« AnteriorContinuar »
distinction between slander spoken and written; and the same distinction prevails in our law, which considers the slander of a private person by words, in no other light than a civil injury, for which a pecuniary compensation may be obtained. The injury consists in falsely and maliciously charging another with the commission of some public offence, or the breach of some public trust, or with any matter in relation to his particular trade or vocation, and which, iftrue, would render him unworthy of employment; or, lastly, with any other matter or thing, by which special injury is sustained. But if the slander be communicatd by pictures, or signs, or writing, or printing, it is calculated to have a wider circulation, to make a deeper impression, and to become proportionably more injurious. Expressions which tend to render a man ridiculous, or lower him in the esteem and opinion of the world, would be libellous if printed, though they would not be actionable if spoken." A libel, as applicable to individuals, has been well defined to be a malicious publication expressed either in printing or writing, or by signs or pictures, tending either to blacken the memory of one dead, or the reputation of one alive, and expose him to public hatred, contempt, or ridicule. A malicious intent towards government, magistrates, or individuals, and an injurious or offensive tendency, must concur to constitute the libel. It then becomes a grievance, and the law has accordingly considered it in the light of a public as well as a private injury, and has rendered the party not only liable to a private suit at the instance of the party libelled, but answerable to the state by indictment, as guilty of an offence tending directly to a breach of the public peace.c
curacy, has collected the material provisions in the Roman law on the subject. Since the publication of that note, the view of the law of defamation among the ancients has been extensively considered in Holl's Law of Libel, b. i. ch. 1.
a Villers v. Monsley, 2 Wils. 403.
b 4 Mass. Rep. 168. 2 Pickering's Rep. 115.
£1 Hawk. P. C. b. i. ch. 73.
But though the law be solicitous to protect every man in his fair fame and character, it is equally careful that the liberty of speech, and of the press, should be duly preserved. The liberal communication of sentiment,and entire freedom of discussion, in respect to the character and conduct of public men, and of candidates for public favour, is deemed essential to the judicious exercise of the right of suffrage, and of that control over their rulers, which resides in the free people of these United States. It has, accordingly, become a constitutional principle in this country, that "every citizen may freely speak, write, and publish his sentiments, on all subjects, being responsible for the abuse of that right, and that no law can rightfully be passed to restrain or abridge the freedom of speech, or of the press."
The law of England, even under the Anglo-Saxon line of princes, took severe and exemplary notice of defamation, as an offence against the public peace ; and in the time of Henry III., Bracton adopted the language of the Institutes of Justinian, and held slander and libellous writings to be actionable injuries. But the first private suit for slanderous words to be met with in the English law, was in the reign of Edward III., and for the high offence of charging another with a crime which endangered his life. The mischiefs of licensed abuse were felt to be so extensive, and so incompatible with the preservation of peace, that several acts of parliament, known as the statutes de scandalis magnatum, were passed to suppress and punish the propagation of false and malicious slander.d They are said to have been declaratory of the common law,e and actions of slander were slowly, but gradually multiplied, between the time of Edward III., and the reign of Elizabeth,/when they had become
a 2 Inst. 227.
b Lib. 3. de Actionibus, ch. iv.
c 30 Ass. 29. Rceve's Hist. English Law, vol. iii. 90.
d Statutes of 3 E. I., 2 R. II., and 12 R. II.
2 Mod. 161. 165.
f4 Co. 110-112.
frequent. The remedy was applied to a variety of eases; and in a private action of slander for damages, and even in the action of scandalum magnatum, the defendant was al lowed to justify, by showing the truth of the fact charged, for if the words were true, it was then a case of damnum absque injuria, according to the just opinion of Paulus, in the civil law.a But in the case of a public prosecution for a libel, it became the established principle of the English law, as declared in the Court of Star Chamber, about the beginning of the reign of James I.6 that the truth of the libel could not be shown by way of justification, because, whether true or false, it was equally dangerous to the public peace. The same doctrine remains in England to this day unshaken; and in the case of The King v. Burdett, it was held, that where a libel imputes to others the commission of a triable crime, the evidence of the truth of it was inadmissible, and that the intention was to be collected from the paper itself, unless explained by the mode of publication, or other circumstances, and that if the contents were likely to produce mischief, the defendant must be presumed to intend that which his act was likely to produce. "The liberty of the press," as one of the judges in that case observed, "cannot impute criminal conduct to others without violatingthe right of charac ter, and that right can only be attacked in a court of justice, where the party attacked has a fair opportunity of defending himself. Where vituperation begins, the liberty of the press ends." Whether the rule of the English law was founded on a just basis, and whether it was applicable to the free press and free institutions in this country, has been a question extensively and laboriously discussed in several cases which have been brought before our American tribunals.
a Dig. 47. 10. 18.
b De Libellis famosis, 5 Co. 125. Hudson's Treatise on the Star Chamber, published in 2d vol. Collec. Jurid.
c4 Barnu. & Ald. 95.
In the case of The People v. Croswell, which came before the Supreme Court of this state in 1804, and was argued at the bar with very great ability, the court were equally divided in opinion on the point, whether, on an indictment for a libel, the defendant was entitled to give in evidence to the jury the truth of the charges contained in the libel. In the Court of Appeals in South Carolina, in 1811, the court unanimously decided, in the case of The State v. Lehre,b that by the English common law it was settled, on sound principles of policy derived from the civil law, that the defendant had no right to justify the libel by giving the truth of it in evidence. The court, in the learned and able opinion which was delivered in that case, considered that the law, as then declared, was not only the law of England, but probably the law of all Europe, and of most of the free states of America. The same question has been frequently discussed in Massachusetts. In the case of The Commonwealth v. Chase,c in 1808, it was decided, that the publication of a libel maliciously, and with intent to defame, was clearly a public offence, whether the libel be true or not; and the rule was held to be founded on sound principles, indispensable to restrain all tendencies to breaches of the peace, and to private animosity and revenge. The essence of the offence consisted in the malicious intent to defame the reputation of another; and a man may maliciously publish the truth against another with the intent to defame his character, and if the publication be true, the tendency of the publication to inflame the passions, and to excite revenge, is not diminished. But though, a defendant, on an indictment for a libel, cannot justify him self for publishing the libel, merely by proving the truth of it, yet he may repel the criminal charge by proving that the publication was for a justifiable purpose, and not malicious; and if the purpose be justifiable, the defendant may give in
a 3 Johns. Cas. 337. c4 Mass. Rep. 163.
b 2 Rep. Const. Court, p. 809.
evidence the truth of the words, when such evidence will tend to negative the malicious intent to defame. The same question was again agitated and discussed before the same court in 1825, in the case of The Commonwealth v. Blanding, and the court strongly enforced the doctrine of the former case, that, as a general rule, the truth of the libel was not admissible in evidence upon the trial of the indictment; and this principle of the common law was declared to be founded in common sense and common justice, and prevailed in the codes of every civilized country. It was further held, that whether in any particular case such evidence be admissible, was to be determined by the court; and, if adinissible, then the jury were to determine whether the publication was made with good motives, and for justifiable ends. The same rule, that the truth cannot be admitted in evidence on indictment for a libel, though it may in a civil suit for damages, has been adjudged in Louisiana ;b and the weight of judicial authority undoubtedly is, that the English common law doctrine of libel is the common law doctrine in this country, in all cases in which it has not been expressly controlled by constitutional or legislative provisions. The decisions in Massachusetts and Louisiana were made notwithstanding the constitution of the one state had declared, that "the liberty of the press ought not to be restrained," and that the other had said, that "every citizen might freely speak, write, and print, on any subject, being responsible for the abuse of that liberty." Those decisions went only to control the malicious abuse or licentiousness of the press, and that is the most effectual way to preserve its freedom in the genuine sense of the constitutional declarations on the subject. Without such a check, the press, in the hands of evil and designing men, would become a most formidable engine, and as mighty for mischief as for
a 3 Pickering, 304.
b Territory v. Nugent, Christy's Dig. of Louisiana Decisions, til. Ev. No. 161.