A French duke seeks prosecution over claims his father served human flesh to soldiers.

The Queen v Labouchere, Queens Bench Division, United Kingdom
(1883-1884) 53 LJR 362

Background

A foreign nobleman, the Duke of Vallombrosa, applied for an order that an information—a criminal charge—be filed against a newspaper proprietor who had published that the Duke’s deceased father, a pork contractor for the French army:

“was nearly hanged on a charge of supplying as meat to French army corps the flesh of soldiers who had died in hospital or who had been killed in battle. Luckily for him the First Empire came to an end before his trial could take place, and the contractor having retired to Italy and purchased a dukedom, became a grand seigneur, and an ardent adherent of the Bourbons.”

At the two-day hearing on 10 and 11 May 1883, counsel for the Duke argued that the libel, though referring to a dead man, was an imputation on the family, and thus a libel on the applicant himself: “A man may so speak ill of the dead as to libel the living.”

Judgment

On 9 February 1884, the Lord Chief Justice of England, Lord Coleridge, delivered the leading judgment of a Court of five judges, in which the Duke’s application was refused on three grounds.

First, the Duke was a non-resident.  Though not a decisive factor, this fact negated the argument that the publication had caused a ‘breach of the peace’ – a crucial element to justify the ordering of a criminal information in respect of libel.

Secondly, and most importantly, the Duke’s father—the subject of the libel—was dead.

Thirdly, the Court held that, unless a libel of somebody in their personal capacity was exceptionally grave—so as to in fact disturb the peace and harmony in the community—the ordering of a criminal information was to be reserved for those who occupied public offices, and only in circumstances where they were attacked in the capacity of their office – i.e. not in their private capacity.  Plainly the Duke, being a foreign nobleman, did not meet this standard.

Comment

This case is intriguing not only in respect of the legal issues canvassed, but also in relation to the style of Lord Coleridge’s judgment.  Further, the judgment exhibits some plainly archaic social mores, yet at the time can be seen to have marked a real progression of societal values.

Criminal defamation

Overarching this case, it is first to be noted that it concerns criminal defamation.  In New Zealand, defamation was abolished as a criminal offence with the enactment of section 56(2) of the Defamation Act 1992.  It is now only a civil action.  Our English counterparts, meanwhile, abolished criminal libel in 2010.  (By contrast, in Australia and Canada criminal penalties for defamation have survived.)

Libelling the dead

The case is probably most notable for its role in shaping the (now) well-settled canon that the dead cannot be defamed.  In fact, in the 1880s this aspect of the judgment was reported across the globe, from New Zealand’s Marlborough Express and The Colonist in Nelson, to Missouri’s Sedalia Weekly Bazoo.

Lord Coleridge traced libel claims involving the dead to a case involving King William III and Queen Mary II, which occurred soon after Mary had died in 1700. In that case, a libel on the late Mary was upheld, though on the footing of “an intention to subvert and slander the government” – which seems in line with the rationale for criminal defamation; i.e. to protect against breaches of the peace.

However, Lord Coleridge noted a turning point in the case of The King v Paine.  Describing that case, Lord Coleridge was rather at pains to express that “the libel on a deceased Lord Cowper was of the most virulent possible description, imputing to him ‘unmanly vices and debaucheries’”.  (We can only but speculate what he meant.)  Importantly, however, the judge endorsed Paine’s overriding rationale: that aspersions cast on the dead were not a matter for indictment or information unless designed to breach the peace.

Of course, with ‘breach of the peace’ not being an element of the civil tort of defamation, this aspect of Lord Coleridge’s judgment can perhaps, in hindsight, be seen as the definitive statement against liability for aspersions cast on the dead in civil law.

In any event, New Zealand gave this common-law doctrine legislative status with the enactment of section 3(1) of the Law Reform Act 1936.

Social change present

While the ‘libelling the dead’ issue is possibly of more historical import in a defamation-law context, a larger portion of the judgment was devoted to expounding what was clearly then a delicate, political point: that the Court, though keen to protect against defamatory attacks on nobility acting in their official capacity, was unwilling to afford protection to nobility in their private capacity simply owing to their personal status.  Indeed, Lord Coleridge was deeply critical of a contemporaneous judgment in which a criminal information was ordered solely on the basis that the applicant, Lord Lonsdale, was a peer:

I can find nowhere any trace of the doctrine that a peer, as such, is entitled to exceptional and most important privileges in the administration of the law. … that a peer in private matters is entitled to any interference at the hands of this Court which the Court would not extend in favour of the humblest subject of the Queen, I respectfully and emphatically deny.

Of course, notwithstanding the important social change marked by the judgment, it stands in a stark contrast to modern-day orthodoxies, which afford less protection in defamation to, for example, public figures in the Unites States, and politicians in New Zealand, than that extended to ordinary people. Today it is reasoned that in the interest of fostering democratic dialog, public figures and politicians, respectively, are expected increasingly to have thicker skins, particularly if they court publicity themselves.

Final point

There is one last—and rather quaint—point worth noting.  In Lord Coleridge’s effort to restrict the protection afforded to nobility, he seemed to feel his reasoning lacked fortification owing to a dearth of reported cases on the matter.  As a result, he placed reliance on a number of newspaper reports of cases which, though were said to have been reported more with a view to the facts than the law, had been furnished to the Judge “by a gentleman of the bar, who reported them for a newspaper, and is able to vouch for the substantial correctness of his own reports”.

If only journalists, for their own sake, were given special standing to vouch for their stories’ correctness more often!