk with the Lord Hamlet.”

(Hamlet, i. 3.)

2

1

aut

religious orders, but they held that the killing should be secret, and not open, to create scandal." And in the "Ethica Christiana," published in 1789, "cum permissu superiorum" we read that a Christian may, to prevent a “contumelia gravis certo provisa . . calumnia" murder the "injusti aggresoris aut calumniatoris.” "The necessity," says Borthwick," "of protecting character by law could not obtrude itself till society had begun to assume a complicated form. The earlier days were distinguished by an undiplomatic coarseness of language. Henry III. (A. D.

4

1248) spoke of the aldermen of London as "London boors;" applied a like epithet to the Bishop of Ely, and dismissed Bishop Aymer by telling him to "go to the devil." And the action for words, given by the common law, has necessarily varied its penalties with the customs and habits of men. At the present day : upon the theory that a man's reputation has a pecuniary value to him, the penalty inflicted by the law will be— principally, in the form of a mulcting in damages; orin the case of a libel calculated to interfere with and provoke a breach of the public peace-a fine and not immoderate imprisonment.

48. There is but a single known example in history, of a libel being deliberately chosen as a means of promoting the public interest and weal. It seems that, in the eleventh century, there existed in Denmark a species of libel called " Bersöglisvisur," or freespeaking song. We are told that when king Magnus gave dissatisfaction to his subjects, a meeting was held, at which lots were drawn to see which of those

2

1 Pascal's Provincial Letters, xiii.

By Father Slattler. Paragraphs 1889, 1891, 1892.

3 3 On Libel, p. 1.

4

• Townshend on Libel and Slander, p. 98.

assembled should address one of these songs to the king.'

49. The first difficulty which confronts us in dealing with the subject of this chapter, arises at the outset, as to a definition. As is the case with most words (as Dean Trench has pointed out), the tendency of the word "libel" has been to retrograde, and-from signifying something indifferent or trifling--come to mean a thing actually bad.

The first meaning of "libellus" or "libel" is evidently "a little book." At Rome the cards of the races, with the colors of the horses, were called libelli,1 it was only the libellus famosus that signified "a little book giving an ill name.'

And in an early act of parliament' the word seems to be used in the sense of a book or pamphlet. The act reads: "That what person so ever shall make, write, print, publish, sell, or utter any book, pamphlet, treatise, ballad, libel, or sheet of news whatsoever, or cause so to be done, except the same be licensed by both or either house of parliament," &c.; the word cannot here mean a defamatory publication, as it is not to be supposed the parliament would, in any case, license a defamatory publication. Its present use, however, is in the sense in which we shall now proceed to its definition. Perhaps there is no single word in the language, in whose interpretation so many attempts have been made, and which is so generally conceded to be impossible of exhaustive and sententious definition. As the philosopher said of another

1 "Det Norske Folkes Historie," Christiania, 1852-5; “Den Danske Erobring of England og Normandict," Copenhagen, 1863; "North British Review," Nov., 1863.

Hor. ii., iv.

3 Ainsworth.

4 Of September 30, 1647.