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lic offence, because tending to embroil the two nations, and to di turb the peace of the world. These common-law rules are wblesome, and are still in force.

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 alway 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.3 Many such cases suggest themfourth, and fifth, articles were prima facie libellous; and that the publication of those articles must be regarded as illegal conduct,' unless justified or excused by facts sufficient to constitute a defence to an indictment for libel."

127 State Trials, 627; 2 May, Const. History of England, c. 9.

2 Lewis v. Chapman, 16 N. Y. 373, per Selden, J.; Townsend on Libel and Slander, § 209.

3 66

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 Starkie on Slander, 321. See Harrison v. Bush, 5 El. & Bl. 344; Somerville v. Hawkins, 10 C. B. 589; Wright v. Woodgate, 2 Cr. M. & R. 573; Whiteley v. Adams, 15 C. B. N. s. 392. A paper signed by a number of parties agreeing to join in the expense of prosecuting others, who were stated therein to have " robbed and swindled " them, is privileged. Klinck v. Colby, 46 N. Y. 427; s. c. 7 Am. Rep. 360.

selves 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;1answers to inquiries by one tradesman of another *as [* 426] to the solvency of a person whom the inquirer has been desired to trust; 2 answers by a creditor to inquiries regarding the conduct and dealings of his debtor, made by one who had become surety for the debt; 3 communications from an agent to his principal, reflecting injuriously upon the conduct of a third person in a matter connected with the agency; communications to a near relative respecting the character of a person with whom the relative is in negotiation for marriage; 5 and as many more like cases as would fall within the same reasons. The rules of law applicable

1 Pattison v. Jones, 8 B. & C. 578; Elam v. Badger, 23 Ill. 498; Bradley v. Heath, 12 Pick. 163. Compare Fryer v. Kinnersley, 15 C. B. N. s. 422.

* Smith v. Thomas, 2 Bing. (N. C.) 372; Story v. Challands, 8 C. & P. 234. But the reports of a mercantile agency to its customers are not privileged. Taylor v. Church, 8 N. Y. 452; Sunderlin v. Bradstreet, 46 N. Y. 188; s. c. 7 Am. Rep. 322. Compare Beardsley v. Tappan, 5 Blatch. 497.

3 Dunman v. Bigg, 1 Campb. 269, note.

4 Washburn v. Cooke, 3 Denio, 110. See Easley v. Moss, 9 Ala. 266.

* Todd v. Hawkins, 8 C. & P. 88. But there is no protection to such a communication from a stranger. Joannes v. Bennett, 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, ib. 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. Where a tradesman published in a newspaper that his servant had left his employ, and taken upon himself to collect the tradesman's bills. Hatch v. Lane, 105 Mass. 394.

to these cases are very well settled, and are not likely to be changed with a view to greater stringency.1

Libels upon the Government.

At the common law it was indictable to publish any thing against the constitution of the country, or the established system of government. The basis of such a prosecution was the tendency of publications of this character to excite disaffection with the govern

ment, and thus induce a revolutionary spirit. The law [* 427] always, *however, allowed a calm and temperate discussion of public events and measures, and recognized in every man a right to give every public matter a candid, full, and free discussion. It was only when a publication went beyond this, and tended to excite tumult, that it became criminal.2 It cannot be doubted, however, that the common-law rules on this subject were administered in many cases with great harshness, and that the courts, in the interests of repression and at the instigation of the government, often extended them to cases not within their reasons. 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 political 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.'" 3

6

See further, Harrison v. Bush, 5 El. & Bl. 344; Shipley v. Todhunter, 7 C. & P. 680; 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.

2

Regina v. Collins, 9 C. & P. 456, per Littledale, J. See the proceedings against Thomas Paine, 27 State Trials, 357.

3 May, Constitutional History, c. 10.

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, 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 beyond question. It had a direct tendency to produce the very state of things it sought to repress; the prosecutions under it were instrumental, among other [* 428] things, in the final overthrow and destruction of the party

by which it was adopted, and it is impossible to conceive, at the present time, of any such state of things as would be likely to bring about its re-enactment, or the passage of any similar repressive statute.2

When it is among the fundamental principles of the government that the people frame their own constitution, and that in doing so they reserve to themselves the power to amend it from time to time, as the public sentiment may change, it is difficult to conceive of any sound principle on which prosecutions for libels on the system of government can be based, except when their evident intent and purpose is to excite rebellion and civil war.3 It is very easy to lay down a rule for the discussion of constitutional questions; that they are privileged, if conducted with calmness and temperance, and that they are not indictable unless they go beyond the bounds

1 United States v. Hudson, 7 Cranch, 32. See, ante, 19, and cases cited in note.

2 For prosecutions under this law, see Lyon's Case, Wharton's State Trials, 333; Cooper's Case, ib. 659; Haswell's Case, ib. 684; Callender's Case, ib. 688. And see 2 Randall, Life of Jefferson, 417-421; 5 Hildreth, History of United States, 247, 365.

3 The author of the Life and Times of Warren very truly remarks that "the common-law offence of libelling a government is ignored in constitutional systems, as inconsistent with the genius of free institutions." P. 47.

of fair discussion. But what is calmness and temperance, and what is fair in the discussion of supposed evils in the govern ment? And if something is to be allowed "for a little feeling in men's minds," how great shall be the allowance? The heat of the discussion will generally be in proportion to the magnitude of the evil as it appears to the party discussing it: must the question whether he has exceeded due bounds or not, be tried by judge and jury, who may sit under different circumstances from those under which he has spoken, or at least after the heat of the occasion has passed away, and who, feeling none of the excitement themselves, may think it unreasonable that any one else should ever have felt it? The dangerous character of such prosecutions would be the more glaring if aimed at those classes who, not being admitted to a share in the government, attacked the constitution in the point which excluded them. Sharp criticism, ridicule, and the exhibition of such feeling as a sense of injustice engenders, are to be expected from any discussion in these cases; but when the very classes who have established the exclusion as proper and reasonable

are to try as judges and jurors the assaults made upon it, [* 429] they will be very likely to enter upon the * examination with a preconceived notion that such assaults upon their reasonable regulations must necessarily be unreasonable. If any such principle of repression should ever be recognized in the common law of America, it might reasonably be anticipated that in times of high party excitement it would lead to prosecutions by the party in power, to bolster up wrongs and sustain abuses and oppressions by crushing adverse criticism and discussion. The evil, indeed, could not be of long continuance; for, judging from experience, the reaction would be speedy, thorough, and effectual; but it would be no less a serious evil while it lasted, the direct tendency of which would be to excite discontent and to breed a rebellious spirit. Repression of full and free discussion is dangerous in any government resting upon the will of the people. The people cannot fail to feel that they are deprived of rights, and will be certain to become discontented, when their discussion of public measures is sought to be circumscribed by the judgment of others upon their temperance or fairness. They must be left at liberty to speak with the freedom which the magnitude of the supposed

1

Regina v. Collins, 9 C. &. P. 460, per Littledale, J.

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