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So of bona fide communications by directors and members of companies, § 1632.

So of bona fide business publications, § 1632 a.

So of bona fide communications by commercial agencies, § 1633.

So of legislative proceedings and
speeches, § 1634.

So of official reports, § 1635.
So of communications to electing
or appointing power, § 1636.
So of professional publications
by counsel, § 1637.

So of evidence of witnesses on
trial, § 1638.

So of legal proceedings, § 1639.
So of criticism of public abuse

or wrong, and of literary and
artistic criticism, § 1640.
So of discipline by voluntary so-
cieties, § 1641.

So of publications in legitimate self-defence, § 1641 a. Question of privilege for court, § 1642.

VII. TRUTH, WHEN ADMISsible.

At common law truth is no jus-
tification, § 1643.

Otherwise when purpose is hon-
est, to disprove malice, § 1644.
Under statutes truth admissible
on conditions, § 1644 a.
Truth no defence when publica-
cation is malicious, § 1645.
Justification must be as broad as
charge, § 1646.

Common rumor no justification,
§ 1647.

VIII. MALICE, HOW PROVED AND RE

BUTTED.

Malice need not be special, § 1648.

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I. DEFAMATORY LIBELS.

§ 1594. A DEFAMATORY libel is matter published without legal justification or excuse, the effect of which is to insult the person of whom it is published, or which is calculated to injure the reputation of any person by exposing

Defamatory libel is a publi

cation cal

culated to injure the reputation

insult or

him to hatred, contempt, or ridicule. Such matter may be expressed either in words legibly marked upon any substance whatever, or by any object signifying such matter otherwise than by words, and may be expressed person. either directly or by insinuation or irony.1

of any

Libel is a crime at common law. A prosecution for libel is not to be regarded as a private action subject to compromise by the parties, but is under the control of the State.3

Test of

injury is provocawrath or

tion to

exposure

§ 1595. The meaning of "defamatory," when applied to individuals, is the point next to be considered; and it may be generally said that defamation, in this sense, is confined to that which (1) is provocative of wrath; or, (2) exposes to public hatred, contempt, or ridicule. Hence it is defamatory to publish that of another which will put him, supposing him to obey the impulses common to men under such circumstances, in a condition of mind which is likely to result in a breach of the peace. And even supposing there be no danger of any such action on his part, it is defamatory to expose him to public hatred, contempt," or ridicule. The

1 This is substantially the definition given in the English Draft Commission of 1879. See, also, Steph. Dig. Cr. L. art. 267.

2 State v. Burnham, 9 N. H. 34; Com. v. Holmes, 17 Mass. 336, 338; Com. v. Kneeland, 20 Pick. 206, 232; State v. Avery, 7 Conn. 268; 3 Swift's Dig. 340.

to public hatred or

ridicule.

62 Wils. 403; R. v. Kinnersley, 1 W. Bl. 294; Crowe v. People, 92 Ill. 231; State v. De Long, 88 Ind. 312; State v. Farley, 4 McC. 317; State v. Henderson, 1 Rich. 180; but see People v. Jerome, 1 Mich. 142.

An indictment will lie for all words spoken of another, which may have the effect of excluding him from sociR. v. The World, 13 Cox C. C. 305. ety; as, for instance, to charge him See 2 Stark on Slan. 210.

5 Churchill v. Hunt, 2 B. & Ald. 685; 4 Taunt. 355; Macgregor v. Thwaites, 4 D. & R. 695; 3 B. & C. 24; State v. Atkins, 42 Vt. 252; State v. Spear, 13 R. I. 324; Steel v. Southwick, 9 Johns. 214; Barthelemy v. People, 2 Hill (N. Y.), 248; State v. De Long, 88 Ind. 312.

In R. v. Hollon, 12 Lea, 482, the court sustained an indictment against H. for libelling B., the indictment alleging that H. wrote and sent in B.'s name a libellous letter to R.

with having an infectious disease, such as leprosy, the venereal disease, the itch, or the like. Com. Dig. Action on the Case for Defamation D. 28, 29, F. 11, 19; 2 Burr. 930. But charging him with having had a contagious disease is not actionable; for, as this relates to a time past, it is no reason why his society should be avoided at present. 2 T. R. 473; Stevens v. Hayden, 2 Mass. 406; Bloss v. Tobey, 2 Pick. 320; Allen v. Hillman, 12 Ibid. 101.

On the same principle, to charge a

remedy, of information, however, should only be applied in cases where the wrong is of so flagrant a character as to make a criminal prosecution necessary on public grounds. "The court," says Hawkins, in a passage adopted in 1884, by Lord Coleridge,1 “will not grant this extraordinary remedy by information, nor should a grand jury find an indictment, unless the offence be of such signal

woman with libidinous habits, and with tempting another to commit adul. tery, is libellous. State v. Avery, 7 Conn. 268.

It has even been held libellous to charge a man with insanity; R. v. Harvey, 2 B. & C. 257; and to call a woman a hermaphrodite. Malone v. Stewart, 15 Ohio, 319. So it is libellous to publish of one, in his capacity of a juror, that he agreed with another juror to stake the decision of the amount of damages to be given in a cause, then under their consideration, upon a game of draughts. Com. v. Wright, 1 Cush. 46; R. v. Spiller, 2 Show, 205.

To charge a citizen with acting, in a nominating convention, under the influence of a bribe, is libellous; Hand v. Winton, 38 N. J. L. 122; and so with charging jurors with doing "injustice to their oaths;" Byers v. Martin, 2 Col. T. 605; and so with charging a party with engrafting silver ore in a rock, in order to cheat in a mining adventure. Williams v. Godkin, 5 Daly, 499.

It is no defence that the defendant states that he did not believe the story. Com. v. Chambers, 15 Phila. 415.

Sir J. F. Stephen (Dig. C. L. art. 268) gives the following instances of defamatory matter:

"A question suggesting that illegitimate children were born and murdered in a nunnery. R. v. Gathercole, 2 Lew. C. C. 237.

"A. adds to his other vices ingratitude. Cox v. Lee, L. R. 4 Ex. 284.

"A. will not play the fool or the hypocrite (meaning that he would). 1 Hawk. P. C. 543.

"A. has the itch, and smells of brimstone. Villars v. Morristen, Holt, 216.

"I think," says Sir J. F. Stephen, "it might, under special circumstances, be a libel to say of a person a thing apparently quite inoffensive. Suppose, for instance, a man wrote of another, his name is A., meaning that his real name is A., and that the name of B., by which he passed, was falsely assumed, would not this be a libel ?"

In Gregory v. R., 15 Q. B. 957, the Court of Exchequer Chamber held the following words sufficient to maintain an indictment for libel: "Why should T. be surprised at anything Mrs. W. does? If she chooses to entertain B. (the prosecutor), she does what very few will do; and she is of course at liberty to follow the bent of her own inclining, by inviting all infatuated foreigners who crowd our streets to her table, if she thinks fit." Where a placard was posted up to the following effect: "B. Oakley, game and rabbit destroyer, and his wife, the seller of the same in country and town." Quain, J., ruled that this was not prima facie libellous; and as there was no innuendo showing that it charged an indictable offence, or that it related to the calling of the prosecutor, the learned judge quashed the indictment. R. v. Yates, 12 Cox C. C. 233, cited Roscoe's Cr. Ev. 659.

1 R. v. Labouchere, 50 L. T. (N. S.) 181; 15 Cox C. C. 415.

enormity that it may reasonably be construed to have a tendency to disturb the peace and harmony of the community. In such a case the public are justly placed in the character of an offended prosecutor to vindicate the common right of all, though violated only in the person of an individual; for the malicious publication of even truth itself (this was written when truth could not be pleaded to an indictment) cannot, in true policy, be suffered to interrupt the tranquillity of any well-ordered society."

Hence imputation

§ 1596. An indictment, a fortiori, will lie for all words spoken of another which impute to him the commission of some crime punishable by law, such as high treason, murder, or other felony (whether by statute or at common law); of crime forgery, perjury, subornation of perjury, or other misde

meanor.1

is a libel.

And so of reflecting on a man

in his trade

or liveli

hood.

§ 1597. It is indictable, also, to assist in a publication which may impute incapacity or dishonor to a man in his trade or livelihood; as, for instance, to call a tradesman a bankrupt, a physician a quack, or a lawyer a knave, or the like; or to charge a public officer with indictable misconduct.3 § 1598. Whatever, if made the subject of civil action, would be considered libellous without laying special damage, is indictable in a criminal court, and by this test, therefore, whatever the law of libel, as expressed on actions for damages, is brought to bear on criminal prosecutions. There are cases, however, in which an action would not lie without laying special damage, in which, nevertheless, an indictment is good. Thus, for instance, if a man write or print, and publish of another, that he is a scoundrel, or villain, it is a libel,

1 Com. Dig. Action on the Case for Defamation, D. 1-10, F. 1-7, 12-18; Wonson v. Sayword, 13 Pick. 402; Walker v. Winn, 8 Mass. 248; Chaddock v. Briggs, 13 Ibid. 248; Miller v. Parrish, 8 Pick, 384; Gay v. Homer, 13 Ibid. 535; Hotchkiss v. Oliphant, 2 Hill (N. Y.), 510; Stillwell v. Barter, 19 Wend. 487; Nash. v. Benedict, 25 Ibid. 645; Cramer v. Riggs, 17 Ibid. 209; Smith v. State, 32 Tex. 594. And

And so of

is the subject of civil action special

without

damage.

as to charging a public officer with corruption, Com. v. Damon, 136 Mass. 442.

Finch L. 186; Com. Dig. D. 22–27, F. 9, 10; 2 Stark. (N. P.) 245, 297. State v. De Long, 88 Ind. 312; State v. Lyon, 89 N. C. 569.

42 Stark. on Slander, 120.

5 J'Anson v. Stuart, 1 T. R. 748. 6 Bell v. Stone, 1 B. & P. 331; R. v. Pownell, W. Kel. 58; but see R. v.

and punishable as such; although in such cases a civil suit might not lie without special damage.1

And so of vilifying deceased persons.

§ 1599. Writings vilifying the character of persons deceased are libels, and may be made the subject of an indictment;2 but the indictment in such a case must charge the libel to have been published with a design to bring contempt on the family of the deceased, or to stir up the hatred of the people against them, or to excite them to a breach of the peace, otherwise it cannot be sustained.

But there should be limit as to

time.

§ 1600. The Roman law here offers some salutary restrictions for our guidance. Libels on a deceased person can be prosecuted only by the heir, who, on the principle of universal succession, represents the deceased. The prosecution in such case must be limited to libels published after the ancestor's death; for, libels which the latter did not prosecute when he had capacity so to do, he is presumed to have condoned. Yet if a prosecution is instituted during the life of the libelled person, it is not barred by his death." "Iniuriarum actio" (and the term includes criminal as well as civil procedure)" neque heredi neque in heredem datur; semel autem lite contestata ad successores pertinere." Yet even in this case a time arises when the interests of just historical criticism demand that the liberty of speech should be unrestrained; and when, even of the most illustrious of the dead, censures the most injurious must be permitted without penal amenability. The modern Roman law declares that this time arrives when the generation living at the death of the person libelled has passed away; and this limitation has been adopted by the codes of Austria and Saxony. By the North German code,

Granfield, 12 Mod. 98; where it was held not indictable to charge the mayor and aldermen of a particular town with being "a pack of as great villains as any that rob on a highway," the ground being that this was general political abuse. S. P. Tappan v. Wilson, 7 Ohio, 190.

1 See Tillson v. Robbins, 68 Me. 295. 25 Co. 125 a; Com. v. Clap, 4 Mass. 163.

R. v. Topham, 4 T. R. 127. See R. v. Labouchere, 15 Cox C. C. 415; 50 L.

T. (N. S.) 177, where a criminal information for a libel on a deceased foreign nobleman was refused, mainly on the authority of R. v. Topham. See comments in London Spectator of Feb. 16, 1884, p. 211.

4 Com. v. Taylor, 5 Binn. 281.

Sir J. F. Stephen says (art. 267):— "The publication of a llbel on the character of a dead person is not a misdemeanor unless it is calculated to throw discredit on living persons."

L. 13. D. 47. 10.

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