Speeches taken at advising the Action of Defamation and Damages, ALEXANDER CUNNINGHAM, Jeweller in Edinburgh, against JAMES EUSSELL, Surgeon there.
"THE LORD PRESIDENT (Sir ILAY CAMPBELL).-- Your Lordships have the petition of Alexander Cunningham against Lord Bannatyne's interlocutor. It is a case of defamation and damages for calling the petitioner's Diamond Beetle an Egyptian Louse. You have the Lord Ordinary's distinct interlocutor, on pages 29 and 30 of this petition:--'Having considered the Condescendence of the pursuer, Answers for the defender,' and so on; 'Finds, in respect that it is not alleged that the diamonds on the back of the Diamond Beetle are real diamonds, or anything but shining spots, such as are found on other Diamond Beetles, which likewise occur, though in a smaller number, on a great number of other Beetles, somewhat different from the Beetle libelled, and similar to which there may be Beetles in Egypt, with shining spots on their backs, which may be termed Lice there, and may be different not only from the common Louse, but from the Louse mentioned by Moses as one of the plagues of Egypt, which is admitted to be a filthy troublesome Louse, even worse than the said Louse, which is clearly different from the Louse libelled. But that the other Louse is the same with, or similar to, the said Beetle, which is also the same with the other Beetle; and although different from the said Beetle libelled, yet, as the said Beetle is similar to the other Beetle, and the said Louse to the other Louse libelled; and the other Louse to the other Beetle, which is the same with, or similar to, the Beetle which somewhat resembles the Beetle libelled; assoilzies the defender, and finds expenses due.'
"Say away, my Lords.
"LORD MEADOWBANK.--This is a very intricate and puzzling question, my Lord. I have formed no decided opinion; but at present I am rather inclined to think the interlocutor is right, though not upon the ratio assigned in it. It appears to me that there are two points for consideration. First, whether the words libelled amount to a convicium against the Beetle; and Secondly, admitting the convicium, whether the pursuer is entitled to found upon it in this action. Now, my Lords, if there be a convicium at all, it consists in the comparatio or comparison of the Scaraboeus or Beetle with the Egyptian Pediculus or Louse. My first doubt regards this point, but it is not at all founded on what the defender alleges, that there is no such animal as an Egyptian Pediculus or Louse in rerum natura; for though it does not actually exist, it may possibly exist (if not in actio, yet in potentia--if not in actuality, yet in potentiality or capacity); and whether its existence be in esse vel posse, is the same thing to this question, provided there be termini habiles for ascertaining what it would be if it did exist. But my doubt is here:--How am I to discover what are the essentia of any Louse, whether Egyptian or not? It is very easy to describe its accidents as a naturalist would do--to say that it belongs to the tribe of Aptera (or, that is, a yellow, little, greedy, filthy, despicable reptile), but we do not learn from this what the proprium of the animal is in a logical sense, and still less what its differentia are. Now, without these it is impossible to judge whether there is a convicium or not; for, in a case of this kind, which sequitur naturam delicti, we must take them meliori sensu, and presume the comparatio to be in melioribus tantum. And here I beg that parties, and the bar in general--[interrupted by Lord Hermand: Your Lordship should address yourself to the Chair]--I say, I beg it may be understood that I do not rest my opinion on the ground that veritas convicii excusat. I am clear that although this Beetle actually were an Egyptian Louse, it would accord no relevant defence, provided the calling it so were a convicium; and there my doubt lies.
"With regard to the second point, I am satisfied that the Scaraboeus or Beetle itself has no persona standi in judicio; and therefore the pursuer cannot insist in the name of the Scaraboeus, or for his behoof. If the action lie at all, it must be at the instance of the pursuer himself, as the verus dominus of the Scaraboeus, for being calumniated through the convicium directed primarily against the animal standing in that relation to him. Now, abstracting from the qualification of an actual dominium, which is not alleged, I have great doubts whether a mere convicium is necessarily transmitted from one object to another, through the relation of a dominium subsisting between them; and if not necessarily transmissible, we must see the principle of its actual transmission here; and that has not yet been pointed out.
"LORD HERMAND.--We heard a little ago, my Lord, that there is a difficulty in this case; but I have not been fortunate enough, for my part, to find out where the difficulty lies. Will any man presume to tell me that a Beetle is not a Beetle, and that a Louse is not a Louse? I never saw the petitioner's Beetle, and what's more I don't care whether I ever see it or not; but I suppose it's like other Beetles, and that's enough for me.
"But, my Lord, I know the other reptile well. I have seen them, I have felt them, my Lord, ever since I was a child in my mother's arms; and my mind tells me that nothing but the deepest and blackest malice rankling in the human breast could have suggested this comparison, or led any man to form a thought so injurious and insulting. But, my Lord, there's more here than all that--a great deal more. One could have thought the defender would have gratified his spite to the full by comparing the Beetle to a common Louse--an animal sufficiently vile and abominable for the purpose of defamation--[Shut that door there]--but he adds the epithet Egyptian, and I know well what he means by that epithet. He means, my Lord, a Louse that has been fattened on the head of a Gipsy or Tinker, undisturbed by the comb or nail, and unmolested in the enjoyment of its native filth. He means a Louse grown to its full size, ten times larger and ten times more abominable than those with which your Lordships and I are familiar. The petitioner asks redress for the injury so atrocious and so aggravated; and, as far as my voice goes, he shall not ask it in vain.
"LORD CRAIG.--I am of the opinion last delivered. It appears to me to be slanderous and calumnious to compare a Diamond Beetle to the filthy and mischievous animal libelled. By an Egyptian Louse I understand one which has been formed on the head of a native Egyptian--a race of men who, after degenerating for many centuries, have sunk at last into the abyss of depravity, in consequence of having been subjugated for a time by the French. I do not find that Turgot, or Condorcet, or the rest of the economists, ever reckoned the combing of the head a species of productive labour; and I conclude, therefore, that wherever French principles have been propagated, Lice grow to an immoderate size, especially in a warm climate like that of Egypt. I shall only add, that we ought to be sensible of the blessings we enjoy under a free and happy Constitution, where Lice and men live under the restraint of equal laws the only equality that can exist in a well-regulated state.
"LORD POLKEMMET.--It should be observed, my Lord, that what is called a Beetle is a reptile very well known in this country. I have seen mony are o' them in Drumshorlin Muir; it is a little black beastie, about the size of my thoom-nail. The country-folks ca' them Clocks; and I believe they ca' them also Maggy-wi'-the-mony-feet; but they are not the least like any Louse that ever I saw; so that, in my opinion, though the defender may have made a blunder through ignorance, in comparing them, there does not seem to have been any animus injuriandi; therefore I am for refusing the petition, my Lords.
"LORD BALMUTO.--'Am[48] for refusing the petition. There's more Lice than Beetles in Fife. They ca' them Clocks there. What they ca' a Beetle is a thing as lang as my arm; thick at one end and sma' at the other. I thought, when I read the petition, that the Beetle or Bittle had been the thing that the women have when they are washing towels or napery with--things for dadding them with; and I see the petitioner is a jeweller till his trade; and I thought he had are o' thae Beetles, and set it all round with diamonds; and I thought it a foolish and extravagant idea; and I saw no resemblance it could have to a Louse. But I find I was mistaken, my Lord; and I find it only a Beetle-clock the petitioner has; but my opinion's the same as it was before. I say, my Lords, 'am for refusing the petition, I say--