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CHAPTER IX.

LIBEL.

I. LIBEL IN GENERAL, § 2535. II. LIBELS AS AFFECTING INDIVIDUALS, § 2536.

1. WHEN PROVOKING TO WRATH OR

EXPOSING TO CONTEMPT OR RIDI

CULE, $2536.

2. WHERE CHARGING CRIME, § 2537. 3. WHEN REFLECTING ON A MAN IN HIS TRADE OR CALLING, § 2538. 4. WHEN LIBELLOUS IN CIVIL ACTION, WITHOUT LAYING SPECIAL DAMAGE, § 2539.

5. WHEN VILIFYING THE DEAD, §

2540.

6. WHEN ON UNCONSCIOUS PERSONS, § 2540 b.

7. WHEN ON CORPORATION, § 2540 c. 8. UNWRITTEN WORDS, § 2541. 9. PICTURES AND SIGNS, § 2541 a. III. LIBELS AFFECTING THE PUBLIC, PUBLIC OFFICERS, AND BODIES OF MEN, § 2542.

1. BLASPHEMOUS LIBELS, § 2542.
2. OBSCENE LIBELS, § 2544.

3. SEDITIOUS LIBELS, § 25 49.

IV. PUBLICATION, § 2556.

V. WHAT COMMUNICATIONS ARE PRIVILEGED, § 2566.

1. FROM THE RELATIONS OF THE PARTIES, § 2566.

2. FROM PUBLIC POLICY, § 2571.

3. PRACTICE WHEN PRIVILEGE IS SET UP, § 2576 a.

VI. TRUTH WHEN ADMISSIBLE, §

2577.

1. AT COMMON LAW TRUTH NO JUSTIFICATION, § 2577.

2. BUT WHEN PURPOSE IS HONEST,

TRUTH MAY BE ADMITTED TO DIS

PROVE MALICE, § 2578.

3. TRUTH AND HONESTY NO DEFENCE WHEN PUBLICATION IS MALICIOUS,

§ 2579.

4. JUSTIFICATION MUST BE AS BROAD AS CHARGE, § 2580.

5. COMMON RUMOR OR HEARSAY NO JUSTIFICATION, § 2581.

VII. MALICE HOW PROVED AND REBUTTED, § 2582.

1. MALICE NEED NOT BE SPECIAL, § 2582.

2. PUBLISHER NOT EXCUSED BY IGNORANCE, § 2583.

3. QUESTION OF MALICE FOR JURY, § 2584.

4. WHEN OTHER LIBELS ADMISSIBLE, $2585.

5. WHOLE PUBLICATION ADMISSIBLE, § 2586.

6. NO DEFENCE THAT PROSECUTOR TREATED LIBEL AS A JOKE, § 2587. VIII. INDICTMENT, § 2588.

1. PUBLICATION MUST BE AVERRED, § 2588.

2. HOW LIBELLOUS MATTER MUST BE SET OUT, § 2589.

3. AUTHORSHIP MUST BE AVERRED, § 2593.

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I. LIBEL IN GENERAL.

§ 2535. A LIBEL is a malicious publication, expressed either in printing or writing, or by signs or pictures, tending either to injure society generally, or to blacken the memory of one dead, or the reputation of one living, and expose him to public hatred,

contempt, or ridicule. a The malice of the publication is a neccessary constituent of the offence. b

Libel is a crime by the common law.c

II. LIBELS AFFECTING INDIVIDUALS.

1. When provoking to Wrath or exposing to Contempt or Ridicule.

§ 2536. A libel on an individual is a malicious defamation of him, made public by either printing, writing, signs, or pictures, in order to provoke him to wrath, or expose him to public hatred, contempt, d or ridicule, e though no indictable offence is charged.

a People v. Crosswell, 3 Johns. C. 354; Root v. King, 7 Cowen, 613; Com. v. Clap, 4 Mass. 163, 168; State v. Farley, 4 McCord, 317; Watson v. Trask, 6 Ohio, 532.

b Com. v. Clap, 4 Mass. 163; Com. v. Snelling, 15 Pick. 337, 339; Jeffries v. Duncombe, 11 East, 227; Mayor of Northampton's case, 1 Strange, 422; Com. v. Chapman, 13 Metc. 68.

c Com. v. Holmes, 17 Mass. 336, 338; Com. v. Kneeland, 20 Pick. 206, 232; State v. Avery, 7 Connect. 268; 3 Swift's Dig. 340; State v. Burnham,

9 N. H. 34.

d Lord Churchill v. Hunt, 2 B. & Ald. 685; 4 Taunt. 355; Macgregor v. Thwaites, 4 D. & R. 695; 3 B. & C. 24; Cramer v. Riggs, 17 Wend. 209; Powers v. Dubois, 17 Wend. 63; Hotchkiss v. Oliphant, 2 Hill N. Y. R. 510; White v. Delevan, 17 Wend. 49; Cooper v. Stone, 24 Wend. 434; Steel v. Southwick, 9 Johnson, R. 214; Dunning v. Hillhouse, 6 Connect. 391; Riggs v. Dennison, 3 Johns. C. 198; M'Corkle v. Binns, 5 Binn. 349; Barthelemy v. People, 2 Hill N. Y. R. 248; Chaddock v. Briggs, 13 Mass.

248.

e 2 Wils. 403; R. v. Kinnersley, 1 W. Bl. 294; State v. Henderson, 1 Richards. 180; but see People v. Jerome, 1 Mich. 142.

So an indictment will lie for all words spoken of another, which may have the effect of excluding him from society; as, for instance, to charge him 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 Bur. 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 Pick. 101.

On the same principle, to charge a woman with libidinous habits, and with tempting another to commit adultery, is libellous. State v. Avery, 7 Conn. 269.

It has even been held libellous to charge a man with insanity; 10 Johnson R. 443; 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. 207.

2. When charging Crime.

§ 2537. Clearly therefore an indictment 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); forgery, perjury, subornation of perjury, or other misdemeanor.ƒ

3. When reflecting on a Man in his Trade or Livelihood.

§ 2538. It is indictable, also, to be concerned in a publication which may impair or hurt 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. g

4. When in Civil Action without laying Special Damage.

§ 2539. 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, the law of libel, as expressed on actions for damages, is brought to bear on criminal prosecutions. h 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, j it is a libel, and punishable as such; although if this were merely spoken it would not be actionable without special damage, k

f Smith v. State, 32 Texas, 594; Stillwell v. Barter, 19 Wend. 487; Nash v. Benedict, 25 Wend. 645; Wonson v. Sayward, 13 Pick. 402; Walker v. Winn, 8 Mass. 248; Hotchkiss v. Oliphant, 2 Hill N. Y. R. 510; Cramer v. Riggs, 17 Wend. 209; Chaddock v. Briggs, 13 Mass. 248; Miller v. Parrish, 8 Pick. 384; Gay v. Homer, 13 Pick. 535; Com. Dig. Action on the Case for Defamation, D. 1-10, F. 17,12-18; 3 Wils. 186; 2 W. Bl. 750, 959; Cowp. 275; 2 Wils. 300; 6 T. R. 694; 9 East, 93; 5 Ibid. 463; 2 New Rep. 335; 4 Price, 46; 7 Taunt.

431.

g Finch L. 186; Com. Dig. D. 22– 27, F. 9, 10; 2 W. Bl. 750; 3 Wils. 59, 187; 2 Stark. N. P. Rep. 245, 297; 4 Esp. 191; 3 B. & P. 372; 2 Str. 898; Fitzg. 121; 3 Bing. 184; 5 B. & C. 150; 1 C. & J. 143; 2 Ad. & E. 2.

h 2 Stark. on Slander, 120.

i J'Ansen v. Stuart, 1 T. R. 748. j Bell v. Stone, 1 B. & P. 331; R. v. Pownell, W. Kel. 58; but see Tappan v. Wilson, 7 Ohio, 190; R. v. Granfield, 12 Mod. 98.

k 2 H. Bl. 531.

5. When vilifying Deceased Persons.

§ 2540. Writings vilifying the character of persons deceased, are libels, and may be made the subject of an indictment; 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, m otherwise it cannot be maintained. n

§ 2540 a. 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. "Injuriarum actio" (and the term includes criminal as well as civil procedure) "neque heredi meque in heredem datur; semel autem lite contestata ad successores pertinere." o 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, a code prepared by the most eminent German jurists, the same effect is worked by the provision, that such prosecutions shall be instituted only by the parents, children, or spouse of the deceased. p

6. Libels on the Unconscious or Helpless.

§ 2540 6. Can a person who, from insanity or infancy, or helplessness, is incapable of resenting an injury, and who, consequently, cannot be supposed to be provocable to a breach of the peace, be protected by this mode of prosecution? Here, again,

5 Co. 125 a; Com. v. Clap, 4 Mass. 163.

m R. v. Topham, 4 T. R. 127.

n Com. v. Taylor, 5 Binney, 281. o L. 13. D. h, t.

p Berner, Lehrbuch, § 150.

in default of Anglo-American adjudications, we may look to the Roman law; and the solution we may find in one of those maxims of terse beauty with which that law abounds. "Pati quis injuriam, etiamsi non sentiat, potest." q In other words, from unconscious as well as from conscious suffering the law intervenes to protect.

7. Libels on Corporations.

§ 2540 c. Can societies, incorporated or unincorporated, prosecute for libel? Whether a business corporation can be the subject of an indictable libel has not been determined by any published Anglo-American decision; but it is clear that libels on municipal corporations are indictable as seditious, and, following a parallel line of reasoning, when public credit is imperilled, and private interests assailed, by libels on a bank, or other trading corporation, then the remedy by libel is reserved. The Roman law gives for this the additional reason, that by such attacks the honor of the individual corporators is as much attacked as would be the case were they personally picked out for calumny; and hence, on the ground that such libels are provocative of breaches of the peace, penal redress is permitted. Yet for libels on a person or institution to whom the law assigns no definite body or bound, a prosecution cannot be had. "Si incertae personam convicium fiat, nulla executio est." q1 Hence the Prussian appellate court, in October, 1868, held, and with good reason, that trades unions and joint-stock companies, which have not availed themselves of the statutes authorizing incorporation, cannot prosecute for libellous attacks in which the names of the members of such societies are not specified. The society is, in the eye of the law, a phantom, which, as it cannot sue civilly, cannot appear as prosecutor in a criminal court. r

8. Unwritten Words.

§ 2541. No indictment, however, will lie for words not reduced to writing, unless they be seditious, blasphemous, grossly immoral, uttered to a magistrate in the execution of his office, or uttered as a challenge to fight a duel, or with an intention to provoke the other party to send a challenge. 8 The only re

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