communica Confidential communications are in some cases privileged. As Confidential where it was holden that a letter written confidentially to persons tions. who employed A. as their solicitor, conveying charges injurious to his professional character in the management of certain concerns which they had entrusted to him, and in which B. the writer of the letter was likewise interested, was not a libel. (h) And if a person, in a private letter to the party, should expostulate with him about some vices, of which he apprehends him to be guilty, and desire him to refrain from them; or if a person should send such a letter to a father, in relation to some faults of his children; these it seems would not be considered as libellous, but as acts of friendship, not designed for defamation but reformation. (i) But this doctrine must be applied with some caution; since the sending an abusive letter filled with provoking language to another, is an offence of a public nature, and punishable as such, inasmuch as it tends to create ill blood, and cause a disturbance of the public peace; (k) and the reason assigned by Lord Bacon, why such private letter should be punishable, seems to be a very sufficient one, namely, that it enforces the party to whom the letter is directed to publish it to his friends, and thus induces a compulsory publication. (1) And though a letter written by a master, in giving a character of a servant, will not be libellous, unless its contents be not only false but malicious; (m) yet in such a case malice may be inferred from the circumstances. (n) Although that which is written may be injurious to the charac- Communica ter of another; yet if done bona fide, or with a view of investigating bona fide, or a fact, in which the party making it is interested, it is not libellous. with a view of Thus where an advertisement was published by the defendant at investigating a the instigation of A., the plaintiff's wife, for the purpose of ascertaining whether the plaintiff had another wife living when he married A.; it was holden that although the advertisement might impute bigamy to the plaintiff, yet having been published under such authority, and with such a view, it was not libellous. (0) And if the communication be made in the regular and proper Or made in course of a proceeding, it will not be libellous. As where a writing, the proper containing the defendant's case, and stating that some money, due to him from the government for furnishing the guard at Whitehall with fire and candle, had been improperly obtained by a captain C. was directed to a general offieer, and the four principal officers of the guards, to be presented to his Majesty for redress; an information was refused, on the ground that the writing was no libel, but a representation of an injury drawn up in a proper way for redress, without any intention to asperse the prosecutor; and that though there was a suggestion of fraud, yet that is no more than is contained in every bill in chancery, which is never held tions made fact. course of a proceeding, Of publications against foreigners of distinction. libellous if relative to the subject matter. (p) So a petition addressed by a creditor of an officer in the army to the Secretary at War, bona fide, and with the view of obtaining, through his interference, the payment of a debt due, and containing a statement of facts which, though derogatory to the officer's character, the creditor believed to be true, is not a malicious libel, for which an action is maintainable. (a) And where the defendant, being deputygovernor of Greenwich hospital, wrote a large volume, containing an account of the abuses of the hospital, and treating the characters of many of the officers of the hospital, (who were public officers), and Lord Sandwich in particular, who was first lord of the Admiralty, with much asperity; and printed several copies of it, which he distributed to the governors of the hospital only, and not to any other person; the rule for an information was discharged. Lord Mansfield said, that this distribution of the copies to the persons only who were from their situations called on to redress these grievances, and had, from their situations, competent power to do it, was not a publication sufficient to make the writing a libel. (9) And where the publication is an admonition, or in the course of the discipline of a religious sect, as the sentence of expulsion from a society of Quakers, it is not libellous. (r) And it ĥas been decided that an action will not lie for words innocently read as a story out of a book, however false and defamatory they may be. Thus where a clergyman in a sermon recited a story out of Fox's Martyrology, that one G., being a perjured person, and a great persecutor, had great plagues inflicted upon him, and was killed by the hand of God; whereas in truth he never was so plagued, and was himself actually present at the discourse; the words being delivered only as matter of history, and not with any intention to slander, it was adjudged for the defendant. (s) IX. Upon the ground that malicious and scurrilous reflections upon those who are possessed of rank and influence in foreign states may tend to involve this country in disputes and warfare, it has been held that publications tending to degrade and defame persons in considerable situations of power and dignity in foreign countries may be treated as libels. Thus an information was filed, by the command of the crown, for a libel on a French ambassador, then residing at the British court, consisting principally of some angry reflections on his public conduct, and charging him with ignorance in his official capacity, and with having used stratagem to supplant and depreciate the defendant at the court of Versailles. (t) And Lord George Gordon was found guilty upon an information for having published some severe reflections upon the Queen (p) Rex v. Bayley, Andr. 229. 4 Bac. Abr. Libel (A) 2. p. 452. As to the privilege of proceedings in courts of justice, see ante, p. 214. (a) Fairman v. Ives, 5 B. & A. 642.; and if an action be brought for such publication, the writer may, even upon the general issue, give evidence to shew that he believed the fact stated in the petition to be true. on Lib. 173. 1 Ridgway's Collection of Erskine's Speeches, p. 1. Lord Mansfield seemed to think that whether the paper were in manuscript or printed, under these circumstances, made no difference. (r) Rex v. Hart, 2 Burn's Ecc. L. 779. (s) 4 Bac. Abr. Libel A. 2. p. 452. (9) Rex v. Baillie, 30 Geo. 3. Holt The defendant was convicted. of France, in which she was represented as the leader of a faction: upon which occasion Ashhurst, J. observed, in passing sentence, that the object of the publication being to rekindle animosities between England and France by the personal abuse of the sovereign of one of them, it was highly necessary to repress an offence of so dangerous a nature: and that such libels might be supposed to have been made with the connivance of the state where they were published, unless the authors were subjected to punishment. (u) So a defendant was found guilty upon an information charging him with having published the following libel: "The Emperor of "Russia is rendering himself obnoxious to his subjects by various "acts of tyranny, and ridiculous in the eyes of Europe by this in"consistency. He has lately passed an edict to prohibit the ex"portation of deals and other naval stores. In consequence of "this ill-judged law, a hundred sail of vessels are likely to return "to this country without freight." (w) And in a case which occurred shortly afterwards, where the defendant was charged by an information with a libel upon Napoleon Buonaparte, Lord Ellenborough, C. J. in his address to the jury, said, "I lay it down as law that any publication which tends to degrade, revile, and defame, persons in considerable situations "of power and dignity in foreign countries, may be taken to be, "and treated as a libel; and particularly when it has a tendency "to interrupt the pacific relations between the two countries." (x) Having stated the different sorts of publications for which a party may be found guilty of libel, we may mention some of the points relating to the indictment and evidence on a prosecution for this offence. Of the indictment and eviprosecution dence on a for a libel. An indictment for a libel must import to whom the libellous Indictment. matter referred: and stating that the libel was published to defame and vilify J. S., and to bring him into disgrace, and concluding that it was against the peace, and to the great scandal and disgrace of J. S., is not sufficient to shew that the libellous matter referred to J. S. An indictment stated that the defendant intended to vilify W. S., Mayor of Colchester, and a Justice; and in order to cause it to be believed that W. S., as such mayor, had been guilty of great abuse in granting an ale-licence to J. L., and in order to bring him into great disgrace, published a certain scandalous libel, in which said libel was contained, &c., and the libel stated a speech supposed to have been made before the borough magistrates by a fictitious character called Excise, who was supposed to lay before them a case of gross corruption, sanctioned by the mayor, (innuend. the said W. S.) to the great scandal, injury, and disgrace, of the said W. S. The usual allegation, that the libellous matter was of and concerning W. S. was omitted; and, on account of this omission, a rule was obtained for arresting the judgment: and, upon cause shewn, the court held the objection fatal. (i) 1787. (u) Rex v. Lord George Gordon, victed, but never was called upon to to receive the judgment of the court. Shortly after the trial, war broke out between Great Britain and France. (w) Rex v. Vint, 1801. (x) Rex v. Peltier, 43 Geo. 3. Holt on Lib. 78. et sequ. Starkie on Lib. 541, 542. The defendant was con (i) Rex v. Marsden, 4 M. & S. 164. Lord Ellenborough said, that if by Of the making and publica Where a libel is charged to be of and concerning the government of the kingdom, though it do not in express terms impute to the government any of the facts which it mentions, the Court is to judge from its whole tenor and import (understanding it as other men would understand it) whether it does not mean to cast that imputation. And as an imputation upon some part of a body of men may be a libel, though it does not define what part it means, an allegation that the defendant published of and concerning the said persons, and an innuendo that he meant the said persons, will be understood to apply to that undefined part. An information stated, that the defendant, intending to excite hatred against the government of the realm, and to cause it to be believed that divers subjects had been inhumanly killed by certain troops of the King, published a libel of and concerning the government of this realm, and of and concerning the said troops, which libel stated, that the defendant saw with abhorrence, in the newspapers, the accounts of a transaction at Manchester, and alleged, that unarmed and unresisting men had been inhumanly cut down by the dragoons, (meaning the said troops,) and then commented strongly upon this being the use of a standing army, and called upon the people to demand justice, &c.; but it did not, in terms, say, that the dragoons acted under the authority or orders of the government. After conviction, a motion was made in arrest of judgment, on the ground that it did not sufficiently appear that the libel was written of and concerning the government, nor of or concerning what troops it was written: but the court held that it was obvious, from its whole tenor and import, that it meant to cast imputations upon the government; that it was a libel to impute crime to any of the King's troops, though it did not define what troops in particular were referred to; and that the innuendo of "the said troops" meant the undefined part of those troops. (k) If one man repeats a libel, another writes it, and a third aption of a libel. proves what is written, they will all be makers of the libel; and it may be laid down generally that all who are concerned in composing, writing, and publishing a libel, are guilty of the misdemeanor, unless the part they had in the transaction was a lawful or an innocent act; (y) and ignorance has been held not to excuse. Thus upon an information against the defendant, for printing and publishing a libel, the evidence was, that he acted as servant to the printer, and clapped down the press; and few or no circumstances were offered of his knowing the import of the paper, or being conscious that he was doing any thing illegal and Raymond, C. J. held, that this made the defendant guilty, and so the jury found him. (a) But there must be a publication; and the mere writing or composing a defamatory paper by any one, which is confined to his closet, and neither circulated nor read to others, will not render him responsible; nor will he be held to have published the paper, if he deliver it, by mistake, out of his inevitable construction no other per- (k) Rex v. Burdett, 4 B. & A. 314. (y) 4 Bac. Abr. Libel (B). 1. p. 457. (a) Rex v. Clerk, 1 Barnard, 304. Sed. qu. study. (s) And it will not be a publication of a libel if a party takes a copy of it, provided he never publishes it: (a) but a person who appears once to have written a libel, which is afterwards published, will be considered as the maker of it, unless he rebut the presumption of law by shewing another to be the author, or prove the act to be innocent in himself. (b) For by Holt, C. J. if a libel appears under a man's hand-writing, and no other author is known, he is taken in the manner, and it turns the proof upon him; and if he cannot produce the composer, it is hard to find that he is not the very man. (c) The reading of a libel in the presence of another, without previous knowledge of its being a libel, or the laughing at a libel read by another, or the saying that such a libel is made by J. S. whether spoken with or without malice, does not amount to a publication. And it has also been held, that he who repeats part of a libel in merriment, without any malice or purpose of defamation, is not punishable; though this has been doubted. (d) But it seems to have been agreed that if he who hath either read a libel himself, or hath heard it read by another, do afterwards maliciously read or repeat any part of it in the presence of others, or lend or shew it to another, he is guilty of an unlawful publication of it. (e) In a late case, however, of an action for a libel contained in a caricature print, where the witness stated, that having heard that the defendant had a copy of this print, he went to his house and requested liberty to see it, and that the defendant thereupon produced it, and pointed out the figure of the plaintiff and the other persons it ridiculed, Lord Ellenborough, C. J. ruled, that this was not sufficient evidence of publication to support the action. (f) Proof that the libel was contained in a letter directed to the party, and delivered into the party's hands, is sufficient proof of a publication upon an indictment or information. (g) And deliver (z) Rex v. Paine, 5 Mod. 165, 167. (a) Com. Dig. Libel, (B. 2.) Lamb's case, 9 Co. 596. But see Rex v. Beare, 2 Salk. 417. 1 Lord Raym. 414. (b) 4 Bac. Abr. Libel (B) 1. p. 457. Lamb's case, 9 Co. 59. The writing a libel may be an innocent act in the clerk who draws the indictment, or in the student who takes notes of it. But in a late case (Maloney v. Bartley, 3 Campb. 210.) Wood, B. held, on the trial of an action for a libel, in the shape of an extra-judicial affidavit sworn before a magistrate, that a person who acted as the magistrate's clerk was not bound to answer whether by the defendant's orders he wrote the affidavit, and delivered it to the magistrate, as he might thereby criminate himself. (c) Rex v. Beare, 1 Lord Raym. 417. 2 Salk. 417. (d) 4 Bac. Abr. Libel (B) 9. p. 458. This is doubted in 1 Hawkins, P. C. e. 73. s. 14. on the ground that jests of such a kind are not to be endured, and that the injury to the reputation of the party grieved is no way lessened by the merriment of him who makes so light of it. (e) 4 Bac. Abr. Libel, (B) 2. p. 458. (f) Smith v. Wood, 3 Campb. 323. And see Rex v. Paine, 5 Mod. 165. where a qu. is made in the margin whether a person who has a libellous writing in his possession, and reads it to a private friend in his own house, is thereby guilty of publishing it. (g) I Hawk. P. C. c. 73. s. 11. 4 Bac. Abr. Libel, (B) 2. p. 459. Ante, p. 231 note (k). Selw. N. P. 1050. n. (9). And see ante, 231. A further publication is necessary to support an action. Thus it has been held that where the action was brought for a libel contained in a letter transmitted by the defendant to the plaintiff, by means of a third person, it is a question for the jury whether there has been any publication except to the plaintiff himself, and that if there has not, the defendant is entitled to their verdict. |