without proof of special damage. And besides these there is the whole class of defamatory representations, such as picture and effigy, which in their nature are incapable of oral publication. Whether the distinction is well founded or not, the manner of the publication, as libel, makes it actionable'. For example: The defendant writes and publishes of the plaintiff the following: I sincerely pity the man that can so far forget what is due not only to himself, but to others, who, under the cloak of religious and spiritual reform, hypocritically, and with the grossest impurity, deals out his malice, uncharitableness, and falsehoods.' The plaintiff can maintain an action for libel2. Again: The defendant prints the following of the plaintiff: 'Our army swore terribly in Flanders, said Uncle Toby; and if Toby was here now, he might say the same of some modern swearers. The man at the sign of the Bible [the plaintiff] is no slouch at swearing to an old story.' The imputation is libellous, though not importing perjury. Again: The defendant prints the following of the plaintiff: 'Mr Cooper [the plaintiff] will have to bring his action to trial somewhere. He will not like to bring it in New York, for we are known here, nor in Otsego, for he is known there.' The publication of this language is deemed libellous1.

Publishers of books, newspapers, etc.

At common law, no immunity is conferred upon the proprietors, publishers, or editors of books, newspapers, or other prints, for the publication of defamation. They are liable for the publication of libellous matter in their prints, though the publication may have been made without their knowledge or even against their orders. This is not true of newsvendors®. And it is held that if the alleged libel were of such a nature that a man of common intelligence could not know that it was intended for a libel, and it was not in fact known that it was, neither the editor nor the

512.

1 Thorley v. Kerry, 4 Taunt. 355; Haynes v. Clinton Printing Co., 169 Mass.

2 Thorley v. Kerry, supra.

3 Steele v. Southwick, 9 Johnson (New York), 214.

4 Cooper v. Greeley, 1 Denio (New York), 347.

5 See the Statute of 6 & 7 Vict. c. 96, as to apologies.

6 Emmens v. Pottle, 16 Q. B. Div. 357.

proprietor of the printing establishment, or of the print, would be liable'.

Distinction

and slander, medieval: the press.

The distinction between slander and libel, making libel a crime as well as a tort, has its roots in the feudal age. Written defamation, in rhyming lampoon, was then a conbetween libel spicuous and typical weapon of attack between great men; while slander, though also then as now in use among men of high degree and sometimes punished as a crime, was common property for everybody -it was the billingsgate of the lower classes, for whom no man cared. And the parties, high or low, squared the account on the spot. How bitter and dangerous the libel of those coarser times may be seen in such a one as the Ballad of Richard of Almaign2, lampooning the King's brother for cowardice at the battle of Lewes (1264)3. One can well understand that libel then should have been held a crime. The (abolished) Statute of Scandalum Magnatum' was a direct expression of the law; but the idea of danger in the written word itself, by easy confusion, took root-did the line 'Vox emissa volat, littera scripta manet' help the idea?--and hence the law of libel. This has one justification in modern times, to wit, in the dangers of the press. As for the rest, the distinction in question, and other distinctions between slander and libel, are of little importance; people do not trouble the courts much, in the greater concerns of modern life, with petty causes of either kind.

$ 9. TRUTH OF THE CHARGE

The truth of the charge, whether the charge was made orally or by printed or written language, if fully proved, is, in the absence of statute', a defence to an action for damages for

1 Smith v. Ashley, 11 Metcalf (Mass.), 367. See also Emmens v. Pottle, supra. 2 Percy's Reliques, i. 246 (Bohn).

3 Wright's Political Songs (Camden Soc.) contains others. See Law Quarterly Review, July, 1902, p. 261.

4 See Odgers, Slander and Libel, 94, 447, 503, 3rd ed.

5 See ante, p. 138, note.

6 If the charge contains particulars, all must of course be established if the truth is set up. It is a dangerous defence to plead, for to fail in establishing it shows malice, in the absence of statute. See Odgers, Slander and Libel, 201, 3rd ed. On the whole subject see id. chap. vii.

7 As to criminal prosecutions for libel see 6 & 7 Vict. c. 96, § 6.

The truth an absolute defence, not

the publication of alleged defamation though malicious and not reasonably believed to be true'. Evidence of such a fact shows indeed that the charge is not legally defamatory. A person has no right to a false character; and his real character suffers no damage, such at least as the law recognizes, from speaking the truth.

affected by malice.

This rule appears to go to the extent of justifying a party in publishing of another the fact that he has suffered the penalty of the law for the commission of crime, even though he may have been pardoned therefor and have since become a good and respectable citizen. For example: The defendant publishes of the plaintiff the statement that the latter had several years ago stolen an axe. That is true, though, after conviction therefor, the plaintiff was pardoned, and has since become a trusted citizen and an office-holder. The accusation is deemed justifiable in law?

Belief in the truth of the accusation however is not a defence, though the law allows the defendant to show it in mitigation of damages. The charge being renewed in the allegation that it was true, must be fully made out by the defendant. And this is equally true of the editors and publishers of books, newspapers, or periodicals, as of other persons".

The truth of effigy, picture, or sign, so far as such may relate to the physical person of the party intended, and not to his Truth of effigy character, is (probably) no justification of a malicious publication. A man is not responsible for his physical peculiarities, and may well invoke protection of the law against one who will parade them before the public.

or picture.

1 McCloskey v. Pulitzer Publishing Co., 152 Missouri, 339.

2 Baum v. Clause, 5 Hill (New York), 199. See Rex v. Burdett, 4 B. & Ald. 314, 325.

3 Campbell v. Spottiswoode, 3 Best & S. 769; Smith v. Johnson, 69 Vermont, 231.

4 Odgers, Slander, 363, 607, 3rd ed.

5 Campbell v. Spottiswoode, supra.

6 Compare Pollard v. Photographic Co., 40 Ch. D. 345, 353, enjoining display of photograph; Hanfstaengl v. Empire Palace, 1894, 2 Ch. 1; Hanfstaengl v. Newnes, 1894, 3 Ch. 109. But see Dockrell v. Dougall, 78 Law T. Rep. 840; Atkinson v. Doherty, 80 N. W. Rep. (Michigan), 285, denying the so-called right of privacy.

§ 10. PRIVILEGED COMMUNICATIONS: MALICE

Malice not necessary to the action.

The plaintiff in an action for defamation is entitled to recover upon proof of the publication (with special damage if the case does not fall under one of the four heads); proof of malice, in other words malice as an entity, is not necessary, in any sense of the term, to make a case. It has indeed been common to say that malice is presumed or implied upon proof of the publication; but that means nothing, and is only misleading, for the presumption or implication cannot be overturned by evidence of want of malice. Malice, touching the making a prima facie case, is only a name arbitrarily applied; it is simply a fiction.

Occasion may

justify defamatory

publication.

If this were all, the result would be that, unless the defendant could prove the truth of the charge, he would be liable. But this would be to lay an embargo upon the freedom of speech not to be tolerated. There are circumstances under which men must be permitted to speak their convictions, however erroneous; the law could not but permit, and hence does permit it'. There are, in a word, occasions in which one is excused for publishing what would otherwise be actionable defamation. The publication of the charge in such cases is said to be 'privileged'; the charge itself being termed a privileged communication.

It is obvious that the 'occasions' mentioned may be of different importance; they may be slight, they may be of the greatest moment. Between man and man, in the ordinary business of life, they may be slight as compared with occasions when public justice or the public interest is at stake; for it is plain that public, and very soon thereafter private, welfare would

1 The doctrine of privileged communications is only a special example of a great law of privilege pertaining to human affairs generally; to wit, the right to inflict harm upon another in just so far as may reasonably be deemed necessary for one's own protection, or for the protection of another where that is proper. So far others must yield, or the vindication of rights in many cases would be an empty name; further no one is required to give way.

2 Merivale v. Carson, 20 Q. B. Div. 279, 280; Lord Esher pointing out that what all men may do is no privilege.

suffer if a high order of privilege were not extended to such cases. The occasions have been divided into two classes, simply, for it would be impracticable to maintain a series of progressive grades, according to the supposed importance of each occasion.

Privileged communications are accordingly of two kinds; and these have been called absolutely privileged and prima facie privileged communications. Absolute privilege

Kinds of privilege.

imports that the privilege cannot be overturned by evidence that the publication was made with malice (as an entity); prima facie privilege, that the privilege may be overturned by such evidence. Here then, in answer to a prima facie privilege, set up in defence, is the domain of malice, as a subject of proof, in regard to the right of action for defamation.

Apart from statute, absolute privilege is confined to the State, and that too to its three departments, judicial, legislative, and executive1; such privilege being justified, and as has already been intimated required, upon grounds of necessity.

Absolute privilege : what it

includes:

proceedings

of the courts.

First, then, of privilege in judicial proceedings. The following is the general rule: Whatever is said orally, or stated in writing, in the course of and duly relating to such proceedings by those concerned therein, is absolutely privileged. According to recent authority, it matters not whether the language was material or relevant, or not; it is deemed to be against public policy to permit any inquiry on that point. It is enough if it relates to the cause before the court. For example: Counsel for the defendant, in the course of arguing a criminal cause, makes base insinuations against the prosecutor in relation to the evidence given, which insinuations. would be actionable if not privileged. No action can be maintained for making them; no inquiry into their bearing upon the case will be allowed3. Again: A witness on the stand, after examination, volunteers a statement in vindication of himself,

1 Including, it seems, in America, the chief executive of a city, in his official communications. Trebilcock v. Anderson, 117 Michigan, 39; Wachsmuth v. Merchants' Bank, 96 Mich. 427.

2 Munster v. Lamb, 11 Q. B. Div. 588 (counsel); Scott v. Stansfield, L. R. Ex. 220 (judge); Seaman v. Netherclift, 2 C. P. Div. 53 (witness); Henderson v. Broomhead, 4 H. & N. 569 (statements in pleadings).

3 Munster v. Lamb, 11 Q. B. Div. 588.