then they will be as much actionable as if they had been written, and the effect will be the same. Another distinction is, that though in case of public libels an indictment lies when spoken words are blasphemous seditious or treasonable, including in the latter category such as amount to contempt of court or Parliament,1 yet when spoken words are defamatory only of personal character, they are not indictable, it being conceived that an action for the damage done is remedy sufficient, whereas if the words be written or printed, there is a criminal remedy also either by information or indictment. In all other respects slander and libel are practically one and the same cause of action.

Distinction between slandering and scolding.— Another distinction may here be noticed arising out of the last. To slander an individual is to make a definite attack upon reputation in such a way that some legal remedy is available by action at the suit of the individual injured. But where no such definite attack can be discerned at any one point, and yet abuse upon abuse is heaped on a person, which neither singly nor collectively amount to an actionable wrong, this is called more properly railing or scolding than slandering. It is a species of indeterminate slander carried on with mechanical vehemence, and explodes in the air with sound and fury, rather than causes any appreciable injury to the individual aimed at. And yet this noise, which constantly threatens and only sometimes reaches the point of slander, is deemed by the law a nuisance, and so punishable in another form. Scolding is an indictable offence.2 It is peculiarly a female's offence, and the common law punishment was ducking, or, as Coke explained, the female was put in a cucking-stool and soused in water.3 In one case in 1705 the scold after conviction wanted to argue her writ of error in person, and Holt, C. J., gave her time to do so, for he added, that "perhaps ducking would rather harden than cure her, and if she were once ducked she would scold on all the days of her life."4 She afterwards succeeded in setting aside the judgment on the ground, that she had been called rixa and not ricatrix, that is to say, she had been called, in bad 2 R. Foxby, 6 Mod. 145; 4 6 Mod. 213.

1 R. Langley, Cas. t. Holt, 654. 1 T. R. 748. 3 3 Inst. 219.

Latin, the wrong word for female. The indictment soon afterwards was expressed in English, and the same error was thus not likely again to occur.2 Another flaw in that indictment was said to be, that it ought to have been alleged, that her scolding was a common nuisance to the neighbours, for "that all scolding was not indictable, but only such as was intolerable to neighbours." Scolding of this last kind is thus indictable as a nuisance, but not actionable like a slander.3

Threat to publish a libel.-In the exercise of freedom of speech, not only is a libel published, but sometimes the tendency stops short at the preliminary threat. This is often a mere form of speech, and amounts to nothing which courts can take notice of, for the law usually deals only with the overt acts, and with accomplished facts. Though therefore an intention or even threat to publish some libel is not punishable, yet in one form it is so, namely, where the object is to extort money or some equivalent This was expressly declared in 1843 to be a criminal offence, being equivalent to a threat of violence to the person, or an attempt to break the peace. Accordingly, whoever threatens to publish or proposes to abstain from publishing something touching a person, with intent to extort money or valuable thing from such person, or with intent to procure some appointment or office of trust, commits a misdemeanour.1 In order to commit this

offence, it is not necessary that the thing to be or not to be published should be actually defamatory. It may be something indifferent. It is enough that it have such an effect on the mind of the person as to induce money to be paid, or an office given.

Libel viewed as constructive breach of peace.-Another peculiarity which once distinguished libel was, that it was said to be punishable by a criminal remedy, because

16 Mod. 239.

2 L. Raym. 1094.

3 A historian relates, that a scold was soused in the Thames by sentence of some court in 1745, from Kingston Bridge, in presence of 2,000 people.-1 Lyson's Environs of Lond. 233. The offence remains, and this form of punishment has not been expressly repealed, yet future scolds will probably satisfy any court, that the cucking-stool is now illegal for various reasons.

46 & 7 Vic. c. 96, § 4. Imprisonment for three years with hard

labour.

it tended to provoke a breach of the peace, and it was on this ground, that for a long time the courts so liberally and indiscriminately allowed, and indeed compelled, a libeller to enter into recognisances to keep the peace.1 And apparently the same assumption will be seen to have led the judges, before Fox's Act corrected it, into the anomaly of holding the guilt of libel an inference of law and not of fact. This mode of viewing libel was founded on the assumption, that libels were more than other wrongs, or indeed more than many breaches of contract, equivalent to a breach of the peace. In a rude state of society all things that are now illegal acts and give rise to actions more or less tempted to a breach of the peace. who could not get his money from an evasive debtor would strike a blow as readily and with as much propriety as he who had been accused of theft would strike his accuser. This notion, that the tendency of a libel to cause a breach of the peace is greater than the tendency of other wrongful acts, or even of a spoken slander, is obviously founded on misapprehension, and is no longer tenable.2

The man

How far malice is an ingredient in libels.-The word malice is constantly resorted to in dealing with libels. As in the crime of murder malice is said to be an essential ingredient, and must be inferred from the circumstances and the conduct of the accused, so it is said, in the wrong of libel, malice is deemed an ingredient, and even in the face of facts which tend to prove an honest belief in the truth of what is stated, the law will imply this malicious ingredient from the nature of the wrong actually done. In short, as libels consist of words, and words have certain definite meanings known and read of all men, it is not so much what the person who used the words did in the secrecy of his own mind intend, as what those words when told to third parties will naturally mean, that the essence of the wrong consists. Certain reports will ruin a third person's character equally, whether used with the purest and almost benevolent wishes, or the most malicious and revengeful intentions. But in spite of the absence of any intention to injure, if words be used which in their natural meaning are libellous, and are damaging to private 1 See 1 Pat. Com. (Pers.) 191.

2 See further as to this, post, "Remedy by Indictment."

reputation, then the malice will be implied; for it is the business of all men so to act and so to speak, that the character and reputation of others, and which are the same as property, and a valuable possession, should not be wantonly, carelessly, or even inadvertently assailed. When the libel is uttered, not in the course of any honest and lawful business, which it will be seen the law protects, but without adequate cause or ground of self-defence, and by the person going as it were out of his way to say it, then malice is necessarily implied, and the cause of action is sufficiently established. Thus it may be said, that libel in fact is libel in law, whatever be the motive avowed or concealed, for the damage to the plaintiff is the real cause of action.1 And so entirely is it irrelevant in the ordinary action for libel, what was the motive or intention of the defendant, that a judge who told a jury to consider, whether the defendant intended to injure the plaintiff, was held to have misdirected them, it being necessarily presumed, that every man intends the natural and ordinary consequences of his own act; and if a third party is injured, it cannot matter to him, whether malice existed in the wrongdoer or not. 2

The inquiry into the existence of malice is only material, or rather is a short mode of expression in those somewhat

1 Bromage v Prosser, 4 B. & C. 255. "Malice, in its legal acceptation, means not personal spite, but conscious violation of the law, taken along with the maxim, that every one must be taken to intend the necessary consequence of his deliberate acts."—L. Campbell, Ferguson Kinnoul, 9 Cl. & F. 321.

"Everything written or printed which reflects on the character of another, and is published without lawful justification or excuse, is a libel, whatever the intention may have been."-Parke, B., O'Brien v Clement, 15 M. & W. 437.

"An act unlawful in itself and injurious to another is considered, both in law and reason, to be done malo animo toward the person injured, and this is all that is meant by a charge of malice in a declaration, which is introduced rather to exclude the supposition that the publication may have been made on some innocent occasion than for any other purpose."-Duncan & Thwaites, 3 B. & C. 556.

LORD MANSFIELD told a jury that it was not necessary to prove an actual intent, which is the private operation of a man's mind, but they were to exercise their judgment from the nature of the act as to the intent with which it was done.-R. v Tooke, 20 St. Tr. 762. 2 Haire Wilson, 9 B. & C. 643; Fisher & Clement, 10 B. & C. 472.