Libel be an Offence, whether it be published or not, as it feemeth to be holden, furely the fending of it to the Party reflected on must be a much greater Crime. 3 Bac. Abr.

497.

granted for

written pri

And on this Foundation the Court of King's Bench grant- Information ed an Information against a Perfon for fending an abufive fending an Letter to Mr. (a) Barnardifton, therein calling him a raf- abufive Letcally (b) Fellow, and a Tom Fool, you had better have held ter, though your Tongue; although he fwore that he wrote this to the vately to the Party himself, and never made it public, being only a Piece Party himof private Refentment. But the court held, that this Me- felf, and nethod provoked Perfons to Duelling, that the Writing and wife pubSending was a good Publication, and that the Intent of lifhed. the Party fhall not be explained by himself. Michaelmas Term 5 Geo. 2. 1732. 3 Bac. Abr. 497. 2 Barnard. K. B. 102. 2 Kel. 58. pl. 2. The King v. Pillborough.

ver other

Letter in.

Writing a Letter to a Man, and abufing him for his pub- Abusive lic Charities, &c. is a libellous Act, punishable by Indict- dictable and ment. Hob. 215. And a private Libel, for a private fineable. Matter, as a Letter fcandalizing a Perfon, courting a Woman, is indictable, and fineable to the King. Sid. 270. pl. 26.

bellous Mat

ter.

On Rule to fhew Cause why an Information should not Information go against the Defendant for Writing and Sending a Letter moved for to one Mr. Willis the Profecutor, wherein were thefe upon the liWords, viz. "You are a Scoundrel, and defrauded the ter in a Let King of his Duty, I will prick you to the Heart, and call you to an Account." The original Motion was made upon the Foot of a Challenge, but the Court inclining to think that the Words did not import a Challenge, they were for dif charging the Rule; but then Mr. Fazakerly faid that he fubmitted it, the Letter would at least amount to a Libel, for in it the Defendant calls Mr. Willis a Scoundrel, and therefore moved for an Information upon the libellous Matter, viz. You are a Scoundrel, &c. that it was as great an Offence to call a Man a Scoundrel as a Fool and a Rafcal.

(a) He was Lord of a Manor, and this Letter was wrote to him by a Copyholder. 2 Kel. 58. pl. 2.

(b) Mr. Abney believed the Court had never gone fo far in any Cafe as they did in this; but ftill he faid, Taking the Whole of this Letter toge ther, which was fent to Mr. Barnardiflon, he took it, there were Words of a greater Infult than barely calling a Man a Scoundrel. 2 Barnard. K. B.

102.

port a Chal

Mr. (a) Abney on the other Side faid, if the Court had any Doubts with themselves, he prayed a further Day for anfwering the Gentlemen on the other Side; for now he faid they had thought of a quite different Offence to maintain their Rule upon, from what they thought of at the Time they obtained it.

WhatWords The Court faid, That the Words did not import a do not im- Challenge; but to call a Man a Scoundrel, and to reflect lenge. To upon him in the Execution of his Office, was Matter of a reflect upon libellous Nature, and deferved to be punished by Informaa Man in the tion. The Court enlarged the Rule to a farther Day, vix. his Office, to fhew Caufe why an Information fhould not go for the Libellous. Libel. Note, This was afterwards referred by Rule of Court. Hilary Term 5 Geo. 2. 1732. 2 Kel. 58. pl. 2. 2 Barnard. K. B. 102. The King v. Pownall.

Execution of

Reason why It has been faid, that the Reason why an abufive Letter fuch a Let fent to a Perfon (though never published by the Writer) ter is a Li- fhould be a Libel, is this, because the Reproaches con

Setting the
Party in a

tained in it, may be fo ftinging, as to let him have no Ease, till he fhews it to others, in order to confult what is proper to be done, and thereby expofes his own Shame, as contained in the Letter; which may have all the bad Effects of another Kind of Publication. Poph. 140.

A$

CHA P. III.

DEFAMATION.

S every Perfon defires to appear agreeable in Life, and must be highly provoked by fuch ridiculous Reprefentations of him, as tend to leffen him in the Efteem of the World, and take away his Reputation, which, to fome Men, is more dear than Life itfelf: Hence it hath been held, that not only Charges of a flagrant Nature, and ignominious which reflect a moral Turpitude on the Party, are libellous, Light, libut alfo fuch as fet him in a fcurrilous ignominious Light; bellous. for thefe equally create ill Blood, and provoke the Parties to Aas of Revenge, and Breaches of the Peace, 3 Bac. Abr. 491.

fcurilous,

(a) Afterwards a Baron of the Exchequer, and one of the Juftices of the Common Pleas Foft. Cr. Law, 75. Whitw. Lift. 162, 154. Bunb. 347.

Hence

fcandalousia

and tend to

Perfons in a

Hence it hath been held, that Words, though not fcan- Words not dalous in themfelves, yet if published in Writing, and themfelves, tending in any Degree to the Difcredit of a Man, are li- if publifhed bellous, whether fuch Words defame private Perfons only, in Writing, or Perfons employed in a public Capacity; in which lat- difcredit, are ter Cafe they are faid to receive an Aggravation, as they libellous; if tend to scandalize the Government, by reflecting on those they defame who are intrusted with the Administration of public Affairs public Cawhich doth not only endanger the public Peace, as all other pacity, more libels do, by ftirring up the Parties immediately concerned aggravating, in it to acts of Revenge, but also have a direct Tendency to breed in the People a Diflike of their Governors, and incline them to Faction and Sedition. 3 Bac. Abr. 491. Hawk. Pl. Cr. 194, B. 1. Chap. 73. Sect. 7.

Minifter in

neglect of

As where a Perfon delivered a Ticket up to the Minifter, Ticket deliafter Sermon, wherein he desired him to take Notice, that vered to the Offences paffed now without Controul from the civil Ma- Church to giftrate, and to quicken the civil Magiftrate to do his Duty, Notice the c. and this was held to be a Libel, though no Magiftrates the Civil in particular were mentioned, and though it was not aver- Magiftracy, red that the Magiftrates fuffered those Vices knowingly. held a Libel. Michaelmas Term 16 Car. 2. 1664. K. B. Sid. 219. pl. 4. Keb. Rep. 773. pl. 8. The King v. Prin.

General Mifreprefentations of the Government, or the Seditious State of the Nation, or mutinous Hints, tend to excite Libels, Difcontent and Sedition in the People. Of this Kind was the above Cafe of The King v. Prin. and this is the higheft Offence of all, by as much as the whole is greater than a Part, and it may have a bad Effect upon the whole Frame of a Government.

I believe the Reason why my Lord Coke did not reckon Seditious this last as a Species of Libels, was because about his Time Libels nearit would be confidered as nearly approaching to Treason. !y -proach to High Treason.

CHAP.

6

Ironical Expreffions as Jibellous as

Slander.

CHA P. IV.

CERTAINTY.

T feems to be now agreed, that not o ly Scandal expreffed in an open and direct Manner, but also fuch as downright is expreffed in (a) Irony amounts to a Libel; and that the judges are to understand it in the fame Manner as others do, without any ftrained Endeavours to find out Loopholes, or to palliate the Offence, which in fome Measure would be to encourage Scandal; as where a Writing in a taunting Manner, reckoning up feveral Acts of public Charity done by one, fays, (b) You will not play the Jew, nor the Hypocrite, and fo goes on, in a Strain of Ridicule, to infinuate, that what he did was owing to his Vain glory; or where a Writing, pretending to recommend to one the Characters of feveral great Men for his Imitation, instead of taking Notice what they are generally esteemed famous Statelman for, pitches on fuch Qualities as their Enemies charge them dier, to be with the want of; as by propofing fuch an one to be imiimitated for tated for his Courage, who is known to be a great Statefand another to be imitated for his A great Ge- man, but no Soldier ; neral but no Learning, who is known to be a great General, but no Scholar, to Scholar, &c. which kind of Writing is as well understood to mean only to upbraid the Parties with the Want of these Learning. Qualities, as if it had directly and exprefsly fo done. 3 Bac. Abr. 493. Hawk. Pl. Cr. 193. Chap. 73. Sect. 4. The King v. Brown.

A great

but no Sol

his Courage.

be imitated

for his

So where

of the name

And from the fame Foundation it hath also been refolved, only the two that a defamatory Writing expreffing only one or two LetBrit Letters ters of a Name, in fuch a Manner that from what be goes ae inferted. fore, and follows after, it must needs be understood to fignify fuch a Perfon in the plain, obvious, and natural Construction of the whole, and would be perfe& Nonsense if

(a) In an Information for writing, &c. a Libel, it was held, that it lay for ipeaking ironically; and Lord Ch. Juft. Holt faid, it was laid to be wrote ironice, and the Defendant ought to have fhewed at the Trial, that he did not intend to scandalize them; and the Jury are Judges que Animo this was done, and they have found the ill Intent. 11 Mod. 86. fl. 5. See 4. Read. Stat. Law. 151. Barnard, K. B. 305. 2 Sef. Caf. 30.

(b) Heb. 215. Paph. 139.

Arained

the Law

ftrained to any other Meaning, is as properly a Libel as if it had expreffed the whole Name at large; for it brings the utmost Contempt upon the Law, to fuffer its Juftice to be Justice of eluded by fuch trifling Evafions; and it is a ridiculous Ab- rendered furdity to fay, that a Writing, which is understood by eve- contemplu ry the meanest Capacity, cannot poffibly be understood by ous by allowing tria judge and a jury. Trinity Term 12 An. 1711. Hawk. Aing Evali Pl. Cr. 194. Chap. 73. Sect. 5. The Queen v. Hurt.

Pictures.

It is alfo clearly agreed, that any Defamation whatsoever, Expreffions expreffed either by Signs or Pictures, comes within the by Signs or Notion of a Libel; as by fixing up a gallows at a Man's Door, or elsewhere, or by Painting him in a shameful or ignominious Manner, as by exposing a Man and his Wife by a Skimmington or Riding, tho' a fpecial Custom is alledged for fuch Practice. 3 Bac. Abr. 490.

trine of Li

The above contains the beft Syftem of the Doctrine of Beft Syfter Libels, that is to be found, and, one would think, is fo of the Doc full and plain, as that all future Doubts that could arife in bels. this Learning, might be expounded by it.

farcaitical

fhameful

Polture, or

a Name, yet

Open and farcaftical Reproaches are allowed on all Hands Open and to be Libels. Nothing then remains which may by any Reproaches. Poffibility evade the Law, but Writing in Allegory. 3 Bac. Allegory. Abr. 493. Let us examine then what Right has the allegorical Style to escape better than the reft? If a Man draws Painting & a Picture of another, and paints him in any fhameful Pof- Man in a ture, or ignominious Manner, though no Name be to it; yet if the Piece be fuch, that the Person abused is known ignominious by it, the Painter is guilty of a Libel; what then fhould Manner, ferve in Excufe for the allegorical Libeller? Abufive Alle- tho' without gory in Writing, has a very near Refemblance to this faty- Painter guilrical Kind of Painting: The Man that is painted with a ty of a LiFool's Cap, or Coat, or with Horns, or whofe Picture is Allegory drawn with Affes Ears, is certainly abufed. See Wood's Inft. like Paint445. But, fays the Painter, he is difguifed, and how can ing. Man painted you pretend to know him. This is the very Subterfuge of Man the Writer of Allegory, and ought to have the fame An- Cap, &c. is fwer; if it be the common Notion, that this PiЯure represents a certain Perfon, the Drawer is answerable for the injury he fuffers. They that give Birth to Slander, are

justly punished for it.

Pointing

bel.

with a fool's

abufed.

Difguile

Painter's Excufe. 'Subterfuge of AllegoFint. Painter an

fwerable for

Injury Picture occafi

OAS.