benefit of clergy: provided, that if such acts of stabbing or cutting were committed under circumstances, that, if death should ensue, the same would not in law amount to the crime of murder, then the person so indicted shall be acquitted. This act also extends the penalties to those who are guilty of maliciously shooting at another.

CHAPTER II.

Of Slander.

SLANDER is a civil injury which arises by any thing which affects a man's reputation or good name, and for which an action of damages will lie, as by malicious, scandalous, and slanderous words, tending to his damage and derogation. As, if one man maliciously and falsely utter any slander or false tale of another, which, if true, would be punishable by law; as to say, that a man has poisoned or murdered another, or is perjured; or which may exclude him from society, by charging him with having a contagious disorder, as the leprosy, the plague, the lues venerea; or which may impair his trade, profession, or livelihood, as to call a tradesman a bankrupt, a physician a quack, a lawyer a knave.

Words spoken in derogation of a peer, a judge, or other great officer of the crown, which are called scandalum magnatum, are held to be still more heinous; and though they be such as would not be actionable in the case of a common person, yet in this case they amount to an atrocious injury. Words also tending to scandalize a magistrate, or a person in a public trust, are deemed more criminal than in the case of a private man. And it is now held, that for the scandalous words in all the cases we have mentioned, an action on the case may be had, even before the injury has been sustained, and upon the mere probability that it might have happened.

In order to sustain this action, it is essentially necessary that the words should contain an imputation which, if true, would subject the party calumniated to the penalties of the criminal law. But an imputation of the mere defect or want of moral virtue, or moral duties or obligations, is not sufficient. To call a man a thief, unless it be intended to impute felony to him, is not actionable. Hence, where that expression is accompanied with other words, which clearly denote that the speaker did not intend to impute felony to the party charged, no action will lie.

With regard to words that do not thus apparently, and upon the face of them, import such defamation as will of course be injurious, it is necessary that the plaintiff should aver some particular damage to have happened, which is called laying his action with a per quod. As, if I say that such a clergyman is a bastard, he cannot for this bring any action against me, unless

he can shew some special loss by it; in which case he

may bring his action against me, for saying he was a bastard, per quod he lost the presentation to such a living. In like manner, to slanderanother man's title, by spreading such injurious reports as, if true, would deprive him of his estate (as to call the issue in tail, or one who hath land by descent, a bastard), is actionable, provided any special damage accrue to the proprietor thereby; as if he lose an opportunity of selling the land.

Scandalous words, whether spoken before a man's face, or behind his back, by way of affirmation or report, in jest or earnest, whether sober or drunk, &c. are actionable; and so they are, whether the words be spoken directly or indirectly, or obliquely; and though they are pronounced in any foreign language, if understood: but where they can have a double interpretation, they shall be taken in the mildest sense, that no action shall lie.

If one say, that another said a third person did a certain scandalous thing, such third person may have his action of slander against the first man, with an averment that the second never said so, whereby the first is the author of the scandal. In case the slander proceed from a man's wife, the husband and wife must be sued for it, and not she alone. And for any scandal against the wife, he and she are to bring the action; but for words against both a man and his wife, the husband may prosecute one action for his slander, and he and his wife may afterwards sue another action for her's.

Mere scurrility, or opprobrious words, which neither in them. selves import, nor are in fact attended with any injurious effects, will not support an action. So, scandals which concern matters merely spiritual, as to call a man heretic or adulterer, are cognizable only in the ecclesiastical court; unless any temporal damage ensue, which may be a foundation for a per quod. Words of heat and passion, as to call a man rogue and rascal, productive of no ill consequence, and not of any of the dangerous species before mentioned are not actionable. Neither are words spoken in a friendly manner, as by way of advice, admonition, or concern, without any tincture or circumstance of ill-will; for, in both these cases, they are not maliciously spoken, which is part of the definition of slander. Neither are any reflecting words- made use of by counsel in legal proceedings, and pertinent to the cause in hand,

a sufficient cause of action for slander.

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When the words are utterly uncertain, no inuendo or averment can make them good and to these actions the defendant may plead the general issue, Not guilty; or, if the plaintiff declare on some of the words only, when altogether they are not actionable, the defendant may set them forth at large as he spoke them, and traverse or justify the whole, &c. Also if the defendant can make proof of the words, he may plead special justification; but if the plea be not made good, the damages will be greatly aggravated.

CHAPTER II.

Of Libel.

THERE is another species of civil injuries which affect a man's reputation, and that is, by printed or written libels, pictures, signs, and the like, by which means a person is exposed to public hatred, contempt, and ridicule. The direct tendency of libels is a breach of the public peace, by stirring up the objects of them to revenge, or perhaps to bloodshed.

For the

The communication of a libel to any one person is a publication in the eye of the law; and therefore, the sending an abusive private letter to a man is as much a libel as if it were openly printed, for it equally tends to a breach of the peace. same reason, it is immaterial, with respect to the essence of a libel, whether the matter of it be true or false, since the provocation, and not the falsity, is the thing to be punished criminally; though, doubtless, the falsehood of it may aggravate its guilt, and enhance its punishment. In a civil action, however, a libel must appear to be false, as well as scandalous; for if the charge be true, the plaintiff has received no private injury, and has no ground to demand a compensation for himself, whatever offence it may be against the public peace: and therefore, upon a civil action, the truth of the accusation may be pleaded in bar of the suit. But, in a criminal prosecution, the tendency which all libels have to create animosities, and to disturb the public peace, is the whole that the law considers: and therefore, in such prosecutions, the only points to be inquired into are, first, the making or publishing of the book or writing; and, secondly, whether the matter be criminal and if both these points be against the defendant, the offence against the public is complete. The punishment of libellers, for either making, repeating, printing, or publishing a libel, is fine, and such other punishment as the court in its discretion shall inflict; regarding the quantity of the offence, and the quality of the offender.

It has been held, that the truth of a libel is no justification in a criminal prosecution, yet, in many instances, it is considered as an extenuation of the offence; and the Court of King's Bench has laid down this general rule, viz. that it will not grant an information for a libel, unless the prosecutor who applies for it make an affidavit, asserting directly and pointedly that he is innocent of the charge imputed to him. But this rule may be dispensed with, if the person libelled reside abroad, or if the imputations of the libel are general and indefinite, or if it is a charge against the prosecutor for language which he has held in parliament.

This species of defamation, viz. libel, is usually termed written scandal, and is considered the more offensive, inasmuch as it is presumed to have been entered upon with coolness and deliberation, and is propagated wider than any other scandal.

The important distinction between libels and words spoken was fully established in the case Villars v. Mousely. As there is a difference between the malignity and injurious consequences of slanderous words spoken or written, many words, which if spoken would not be actionable, are actionable if uttered in the way of libel. In the above case it was decided, that whatever renders a man ridiculous, or lowers him in the esteem and opinion of the world amounts to a libel; though the same expression, if spoken, would not have been defamation. Hence the word swindler, if spoken of another (unless it be spoken in relation to his trade or business), is not actionable: but if it be published in the way of libel, it is so. Also, the publication of a letter, containing some verses in which the plaintiff was called an itchy old toad, was deemed a libel.

The publication of a letter, in which the plaintiff was stated to be "one of the most infernal villains that ever disgraced human nature," has been held to be actionable, without proof of special damage.

It is no libel where a writing inveighs against mankind in general, or against a particular order of men; it must descend to particulars and individuals.

Defamation by libel, as by scandalous writing, &c. is actionable; and printing or writing may be libellous, though the scandal be not charged in direct terms, but ironically, or though there be only the first and last letter of the name, if the jury will find it to point at a particular person: and the person who is the author or contriver, and the procurer and publisher of a libel, knowing it to be such, are all punishable; as are booksellers, &c. who sell libels, although they know not the contents thereof. And the sale of a libel by a servant in the shop is prima facie evidence of publication in a prosecution against the master; and is sufficient for conviction, unless contradicted by contrary evidence, shewing that he was not privy, nor in any degree assenting to it.

It had frequently been determined by the Court of King's Bench, that the only questions for the consideration of the jury in criminal prosecutions for libels were, the fact of publication, and the truth of the inuendoes, that is, the truth of the meaning and sense of the passages of the libel, as stated and averred in the record; and that the judge or court alone were competent to determine whether the subject of the publication was or was not a libel. (See the case of the Dean of St. Asaph, 3 T.R. 428.) But the legality of this doctrine having been much controverted, the 32 Geo. III. c. 60. commonly called Mr. Fox's bill, was passed, entitled, "An act to remove doubts respecting the functions of juries in cases of libels;" which declares and enacts, that, on every trial of an indictment or information for a libel, the jury

may give a general verdict of Guilty, or Not Guilty, upon the whole matter in issue, and shall not be required or directed by the judge to find the defendant guilty merely on the proof of the publication of the paper charged to be a libel, and of the sense ascribed to it on the record. But the statute provides, that the judge may give his opinion to the jury respecting the matter in issue, and the jury may, at their discretion, as in other cases, find a special verdict; and the defendant, if convicted, may move the court, as before the statute, in arrest of judgment.

A general reflection on the government has been deemed libellous, though no particular person has been reflected upon; and, the writing against the known law and religion of the country, for the purpose of bringing them into contempt, is clearly a libel.

A comment upon a literary production, exposing its follies and errors, and holding up the author to ridicule, will not be deemed a libel, provided such comment do not exceed the limits of fair and candid criticism, by attacking the character of the writer unconnected with his work. For if a person, under pretence of criticising a literary work, defame the private character of the author, and, instead of writing in the spirit, and for the purpose of fair and candid discussion, travel into collateral matter, and introduce facts not stated in the work, accompanied with injurious comments upon them, such person is a libeller, and liable to an action.

Printing or writing may be libellous, though the scandal be not directly charged, but obliquely and ironically.

It has been held, that it is not competent for a man charged with a libel to urge that one similar to that for which he is prosecuted, was published on a former occasion by other persons, who were never prosecuted.

In the making of libels, if one man dictate, and another write, both are deemed guilty.

It has been laid down by great legal authorities, that truth is no justification for a libel; and a very learned writer seems to doubt whether such a plea would now be admitted by the courts, if the accusation in the libel did not amount to an indictable offence. But this doctrine may be questioned; and it is highly probable, that in an action for libel, if specific instances can be stated on the record, and proved by evidence, so as to support the general charge of the libel, the courts would determine them to be a sufficient justification of the defendant. But the chief excellence of the civil action for libel consists in the opportunity it affords the person traduced of vindicating his innocence, as well as receiving a reparation for the injury sustained.

If an action be brought for a libel written in a foreign language, the original with the translation must be stated in the declaration. By the 60 Geo. III. c. 8. § 1. in any verdict, or judgment by default, had against any person for composing, printing, or publishing any blasphemous libel, or any seditious libel tending to bring into hatred and contempt the person of his majesty, his heirs or successors, or the regent, or the government and constitution

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