estly, with or without malice. . . . Could not the honorable and learned Gentleman foresee very great danger, even to the press itself, if they were to fetter the publication of the truth with this extraordinary restriction, that you aver that the publication was for the public benefit, and must state the particular fact or facts, which went to establish that? He believed that the public derived far more benefit from the sound and wholesome part of the public press than they sustained evil from the corrupt portion, and he would not consent, in order to get rid of those nests of slanderers who fatten on the fears of individuals, to place any restraint on the wholesome publication of truth on all occasions on which it ought to be spoken; and he would rather make truth at once the criterion, than enter into the speculative inquiry, whether such or such a publication was for the public benefit. . .

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Mr. Christie expressed his regret that the Attorney-General should feel it his duty to oppose the clause. . . . The Attorney-General wished for the broad and intelligible basis of truth, and said that the man who spoke the truth should be protected; but it appeared equally broad and intelligible that a man should not only speak the truth, but show that he did so with no motive of malice, but for the purpose of doing a public good. A case was suggested, and many questions put upon it by many Lords to Mr. Fonblanque before the Lord's committee, of a lady, who being accused of having false hair, false teeth, or being, as it was termed, "made up," and having no remedy for the wanton injury done to her feelings by the publication of this stupid personality, if only it could be proved to be true. Truth in such a case would aggravate the injury to the feelings. . . .

The committee divided on the question that the clause as amended stand part of the bill. Ayes 30: Noes 38; Majority 8. . . . Clause struck out.

879. STATUTES OF THE UNITED KINGDOM OF GREAT BRITAIN AND IRELAND (Stats. at Large, vol. 35, p. 649.) 1843, 6 & 7 Vict, c. 96, An Act to Amend the Law respecting Defamatory Words and Libels. § 6. . . On the trial of any indictment or information for a defamatory libel, the defendant having pleaded such plea as hereinafter mentioned, the truth of the matters charged may be inquired into, but shall not amount to a defence, unless it was for the public benefit that the said matters charged should be published.

880. ALEXANDER HAMILTON. Argument for the Defence in People v. Croswell. (Prosecution for a libel on Thomas Jefferson, President of the United States. 1804. Works, VII, 339). . . . The liberty of the press consists, in my idea, in publishing the truth, from good motives and for justifiable ends, though it reflect on the government, on magistrates, or individuals. . . . In speaking thus for the freedom of the press, I do not say there ought to be an unbridled license; or that the characters of men who are good will naturally tend eternally to support themselves. I do not stand here to say that no shackles are to be laid on this license. I consider this spirit of abuse and calumny as the pest of society. I know the best of mer are not exempt from the attacks of slander. Though it pleased God to bless us with the first of characters, [Washington], and though it has pleased God to take him from us and this band of calumniators, I say that falsehood eternally repeated would have affected even his name. Drops of water, in long and continued succession, will wear out adamant. This, therefore, cannot be endured. It would be to put the best and the worst on the same level. I contend for the liberty of publishing truth,

with good motives and for justifiable ends, even though it reflect on government, magistrates, or private persons. I contend for it under the restraint of our tribunals. When this is exceeded, let them interpose and punish. . . .

Whether the truth be a justification will depend on the motives with which it was published. Personal defects can be made public only to make a man disliked. Here, then, it will not be excused; it might, however, be given in evidence to show the libellous degree. Still, however, it is a subject of inquiry. There may be a fair and honest exposure. But if he uses the weapon of truth wantonly; if for the purpose of disturbing the peace of families; if for relating that which does not appertain to official conduct, so far we say the doctrine of our opponents is correct. If their expressions are, that libellers may be punished though the matter contained in the libel be true, in these I agree. I confess that the truth is not material as a broad proposition respecting libels. But that the truth cannot be material in any respect, is contrary to the nature of things. . . . I affirm that, in the general course of things, the disclosure of truth is right and prudent, when liable to the checks I have been willing it should receive as an object of animadversion. . . . It is evident that if you cannot apply this mitigated doctrine, for which I speak, to the cases of libels here, you must forever remain ignorant of what your rulers do. I never can think this ought to be. I never did think the truth was a crime. I am glad the day is come in which it is to be decided, for my soul has ever abhorred the thought that a free man dared not speak the truth.

CONSTITUTION OF ILLINOIS.

881. (1818. Art. VIII, §§ 22, 23.) The printing-presses shall be free to every person who undertakes to examine the proceedings of the general assembly or of any branch of government; and no law shall ever be made to restrain the right thereof. The free communication of thoughts and opinions is one of the invaluable rights of man, and every citizen may freely speak, write, and print on any subject, being responsible for the abuse of that liberty. In prosecutions for the publication of papers investigating the official conduct of officers or of men acting in a public capacity, or where the matter published is proper for public information, the truth thereof may be given in evidence. And in all indictments for libels the jury shall have the right of determining both the law and the fact, under the direction of the Court as in other cases.

. ID. (1870. Art. II, § 4.) Every person may freely speak, write, and publish on all subjects, being responsible for the abuse of that liberty; and in all trials for libel, both civil and criminal, the truth, when published with good motives and for justifiable ends, shall be a sufficient defense.

ERROR to the District Court for Dawes County. WESTOVER, District Judge. Affirmed.

WILLIAM H.

Albert W. Crites, for plaintiff in error. Ernest M. Slattery and C. Dana Sayrs, contra.

SULLIVAN, C. J. This was an action by Larson against Cox to recover damages for slander. The defamatory words set out in the petition amount to a charge of larceny. The defendant in his answer alleged that the charge was true, and that it was made with good motives and for justifiable ends. The jury found against the plaintiff, and judgment followed the verdict. The assignments of error discussed by counsel relate for the most part to the plea of justification, and raise the question whether the truth of slanderous matter is per se a complete defense. The contention of counsel for plaintiff is that the truth is unavailing unless it was uttered with a good motive and for a proper purpose. His argument is grounded altogether upon the provision of the Constitution which declares that "in all trials for libel, both civil and criminal, the truth when published with good motives, and for justifiable ends, shall be a sufficient defense." Constitution, art. I, sec. 5. The provision here quoted is a substitute for section 3, article I, of the constitution of 1866, which was an almost literal copy of a New York statute adopted soon after the trial of the celebrated case in which Croswell was convicted of publishing a libel on Thomas Jefferson. People v. Croswell, 3 Johns. Cas. (N. Y.) 337 [ante, No. 885]. This statute was intended to secure and safeguard the freedom of the press, and is now fundamental law in many of the States. It was a modification of the doctrine of the common law that, in public prosecutions for libel, the truth of the libel is no excuse for its publication. When considered in the light of history, there is much reason to suppose that the constitutional provision upon which plaintiff relies was designed as a sure and permanent protection, both in civil and criminal actions, to persons who have occasion, in the discharge of some legal, social, or moral duty, to write and publish criticisms on the character and conduct of others, and that it was not any part of its purpose to take away from the defendant in a libel case any right given him either by the statutory law or the common law. The truth of a defamatory publication is still a complete and perfect defense in a criminal case, irrespective of the motive or object of the publisher. The Legislature has made it so by definition of the crime. Section 132 of the Code of Civil Procedure in effect declares that in an action for a libel or slander the truth of the defamatory

matter may be pleaded and proved as a defense. Castle v. Houston, 19 Kan. 417, 27 Am. Rep. 127.

The validity of this section was of course necessarily involved in Pokrok Zapadu Publishing Co. v. Zizkovsky, 42 Neb. 64, and Neilson v. Jensen, 56 Neb. 430, which seems to have been decided on the assumption that the constitutional provision above quoted, so far as it relates to libels which are the subjects of civil action, was intended as a restraint upon the freedom of the press, and that it operated as a partial repeal of the statute. It is not necessary at this time to either affirm or deny the doctrine of these cases, as the constitutional provision with which they deal has no reference to actions for slander. Section 132, so far at least as it relates to spoken defamation, is in harmony with the Constitution and is, therefore, valid. Under the instructions given by the Court at plaintiff's request the jury must have found that the plea of justification was sustained by the proof. In our opinion the evidence was sufficient to warrant the conclusion that Larson had committed the crime imputed to him. This being so, the verdict and judgment are right, even though defendant did not make the accusation with good motives and for justifiable ends. . . . There is no material error in the record, and the judgment is therefore affirmed.

883. THOMAS BABINGTON MACAULAY. Notes on the Indian Penal Code. (1837. Note (R), Miscellaneous Works, Harper ed., Vol. IV, p. 314.) Defamation. . . . The exception [making truth an absolute defense], which stands first in order, will probably be thought by many persons objectionable. It is opposed to the rules of the English criminal law. It goes, we fear, beyond what even the boldest reformers of English law have proposed. It is at variance with the provisions of the French code, and with the sentiments of the most distinguished French jurists. It is at variance also with the provisions of the code of Louisiana. It is, therefore, with some diffidence that we venture to lay before the Governor-General in Council the results of a long and anxious consideration of this question. The question is whether the truth of an imputation prejudicial to character should, in all cases, exempt the author of that imputation from punishment as a defamer. We conceive that it ought to exempt him. It will hardly be disputed, even by those who dissent from us on this point, that there is a marked distinction between true and false imputations, as respects both the degree of malignity which they indicate and the degree of mischief which they produce. The accusing a man of what he has not done implies, in a vast majority of cases, greater depravity than the accusing him of what he has done. The pain which a false imputation gives to the person who is the object of it is clear, uncompensated evil. There is no set-off whatever. The pain which a true imputation gives to the person who is the object of it is in itself an evil, and, therefore, ought not to be wantonly inflicted. But there is often some counterbalancing good. A true imputation may produce a wholesome effect on the person who has, by his misconduct, exposed himself to it. It may deter others from imitating his example. It may set them on their guard against his bad

designs. Not only do true imputations generally produce some good to counterbalance the evil caused by them, but in many cases this counterbalancing good appears to us greatly to preponderate. However skillfully penal laws may be framed, however vigorously they may be carried into execution, many bad practices will always be out of reach of the tribunals. . . . It seems inconsistent and unwise to rely on the public opinion in certain cases as a valuable auxiliary to the law, and at the same time to treat the expression of that opinion in those very cases as a crime. It is easy to put cases about which there could scarcely be any difference of opinion. A person who has been guilty of gross acts of swindling at the Cape comes to Calcutta, and proposes to set up a house of agency.... A man introduces a common prostitute as his wife into the society of all the most respectable ladies of the presidency. A person in a high station is in the habit of encouraging ruinous play among young servants of the Company. In all these cases, and in many others which might be named, we conceive that a writer who publishes the truth renders a great service to the public, and cannot, without a violation of every sound principle, be treated as a criminal. There are, undoubtedly, many cases in which the spreading of true reports, prejudicial to the character of an individual, would hurt the feelings of that individual, without producing compensating advantage in any other quarter. The proclaiming to the world that a man keeps a mistress, that he is too much addicted to wine, that he is penurious in his housekeeping, that he is slovenly in his person; the raking up of ridiculous and degrading stories about the youthful indiscretions of a man who has long lived irreproachably as a husband and a father, and who has attained some post which requires gravity and even sanctity of character, can seldom or never produce any good to the public sufficient to compensate for the pain given to the person attacked and to those who are connected with him. Yet we greatly doubt whether, where the imputations are true, it be advisable to inflict on the propagators of such miserable scandal any legal punishment. . . . The effect of a rule excluding evidence of the truth is to put on a par descriptions of persons between whom it is desirable to make the widest distinction. The public-spirited man who warns the mercantile community against a notorious cheat, or advises families not to admit into their intimacy a practiced seducer of innocence, is placed on the same footing with the slanderer who invents the most infamous falsehoods against persons of the purest character. On the other hand, a man who has, without the slightest reason, been held up to the world as a seducer or a swindler, is placed in exactly the same situation with one who well deserves those disgraceful So defective is the investigation that it leaves a suspicion lying on the most innocent, and no more than a suspicion lying on the most guilty. We therefore think that in all cases of prosecution for defamation the Courts ought to allow the question of truth to be gone into. . . .

names.

It has been suggested to us, from quarters entitled to great respect, that it would be a preferable course to admit in every case the truth of matter alleged to be defamatory to be given in evidence, for the purpose of proving that the accused person had not acted maliciously, but not to allow the proof of the truth to be a justification if it should appear that reputation had been maliciously assailed. If a provision of this kind were adopted, it would, for the reasons which we have already given, be in practice nugatory. For no respectable person would prosecute the author of an imputation which could be proved to be true. . . . But if the provision which we are considering were not certain to be in practice nugatory, we should think it a highly objectionable

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