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plaining party to make any other showing that he was damnified than such implication as arose from the character of the communication itself. If it accused him of a criminal offence, involving moral turpitude, and such as would subject a party proved guilty of it to punishment by imprisonment,1 if it charged him with insanity, or with an infectious disease, the effect of the charge, if believed, being to exclude him from the society of his fellows; 3 if the charge affected the party in his business, office, or means of livelihood, like charging a trader with insolvency, and the like; or if any injurious charge holding a party up to public contempt, scorn, or ridicule is propagated by printing, writing, signs, burlesques, &c.,5 the law presumed injury, and the charge was said to be actionable per se. And although it was formerly held that to charge a female with want of chastity was not actionable without proof of special damage, yet of late a disposition has been exhibited to

1 Alexander v. Alexander, 9 Wend. 141; Wagaman v. Byers, 17 Md. 183; Castlebery v. Kelly, 26 Geo. 606; Redway v. Gray, 31 Vt. 292; Hoag v. Hatch, 23 Conn. 585; Burton v. Burton, 3 Greene (Iowa), 316; Wright v. Paige, 36 Barb. 438. But the charge must be unequivocal. Van Rensselaer v. Dole, 1 Johns. Cas. 279; Dexter v. Taber, 12 Johns. 239; Hopkins v. Beedle, 1 Caines, 347; Butterfield v. Buffam, 9 N. H. 156; Holt v. Scolefield, 6 T. R. 691; Jacobs v. Fyler, 3 Hill, 572; Crone v. Angell, 14 Mich. 340; Bonner v. McPhail, 31 Barb. 106; Mower v. Watson, 11 Vt. 536. Though it is not necessary that technical words be employed; if the necessary inference, taking the words together, is a charge of crime, it is sufficient. Morgan v. Livingston, 2 Rich. 573; True v. Plumley, 36 Me. 466; It is not essential that the charge should be such Curtis v. Curtis, 10 Bing. 477. is if true, to subject the party now to punishment. It is the disgrace attending person the charge that gives the right of action, and therefore to say that the Baum v. Clause, 5 Hill, 196; Smith v. Stewart, 5 Penn. St. 372; Utley v. Campbell, 5 T. B. Monr. 396; Holley v. Burgess, 9 Ala. 728. Or to accuse him of a crime for which prosecution would be barred by statute of limitations would be actionable. Van Ankin v. Westfall, 14 Johns. 233; Poe v. Grever, 3 Sneed, 664; Stewart v. Howe, 17 Ill. 71.

as,

a returned convict is actionable.

Perkins v. Mitchell, 31 Barb. 461. But see Joannes v. Burt, 6 Allen 236.
Carlslake v. Mapledorum, 2 T. R. 473.

Lindsey v. Smith, 7 Johns. 360; Thomas v. Croswell, 7 Johns. 264; Riggs v.
Denniston, 3 Johns. Cas. 198; Fonvard v. Adams, 7 Wend. 204.

Janson v. Stuart, 1 T. R. 748; Van Ness v. Hamilton, 19 Johns. 367; Clegg v. Laffer, 10 Bing. 250; Steele v. Southwick, 9 Johns. 214.

Gascoign v. Ambler, 2 Ld. Raym. 1004; Graves v. Blanchet, 2 Salk. 696; Wilby v. Elston, 8 C. B. 142; Buys v. Gillespie, 2 Johns. 115; Brooker v. Coffin, 5 Johns. 188; Bradt v. Towsley, 13 Wend. 253; Dyer v. Morris, 4 Mo. 214; Stanfield v. Boyer, 6 H. & J. 248; Woodbury v. Thompson, 3 N. H.

194.

break away from this rule in favor of one more just and sensible,1 and the statutes of several of the States have either made adultery and incontinence punishable as crimes, whereby to charge them becomes actionable per se under the common-law rule, or else in express terms have declared such a charge actionable without proof of special damage.2

3

But in any other case a party complaining of a false, malicious, and disparaging communication might maintain an action therefor, on averment and proof of special damage. But in any of these cases the truth of the charge, if pleaded and established, was generally a complete defence.1

In those cases in which the injurious charge was propagated by printing, writing, signs, burlesques, &c., there might also be a criminal prosecution, as well as a suit for private damages. The criminal prosecution was based upon the idea that the tendency of such publications was to excite to a breach of the public peace; 5 and on similar grounds to publish injurious charges against a for

1 See the cases of Sexton v. Todd, Wright, 317; Wilson v. Runyan, Ibid. 671; Malone v. Stewart, 15 Ohio, 319; Moberly v. Preston, 8 Mo. 462; Sidgreaves v. Myatt, 22 Ala. 617; Terry v. Bright, 4 Md. 430.

See Frisbie v. Fowler, 2 Conn. 707; Miller v. Parish, 8 Pick. 384; Pledger v. Hitchcock, 1 Kelley, 550; Smally v. Anderson, 2 T. B. Monr. 56; Williams v. Bryant, 4 Ala. 44; Dailey v. Reynolds, Greene (Iowa), 354; Symonds v. Carter, 32 N. H. 458; McBrayer v. Hill, 4 Ired. 136; Morris v. Barkley, 1 Lit. 64; Phillips v. Wiley, 2 Lit. 153; Watts v. Greenlee, 2 Dev. 115; Drummond v. Leslie, 5 Blackf. 453; Worth v. Butler, 7 Blackf. 251; Richardson v. Roberts, 23 Geo. 215; Buford v. Wible, 32 Penn. St. 95; Freeman v. Price, 2 Bailey, 115; Regnier v. Cabot, 2 Gil. 34; Ranger v. Goodrich, 17 Wis. 78. The injustice of the common-law rule is perceived from those cases where it has been held that an allegation that, in consequence of the charge, the plaintiff had fallen into disgrace, contempt, and infamy, and lost her credit, reputation, and peace of mind (Woodbury v. Thompson, 3 N. H. 194), and that she is shunned by her neighbors (Beach v. Ranney, 2 Hill, 310), was not a sufficient allegation of special damage to maintain the action.

Kelley v. Partington, 3 Nev. & M. 116; Steele v. Southwick, 9 Johns. 214; Hallock v. Miller, 2 Barb. 630; Powers v. Dubois, 17 Wend. 63; Weed v. Foster, 11 Barb. 203; Cooper v. Greeley, 1 Denio, 347; Štone v. Cooper, 2 Denio, 293. The damage, however, must be of a pecuniary character. Beach v. Ranney, 2 Hill, 309. But very slight damage has been held sufficient to support considerable recoveries. Williams v. Hill, 19 Wend. 305; Bradt v. Towsley, 13 Wend. · 253; Olmsted v. Miller, 1 Wend. 506; Moore v. Meagher, 1 Taunt. 39; Knight v. Gibbs, 1 Ad. & El. 43.

See 1 Hilliard on Torts, 410; Heard on Libel and Slander, § 151.
Commonwealth v. Clap, 4 Mass. 168.

eign prince or ruler was also held punishable as a public offence, as tending to embroil the two nations, and disturb the peace of the world.1

We are not so much concerned, however, with the general rules pertaining to the punishment of injurious publications, as with those special cases where, for some reason of general public policy, the publication is claimed to be privileged, and where, consequently, it may be supposed to be within the constitutional protection. It has always been held, notwithstanding the general rule that malice is to be inferred from a false and injurious publication, that there were some cases to which the presumption would not apply, and where a private action could not be maintained without proof of express malice. These are the cases which are said to be privileged. The term "privileged," as applied to a communication alleged to be libellous, means generally that the circumstances under which it was made were such as to rebut the legal inference of malice, and to throw upon the plaintiff the burden of offering some evidence of its existence beyond the mere falsity of the charge. The cases falling within this classification are those in which a party has a duty to discharge which requires that he should be allowed to speak freely and fully that which he believes; where he is himself directly interested in the subject-matter of the communication, and makes it with a view to the protection or advancement of his own interest, or where he is communicating confidentially with a person interested in the communication, and by way of advice or admonition. Many such cases suggest themselves which are purely of private concern ; such as answers to inquiries into the character or conduct of one formerly employed by the person to whom the inquiry is addressed, and of whom the information is sought with a view to guiding the inquirer in his own action in determining upon employing the same person; answers to inquiries by one tradesman of another

1 27 State Trials, 627; 2 May's Const. Hist. of England, ch. 9. Lewis v. Chapman, 16 N. Y. 373, per Selden, J.

"When a communication is made in confidence, either by or to a person interested in the communication, supposing it to be true, or by way of admonition or advice, it seems to be a general rule that malice (i. e. express malice) is essential to the maintenance of an action." 1 Stark. on Slander, 321. See Harrison v. Bush, 5 El. & Bl. 344; Somerville v. Hawkins, 10 C. B. 589.

Pattison v. Jones, 8 B. & C. 578; Elam v. Badger, 23 Ill. 498; Bradley v. Heath, 12 Pick. 163.

1

as to the solvency of a person whom the inquirer has been desired to trust; answers by a creditor to inquiries regarding the conduct and dealings of his debtor, made by one who had become surety for the debt; 2 communications from an agent to his principal, reflecting injuriously upon the conduct of a third person in a matter connected with the agency; 3 communications to a near relative respecting the character of a person to whom the relative is in negotiation for marriage; and as many more like cases as would fall within the same reasons.5 The rules of law applicable to these cases are very well settled, and are not likely to be changed with a view to greater stringency.

Libels upon the Government.

At the common law it was indictable to publish anything against the constitution of the country, or the established system of government. The basis of such a prosecution was the tendency of the publications to excite disaffection with the government, and thus induce a revolutionary spirit. The law always,

1 Smith v. Thomas, 2 Bing. (N. C.) 372.

* Dunman v. Bigg, 1 Campb. 269, note. Washburn v. Cooke, 3 Denio, 110.

Todd v. Hawkins, 8 C. & P. 88. But there is no protection to such a communication from a stranger. Johannes v. Bennet, 5 Allen, 170.

As to whether a stranger volunteering to give information injurious to another, to one interested in the knowledge, is privileged in so doing, see Coxhead v. Richards, 2 M. G. & S. 569; and Bennett v. Deacon, Ibid. 628. Where a confidential relation of any description exists between the parties, the communication is privileged; as where the tenant of a nobleman had written to inform him of his gamekeeper's neglect of duty. Cockagne v. Hodgkisson, 5 C. & P. 543. Where a son-in-law wrote to warn his mother-in-law of the bad character of a man she was about to marry. Todd v. Hawkins, 8 C. & P. 88. Where a banker communicated with his correspondent concerning a note sent to him for collection; the court saying that "all that is necessary to entitle such communication to be privileged is, that the relation of the parties should be such as to afford reasonable ground for supposing an innocent motive for giving the information, and to deprive the act of the appearance of officious intermeddling with the affairs of others." Lewis v. Chapman, 16 N. Y. 375. Where one communicated to an employer his suspicions of dishonest conduct in a servant towards himself. Amann v. Damm, 8 C. B. (N. S.) 597.

See further, Lawler v. Earle, 5 Allen, 22; Grimes v. Coyle, 6 B. Monr. 301; Rector v. Smith, 11 Iowa, 302; Gosslin v. Cannon, 1 Harr. 3; Joannes v. Bennett, 5 Allen, 169; State v. Burnham, 9 N. H. 34.

however, allowed a calm and temperate discussion of public events and measures, and the right of every man to give every public matter a candid, full, and free discussion was recognized. It was only when a publication went beyond this, and tended to excite tumult, that it became criminal. It cannot be doubted, however, that the common-law rules on this subject were administered in many cases with great harshness, and quite beyond any reasonable construction which those rules would bear. This was especially true during the long and bloody struggle with France, at the close of the last and beginning of the present century, and for a few subsequent years, until a rising public discontent with the prosecutions began to lead to acquittals, and finally to abandonment of all such attempts to restrain the free expression of sentiments on public affairs. Such prosecutions have now altogether ceased in England. Like the censorship of the press, they have fallen out of the British constitutional system.

"When the press errs, it is by the press itself that its errors are left to be corrected. Repression has ceased to be the policy of rulers, and statesmen have at length realized the wise maxim of Lord Bacon, that the punishing of wits enhances their authority, and a forbidden writing is thought to be a certain spark of truth that flies up in the faces of them that seek to tread it out.'"2 We shall venture to express a doubt if the common-law principles on this subject can be considered as having been practically adopted in the American States. It is certain that no prosecutions could now be maintained in the United States courts for libels on the general government, since those courts have no common-law jurisdiction,3 and there is now no statute, and never was except during the brief existence of the Sedition Law, which assumed to confer any such power.

The Sedition Law was passed during the administration of the elder Adams, when the fabric of government was still new and untried, and when many men seemed to think that the breath of heated party discussions might tumble it about their heads. Its constitutionality was always disputed by a large party, and its impolicy was without question. Its direct tendency was to produce the very state of things it sought to repress; the prosecu

1 1 Regina v. Collins, 9 C. & P. 456, per Littledale, J.

2 May's Constitutional Hist. ch. 10.

United States v. Hudson, 7 Cranch, 32.

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