UBELLATIOI
211
UBELLATIOI
and ufion probable cause cannot be considered as
furnishing ^xpunds for a cause of action, but the prin-
ciple sustaining this form of actionable libel is well-
established. A corporation can maintain an action
for libel per «e.when the libel necessarily and directly
occasions pecuniary injury. A distinction between
criticism and defamation is, that criticism deals only
¥rith such things as invite public attention or call for
public comment, and does not follow a man into his
private life, or pry into his domestic concerns. It
never attacks the mdividual, but only his work. A
criticism of a public man, consisting of imputations
upon his motives, which arise fairly and legitimately
out of his conduct, is generally regarded as justifiable.
Publication. — To constitute a lilxjl there must be a publication, as well as a writing. While a defamatory writing is not libel if it remains with the writer unde- liverea, yet if it goes t^^ other hands, even inadvert- ently, there has been a publication. The writing must go into the hands of persons who by a knowledge of the language or of reading are able to becc<me ac- quainted with its content,*!. In relation to criminal libel, it has been adjudged that, even if the defama- tory conununication has been seen by no one but the person to whom it is addressed, a case has been made out, as in such an event it is likely to cause a breach of the public peace. [Barrow v. Lewellen, Hobart's (K. B.) Reports, 62 a (152); Lyle v. Clason, 1 Caimes (N. Y.), 581 J
Malice. — n is an essential ineredient in both \\\ye\ and slander that the defamation oe malicious. A dis- tinction is made between malice in fact and malice in law. Jn a le^al sense, any act done wilfully to the preju^ce and injur>' of another, which is unlawful, is, as against that person, malicious. The falsity of the charge establishes a presumption of malice. It is not necessary to render an act m law malicious that the party be actuated by a feeling of liatred or ill-will toward the individual, but if m pursuing a design, even if actuated by a general good purpose, he wil- fully inflicts a wrong on others which is not warranted by law, such act is malicious.
Privileged Communications. — A communication made to a person entitled to, or interested in, the com- munication, by one who is also interested in or en- titled to make it, or who stood in such a relation to the former as to afford a reasonable ground for supposing his motive innocent, is presumecl not to be malicious, and is called a privile|2:ed communication. To sup- port the claim of privilege there must be something more than a social or moral duty, for. no matter how praiseworthy the motive may be, unless the circum- stances are such, in the opinion of the court, as to come within the above definition, privilege cannot be successfully pleaded. Two elements must exist: not only must the occasion create the privilege, but the occasion must be made use of bona fide and without malice. Reports of proceedings in legislative assem- blies and in judicial tribunals (where the published matter is pertinent to any cause of which the court has jurisdiction) are absolutely privileged.
Justification. — The truth of a charge is always a justification and a complete answer to a civil proceed- ing for libel. In criminal proceedings it is the general rule that it must be sho\vn in addition that the publi- cation was for the public benefit and for justifiable ends. This has been the law in almost all of the United States for manv years, and in Great Britain since 1843 (6 and 7 Victoria, c. 96). Formerly in criminal cases the truth of the charges constituting the alleged libel was no defence, the rulf* lioing embodied in the maxim, "The greater the truth the greater the libel". There was sulvitantial reason for this theory, as it was deemed that a truthful dofamatorv stati»- ment was more apt to cause a breach of the public peace than one that was untrue. It is a well-estal>- [ished and universal fact that courts will never assume
that there has been wrongdoing, and the burden in
both civil and criminal litigation is upon the person
making the charge to sustain it. Moreover, if the de-
famatory matter consists of charges involving moral
turpitude, and subject to crimimd prosecution, the
re<iuirpments as to the proof of the truth of the same
arc substantially as strict as if the person claiming to
have been defamed was on trial for the alleged of-
fences.
A striking and interesting illustration of the applica- tion of this rule is to be found in the record of the case of the Queen against Newman, the defendant being Dr. (afterwards Cardinal ) Newman. This was a pro- ceeding for criminal libel instituted by Giovanm G. Achilli, who had formerly been a priest of the Cathohc Church, but had been disciplined and suspended by the ecclesiastical authorities. The complainant, prior to the publication, had been delivering public ad- dresses, attacking the Church and it^ institutions, and giving a wrong impression as to the circumstances con- nected with his suspension. Dr. Newman published a statement setting forth the facts in relation to the complainant's suspension, and making specific charges of a number of instances of sexual immorality, in one case a young girl of alx)ut fifteen years being involved. The acts charged took place on the Continent of Eu- rope, and the persons who could have supported the statement by their testimonjr were beyond the juris- diction of the English court in which the proceeding was conducted. Dr. Newman was, therefore, unable to prove the truth of the twenty-one charges made, except the one in relation to the proceedings con- ducted by the Church, and which was supported by documentary evidence. He had pleaded the truth of the alleged libel under the statuto of Victoria. The court found him guilty and he was fined one hundred pounds.
It may be generally stated that any circumstances that would appeal to a reasonable person as being mit- igating mav l)e introduced in evidence in either crim- inal or civil litigation under a plea of mitigation, even including a belief in the truth of the matter, or an at- tempt subsequently to repair the alleged wrong by a retraction or apoloj^y.
MuNROE, Engltsk Dictionary of Hi^orical Principles (Oxford, 19(Xi); Qoou&Y, Wrongs and their Remedies,!: Tor/a (Chica^, 1S88); New York Penal Code; Blaekstonc'a Commentartea; ^' EN DELL, Starkie on Slander and Libel (West Brookfield, Mas- sachusetts, 1852).
EuGEXE A. Philbin.
Libellatici, Libelli. — The lihelli were certificates issued to Christians of the third century. They were of two kinds: (1) certificates of conformity, to attest that the holders had conformed to the rehgious tests require<l by the edict of Decius; (2) certificates of indulgence, in which the confessors or mart.\Ts inter- ceded for the lapsi (i. e. those who had apastatized). The opprobrious term libetlatid is applied only to holders of the former kind. The edict of Decius (Dec., 240, or Jan. ,250), coming as it did after a com- paratively long period of peace, frightened many Christians into submission. But the methods and extent of submission were of several kinds: the lapsi might he: (a) apostates, who had entirely abandoned their religion, or (b) sacrificati, thurifiooiti, who had taken part in the pagan rites, or (c) libellaticij who had secure<l certificates (libelli) of conformity from the proper civil authorities. Three such libelli are extant, all of them of Eg\'ptian origin ("OxjThyn- chus Papyri", IV, 658; Gebhardt. "Acta Martyrum Selecta"). Therein the petitioner declares that he was ever conr^tant in sacrificing to the gods, and has actually performed the test of conforrnity. in attesta- tion of wnich he l>egs the pagan commissioners to sign this certificate. However, it seems that the declara- tion w«as sometimes accepted for the deed, or the deed itself performed by proxy; and no doubt the docu-
