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§ 1105. Illustrations-Digest of American Cases.

1. In 1829 one Amasa Holcomb, a citizen of Connecticut, was a party to a lawsuit before James Cornish, a justice of the peace. The justice decided the suit some way, but what way does not appear from the record; but we are warranted, we think, in the presumption, from the subsequent proceedings, that it was not decided in Amasa's favor. Instead of taking an appeal according to law he arose, and, in the presence and hearing of the justice, sinfully and wickedly and contrary to law said, "Damn you to hell;" and therefore the justice, as he lawfully might under the laws of Connecticut, fined him $1. Then Amasa said, "You are a God damned old rascal." Again there was a fine of $1, to which Amasa responded, "You are a damned old rascal to hell." Another fine; for which Amasa went him one better with, "You have given a God damned judgment, and you did it designedly. You are a damned old rascal for doing it." It does not appear how this contest ended; the justice no doubt thinking that Amasa, if allowed to escape from the court, might beat him on executions, ordered him into the custody of keepers. For the fines Amasa seems not to have concerned himself, and it may be, for aught appears, that he did intend to beat the justice on execution; but for being ordered into the custody of the keepers he brought an action of trespass for assault and battery and false imprisonment. Upon the trial, the justice having pleaded the circumstances, etc., it was held by a unanimous court that the words imported an imprecation of future Divine vengeance, and amounted to acts of profane cursing and swearing within the meaning of the statute. Holcomb v. Cornish, 8 Conn. 375. Nearly half a century later the same thing occurred in a justice's court in Indiana. There was cursing and swearing and fining vice versa ad infinitum, but owing to the unwillingness of the citi zens of that state to perpetuate profanity the several swearwords do not appear in the record. Odell v. Garnett, 4 Blackf. (Ind.) 549.

2. Profane and blasphemous language in a public place in the presence and hearing of divers persons is indictable at common law. State v. Steele, 3 Heisk. (Tenn.) 135; State v. Graham, 3 Sneed (Tenn.), 134.

3. The utterance of obscene words in public, being a gross violation of public decency and good morals, is indictable. Bell v. State, 1 Swan (Tenn.), 42.

4. Public profane swearing, where it takes such form and is uttered under such circumstances as to constitute a public nuisance, is an indictable offense under the common law; but the single utterance of a profane word is not in itself indictable, at least when not spoken in a loud voice or with repetitions. It is not necessary to make out the offense that the language used should be heard by a large portion of the community. It is sufficient if three or four persons were present and heard the words uttered. Goree v. State, 71 Ala. 7.

5. The defendant was charged with openly and publicly, on Sundays as on other days, on the public streets, with a loud voice, in the hear

ing of the citizens, speaking and uttering wicked, scandalous and infamous words, representing men and women in obscene and indecent positions with design to debase and corrupt the morals of the youth as of other citizens. It was held that such acts were indictable as a misdemeanor, and that it was not necessary to aver that they were a common nuisance. It was also held not necessary to set out particularly in the indictment the words spoken and the attitudes described. It is sufficient that the words were averred and found to be "wicked, scandalous and infamous," and the attitudes to be "obscene and indecent," and both designed and manifestly tending to the corruption of public morals. Barker v. Com. 19 Pa., 412.

CLASS III.

§ 1106. Libels Tending to Blacken the Memory of the Dead.It is a misdemeanor at common law, punishable on indictment with fine and imprisonment, to write and publish defamatory matter of any person deceased, provided it be published with the malevolent purpose to injure his family and posterity, and to expose them to contempt and disgrace; for the chief reason of punishing offenses of this nature is their tendency to a breach of the peace. And although the party be dead at the time of publishing the libel, yet it stirs up others of the same family, blood or society to revenge and to break the peace. The malicious intention of the defendant to injure the family and posterity of deceased must be expressly averred and clearly proved.60

It is not necessary to prove that the libeler in fact desired that a breach of the peace should follow on his publication: that is probably the last thing he wished for; still less is it necessary to prove that an actual assault ensued, though if it did, evidence of such assault is admissible.61 It is sufficient if the necessary or natural effect of defendant's words is to vilify the memory of the deceased and to injure his posterity to such an extent as to render a breach of the peace imminent or probable.62

Hence any writing put forth to blacken the memory of one deceased is a libel, "for it stirs up others of the same family, blood or society to revenge and to break the peace." The law, with a view to preserve the peace and happiness of families, and to prevent them from being invaded and embittered by con

60. Case de Libellis Famosis, 5 Rep. 125a; Hawkins, P. C. i, 542; R. v. Topham, 4 T.. R. 126; 2 Starkie on Slander, 212; Com. v. Clap, 4 Mass. 163, 3 Am. Dec. 212.

61. R. v. Osborn, Kel. 230, 2 Barnard. 138, 166.

n,

62, R. v. Critchley, 4 T. R. 129,

temptuous reflections on the dead, has assigned a punishment for such libels as traduce the memory of the deceased, and have thus an obvious tendency to excite the resentment of the living. This principle, however, is never carried so far as to trespass on the utility of history and the salutary freedom of the press. The law will always take into consideration the mind with which such publications are made, and discriminate between the historian and the slanderer.63

Lord Kenyon, C. J.: "To say, in general, that the conduct of a dead person can at no time be canvassed, to hold that even after ages are passed the conduct of bad men cannot be contrasted with 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 malevolent purpose to vilify the memory of the deceased, and with a view to injure his posterity, then it comes within the rule-then it is done with a design to break the peace, and then it becomes illegal." 64

It has been questioned whether a libel of the dead is now a criminal libel in Canada in view of Crim. Code, sec. 317, which defines a defamatory libel to be matter published without legal justification or excuse, likely to injure the reputation of any person by exposing him to hatred, contempt or ridicule, or designed to insult the person of or concerning whom it is published 65

§ 1107. Illustrations-Digest of English Cases.

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1. Libel complained of: "On Saturday evening died of the smallpox at his house in Grosvenor square, Sir Charles Gaunter Nicoll, knight of the most honorable order of the Bath, and representative in parliament for the town of Peterborough. He could not be called a friend to his country, for he changed his opinions for a red ribbon, and voted for that pernicious object, the excise." It was alleged that this passage was published with intent to vilify, blacken and defame the memory of the said Sir Charles, and to stir up the hatred and evil will of the people against the family and posterity of the said Sir Charles. An information was granted. R. v. Critchley, 4 T. R. 129, n.

63. 1 Hawk. P. C., Curw. ed., p. 542, §1; 1 Russ. Crimes ( 9th Am. Ed.) 345; Com. v. Clap, 4 Mass. 163, 168, 3 Am. Dec. 212; Case de

Libellis Famosis, 5 Rep. 125a;
Holt on Libel, 236.

64. R. v. Topham, 4 T. R. 126.
65. 38 Can. L. J. 250.

2. But an indictment which alleged that a libel on the late Earl Cowper had been published with intent to disgrace and vilify his memory, reputation and character, but did not go on to aver any intent to create ill blood, or throw scandal on the children and family of Earl Cowper, or to provoke them to a breach of the peace, was held bad after a verdict of guilty, and judgment arrested. R. v. Topham, 4 T. R. 126.

CLASS IV.

§ 1108. Libels Tending to Blacken the Reputation of One Who is Living, and Expose Him to Public Hatred, Contempt or Ridicule— The Grounds Upon Which They Are Indictable.-Libels of this kind are more frequently referred to in the books than those enumerated in the preceding class. Their tendency is to provoke or cause breaches of the peace and other illegal acts, and for this reason they are indictable.66

A libel in its more restricted sense, as committed against an individual, is a malicious defamation, made public by either printing, writing, signs or pictures, tending to blacken the reputation of one who is living, and thereby to expose him to pub-. lic hatred, contempt or ridicule. Since it is well settled that the law does not recognize the injury to the private right of reputation as a ground of penal restraint, but founds its prohibitions and penalties mainly if not wholly on the ground of protection to the public peace against those interruptions which injuries to reputation are so likely to occasion, it follows that the degree of discredit is immaterial to the essence of the libel, since the law cannot determine the degree of forbearance which a party reflected upon will exert before he is excited and provoked to acts of outrage, and therefore prohibits all imputations conveyed by such means and possessing such a tendency.67

§ 1109. (1) Breaches of the Peace.-As every person desires to appear agreeable in life, and must be highly provoked by ridiculous representations having a tendency to lessen him in

66. 2 Bishop, New Crim. Law (8th ed.), § 930; 2 Starkie on Slander, 211; State v. Jeandell, 5 Harr. (Del.) 475; State v. Smiley, 37 Ohio St. 30, 41 Am. Rep. 487; State v. Schmitt, 49 N. J. L. 579; People v. Jackman, 96 Mich. 269; Hartford v. State, 96 Ind. 461, 49

L. D. 73

Am. Rep. 185; State v. Spear, 13 R. I. 324; State v. Brady, 44 Kan. 435, 21 Am. St. Rep. 296, 9 L. R. A. 606; Com. v. Duncan, 127 Ky. 47.

67. Heard on Libel & Slander, $ 333; Sorensen v. Balaban, 11 App. Div. 164.

the esteem of the world, and by the effect of ridicule to cast a shade upon his talents and virtue, the policy of the law is that not only charges of a flagrant nature and which reflect a moral turpitude upon a party are libelous, but also such as set him in a scurrilous and ignominious light; for these reflections equally create il blood and provoke parties to acts of revenge and breaches of the peace. Everything, therefore, written of another which holds him up to scorn and ridicule that might reasonably be, according to our natural passions, considered as provoking a party to a breach of the peace, is a libel, and indictable as such.68

§ 1110. Illustrations-Digest of English Cases.—

1.

Information for writing a scandalous letter to one Hatton Rich, who was indebted to defendant in a large sum of money, of which he had delayed him three years by obtaining a protection, etc. The words of the libel were: "If he [Hatton Rich] had any honesty, civility, sobriety or humanity he would not so deal with him, and that he one day would be damned and be in hell for his cheating." On not guilty pleaded and verdict for the king an arrest of judgment was moved, assigning as a reason that the subject of the letter was not scandalous, but showed a zeal in the defendant to maintain the sense of the injury he had sustained.

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Twisden, Justice: "The letter is provocative and tends to the incensing Mr. Rich to a breach of the peace, and therefore an information lies; and afterwards the court adjudged the letter scandalous, and the defendant was fined forty marks. R. v. Saunders, Sir T. Raym. 201.

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2. An information being moved for against the printer of "Lloyd's Evening Post" for a ludicrous paragraph giving an account of the Earl of Clanrickard's marriage with an actress of Dublin, and appearing with her in the boxes with jewels, etc., cause was shown against making the rule absolute 1st. That Lord Clanrickard was not a peer of Great Britain. Sed non allocatur. For per cur. as he is sworn to be a married man, it is a high offense, even against a commoner. 2d. That this paragraph was taken from another paper, against whose printers informations were also moved. 3d. That in his next paper, Kinnersley had voluntarily made a public recantation. Sed non allocatur. For per cur. it is high time to put a stop to this intermeddling in private families. Rule absolute. R. v. Kinnersley, Trinity Term, 1 Geo. III, B. R., 1 Wm. Bl. 294.

3. An information was granted against the defendant for publishing a libel in the "Critical Review," tending to traduce, vilify and ridicule Admiral Knowles, and to insinuate that he wanted courage

68. Holt on Libel, 223.

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