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the canon law. By the canon law, one who maliciously charged another with a grave sin incurred excommunication, ipso facto. Lyndwood, Provinciale, lib. 5, tit. 17 (De Sent. Excomm. c. 1, Auctoritate Dei); Oughton, Ordo Judiciorum, tit. 261. Naturally malitia was defined as cogitatio malae mentis, coming near to conscious malevolence. Lyndwood, ubi supra, note f. Naturally also for a time the common law followed its leader. Three centuries ago it seems to have regarded the malice in slander and libel as meaning the malice of ethics and the spiritual law. In a famous case where the parson repeated, out of Fox's Book of Martyrs, the story "that one Greenwood, being a perjured person, and a great persecutor, had great plagues inflicted upon him, and was killed by the hand of God, whereas in truth he never was so plagued, and was himself present at that sermon," and afterwards sued the parson for the slander, Chief Justice WRAY instructed the jury "that, it being delivered but as a story, and not with any malice or intention to slander any, he was not guilty of the words maliciously; and so was found not guilty." Greenwood v. Prick, stated in Brook v. Montague, Cro. Jac. 90, 91; see also Crawford v. Middleton, 1 Lev. 82, ad fin. But that case is no longer law. Hearne v. Stowell, 12 A. & E. 719, 726. The law constantly is tending towards consistency of theory. For a long time it has been held that the malice alleged in an action of libel means no more than it does in other actions of tort. . . . Accordingly, it recently was laid down by this Court that the liability was the usual liability in tort for the natural consequences of a manifestly injurious act. Burt v. Advertiser Newspaper Co., 154 Mass. 238, 245. A man may be liable civilly, and formerly, at least by the common law of England, even criminally, for publishing a libel without knowing it. Curtis e. Mussey, 6 Gray, 261. . . . And it seems he might be liable civilly for publishing it by mistake, intending to publish another paper. Mayne v. Fletcher, 4 Man. & Ry. 311, 312, note. . . . So a man will be liable for a slander spoken in jest, if the bystanders reasonably understand it to be a serious charge. Donoghue v. Hayes, Hayes, 265. Of course it does not matter that the defendant did not intend to injure the plaintiff, if that was the manifest tendency of his words. Curtis v. Mussey, 6 Gray, 261, 273; Haire v. Wilson, 9 B. & C. 643. And to prove a publication concerning the plaintiff, it lies upon him "only to show that this construction, which they've put upon the paper, is such as the generality of readers must take in, according to the obvious and natural sense of it." The King v. Clerk, 1 Barnard. 304, 305. . . . Under the circumstances of the case, "believed" meant reasonably believed. . .

The foregoing decisions show that slander and libel now, as in the beginning, are governed by the general principles of the law of tort, and, if that be so, the defendant's ignorance that the words which it published identified the plaintiff is no more an excuse than ignorance of any other fact about which the defendant has been put on inquiry.

To hold that a man publishes such words at his peril, when they are supposed to describe a different man, is hardly a severer application of the law, than when they are uttered about a man believed on the strongest grounds to be dead, and thus not capable of being the subject of a tort; it has been seen that by the common law of England such a belief would not be an excuse. Hearne v. Stowell, 12 A. & E. 719, 726, denying Parson Prick's case.

I only will add on this point, that I do not know what the "publicly known circumstances" are, [as alluded to in the opinion of the majority]. I think it is a mistake of fact to suppose that the public generally know who was before the Municipal Court on a given day. I think it is a mistake of law to say that, because a small part of the public have that knowledge, the plaintiff cannot recover for the harm done him in the eyes of the greater part of the public, probably including all his acquaintances who are ignorant about the matter, and I also think it no sufficient answer to say that they might consult the criminal records, and find out that probably there was some error. Blake v. Stevens, 4 F. & F. 232, 240.

Mr. Justice MORTON and Mr. Justice BARKER agree with this opinion. E. D. Loring, for the plaintiff. G. M. Palmer, for the defendant.

527. PECK v. TRIBUNE COMPANY

SUPREME COURT OF THE UNITED STATES 1909
214 U. S. 185, 29 Sup. 554

[Printed ante, Book I, as No. 156.]

528. JONES v. HULTON

SUPREME COURT OF JUDICATURE OF ENGLAND. 1909

L. R. [1909] 2 K. B. 444

APPLICATION by the defendants for judgment or a new trial in an action tried by CHANNELL, J., with a special jury.

The plaintiff, Mr. Thomas Artemus Jones, a barrister practising on the North Wales Circuit, brought the action to recover damages for the publication of an alleged libel concerning him contained in an article in the Sunday Chronicle, a newspaper of which the defendants were printers, proprietors, and publishers. The article, which was written by the Paris correspondent of the paper, purported to describe a motor festival at Dieppe, and the parts chiefly complained of ran thus:

"Upon the terrace marches the world, attracted by the other motor races a world immensely pleased with itself, and minded to draw a wealth of inspiration - and, incidentally, of golden cocktails from any scheme to spend the passing hour. . . . 'Whist! there is Artemus Jones with a woman who is not his wife, who must be, you know the other thing!' whispers a fair neighbour of mine excitedly into her bosom friend's car. Really, it is not surprising how

certain of our fellow-countrymen behave when they come abroad? Who would suppose, by his goings on, that he was a churchwarden at Peckham? No one, indeed, would assume that Jones in the atmosphere of London would take on so austere a job as the duties of a churchwarden. Here, in the atmosphere of Dioppe, on the French side of the Channel, he is the life and soul of a gay little band that haunts the Casino and turns night into day, besides betraying a most unholy delight in the society of female butterflies."

The plaintiff had in fact received the baptismal name of Thomas only, but in his boyhood he had taken, or had been given, the additional name of Artemus, and from that time he had always used, and had been universally known by, the name of Thomas Artemus Jones or Artemus Jones. He had, up to the year 1901, contributed signed articles to the defendant's newspaper. The plaintiff was not a churchwarden, nor did he reside at Peckham.

Upon complaint being made by the plaintiff of the publication of the defamatory statements in the article, the defendants published the following in the next issue of their paper: "It seems hardly necessary for us to state that the imaginary Mr. Artemus Jones referred to in our article was not Mr. Thomas Artemus Jones, barrister, but, as he has complained to us, we gladly publish this paragraph in order to remove any possible misunderstanding and to satisfy Mr. Thomas Artemus Jones we had no intention whatsoever of referring to him.” The defendants alleged that the name chosen for the purpose of the article was a fictitious one, having no reference to the plaintiff, and chosen as unlikely to be the name of a real person, and they denied that any officer or member of their staff who wrote or printed or published or said before publication the words complained of knew the plaintiff or his name or his profession, or his association with the journal or with the defendants, or that there was any existing person bearing the name of or known as Artemus Jones. They admitted publication, but denied that the words were published of or concerning the plaintiff. On the part of the plaintiff the evidence of the writer of the article and of the editor of the paper that they knew nothing of the plaintiff, and that the article was not intended by them to refer to him, was accepted as true. At the trial witnesses were called for the plaintiff, who said that they had read the article and thought that it referred to the plaintiff. The jury returned a verdict for the plaintiff with £1750 damages, and the learned judge gave judgment for the plaintiff. The defendants appealed.

Rufus Isaacs, K. C., and Norman Craig, for the defendants. . . . It was not suggested for the plaintiff that either the writer of the alleged libel or the editor who passed it for publication knew of the plaintiff's existence, or that there was any intention to refer to him. It was an unlucky accident that the writer, in selecting a name for his imaginary personage, happened to hit upon one which might be supposed to denote the plaintiff. Upon the admitted facts the defendants are entitled to judgment.

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Montague Lush, K. C., and Gordon Hewart, for the plaintiff. The general principle applies that a man must be taken to have intended that which is the natural result and meaning of what he does or says, and cannot be heard to say that in his own mind he had not that intention. It was for the jury in such a case to say whether, having regard to the terms of the libel, it would be reasonably understood by readers to apply to the plaintiff..

May 24. Lord ALVERSTONE, C. J., read the following judgment. . It is, in my opinion, clearly established by authorities, to some of which I will refer, that the question, if it is disputed, whether the article is a libel upon the plaintiff, is a question of fact for the jury; and in my judgment this question of fact involves not only whether the language used of a person in its fair and ordinary meaning is libellous or defamatory, but whether the person referred to in the libel would be understood by persons who knew him to refer to the plaintiff. This proposition is so well established that, but for the grave and strenuous argument addressed to us on behalf of the defendants, I should not have thought it necessary to refer at any length to the authorities which support the proposition.

It was, however, contended that there was a distinction between the identity of the person supposed to be referred to in the article and the defamatory language used about the person. I know of no case in which this distinction has been drawn, but it seems to me, both upon authority and principle, that both on the question of whether the alleged libel refers to the plaintiff and as to the meaning of the language used, the question is for the jury upon the evidence before them. If, in the opinion of the jury, a substantial number of persons who knew the plaintiff, reading the article, would believe that it refers to him, in my opinion an action (assuming the language to be defamatory) can be maintained; and it makes no difference whether the writer of the article inserted the name or description unintentionally, by accident, or believing that no person existed corresponding with the name or answering the description.

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From this point of view I have most carefully considered the learned judge's summing up. In the first place, in my opinion his ruling at the conclusion of the plaintiff's case was quite right. . . . In my opinion this appeal fails and must be dismissed with costs.

FLETCHER MOULTON, L. J., read the following judgment: The ruling of the learned judge in this case is of such wide application, and strikes so directly at what I believe to be the foundations of the English law of libel, that, before dealing with the facts, which to my mind make it an ordinary case of no special difficulty, I propose to examine generally the law relating to libel so far as it deals with the necessity of the plaintiff's proving that the defendant intended the defamatory matter to apply to him.

The action of libel is a very ancient action for a tort at common law.

The essentials of such a cause of action appear from the well-known form of the declaration, a form which itself must have been in use for centuries. It ran thus: "That the defendant falsely and maliciously wrote and published of and concerning the plaintiff the words following, that is to say, 'he (meaning the plaintiff) is,""&c. . . . It is therefore, to my mind, settled law that a defendant is not guilty of libel unless he wrote and published the defamatory words "of and concerning the plaintiff” — in other words, unless he intended them to refer to the plaintiff. The ruling of the learned judge in the present case is directly contrary to this. He says "It does not matter what he intended" and has directed the jury that they may find the defendant guilty of libelling the plaintiff, although he did not know of his existence and had never written a word "of and concerning him" in his life. He has substituted for the plain issue which the common law has alone known, throughout three centuries at least, an issue which is in substance expressed thus: "Is there a class of persons who might reasonably suppose the words to be written of and concerning the plaintiff?" That this can be the meaning of the old common law averment is to my mind impossible. . . .

The limitation of the action of defamation to cases where the defendant has spoken or written words "of and concerning the plaintiff" is not an example of the weakness of common law remedies, but of their wisdom. It constitutes the protection of the innocent individual from being held guilty of defaming others of whom he has never intended to speak, and also from being himself defamed. On the one hand, to hold a person responsible for every application that his words may bear in the minds of persons who either possess knowledge that he does not possess or are ignorant of that which he knows, would be to put on him a burden too heavy to be borne. But on the other hand, it constitutes the protection of the individual from being defamed, because it nullifies all attempts to libel by language which as a matter of construction cannot refer to the plaintiff, but which persons reading between the lines would understand to refer to him by reason of the surrounding circumstances. This is one of the most common forms of libel. No name is mentioned, or some name other than that of the person really meant is substituted. The reader, in order to discover the person referred to, must reject or alter part of that which is written. But all these devices are in vain to shelter a libeller, because the issue is not whether the language is, as a matter of construction, applicable to the plaintiff, but whether the writer intended it to refer to the plaintiff, and if he did so he is responsible if any one can discover his intention, however much in words he may have striven to conceal it. This great and beneficial amplitude of the remedy is, however, only possible because the law makes the intention to refer to the plaintiff the critical issue. . .

The plaintiff at the trial called his father, a doctor at Denbigh, and some other persons from North Wales, who knew him personally, to

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