well on behalf of the crown, to indict punishment of imprisonment on the slanderer, as on behalf of the party, to recover damages for the injury sustained. Words also tending to scandalize a magistrate, or person in a public trust, are reputed more highly injurious than when spoken of a private man.o

It is said, that anciently, no actions were brought for words, unless the slander was such as, if true, would endanger the life of the object of it. But too great encouragement being given by this lenity to false and malicious slanders, it has long been held that for scandalous words of the several species before mentioned, that may endanger a man by subjecting him to the penalties of the law, may exclude him from society, or may impair his trade, an action may be had, without proving any particular damage to have happened, but merely upon the probability that it might happen, or rather on the assumption that it must damage a man to have these expressions applied to him.' But 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, 'in the old language of pleading,' is called laying his action with a per quod. As if I say 'of an agent that he is an unprincipled man,' he cannot for this bring any action against me, unless he can show some special loss by it, as that it was said to a person about to employ him, but who in consequence did not do so;' in which case he may bring his action. against me for saying he was 'an unprincipled man, per quod he lost the profits of the intended employment.' In like manner to slander another 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 has land by descent, a bastard, is actionable, provided any special damage accrues to the proprietor thereby; as if he loses an opportunity of selling the land. But mere scurrility, or opprobrious words, which neither in themselves import, nor are in fact attended with, any injurious effects, will not support an

a The action or prosecution for scandalum magnatum is now never resorted to. It was totally different from the common action of slander, for of scandalum magnatum there is no certain definition; it is whatever the courts judge to be derogatory to the high character of the person of whom it is spoken. It

was held to be scandalum magnatum to
say of a peer, "he was no more to be
valued than a dog;" words which would
have been perfectly harmless if uttered
of any other person. Bull, N. P. 4.
• Lord Raym. 1369.

f 2 Vent. 28.

Cro. Jac. 213; Cro. Eliz. 197.

k

action. So scandals, which concern matters merely spiritual, as to call a man a heretic, will not afford ground for an action;'i unless any temporal damage ensues, which may be a foundation for a per quod. Words of heat and passion, as to call a man rogue and a rascal, if 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. Within which category of words spoken by way of advice, admonition, or concern, fall communications as to the character of servants, advice as to dealing with tradesmen, and other statements of a like nature, which constitute what are called privileged communications. These the law supposes to have been not maliciously spoken, a presumption which may, however, be rebutted by proof of express malice on the part of the defendant.1 Therefore where a master is applied to for a character of a servant, the former is not called upon to prove the truth of any aspersions he may have thrown out against the latter; but it lies upon the servant to prove the falsehood of such aspersions; and in such a case the master is not liable for the result of his statements, unless the servant prove express malice.' m Neither, as was formerly hinted, 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." Also if the defendant be able to justify, and prove the words to be true, no action will lie, even though special damage has ensued: for then it is no slander or false tale. As if I can prove the tradesman a bankrupt, the physician a quack, the lawyer a knave, this will destroy their respective actions: for though there may be damage sufficient accruing from it, yet, if the fact be true, it is damnum absque injuria; and where there is

no injury, the law gives no remedy. And this is agreeable to the reasoning of the civil law: "eum qui nocentem infamat, non est “æquum et bonum ob eam rem condemnari; delictae nim nocentium "nota esse oportet et expedit."

q

A second way of affecting a man's reputation is by printed or written libels, pictures, signs, and the like; which set him in an odious or ridiculous light, and thereby diminish his reputation, 'as by publishing of an attorney ironically, that he was "an honest lawyer."'s

t

With regard to libels in general, there are, as in many other cases, two remedies; one by indictment, and another by action. The former is for the public offence; for every libel has a tendency to a breach of the peace, by provoking the person libelled to break it. This offence 'was formerly' the same, in point of law, whether the matter contained in the libel were true or false; and the defendant, on an indictment for publishing a libel, was therefore not allowed to allege the truth of it by way of justification. 'But the law in this respect was altered by the stat. 6 & 7 Vict. c. 96, which enables the defendant to allege the truth of the matters charged, and that it was for the public benefit that they should be published. The truth of the libel may therefore be inquired into at the trial, but does not amount to a defence, unless the publication was for the public benefit. And if, after such a plea being maintained, the defendant is convicted, the court may, in pronouncing sentence, consider whether the guilt of the defendant is aggravated or mitigated thereby.'"

In the remedy by civil action, which is to repair the party in damages for the injury done him, the defendant might always, on the other hand, as for words spoken, justify the truth of the facts, and show that the plaintiff had received no injury at all. And by the statute I have just referred to, he is now enabled to give in evidence, in mitigation of damages, that he made or offered an apology before action, or as soon afterwards as he had an opportunity, in case the action was commenced before. To encourage a wholesome independence in the public press, the same statute accords to a newspaper, or other periodical publication, the

P Ff. 47, 10, 18.

a Jeffries v. Duncombe, 11 East. 226.

2 Show. 314. Cock v. Ward, 6 Bing.

409. Bell v. Stone, 1 B. & P. 331.

Boydell v. Jones, 4 M. & W. 446. t 5 Rep. 125.

u

Reg. v. Newman, 1 El. & Bl. 558.

further privilege of pleading that the libel was inserted without malice, and without negligence, and that before action, or at the earliest opportunity afterwards, a full apology was inserted; or if the paper be ordinarily published at intervals exceeding one week, that an offer had been made to publish the apology in any newspaper selected by the plaintiff. With such a plea money may be paid into court by way of amends; and if the jury consider the sum sufficient, they must find their verdict for the defendant.'

What was said with regard to words spoken, will also hold in every particular with regard to libels by writing or printing, and the civil actions consequent thereupon. But many words which, spoken merely, are not actionable, become so if written. Thus to say of a man that he is a swindler, unless in relation to his trade. or business, is not actionable, whilst to print or write of him, that he is so, is actionable. For speaking the words "rogue" and "rascal" an action will not lie; but if these words are written and published, an action will lie.' As to signs or pictures, it seems necessary always to show the import and application of the scandal;' otherwise it cannot appear, that such libel by picture was understood to be levelled at the plaintiff."

W

3. A third way of destroying or injuring a man's reputation is by preferring malicious indictments or prosecutions against him; which, under the mask of justice and public spirit, are sometimes made the engines of private spite and enmity. For this, however, the law has given a very adequate remedy in damages, either by an action of conspiracy, which cannot be brought but against two at the least; or, which is the more usual way, by a special action for a false and malicious prosecution. In order to carry on the former, which gives a recompense for the danger to which the party has been exposed, it is necessary that the plaintiff should obtain a copy of the record of his indictment and acquittal; but, in

"Inserting an apology means effectually inserting it; not so that people would not be likely to see it, but in such a manner as to counteract, as far as possible, the mischief done by the libel." Lafone v. Smith, 3 Hurlst. & Nor. 737.

w Janson v. Stuart, 1 T. R. 768; 2 Smith's Leading Cases, 4th ed., p. 50.

Thornley v. Kerry, 4 Taunt. 355; Digby v. Thomson, 4 B. & Ad. 821.

y Sir Wm. Blackstone here adds,

prosecutions for felony, it is usual to deny a copy of the indictment, where there is any, the least probable cause to found such prosecution upon." For it would be a very great discouragement to the public justice of the kingdom, if prosecutors, who had a tolerable ground of suspicion, were liable to be sued at law whenever their indictments miscarried. But an action for a malicious prosecution may be founded upon an indictment, whereon no acquittal can be had; as if it be rejected by the grand jury, or be coram non judice, or be insufficiently drawn. For it is not the danger of the plaintiff, but the scandal, vexation, and expense, upon which this action is founded. However, any probable cause for preferring it is sufficient to justify the defendant.

II. We are next to consider the violation of the right of personal liberty. This is effected by the injury of false imprisonment, for which the law has not only decreed a punishment, as a heinous public crime, but has also given a private reparation to the party; as well by removing the actual confinement for the present, as, after it is over, by subjecting the wrongdoer to a civil action, on account of the damage sustained by the loss of time and liberty.

To constitute the injury of false imprisonment there are two points requisite: 1. The detention of the person; and, 2. The unlawfulness of such detention. Every confinement of the person is an imprisonment, whether it be in a common prison, or in a private house, or in the stocks, or even by forcibly detaining one in the public streets. Unlawful or false imprisonment consists in such confinement or detention without sufficient authority: which authority may arise either from some process from the courts of justice, or from some warrant from a legal officer having power to commit; or from some other special cause warranted, for the necessity of the thing, either by common law, or act of parliament; such as the arresting of a felon by a private person without warrant, or the seizing and detaining, by the officer of a railway company, of any person wilfully obstructing or impeding any officer of the company in the execution of his duty upon the railway.' False imprisonment also may arise by executing a lawful warrant or process at an unlawful time, as on a Sunday;

d

b Carth. 421; Lord Raym. 253.

10 Mod. 219, 220; Stra. 691; Mit

chell v. Williams, 11 M. & W. 205.

d3 & 4 Vict. c. 97, s. 16.