Page images
[blocks in formation]

p. 98), 1 T. R. 748 (1 R. R. 392), where the same word written was held actionable; but in the latter case is an innuendo, that the defendant intended an obtaining money under false pretences, which incurs an infamous punishment, and is therefore clearly actionable, without recurring to the support of this disputed distinction. In the precedents in Rast. 12, 13, Robins. Ent. 72, the words are not stated as a libel : it seems the distinction was unknown. In Crop v. Tilney, 3 Salk. 226, the words were certainly seditious, if not treasonable. The reason assigned, that the printing or writing indicates a greater degree of malice than mere speaking, is a bad one; for it is not the object of an action at law to punish moral turpitude, but to compensate a civil injury: the compensation must be proportionate to the measure of the damage sustained; but it cannot be said that publication of written slander is in all cases attended with a greater damage than spoken slander, for if a defendant speaks words to an hundred persons assembled, he disseminates the slander and increases the damage an hundredfold as much as if he only wrote it in a letter to one. Dampier, in affirmance of the judgment. This action is main

tainable, first, because the plaintiff is a peer of the [* 361] realm : and many things are actionable when spoken *of

a peer, which are not actionable if spoken of a private person; as in the Marquis of Dorchester's case, Mich. 24 Car. II. B. R., Bull. N. P. 4. He is no more to be valued than that dog that lies there." So in the case of the Earl of Peterborough v. Stanton, ibid. “ The Earl of Peterborough is of no esteem in this country; no man of reputation has any esteem for him; no man will trust him for two-pence; no man values him in the country; I value him no more than the dirt under my feet.” It does not appear that either of these was an action of scandalum magnatum. The case of the Earl of Peterborough v. Williams, Comb. 43, 2 Sho. 505, is indeed there said to be scandalum magnatum. The principle on which actions may be sustained for words is rather narrowly laid down in the argument for the plaintiff in error, when the causes of action are said to be only crime, pecuniary damage, and infectious disease. The gist of the last is that the imputation deprives the plaintiff of society. But what can more deprive a man of society than this imputation of being one

who, under the cloak of religion and spiritual reform, hypocritically and with the grossest impurity deals out his malice, unchar

[ocr errors]

No. 1. — Thorley v. Lord Kerry, 4 Taunt. 361, 362.

itableness, and falsehoods ” ? If this is not a leprosy of the mind as much to be shunned as that of the body, the loss of society is not much to be regretted. If Lake's case had gone upon his loss as a barrister, there would have been no room for all the discussion that took place; and especially HALE's judgment, taking the distinction between speaking and writing. [HEATH, J. It appears by Skyn. 124, that the judgment in the case of King v. Lake was affirmed in error.] Austin v. Culpepper, S. C. 2 Sho. 313. The same distinction is taken in Shower, 314, though it is not taken in Skynner, where the libel imputed perjury, and was therefore clearly actionable. 1 Ford, MS. 49, the case of Harman v. Delany is reported more fully than in the printed report; and it is there * said that it was so agreed by the Court. [* 362] Bradley v. Methuen, 2 Ford, 78 & 9.

It there appears that Lord HARDWICKE recognized the distinction, though it was not absolutely necessary to the judgment, which there passed for the plaintiff. There is another principle upon which the action for slander is to be maintained beyond that of penalty and punishment, viz., of disgrace and discredit; and whether that be produced by writing, or by words, if it is punishable by indictment as tending to a breach of the peace, it is also the subject of a civil action, which may be brought to recover a compensation, for the injury the plaintiff sustains by being deprived of society, as for a temporal damage. Villars v. Monsey, 2 Wils. 403. BATHURST, J., held that writing and publishing anything of a man that renders him ridiculous, is a libel, and actionable; and fully recognized the distinction between written and spoken slander. This case continues the chain from the time of HALE, C. B., 1670, to the time of WILMOTT, C. J., within living memory. Bell v. Stone, 1 Bos. & P. 331 (4 R. R. 820). The Court, in the absence of EYRE, C. J., clearly held that written words of contumely were actionable. [MACDONALD, C. B. “ Villain” was the word there. This brings us down to Kaye v. Bayley,' where the amount of damages made the question of importance, and it was thrice fully argued. If this series of 150 years decisions (and it was a very learned person, Le Blanc, then Sergeant, who refused to argue the point in Bell v. Stone) will not suffice to warrant the opinion that an action will lie in such case, there is no reliance to be placed on authority.

1 One of the parties in that case having died pending the writ of error, no judg. ment ever was given.

No. 1. -— Thorley v. Lord Kerry, 4 Taunt. 362–364.

If words imputing a dereliction of every duty of imperfect obligation cannot be made the subject of an action, the law of libel

very imperfectly guards society. [* 363] * Barnewall in reply. The Court will not be disposed to

extend the principle laid down in all the books, limiting the cases in which words are actionable. In 1 Ro. Ab., Case for Slander, and Co. Dig., Action on the Case for Defamation, the written and spoken slander are treated of under one title; and in the older entries there is no difference made in the declarations between written and unwritten slander, except using the word “ spoken" instead of" written." In Villars v. Monsey the words imputed an infectious disorder. In Harman v. Delany the words were spoken of the plaintiff in his trade as a gunsmith. DE GREY, C. J., in Wils. 187, says that to impute to any man the mere defect or want of moral virtue, moral duties, or obligations which render a man obnoxious to mankind, is not actionable. The case in Anderson is in point, that the words here used are not actionable. The injury consists in the evil done to the plaintiff in the minds of others; and if the words, when spoken, be not an injury, they cannot be when written. To hold otherwise would be to make the immorality, and not the damage, the ground of action.

Cur. adv. vult.

MANSFIELD, C. J., on this day delivered the opinion of the Court.

This is a writ of error, brought to reverse a judgment of the Court of King's Bench, in which there was no argument. It was an action on a libel published in a letter which the bearer of the letter happened to open.

The declaration has certainly some very curious recitals. It recites that the plaintiff was tenant to Archibald Lord Douglas of a messuage in Petersham; that being desirous to become a parishioner and to attend the vestry, he agreed to pay the taxes of the said house; that the plaintiff in error was church warden, and that the defendant in error gave him

notice of his agreement with Lord Douglas; and that the [* 364] plaintiff in error, intending * to have it believed that the

said earl was guilty of the offences and misconducts thereinafter mentioned (offences there are none, misconduct there may be), wrote the letter to the said earl which is set forth in the pleadings. There is no doubt that this was a libel, for which the

[blocks in formation]

plaintiff in error might have been indicted and punished; because, though the words impute no punishable crimes, they contain that sort of imputation which is calculated to vilify a man, and bring him, as the books say, into hatred, contempt, and ridicule; for all words of that description an indictment lies; and I should have thought that the peace and good name of individuals was sufficiently guarded by the terror of this criminal proceeding in such cases. The words, if merely spoken, would not be of themselves sufficient to support an action. But the question now is, whether an action will lie for these words so written, notwithstanding that such an action would not lie for them if spoken; and I am very sorry it was not discussed in the Court of King's Bench, that we might have had the opinion of all the twelve Judges on the point, whether there be any distinction as to the right of action between written and parol scandal, for myself, after having heard it extremely well argued, and especially, in this case, by Mr. Barnewall, I cannot, upon principle, make any difference between words written and words spoken, as to the right which arises on them of bringing an action. For the plaintiff in error it has been truly urged, that in the old books and abridgments no distinction is taken between words written and spoken. But the distinction has been made between written and spoken slander as far back as Charles the Second's time, and the difference has been recognized by the Courts for at least a century back. It does not appear to me that the rights of parties to a good character are insufficiently defended by the criminal remedies which the law gives, and the law gives a very ample field for retribution by action for * words spoken in the cases of [* 365] special damage, of words spoken of a man in his trade or profession, of a man in office, of a magistrate or officer; for all these an action lies. But for mere general abuse spoken no action lies. In the arguments both of the judges and counsel, in almost all the cases in which the question has been, whether what is contained in a writing is the subject of an action or not, it has been considered whether the words, if spoken, would maintain an action. It is curious that they have also adverted to the question, whether it tends to produce a breach of the peace : but that is wholly irrelevant, and is no ground for recovering damages. So it has been argued that writing shows more deliberate malignity; but the same answer suffices, that the action is not main

No. 1. — Thorley v. Lord Kerry, 4 Taunt. 365, 366. — Notes.

tainable upon the ground of the malignity, but for the damage sustained. So it is argued that written scandal is more generally diffused than words spoken, and is therefore actionable; but an assertion made in a public place, as upon the Royal Exchange, concerning a merchant in London, may be much more extensively diffused than a few printed papers dispersed, or a private letter. It is true that a newspaper may be very generally read, but that is all casual. These are the arguments which prevail on my mind to repudiate the distinction between written and spoken scandal ; but that distinction has been established by some of the greatest names known to the law, Lord HARDWICKE, HALE, I believe, HOLT, C. J., and others. Lord HARDWICKE, C. J., especially, bas laid it down that an action for a libel may be brought on words written, when the words, if spoken, would not sustain it. Co. Dig. tit. Libel, referring to the case in Fitzg. 122, 253, says, there is a distinction between written and spoken scandal, by his putting it down there as he does, as being the law, without mak

ing any query or doubt upon it, we are led to suppose that [* 366] he was of * the same opinion. I do not now recapitulate

the cases; but we cannot, in opposition to them, venture to lay down at this day, that no action can be maintained for any words written, for which an action could not be maintained if they were spoken : upon these grounds we think the judgment of the Court of King's Bench must be affirmed. The purpose of this action is to recover a compensation for some damage supposed to be sustained by the plaintiff by reason of the libel. The tendency of the libel to provoke a breach of the peace, or the degree of malignity which actuates the writer, has nothing to do with the question. If the matter were for the first time to be decided at this day, I should have no hesitation in saying that no action could be maintained for written scandal which could not be maintained for the words if they had been spoken.

Judgment affirmed.


In addition to the fact that libel is more permanent than slander, and that libel is also a criminal offence, the chief difference between the two species of defamation is that slander, as a rule, requires proof of special damage, whereas libel does not. See Damages, 8 R. C. p. 382, et seq.

« PreviousContinue »