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obsolete prosecution for scandalum magnatum, i.e., speaking ill of high persons) is not punishable criminally. Nor can an action be maintained for it except upon proof that the plaintiff has sustained special damage, or unless the slander is one of a class which the law holds to have a strong and direct tendency to occasion serious mischief to him-as when a man is accused of having committed an indictable offence, or where the aspersion is of a nature likely to injure him in his calling, as designating a lawyer a rogue, a physician a quack; or where the slander is likely to disparage a public officer in his office—as accusing a magistrate of corruption; and in a few other cases.
Libel, on the other hand, is punishable criminally, and is always actionable, notwithstanding that no special damage is shown to have accrued. The reason of this distinction is obvious. Words may be uttered in the heat of the moment, whereas writing, and still more printing, is a deliberate and lasting act. To make mere spoken words punishable criminally (except, of course, when they are intended to incite a person 10 commit a crime, in which case they become an offence of another class) would be to interfere unduly with the liberty of the subject; while to make them generally actionable would give rise to an infinity of trumpery and vexatious litigation. respect, however, we must be permitted to think the law wrong (and for this view we have the support of high authority) namely, that a woman has no remedy for one of the greatest injuries she can receive-an imputation upon her chastity-unless when made in writing, or in the event of her being able to prove that special damage has arisen. Surely such a case comes within the reason of the rule which gives a person damages for slanders having a direct and manifest tendency to injure him seriously!
Mr. Starkie thus justifies the discrimination made by the criminal law between libel and slander :
• The restraining the criminal offence to written defamation is a provision which, whilst it leaves the ordinary communications incident to the daily business of life unfettered, at the same time guards against the mischief which would result from unlimited licence, by subjecting to punishment all such as are guilty of the more deliberate, studied, and therefore malicious attacks upon character—the more dangerous and injurious as being more permanent in their nature, and more capable of a wide and extensive circulation. This, therefore, is a mode of restraint which, whilst it leaves open considerable channels for communications affecting character, yet visits all those attacks upon reputation to which the foregoing remarks on the necessity for penal restraint more particularly apply.
The law makes an important difference between criminal prosecution and civil actions for libel, in regard to the defences which the defendant may set up. To the latter, the truth of the charges complained of is always a complete answer, while to the former, this defence was not, until recently, admitted at all, some of the judges having even held the strange doctrine-the greater the truth the greater the libel.' This was based on the principle that a libel is prosecutable, not for the satisfaction of the person attacked, but because its publication has a tendency to promote a breach of the peace, by provoking him to take vengeance on the defamer, whereas a civil action is undertaken by the person attacked with the object of obtaining damages for an alleged injury, to which of course he can have no claim where the charge is true. It must be admitted that the principle was carried to an extreme. However, by Lord Campbell's Act of 1843, the law has in this respect been placed on a footing conformable with reason. Now, a person prosecuted for libel may plead the truth of the imputations, but he must also plead that it was for the interest of the community that they should be published. Unless the jury find both these issues in his favour, his pleas do not help him. Thus, while the law no longer punishes the salutary exposure of evil doing, attacks prompted by malicious or corrupt motives, and the publication of which is not for the interest of the community, are liable to penalty, even though the facts stated may be true.* Lord Campbell's Act also authorises a defendant sued civilly to plead in mitigation of damages, that he made or offered a public apology before the action, or at the first opportunity after its commencement.
Towards the latter end of the last century an important improvement was made in the procedure in criminal trials for libel. A long current of decisions had established a rule-the conformity of which to the principles of the common law it is difficult to discover—that the jury bad merely to find specially
* Mr. Starkie, writing before the passing of Lord Campbell's Act, remarks:
• But in the next place any evil consequence which might otherwise result from subjecting written defamation, without regard to its truth or falsity, to penal censure, is best corrected by exempting largely from penal liability in all cases where the party acted with a fair and bonâ fide intention, with a view to a recognised legal object; and this without regard to the truth or falsity of the communication in fact; for in numerous instances, where the party acts honestly in pursuit of a legitimate object, it is far more consonant with the principles of natural justice and policy to make his criminality depend on the motive rather than on the result of an investigation as to the truth of the matter published. One man may violate the principles of honour and justice and the dictates of his own conscience, though he publish that wl is strictly true; whilst another may act under the influence of a strong moral feeling, in publishing what he believes to be true, but which turns out eventually to be false.'
the fact of the publication of the alleged libel and the truth of the inuendoes (i.e. explanatory statements interpolated in the copy of the matter complained of set forth in the indictment, showing the meaning of the words and expressions), leaving the question of libel or no libel to be determined by the Court; thus withdrawing from the consideration of the jury the question, whether or not the accused was actuated by malice; for the truth of his imputations did not at that day come in issue. This doctrine was called in question in the celebrated case of Woodfall, tried before Lord Mansfield in 1770—when an attack was made on that eminent judge, in the House of Peers, by Lord Chatham and Lord Camden, who denied Lord Mansfield's ruling to be law,--and also in the prosecution of_the Dean of St. Asaph, in 1784, where the Court of Queen's Bench followed the ruling in Woodfall's case, It was generally considered that this doctrine of the judges encroached upon the principle that no man is to be punished until found guilty by a jury of his peers. So, in 1792, the Act of 32 Geo. III. c. 60 was passed, at the instance of Mr. Fox, supported by Mr. Pitt, which declared that the jury ought, in libel prosecutions, to find a general verdict of guilty or not guilty. The judge, however, is enjoined to direct them as to the law of the case, as in other criminal trials.
In the well-known cause of Stockdale v. Hansard it was held, that the House of Commons could not authorise their printer to publish matter defamatory of individuals so as to protect him from action ; and this decision produced a sort of collision between that House and the Court of Queen's Bench. The dispute was, however, ultimately settled by the passing of an Act granting immunity to publications made by order of either House of Parliament.
We should remark that the offence, civil or criminal, is not the writing, but the publication of a libel. If a man compose such a document and merely keep it in his desk, he has not broken the law; but if he show it to any person, other than him who is aspersed, he becomes a libeller, as the law holds any showing of a document to be a publication.* An analogous rule applies to slander; for if the words are spoken in the presence only of the person attacked, or if the others present do not hear or understand them, no action will lie; and upon this principle it has been held that where the words complained of are in a foreign language it
* But it seems that sending a defamatory writing to the person reflected on is an offence punishable criminally, as tending to incite him to commit a breach of
must * Lord Chief Justice Erle thus defined malice :
must be proved that persons were present who understood the language.
Truth, as we have seen, is always a bar to the civil remedy for defamatory words, whether written or spoken; but the verity of the charges must be proved by the defendants—a provision flowing from the admirable principle of law that every person is presumed to be innocent until shown to be guilty.
The action for slander or libel is grounded on its being malicious ; that is, that the plaintiff has suffered from the malice of the defendant; the word malice in law including not only personal hatred, but any wrong motive.* All defamatory words are, on the principle above mentioned (i.e. that the plaintiff is supposed to be innocent of the charges made against him until shown to be guilty of them), primâ facie malicious. But if the imputations are proved to be well founded, the action is at an end, as the law holds that a man is not wronged by the publication of the truth.
Absolute proof of the truth of charges is, however, in many cases impossible; besides which, the most careful persons may be mistaken, even after having availed themselves of all means in their power of arriving at the truth. If, therefore, no defamatory words were excused except on proof of their perfect accuracy, a most mischievous check would be placed both upon the freedom of private communication in matters of necessary business and upon the discussion of political affairs and other subjects in which the public is interested. To prevent this mischief, the law permits the presumption of malice to be rebutted by showing that the words were uttered or published under circumstances which conferred a privilege upon them; that is, that there was some duty cast on the defendant, to discuss or communicate upon the matter, or, at any rate, that he had a good and sufficient reason. Thus, when asked the character of a servant, a master is not liable to action for what he says, even though he may state what may turn out to be untrue, unless it is shown that he knew it to be false, or was actuated by some wrong motive. If he volunteered the statement in conversation, he would be liable, unless he could prove that any imputations he made were strictly true; but being asked the character as a matter of business, he is privileged.
But then the plaintiff is not entitled to receive your verdict for defamation unless he establishes that the defendant was actuated by malice. The law, however, does not require that the plaintiff should show personal malice or ill-will in the sense of private hatred, but that the defamatory observations were published without any of these causes which the law considers will justify them.'
'If fairly warranted by any reasonable occasion or exigeney,' said Mr. Baron Parke, now Lord Wensleydale, “and honestly made, such communications are protected for the common convenience and welfare of society; and the law has not restricted the right to make them within any narrow limits.'
The same rule applies to publications." Wherever there is some proper reason why a man should write upon a subject, he may do so with impunity, so long as he acts bonâ fide, notwithstanding that he makes charges against individuals, the truth of which he may not be able to prove, and even though the falsity of them be shown; for the occasion rebuts the presumption of malice. He must not, however, go beyond the occasion, as, for instance, if he publish that to the whole world which merely concerns certain individuals.
Any document put forth to the public is a subject for privileged discussion.
Thus, in an action by one Paris against the Daily Telegraph, observations had been made by the sitting Alderman at the Mansion-house upon a placard which the plaintiff
, a marine store dealer, had exhibited, offering prices for kitchen-stuff, candle-ends, pewter, plated goods, &c., and proposing to fetch them from private houses. The Daily Telegraph' had published some remarks on the occurrence headed, 'Encouraging servants to rob their masters.' Lord Chief Justice Erle directed a verdict for defendant on the ground that the placard was a matter in which the public was interested, and upon which, therefore, criticism was proper ; and that the article did not go beyond the placard, or attack the plaintiff in anything not fairly arising out of that document,
The privilege of public discussion is based on the ground that all persons are interested in the demeanour of public officers in public matters, in books and other published works, and in the proceedings of courts of justice; and thus it is held, that what is put forth in the fair discussion of these matters is privileged from being called to account. The necessity or reason of the occasion rebuts the presumption of malice, which attaches primâ facie to all defamatory matter. But it is competent to the plaintiff to show express malice on the part of the defendant, either by extrinsic evidence, or from the words themselves, where they are so violent or manifestly unfair as to negative the supposition that the author could have composed them in an honest spirit. It is not enough that the observations are not well founded; the jury may entirely disagree with the remarks ; may consider them unfair, uncalled for, and in bad taste. But this will not justify them in finding against the defendant: that, they Vol. 117. - No. 234.