§ 7. OF AN IMPUTATION TENDING TO DISINHERIT

THE PLAINTIFF.

If the words tend to impeach a present title of the plaintiff, the action, though commonly called an action for slander of title, is not properly speaking an action of slander; as has already been stated, such a case is in substance an action for deceit, to be governed by the rules of law prevailing upon that subject.1

Cases of actions for defamation tending to defeat an expected title are rare, and appear to have been confined to charges impeaching the legitimacy of birth of an heir apparent. Such an imputation has been deemed actionable, as being likely to cause the plaintiff's disherison. For example: The defendant publishes of the plaintiff, an heir apparent to estates, the words, Thou art a bastard.' The defendant is liable without proof of special damage.2

§ 8. OF AN IMPUTATION CONVEYED BY WRITING, PRINTING, OR FIGURE; THAT IS, OF LIBEL.

The four preceding sections exhaust the possible heads of oral defamation, actionable per se; that is, of slander. Libellous defamation may also be conveyed in any of the four ways above considered; but it may also be conveyed in other ways. A libel is a writing, print, picture or effigy, calculated to bring one into hatred, ridicule, or disgrace.

The definition shows that the law of libel is of wider extent than that of slander. Many words when written or printed become actionable per se which, if they had

1 See ante, p. 80.

2 Humphrys v. Stanfeild, Croke Car. 469.

been orally published, would not have been actionable 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.1 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 libel. 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 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 libellous.*

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6 :

Mr.

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 with

1 Thorley v. Kerry, 4 Taunt. 355; Cases, 135.

2 Thorley v. Kerry, supra.

3 Steele v. Southwick, 9 Johns. 214.

4 Cooper v. Greeley, 1 Denio, 347.

out their knowledge or even against their orders. This is not true of news-vendors. 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 proprietor of the printing establishment, or of the print, would be liable.2

Upon the whole subject of newspaper libel the student must beware of local statutes; these cannot be considered in this book.

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9. OF THE TRUTH OF THE CHARGE.

The truth of the charge, whether it was made orally or by printed or written language, is, in the absence of statute, a good defence to an action for damages for 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.

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 That is true, though, after conviction thereof, the

axe.

1 Emmens v. Pottle, 16 Q. B. Div. 354; Cases, 141.

2 Smith v. Ashley, 11 Met. 367.

8 There are statutes upon the subject in some of the States, probably in most of the States as to criminal prosecutions for libel.

plaintiff was pardoned, and has since become a trusted citizen and an office-holder. The accusation is deemed justifiable in law.1

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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. 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 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.5

§ 10. OF MALICE AND PRIVILEGED COMMUNICATIONS.

To constitute slander or libel, it used to be said that malice was necessary; but malice in this connection was, and still is sometimes, spoken of as of two kinds, malice in law and malice in fact, the first being presumptive, the second actual. The real truth, however, is that the plaintiff is entitled to recover upon proof of the publication (with special damage if the case does not fall under one of the five heads); actual malice is not necessary to 1 Baum v. Clause, 5 Hill, 199. See Rex v. Burdett, 4 B. & Ald. 314, 325.

2 Campbell v. Spottiswoode, 3 Best & S. 769.

8 Odgers, Slander, 302, 589.

4 Campbell v. Spottiswoode, supra.

5 Compare Pollard v. Photographic Co. 40 Ch. D. 345, 353, enjoining display of photograph.

6 In regard to actual malice see Mogul Steamship Co. v. McGregor, 23 Q. B. Div. 598, 612 et seq.; Abrath v. North Eastern Ry. Co. 11 App. Cas. 247, 251; ante p. 99, note; Holmes, Common Law, chap. ter 4. Malice in law is a pure fiction.

make a case. If, still, it is thought important for any purpose to retain the old form of statement, it may be said that malice is presumed in all cases of legal slander or libel, but the effect of the presumption may be avoided by proof of privilege, and then the plaintiff can recover only upon proof of actual malice. The effect of the presumption of the older cases may be thus stated: The publication of defamation is presumed to have been done of malice, and justifies a verdict for the person defamed, without further proof. For example: The defendant goes to the plaintiff's relatives and falsely charges him with theft. This is sufficient to justify a verdict for the plaintiff; he need not offer evidence to establish malice.1

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 hardly to be tolerated. There are circumstances under which men must be permitted to speak without danger their convictions, however erroneous; the law could not but permit it, and does permit it.2 In permitting, there is no denial of malice; there is no malice, as has just been said, to deny. The plaintiff's case has merely been avoided by matter of justification; the facts are admitted, but ground is shown why the plaintiff should not avail himself of them.

There are, in a word, occasions in which certain per

1 Hooper v. Truscott, 2 Bing. N. C. 457; s. c. 2 Scott, 672.

2 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; but further no one is required to give way. Ante, pp. 20-23.