liciously." "But that truth" (says Mr. Townshend, in his valuable essay)," which is admitted as a defense, is the truth of the defamatory matter, in substance and in fact; and in the sense in which it was used, and was intended to be understood. If A. says of X. that he is a thief, and C. publishes that A. said X. was a thief, in a certain sense C. would publish the truth, but not in the sense which would constitute a defense; C.'s publication would, in fact, be but a repetition of A.'s words, which, as we have seen, would not be a defense. The truth, which in such a case would amount to a defense, would be that X. was a thief. Again: if A., speaking ironically, says of X. that he is an honest man, meaning and conveying the idea that X. is a dishonest man, it would not be a justification of these

is, whether the terms of abuse which have been above referred to, carry the matter any further than this, the main charge. The words themselves, in their vulgar use, convey no other meaning than that of general reproach and invective; and we can only discover whether they have any particular meaning in this libel by referring to the context of the libel and to the allegations on the record. As to the word 'scamps,' the plaintiffs themselves have given the meaning to it; for they allege in their declaration that it is intended to be applied to them in the way of their aforesaid trade, business, and occupation;' that is, as vendors of the pills, the making and selling of which by the plaintiffs is the main imputation against them. And the word 'rascals' is associated with an epithet or adjunct which appears to confine its general abusive quality to a description and designation of the persons who have been occupied in administering the pills spoken of in the libel, of whom two have been convicted of manslaughter. We cannot, therefore, understand these words, however offensive, as containing any charge different and distinct from that of which the truth has been justified in the first plea; and we are not aware of any authority by which it is determined that the justification of the truth of the substantial imputation contained in a libel is not sufficient, unless it extends also to every epithet or term of general abuse which may be found in the description or statement of such imputation."

words to allege that it was true X. was an honest man ; but, to constitute a defense, the allegation required. would be, that it was true X. was a dishonest man.""

2

66. A mere belief in the truth of the matter published, however honestly that belief may be entertained, will not, of itself, constitute any defense. The question of belief, it is evident, will mainly present itself in considering the intent with which a publication is made, as to whether that intent be or be not malicious; and the principles which will govern courts are most safely drawn from the reported cases.

The question as to how far a belief in the truth of statements made, relieves the publisher from the re

1

2

Essay upon Slander and Libel, 7 § 211.

2 Townshend on Slander and Libel, § 216. A defendant can not justify a charge of theft by showing that he has just grounds for believing the plaintiff dishonest. (Woodruff v. Richardson, 20 Conn. 238.) The publication in a newspaper of rumors is not justified, but may be mitigated, by the fact that such rumors existed. (Skinner v. Powers, 1 Wend. 451, § 411, post.) In mitigation of damages, in an action for libel, defendant was allowed to show that he copied the statement from another newspaper (Saunders v. Mills, 6 Bing. 213; 3 M. & P. 520). And that he had omitted many of its parts reflecting on the plaintiff (Creevy v. Carr, 7 C. & P. 64. And see Darbey v. Ousely, 1. Hurl & N. 1; Campbell v. Spottiswoode, 3 Best & Smith, 769; 8 Law Times Rep. N. S. 201; and see Moore v. Stevenson, 27 Conn. 14; Woodruff v. Richardson, 20 Conn. 238; Fry v. Bennett, 3 Bosw. 200; Smart v. Blanchard, 42 N. Hamp. 137; Kerr v. Force, 3 Cr. C. C. 8; Watson v. Moore, 2 Cush. 133; Hotchkiss v. Porter, 30 Conn. 314; Gilmer v. Ewbank, 13 Ill. 271; Duncan v. Brown, 15 B. Monr. 186; Grimes v. Coyle, 6 Monr. 301; Huson v. Dale, 19 Mich. 35; Farr v. Rusco, 9 Mich. 353; Long v. Brougher, 5 Watts, 399; Smith v. Luckecker, 4 Rawle, 295; Powell v. Plunkett, Cro. Car. 52; Moyer v. Pine, 4 Mich. 409; Hutt. 13; Bridg. 62; Brownlow, 2; Holt v. Parsons, 23 Tex. 9).

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3 As--it is submitted—will also the nice and accurate questions as to what will constitute publication of a libel. See Townshend on Slander and Libel p. 78, et seq.

sponsibility for making them; a question intricate in itself, but rendered still more involved by considerations as to how far the persons to whom the statements are uttered, believe in the truth, we are forced to admit, after all the years during which the law has been engaged in its discussion, must be solved anew with and according to the circumstances of each recurring case. The law has never been able to lay down an infallible or invariable rule. While an action of slander would perhaps be influenced by the fact that the slanderous words were not credited by any one hearing them-the main question will nevertheless be-the intent of the person speaking them.

Nor is it necessary to be finical as to the exact legal meaning of the word intent. The law generally will construe it in its popular sense of intention, motive, animus. As to the word malice, however, there may be a legal significance, not recognized in the popular definition; though Daly, Ch. J., in a late case seemed to hold that there was none. "I apprehend," said he, "that there is no ground for distinguishing between the legal and the popular sense of the word, and that it means, in its legal sense, exactly what it means in its popular sense, namely, a mischievous design or intent to do an injury to an individual, or to the public." The law presumes, from the act, an intent to bring about its consequences; "to denominate this intent malice, or malice in law, when it may have arisen from a good motive, the defendant believing what he alleges to be true, is to employ the word malice in a

'Knight v. Gibbs, 3 Nev. & M. 467; 1 Adol. & El. 43; Gillett v. Bullivant, 7 L T. 490; Wilson v. Galt, 17 N. Y.

* Viele v. Gray, 10 Abb. Pr. R. 5; 18 How Pr. R. 550.

sense neither justified by its etymology, its ordinary meaning, nor its previous legal signification."1

But a difference is made by Sir Thomas Moore between malitia and malevolentia?

However honestly the party who publishes a libel believes it to be true, if it is untrue in fact, the law implies malice, unless the occasion justifies the act; and whether the occasion justifies the act, is a question of law for the court.s

No suspicion, however strong, will justify a man in aspersing his neighbor, nor can a defendant show that the aspersion had been for years generally credited, or that a near relative (e.g. a sister) of the plaintiff believed her guilty. Common fame even will not justify an extra judicial charge. Though a bona fide belief in the truth of statements made will sometimes be allowed to mitigate damages. Recantation also is sometimes allowed to go in mitigation of damages.

1

2

8

1 In Viele v. Gray, 10 Abb. Pr. 5; 18 How. Pr. 550.

17 Howell's St. Tr. 43, 63. (See also his remarks upon the introduction of the words Falso et malitiose into indictments for libel [1 Id. 30; 6 Id. 1113]).

409.

3

* Darby v. Ouseley, 1 Hurl & N. 1.

4

* Powell v. Plunkett, Cro. Car. 52; Moyer v. Pine, 4 Mich.

'Hutt, 13; Brownlow, 2; Bridg. 62.

Farr v. Rusco, 9 Mich. 353; Huson v. Dale, 19 Mich. 35, overruling Thompson v. Bowers, 1 Douglass, 321.

• Perret v. New Orleans Times Newspaper, 25 La. An. 170. (See this question discussed post, in chapter on newspapers.)

"In Dicas v. Lawson" (Id.), says Alderson, B., “I directed the jury to look to the whole of the publication, to see whether it was calculated to injure the plaintiff's character. The publication there complained of, was the report of a trial in which there were strong observations on the character of the plaintiff, but in which the plaintiff had recovered a verdict for £30. It was said that the report was libelous, because it set

It was formerly the policy of the law to construe all words in mitiori sensu1 The old judges

abounded in such maxims as "where words are ambiguous, so as they may be expounded in good or ill part, no action lies, for they shall be expounded in the best sense." "The law strains not to hurt but to heal." 3 'Where words are indifferent and discouraged the action of slander by all sorts of evasions, and the like."4 67. But the rule, mitiori sensu, was held by Lord Ellenborough in 1807, to have been long superseded, and courts will now construe words in the

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forth the charge made on the trial against the plaintiff. I left it to the jury to say whether, taking the whole of the publication together, they thought it likely to depreciate his character. The jury thought not; and on application for a new trial, this court (exchequer) approved of my direction."

1

1 King v. Bagg. Cro. Jac. 331; Holland v. Stoner, Id. 315. 2 Anon. Cro. Eliz. 672.

'Coote v. Gilbert Hob, 77 pl. 100.

* Per Gibson, J., Bash v. Sommer, 20 Pa. St. 159. See Harrison v. Thornborough, 10 Mod. 196. "We will not give

more favor unto actions on the case for words than of necessity we ought to do, where the words are not apparently scandalous, these actions being now too frequent." (Coke, C. J., Crofts v. Brown, 3 Bulst. 167.) In Aslop v. Aslop (5 Hurl. & N. 534), the court says actions for slander are not to be encouraged; nor is the spirit wanting in the later decisions in this country; see Bennett v. Williamson (4 Sandf. 67), where it is said: "The law of libel ought to be considered and is in its spirit a benevolent and salutary provision for the peace and security of the community, but it can not redress every injury sustained by a breach of morals or of good manners. We may not approve of the taste of publications such as is set forth in the declaration in this case. We may lament the existence of a disposition to make private character too much the subject of comment and abuse without having it in our power through the instrumentality of the law to arrest the evil;" and in Dollaway v. Turrell (26 Wend. 397), the action for libel is designated as a sordid action.

Roberts v. Camden, 9 East, 96; Cf. Woolnoth v. Mead ows, 5 East. 463; Somers v. House, Holt Rep. 39.