SUB-TITLE (V): POLICIES SEEKING JUSTIFICATION IN THE NECESSITY FOR FREE DISCUSSION AND CRITICISM OF CHARACTER AND CONDUCT Topic 1. True Statements 870. RALPH WALDO EMERSON. English Traits. (c. VII.) . . . The practical power [of the English people] rests on their national sincerity. Veracity derives from instinct, and marks superiority in organization. Nature has endowed some animals with cunning, as a compensation for strength withheld. . . . In the nobler kinds, where strength could be afforded, her races are loyal to truth, as truth is the foundation of the social state. Beasts that make no truce with man do not break faith with each other. 'Tis said, that the wolf, who makes a cache of his prey, and brings his fellows with him to the spot, if, on digging, it is not found, is instantly and unresistingly torn in pieces. English veracity seems to result on a sounder animal structure, as if they could afford it. They are blunt in saying what they think, sparing of promises, and they require plain dealing of others. We will not have to do with a man in a mask. Let us know the truth. Draw a straight line, hit whom and where it will. Alfred, whom the affection of the nation makes the type of their race, is called by a writer at the Norman Conquest, the truth-speaker: Alveredus veridicus. . . In the power of saying rude truth, sometimes in the lion's mouth, no men surpass them. On the king's birthday, when each bishop was expected to offer the king a purse of gold, Latimer gave Henry VIII. a copy of the Vulgate, with a mark at the passage, "Whoremongers and adulterers God will judge;" and they so honor stoutness in each other, that the king passed it over. HONORÉ DE BALZAC. 871. The Lesser Bourgeoisie. (Part I, c. XV. Wormeley transl., p. 209.) . . . Societies have two goals of perfection. The first is a state of civilization in which morality equally infused and pervasive does not admit even the idea of crime; the Jesuits reached that point, formerly presented by the primitive Church. The second is the state of another civilization in which the supervision of citizens over one another makes crime impossible. The end which modern society has placed before itself is the latter; namely, that in which a crime presents such difficulties of concealment that a man must abandon all reasoning in order to commit it. In fact, iniquities which the law cannot reach are not left actually unpunished, for social judgment is even more severe than that of courts. If a man like Minoret, the post-master at Nemours, suppresses a will and no one witnesses the act, the crime is traced home to him by the watchfulness of virtue as surely as a robbery is followed up by the detective police. No wrong-doing passes actually unperceived; and wherever a lesion in rectitude takes place the scar remains. SUB-TOPIC A. CIVIL CASES 872. UNDERWOOD v. PARKS. (1744. 2 Stra. 1200.) In an action for words the defendant pleaded not guilty, and offered to prove the words to be true, in mitigation of damages: which the Chief Justice refused to permit, saying that at a meeting of all the judges upon a case that arose in the Common Pleas, a large majority of them had determined, not to allow it for the future, but that it should be pleaded [specially], whereby the plaintiff might be prepared to defend himself, as well as to prove the speaking of the words. 873. WEAVER v. LLOYD NISI PRIUS.. 1824 1 C. & P. 295, 2 B. & C. 678 THIS was an action for libel published in the Oxford Herald, imputing to the plaintiff that he had cruelly beaten his horse, and knocked out one of its eyes. The defendant pleaded, First, the general issue: Second, a justification of the truth of all the things stated in the libel; and Third, another justification, which merely alleged that the statements of the libel were "true in substance" (see reporter's note). . . . Evidence was given on the part of the plaintiff, to show the falsehoods of the statements of the libel, and on the part of the defendant, to show that the libel was a fair account of what occurred. It was admitted on all hands that the statement that the horse's eye was knocked out, was untrue; but that in other respects the libel was a fair account of what had occurred. The jury found for the plaintiff, damages one farthing, on the general issue; for the plaintiff on the first justification; and for the defendant on the second justification. Jervis, Peake, Serjt., and Cross, for the plaintiff. Taunton, Russell, and Bicheno, for the defendant. Court of King's Bench. Before ABBOTT, C. J., BAYLEY, HOLROYD, and LITTLEDALE, JJ. In Banc. Taunton moved (with leave of the learned Baron) to enter a verdict for the defendant on the first justification, on the ground that the plea was proved in substance; and though he admitted that the beating the horse's eye out was not proved, yet, as the general charge of the libel was cruelty to the horse, that was abundantly proved, though each specific fact of cruelty was not proved. The Court were clearly of opinion, that if a libel charges specific facts of cruelty, and those statements are justified as true, each specific fact of cruelty must be proved, to support the justification. Rule refused. (Reporter's Note.) This [third] justification, I apprehend, is not good. The case of J' Anson v. Stuart, 1 T. R. 748, decides that if a libel charges the plaintiff with an offence, as that he is a swindler, it is not sufficient to plead that he is so: but the defendant must set forth the specific facts he means to prove, to show that the plaintiff is so. ... 874. TORREY v. FIELD. (1838. 10 Vt. 353, 408.) REDFIELD, J. . . . The authorities all concur in this, that where the defendant will justify by showing the truth of the matters charged in the libel, it must be the truth of the "very charge," and it is not sufficient to plead and prove the plaintiff guilty of a similar offence, or even of one more flagrant. The reason of the rule, re. quiring such strictness in pleading the truth, is, that such justification does not always rebut all presumption of malice. A man may publish the truth, from motives of the most deep seated and rancorous malice, and still not be liable to an action, for the reason that the plaintiff has no ground of complaint. The truth is what any man has good right to assert, at all times. It is not always prudent, and a man may sometimes do it very much to his own prejudice. But the truth is never slander. The person assailed, however, under this shield, has the right to insist, that, for one offence, he shall not be held guilty of the whole law. He may insist that the defendant shall justify the "very words" spoken.1 SUB-TOPIC B. CRIMINAL CASES 876. THE CASE de LIBELLIS FAMOSIS (or, OF SCANDALOUS LIBELS) STAR CHAMBER. 1606 5 Co. 125. IN the case of L. P. in the Star-Chamber this Term, against whom the Attorney-General proceeded ore tenus on his own confession, for composing and publishing an infamous libel in verse, by which John Archbishop of Canterbury (who was a Prelate of singular piety, gravity and learning, now dead) by descriptions and circumlocutions, and not in express terms; and Richard Bishop of Canterbury who now is, were traduced and scandalized; in which these points were resolved: Every libel (which is called famosus libellus, seu infamatoria scriptura) is made either against a private man, or against a magistrate or public person. If it be against a private man, it deserves a severe punishment; for altho' the libel be made against one, yet it incites all those of the same family, kindred, or society to revenge, and so tends per consequens to quarrels, and breach of the peace, and may be the cause of shedding of blood, and of great inconvenience. If it be against a magistrate, or other public person, it is a greater offence. . . . A libeller (who is called famosus defamator) shall be punished either by indictment at the common law, or by bill, if he deny it. . . . It is not material whether the libel be true, or whether the party, against whom it is made, be of a good or ill fame; for in a settled state of government the party grieved ought to complain for every injury done him in an ordinary course of law, and not by any means to revenge himself, either by the odious course of libelling, or otherwise. He who kills a man with his sword in fight is a great offender, but he is a greater offender who poisons another; for in the one case he, who is openly assaulted, may defend himself, and knows his adversary, and may endeavor to prevent it. 1 NOTES: "Plea of truth: degree of exactness of proof required." (H. L. R., XVI, 148.) 877. OPINION OF THE JUDGES ON THE LIBEL ACT. (1791. 22 How. St. Tr. 237, 298.) House of Lords Journal. . . . Veneris, II° Maii. . . . The order of the day being read for the further consideration of the bill ["Fox's Libel Act"] intituled, "An Act to remove doubts respecting the functions of juries in cases of libel; " and for the judges to deliver their opinions upon the questions put to them on the 27th of April last: The lord chief baron of the court of Exchequer (EYRE) delivered the unanimous opinion of the judges upon the said questions; and gave his reasons, which reasons are as follows, videlicet. My lords: . . . Your lordship's second question is, "Is the truth or falsehood of the written or printed paper material, or to be left to the jury, on the trial of an indictment or information for a libel; and does it make any difference in this respect, whether the epithet 'false' be or be not used in the indictment or information?" This question consists of two branches. Our answer to the first branch of this question is, that the truth or falsehood of a written or printed paper is not material, or to be left to a jury, upon the trial of an indictment or information for a libel. We consider this doctrine as so firmly settled, and so essentially necessary to the maintenance of the king's peace, and the good order of society, that it cannot now be drawn into debate. If it be asked, why the word "false" is to be found in indictments or informations for libel? We answer, That we find it in the ancient forms of our legal proceedings, and therefore that it is retained. . . . In the civil action for libel, the plaintiff is not put to prove the matter of the libel to be false, which is decisive to show that the falsehood is not part of the substance of the complaint; and though the defendant may insist in his defence, and may prove that the matter of the libel is true, it is not done in the way of contradicting what is asserted by the plaintiff, for then it might be done under the general issue: Whereas if the defendant means to insist that the matter of the libel is true, he must plead it by way of justification. As between him and the plaintiff seeking to recover damages for the private injury, the truth of the matter of the libel is a bar to the action for damages, - the crime, and consequently the falsus libellus, remaining still in full force against him. SUB-TOPIC C. MODERN STATUTORY CHANGES 878. PARLIAMENT OF THE UNITED KINGDOM. ... (1843. Hansard's Debates, Third Series, vol. LXXI, p. 868, 890. Aug. 16.) Defamation and Libel Bill. Mr. Christie rose to move the Order of the Day for the House to resolve itself into committee on the Defamation and Libel Bill. . . The subject matter of this bill has undergone a searching investigation before a committee of the House of Lords, which has sat during the present Session, and which has examined a large number of witnesses, judges, barristers, and editors, and proprietors of newspapers. The committee presented a report, containing a number of specific recommendations, which are the basis of this bill. Though every one of those recommendations has not been imported into this bill, yet every provision which it does contain was recommended in the report of the committee; and, Sir, the bill having been introduced into the other House by Lord CAMPBELL, having met with no opposition to its principles; having obtained the concurrence, and having had the advantage in the discussion of its details of the assistance of Lord DENMAN, Lord ABINGER, Lord BROUGHAM, and the Lord Chancellor, comes down to this House, backed by authority. ... The next chief object of which I will speak, is to limit the effect of truth as a justification, in answer to actions for defamation or libel. At present, any charge may be made against a person in the merest malice, without any good object to be derived from it, with no other result than pain to the person's feelings, or injury to his character, if only its truth can be substantiated. Now, in some cases, the proof of the truth of a charge may be also a proof that the plaintiff has no character to lose, or feelings to wound. In some cases, also, the proof of the truth may prove that the defendant, in making the charge, has done a service to the public; and in such cases it is important that the defendant should be protected by the public. But surely there are cases, as that of an old offence or indiscretion, which has been redeemed by subsequent good conduct, and which it does not concern the public in any way to know of, or of some personal defect, or harmless but ridiculous peculiarity, where publication inflicts an injury to the character or feelings for which the law should provide redress, and to which the truth is a consideration perfectly irrelevant. This bill provides, that in actions for libel, or defamation, the truth shall be no defence in itself; but that in order to justify, it shall be necessary also to establish to the satisfaction of the jury, that it was for the public benefit that the truth should be published. . . . A libel may be proceeded against criminally, as well as by civil action; and there is, as the law at present stands, this remarkable discrepancy between an action for libel, and an indictment or information for libel, that truth is altogether a bar to the action for damages, but is not allowed to have any effect at all in the criminal proceeding. . . . Hitherto, as is well known, the criminal branch of the law of libel has been based upon an altogether different principle an imaginary principle — that of the tendency of libels to provoke breaches of the peace. I think public opinion has been too unequivocally pronounced upon this fundamental principle of punishment for libel, to require that the time of the House should be taken up by proving that it is no more nor less than a fiction, that it is also a very inappropriate fiction, and that it leads to much practical mischief. The man who has published a true charge against a swindler, by whose exposure society profits, is treated in the same way as the unprincipled slanderer who levels falsehoods at the peace and happiness of private families. . . . This bill, therefore, proposes to introduce into criminal proceedings for libel the consideration of the truth, subject to the same modification which it adopts in the case of an action, and provides, that on proof of the truth, and of its being for the public benefit that the truth should have been published, the defendant shall be entitled to an acquittal. . . The Attorney-General [Sir F. Pollock] said, . . . Nor could he consent to that part of the bill which went to enact that truth should not be a defence of an action for slander unless it was for the public good that the matter should be published. If this were the law, a man, if he merely entered into conversation, would have to inquire not only whether what he was going to say was true, but also whether it was for the public benefit that he should say it. He really thought that this would be to fetter speech by a very mischievous course of legislation. . . . His learned friend asked why the private character of an individual should be a subject for public inquiry. For this plain reason, because the plaintiff went into court to ask for damages. He objected to the test mentioned in the clause. . . . He could not understand the large issue of the "public benefit." . . . If you were to have the publication of the truth fettered, it would be better to leave to the jury the question, not whether it was done for the public benefit, of which no man could judge, but whether it was done hon ... |