LIBELLING THE DEAD.

11

the good, would be to exclude the most useful part of history, and therefore it must be allowed that such publications may be made fairly and honestly. But let this be done whenever it may, whether soon or late after the death of the party, if it be done with a malevolent purpose to vilify the memory of the deceased, and with a view to injure his posterity, as in R. v. Critchley, it then comes within the rule stated by Hawkins, "that it is done with a design to break the peace, and then it becomes illegal." Mr. Justice Stephen held in above cited case of R. v. Ensor that "the vilifying of the dead must be with a view to injuring posterity. The dead have no rights and can suffer no wrongs. The living alone can be subjects of legal protection, and the law of libel is intended to protect them, not against every writing, but against writings holding them up individually to hatred, contempt or ridicule." In R. v. Topham (supra) there was an arrest of judgment, as no intention to injure the family of the living was alleged, and that was a necessary averment in such an indictment.

CHAPTER II.

SLANDER AS DISTINGUISHED FROM LIBEL.

UNDER the general head of defamation, slander and libel are included, with the main distinguishing mark that the former is spoken, the latter written. In both cases the words must be malicious (Watkin v. Hall, L. R. 3 Q. B. 396; Macpherson v. Daniels, 10 B. & C. 272; Emsley v. Plimsoll, L. R. 8 C. P.; Leyman v. Latimer and Others, 3 Ex. Div. 15); disparaging (Sheahan v. Ahearne, 9 Ir. R. C. L. 412; Mawe v. Pigott, 4 Ir. R. C. L. 54, C. P.; Digby v. Thompson, 4 B. & A. 821); tending to degrade a man or expose him to contempt, or prejudice his character or credit (Gray v. Gray, 34 L. J. C. P. 45); or causing a person to be shunned (I'Anson v. Stuart, 1 T. R. 748; Walker v. Brogden, 19 C. B. N. S. 165). In oral defamation, except in the excepted cases, damages must be proved (Lynch v. Knight, 9 H. L. C. 517; Vicars v. Wilcocks, 2 Sm. L. C. 534; Green v. Britton, 2 C. M. & R. 171; Lumley v. Gye, 2 E. & B. 216). As to what constitutes actual damage (Roberts & Roberts, 33 L. J. Q. B. 249; Allsopp v. Allsopp, 5 H. & N. 534; Davies v. Solomon, L. R. 7 Q. B. 112; Riding v. Smith, L. R. 1 Ex. Div. 91) are cases where immoral imputations were held damaging. As in libel, the mere repeater of defamatory statements is responsible (Parkins v. Scott, 1 H. & C. 153; Watkin v. Hall, L. R. 3 Q. B.; Macpherson v. Daniels, 10 B. & C. 263) except the originator authorised their repetition (Kendillon v. Maltby, Car. & M. 402), or they were in discharge of a

LIBEL AND SLANDER DISTINGUISHED.

13

moral duty (Derry v. Handley, 16 L. T. N. S., Q. B. 263; Ward v. Weeks, 4 M. & S. 808).

Archbold says (Crim. Cases, 801):-"Wherever an action will lie for verbal slander without laying special damage, an indictment will lie for the same words if reduced to writing and published; but the converse will not hold good, for an action or indictment may be maintained for words written, for which an action could not be maintained if they were merely spoken" (Thorley v. Lord Kelly, 4 Taunt. 355).

The distinction between slander and libel is pretty clearly defined. By slander or spoken defamation the law recognises anything in itself defamatory, followed by damages, or which charges a person with an indictable offence, or which is said of him in connection with his calling, or which imputes to him a contagious disease excluding him from social intercourse. If grossly vituperative words be spoken, provided they keep clear of these four classes of criminality, they are not actionable. A person may be called many opprobrious names (Levison v. Stuart, 17 R. 748; Bell v. Stone, 1 Bos. & P. 331: 2 H. Bl. 221), abused with all the details, and there is no remedy by action; yet if one is called a libeller, or the slightest indictable offence is imputed to him, he has his remedy. However, if the least charge of any sort is written and shewn to a third party, he has his redress. Seditious, blasphemous, or grossly immoral words may be prosecuted criminally, though not reduced to writing and in fine, that which it would be a libel to write against the Government it is sedition to speak.

The distinctive difference maintained between libel and slander will be found very intelligibly illustrated in the following leading cases and authorities (Villiers v. Mousley, 2 Wils. 405; 5 Co. 120; Saville v. Jardine,

2 H. B. 532; Bac. Abr. Slander B.; T'Anson v. Stuart, 1 T. R. 748; Bl. Co. by Christian, 125).

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The dividing line runs very far back in the law, as the remarkable cases of Stanhope v. Bligh (4 Rep. 15) (where accusing a man of forswearing was not, but of perjury was actionable) Hext v. Yeomans (ibid.), Brickley's case (ibid.), Eaton v. Allen (ibid.), Benham's case, &c., and Bannister's case, (25 Eliz.), where calling a man a bastard was actionable, as likely to lead to disherison; Milton's case (1 Roll. 6159), and Gerard's case (4 Rep. 8), where saying a man had got a lease of certain lands of which another was going to give a lease was actionable, because such was then an indictable offence. The fiction seems wrong, for a man's character should have the same protection from oral as from written slander. "Indeed," says Best, J., in De Crespigny v. Wellesley (5 Bing. 406), no property is more valuable than a man's reputation. If we reflect on the degree of suffering occasioned by loss of character and compare it with that occasioned by loss of property, the amount of the former injury far exceeds that of the latter." Another mark of differentiation between the two offences is that there can be no criminal prosecution for words spoken, unless they are seditious, blasphemous, grossly immoral, uttered of a magistrate in discharge of his duty, or are a challenge to fight, and that in fine there is no remedy for oral defamation (Archbold), but a civil action for damages. As the two offences are so identified in their general principles, they must be generally considered together with the necessary distinction as regards the writing or the speaking. There may be a libel other than a mere printing or writing—a chalk mark on a wall may be so (Mortimer v. McCallam, 6 M. & W. 58), or burning a man's effigy (Eyre v. Garlick, 42 J. P. 68), or a caricature. A libel is in fine anything published,

DEFAMATION BY THE INDIAN CODE. 15

whether on parchment, paper, stone, wood, slate, or other durable material, whether written, penned, pencilled, painted, cut, or otherwise represented. The varied niceties of meaning between the two offences can be best understood by their contrast, and in all the examples given by all books the instances of the two are generally given together, as very often the difference is artificial.

By the Indian Code the offence of defamation is well understood and defined with a precision and accuracy worthy of our imitation. By it "whoever by words, either spoken or intended to be read, or by signs or by visible representations makes or publishes any imputation concerning any person, intending to harm, or knowing or having reason to believe that such imputation will harm, the reputation of such person, is said, except in cases hereinafter excepted, to defame that person." And, further on, "No imputation is said to harm a person's reputation unless that imputation, directly or indirectly in the estimation of others, lowers the moral or intellectual character of that person, or lowers the character of that person in respect of his caste or calling, or lowers the credit of that person or causes it to be believed that the body of that person is in a loathsome state, or in a state generally considered as disgraceful." The punishment may be two years' imprisonment, and the exceptions are given under head of "Public Comment" (see infra).

"At common law any one who reports or repeats defamatory words is as liable to proceedings for libel or slander as the man who invented the falsehood and set it in circulation," for by repeating the tale a person is practically endorsing it, and it is often the repetition of the slander that does most injury. And it makes no difference to say "you are informed of the matter" or