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CHAPTER II.: GOVERNMENT REGULATION OF PERSONAL SECURITY. - Christopher G. Tiedeman, A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint, vol. 1 
A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint (St. Louis: The F.H. Thomas Law Book Co., 1900). Vol. 1.
Part of: A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint, 2 vols.
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GOVERNMENT REGULATION OF PERSONAL SECURITY.
Security to life.—
The legal guaranty of the protection of life is the highest possession of man. It constitutes the condition precedent to the enjoyment of all other rights. A man’s life includes all that is certain and real in human experience, and since its extinction means the deprivation of all temporal rights, the loss of his own personality, so far as this world is concerned, the cause or motive for its destruction must be very urgent, and of the highest consideration, in order to constitute a sufficient justification. If there be any valid ground of justification in the taking of human life, it can only rest upon its necessity as a means of protection to the community against the perpetration of dangerous and terrible crimes by the person whose life is to be forfeited. When a person commits a crime, that is, trespasses upon the rights of his fellow-men, he subjects his own rights to the possibility of forfeiture, including even the forfeiture of life itself; and the only consideration, independently of constitutional limitations, being, whether the given forfeiture, by exerting a deterrent influence, will furnish the necessary protection against future infringements of the same rights. That is, of course, only a question of expedience addressed to the wise discretion of legislators, and does not concern the courts. Except as a punishment for crime, no man’s life can be destroyed, not even with his consent. Suicide, itself, is held to be a crime, and one who assists another in the commission of suicide is himself guilty of a crime.1 This rule of the common law is in apparent contradiction with the maxim of the common law, which in every other case finds ready acquiescence, viz.: an injury (i. e. a legal wrong) is never committed against one who voluntarily accepts it, volenti non fit injuria. If a crime be in every case a trespass upon the rights of others2 suicide is not a crime, and it would not be a crime to assist one “to shuffle off this mortal coil.” But the dread of the uncertainties of the life beyond the grave so generally “makes us rather bear those ills we have, than fly to others that we know not of,” that we instinctively consider suicide to be the act of a deranged mind; and on the hypothesis that no sane man ever commits suicide the State may very properly interfere to prevent self-destruction, and to punish those who have given aid to the unfortunate man in his attack upon himself, or who have with his consent, or by his direction, killed a human being. But if we hold suicide to be in any case the act of a sane man, I cannot see on what legal grounds he can be prevented from taking his own life. It would be absurd to speak of a man being under a legal obligation to society to live as long as possible. The immorality of the act does not make it a crime,3 and since it is not a trespass upon the rights of any one, it is not an act that the State can prohibit. But even if suicide be declared a crime, the act has carried the criminal beyond the jurisdiction of the criminal courts, and consequently no punishment could be inflicted on him. The common law in providing that the body of a suicide should be buried at the cross-roads with a stake driven through it, and that his property shall be forfeited to the crown, violated the fundamental principle of constitutional law that no man can be condemned and punished for an offense, except after a fair trial by a court of competent jurisdiction, in which the accused is given an opportunity to be heard in his own defense. It is somewhat different where one man kills another at the latter’s request. If it be held that the man who makes the request is sane, the killing is no more a crime than if it was done by the unfortunate man himself. But in consideration of the difficulty in proving the request, and the frequent opportunities for felonious murders the allowance of such deeds would afford, the State can very properly prohibit the killing of one man by another at the former’s request. These considerations would justify this exercise of police power, and in only one case is it supposed that any fair reason may be given for allowing it, and that is, where one is suffering from an incurable and painful disease. If the painful sufferer, with no prospect of a recovery or even temporary relief from physical agony, instead of praying to God for a deliverance, should determine to secure his own release, and to request the aid of a physician in the act, the justification of the act on legal grounds may not be so difficult. But even in such a case public, if not religious, considerations would justify a prohibition of the homicide.
Capital punishment, when cruel and unusual.—
That capital punishment may be imposed for the commission of crimes against the life of another, and crimes against those rights of personal security, which are in the estimation of the generality of mankind as dear as life itself, for example, arson and rape, seems to admit of no doubt, not even in the realms of reason and natural justice. Certainly there is no constitutional prohibition against its infliction for these offenses. These are mala in se, violations of the natural rights of man, and there is in the breast of every human being a natural fear of punishment, proportionate to each and every violation of human rights. In the absence of a regularly established society, in a state of nature, the power to inflict this punishment for natural crimes is vested in every individual, since every one is interested in providing the necessary protection for life. “Whereof,” Mr. Blackstone says, “the first murderer, Cain, was so sensible, that we find him expressing his apprehensions, that whoever should find him would slay him.”1 In organized society, a supreme power being established, which is able and is expressly designed to provide for the public security, the government succeeds to this natural right of the individual. “In a state of society this right is transferred from individuals to the sovereign power, whereby men are prevented from being judges in their own causes, which is one of theevils that civil government was intended to remedy.”2 These cases of capital punishment are readily justified, but it would seem to be a matter of very grave doubt, certainly on rational grounds, whether the legislature had the power to provide capital punishment for the commission of a crime which is only a malum prohibitum, an act which by the law of nature is not a violation of human rights. But whatever may be the final settlement of this question, by the common law capital punishment was inflicted for numerous crimes of very different characters and grades of heinousness. Says Blackstone: “It is a melancholy truth, that among the variety of actions which men are daily liable to commit, no less than a hundred and sixty have been declared by act of Parliament to be felonies without benefit of clergy; or in other words, to be worthy of instant death.”1 Sir Matthew Hale justifies this practice of inflicting capital punishment for crimes of human institution in the following language: “When offenses grow enormous, frequent and dangerous to a kingdom or state, destructive or highly pernicious to civil societies, and to the great insecurity and danger of the kingdom or its inhabitants, severe punishment and even death itself is necessary to be annexed to laws in many cases by the produce of law-givers.”2
It may now be considered as a settled doctrine that, in the absence of an express constitutional prohibition, the infliction of capital punishment rests entirely in the discretion of the legislature. The only constitutional limitation which can bear upon the subject under discussion, is that found in both the national and State constitutions, which prohibits the imposition of “cruel and unusual punishments.”3 Capital punishment in itself is not “cruel,” but the mode of its infliction may be “cruel and unusual,” and hence contravene this constitutional provision. Thus, for example, would be those cruel punishments of colonial times and of the common law, such as burning at the stake, breaking on the wheel, putting to the rack, and the like. In the present temper of public opinion, these would undoubtedly be considered “cruel and unusual punishments,” and therefore, forbidden by the constitution.4 But would the infliction of capital punishment for offenses, not involving the violation of the right to life and personal security, be such a “cruel and unusual” punishment, as that it would be held to be forbidden by this constitutional provision? It would seem to me that the imposition of the death penalty for the violation of the revenue laws, i. e., smuggling, or the illicit manufacture of liquors, or even for larceny or embezzlement, would properly be considered as prohibited by this provision as being “cruel and unusual.” But if such a construction prevailed, it would be difficult to determine the limitations to the legislative discretion.
There has been so little litigation over this provision of our constitutions, that it is not an easy matter to say what is meant by the clause. Judge Cooley says: “Probably any punishment declared by statute for any offense, which was punished in the same way at common law, could not be regarded as cruel and unusual in the constitutional sense. And probably any new statutory offense may be punished to the extent and in the mode permitted by the common law for offenses of a similar nature.”1 Capital punishment can be inflicted, in organized society, only under the warrant of a court of justice, having the requisite jurisdiction, and it must be done by the legal officer, whose duty it is to execute the decrees of the court. The sentence of the court must be followed implicitly. The sheriff is not authorized to change the mode of death, without becoming guilty of the crime of felonious homicide.1
Security to limb and body—General statement.—
This right is as valuable, and as jealously guarded against violation, as the primary right to life. Not only does it involve protection against actual bodily injuries, but it also includes an immunity from the unsuccessful attempts to inflict bodily injuries, a protection against assaults, as well as batteries. This protection against the hostile threats of bodily injury is as essential to one’s happiness as immunity from actual battery.2 But however high an estimate may be placed generally upon this right of personal security of limb and body, there are cases in which the needs of society require a sacrifice of the right; usually, however, where the wrongful acts of the person whose personal security is invaded, have subjected him to the possibility of forfeiture of any right as a penalty for wrong-doing.
Corporal punishment—When a cruel and unusual punishment.—
The whipping-post constituted at one time a very common instrument of punishment, and in the colonial days of this country it ornamented the public square of almost every town. At present corporal punishment is believed to be employed only in Delaware and Maryland.3 It was much resorted to in England as a punishment for certain classes of infamous crimes. “The general rule of the common law was that the punishment of all infamous crimes should be disgraceful; as the pillory for every species of crimen falsi, as forgery, perjury and other offenses of the same kind. Whipping was more peculiarly appropriated to petit larceny and to crimes which betray a meanness of disposition and a deep taint of moral depravity.”1 It does seem as if there are crimes so infamous in character, and betoken such a hopeless state of moral iniquity, that they can only be controlled and arrested by the degrading punishment of a public whipping. It is now being very generally suggested as the only appropriate punishment for those cowardly creatures who lay their hands in violence upon their defenseless wives. But public opinion is still strongly opposed to its infliction in any case. The punishment is so degrading that its infliction leaves the criminal very little chance for reformation, unless he betakes himself to a land, whither the disgrace will not follow him, or be generally known.2
In respect to the constitutional right to impose the penalty of corporal punishment for crime, Judge Cooley says: “We may well doubt the right to establish the whipping-post and the pillory in the States in which they were never recognized as instruments of punishment, or in States whose constitutions, revised since public opinion had banished them, have forbidden cruel and unusual punishment. In such States the public sentiment must be regarded as having condemned them as ‘cruel;’ and any punishment, which if ever employed at all has become altogether obsolete, must certainly be looked upon as ‘unusual.’ ”3 The fact, that this mode of punishment has become obsolete, has made it impossible to secure any large number of adjudications on the constitutionality of a statute, which authorized or directed the infliction of corporal punishment. But so far as the courts have passed upon the question, they have decided in favor of its constitutionality, and held that whipping was not a “cruel and unusual” punishment.1 It has also been recognized as a legitimate power, in keepers of prisons and wardens of penitentiaries to administer corporal punishment to refractory prisoners.2 But whatever may be the correct view in respect to the constitutionality of laws imposing corporal punishment, this mode of punishment has now become very generally obsolete, and no court would presume to employ it upon the authority of the English common law. A statute would be necessary to revive it.3
Personal chastisement in certain relations.—
As a natural right, in consequence of the duty imposed upon the husband, parent, guardian and master, it was conceded by the common law that they could inflict corporal punishment, respectively, upon the wife, child, pupil, ward and apprentice. But as the domestic relations, and the relative rights and duties growing out of them, will receive a more detailed treatment in a subsequent chapter, the reader is referred to that chapter.4
Battery in self-defense.—
One of the primary restrictions upon individual liberty, growing out of the organization of society and the institution of government, is that which limits or takes away the right to undertake the remedy of one’s own wrongs, and provides a remedy in the institution of courts and the appointment of ministerial officers, who hear the complaints of parties and condemn and punish all infractions of rights. But the natural right of protecting one’s own rights can only be taken away justly where the law supplies in its place, and through the ordinary judicial channels, a reasonably effective remedy. In most cases where the remedy should be preventive, in order that it may be effectual, the law is clearly powerless to afford the necessary protection, and hence it recognizes in private persons the right to resist by the use of force all attacks upon their natural rights. The degree of force, which one is justified in using in defense of one’s rights, is determined by the necessities of the case. He is authorized to use that amount of force which is necessary to repel the assailant.1 And in defending his rights, as a general rule, he may use whatever force is necessary for their protection, although it extends to the taking of life. But before using force in repelling an assault upon one’s person, certainly where the necessary force would involve the taking of life, the law requires the person, who is assailed, to retreat before his assailant, and thus avoid a serious altercation as long as possible. When escape is impossible, then alone is homicide justifiable. Says Blackstone: “For which reason the law requires that the person, who kills another in his own defense, should have retreated as far as he conveniently or safely can, to avoid the violence of the assault, before he turns upon his assailant; and that not fictitiously, or in order to watch his opportunity, but from a real tenderness of shedding his brother’s blood.”1 In the excitement which usually attends such occurrences, it would be requiring too much of the party assailed to adjust to a nicety the exact amount of force which would be sufficient to furnish him and his rights with the necessary protection, and hence he is required to exercise that degree of care which may be expected from a reasonably prudent man under similar circumstances.2
Blackstone also justifies, in cases of extreme necessity, the taking of the life of another, for the preservation of one’s own life, where there is no direct attack upon the personal security, but the circumstances, surrounding the persons, require the death of one of them. He says: “There is one species of homicide se defendendo where the party slain is equally innocent as he who occasions his death: and yet this homicide is also excusable from the great universal principle of self-preservation, which prompts every man to save his own life preferable to that of another, where one of them must inevitably perish. As, among others, in that case mentioned by Lord Bacon,3 where two persons being shipwrecked, and getting on the same plank, but finding it not able to save them both, one of them thrusts the other from it, whereby he is drowned. He who thus preserves his own life at the expense of another man’s is excusable through unavoidable necessity, and the principle of self-defense; since both remaining on the same weak plank is a mutual, though innocent, attempt upon, and an endangering of each other’s life.”4 But, of late, the doctrine has been repudiated by the English courts in a case, which has created widespread interest. A shipwreck had occurred, and some four or five persons occupied one of the life-boats. They were without provisions, and after enduring the pangs of hunger until they were almost bereft of reason, one person, a young boy, was selected by the others to die for their benefit. The boy was killed, and the others subsisted on his flesh and blood, until they were overtaken by a vessel, and carried to England. Their terrible experience was published in the papers, and the ship having been an English vessel, they were arrested on the charge of murder, and convicted, notwithstanding the strong effort of counsel to secure from the court a recognition of the principle advocated by Blackstone. A contrary doctrine is laid down by the court, that no one has a right to take the life of another to save his own, except when it is endangered by the attacks of the other person. Even in cases of the extremest necessity the higher law must be obeyed, that man shall not save his life at the expense of another, who is not responsible for the threatening danger.1
Homicide is not only justifiable when committed in defense of one’s life, but it is likewise excusable, when it is necessary to the protection of a woman’s chastity. She may employ whatever force is necessary to afford her protection against the assault, even to the taking of life.2 So may one use any degree of force that may be necessary to protect any member of his family, a wife, child, etc.3 So may a battery be justified which is committed in defense of one’s property, both real and personal, providing, always, that the force used is not excessive.4 And where one is assaulted in one’s dwelling, he is not required to retreat, but he may take the trespasser’s life, if such extreme force is necessary to prevent an entrance.1 But, although one may resist to any extent the forcible taking away of any property from himself, yet homicide in resisting a simple trespass to property, where there is no violence offered to the person, is never justifiable, except in the case of one’s dwelling.2
In all these cases, the assault and battery are justified, only where they are employed in protecting rights against threatened injury. One cannot use force in recovering property or rights which have been taken or denied,3 or in punishing those who have violated his rights. It is no part of one’s legal rights to avenge the wrongs of himself and of his family.4
At common law it was the right of one, who was unlawfully disseised, to recover his lands by force of arms, using whatever force was necessary to that end. But in the reign of Richard II., a statute was passed which prohibited entries upon land, in support of one’s title, “with strong hand or a multitude of people, but only in a peaceable and easy manner.”5 Similar statutes have been passed in most of the States of this country, and the effect of the statute has been the subject of more or less extensive litigation. The question has been mooted from an early period, whether the purpose of the statute was to take away the common-law civil right to recover one’s lawful possession by force of arms, or simply to provide a punishment for the breach of the public peace thereby occasioned. Although there are decisions, which maintain that the statute has this double effect, and that such a forcible entry would lay the lawful owner open to civil actions for trespass and for assault and battery,1 yet the weight of authority, both in this country and England, is certainly in favor of confining the operation of the statute to a criminal prosecution for the prohibited entry. The decisions cited below maintain that the plea of liberum tenementum is a good plea to every action of trespass quare clausum fregit, and even if the tenant is forcibly expelled and suffers personal injuries therefrom, no civil action for any purpose will lie, unless the force used was greater than what was necessary to effect his expulsion.2
In the act of abortion, there is a twofold violation of rights. In the first place, it involves a violation of personal security to the limbs and body of the woman. The fœtus is part of the body of the woman and an unnatural expulsion of it inflicts injury upon the mother. But since the maxim of the law is, volenti non fit injuria, there is at common law no crime of assault and battery against the woman, where she procures or assents to the abortion. But abortion involves also the destruction of the life-germ of the fœtus, which is considered, even by the common law, to be a living human being for certain purposes. Mr. Blackstone says: “Even an infant in ventre sa mère, or in the mother’s womb, is, for many purposes, which will be specified in the course of these commentaries, treated in law as if actually born.”1 But the fœtus was not supposed to have such an actual separate existence as to make abortion a crime against the unborn child, until it had reached that stage of its growth when it is said to “quicken.” Consequently at common law, where an abortion is committed upon a woman, with her consent, before the child had quickened, it is no crime unless the death of the mother ensues.2 The crime of abortion is now regulated by statute in the different States, and is generally made a crime, under all circumstances, to procure the miscarriage of a pregnant woman, whether she consents to the act, or the child has not quickened, and even where she herself, unaided, attempts the abortion.
Compulsory submission to surgical and medical treatment.—
Although it has never been brought before the courts for adjudication, it is nevertheless a most interesting question of police power, whether a person who is suffering from disease can be forced to submit to a surgical operation or medical treatment. We can readily understand the right of a parent or guardian to compel a child to submit to necessary medical treatment, and likewise the right of the guardian or keeper of an insane person to treat him in a similar manner. So also can we justify the exercise of force in administering remedies to one who is in the delirium of fever. But can a sane, rational man or woman of mature age be forced to submit to medical treatment, though death is likely to follow from the consequent neglect? If the disease is infectious or contagious, we recognize without question the right of the State to remove the afflicted person to a place of confinement, where he will not be likely to communicate the disease to others;1 and we recognize the right of the State to keep him confined, as long as the danger to the public continues. Inasmuch as the confinement of such a person imposes a burden upon the community, all means for lessening that burden may be employed as a legitimate exercise of police power; and if a surgical operation or medical treatment be necessary to effect a cure, the patient cannot lawfully resist the treatment.
Not only is this true, but it seems that medical and surgical treatment can be prescribed, against the consent of the individual, as a preventive of contagious and infectious diseases. Thus in England, and probably in some of the United States, vaccination has been made compulsory.2 When one remembers the terrible scourges suffered from small-pox in the past, and thinks of the moderation and control of them effected by a general vaccination of the people, no one would hesitate to answer all philosophical objections to compulsory vaccination by an appeal to the legal maxim, salus populi suprema lex. In the United States, school boards have been very generally authorized by statute to exclude children from the privileges of the public schools, who have not been vaccinated. This law has been contested in a number of cases, on the ground that it was an unconstitutional interference with personal rights. But, in every case, the constitutionality of this exercise of police power has been sustained.1 And in Georgia a city ordinance was sustained which required every one to submit to vaccination when the small-pox was epidemic.2
A number of decisions have sustained the constitutionality of laws, which made vaccination compulsory upon school children.3 The opposition to compulsory vaccination seems to be growing, under the fostering care of the Anti-Vaccination League; and the writer has received from its secretary a number of pamphlets and other communications, which were intended to demonstrate the inequity of vaccination in general and of compulsory vaccination in particular. In accordance with the principles set forth in the text in the present section, there could be no more outrageous violation of personal security, which is guaranteed by all American constitutions, than the compulsory vaccination of an unwilling victim, if it could be proved that vaccination was not only futile as a protection against the loathsome disease of small-pox, but positively injurious to the health of the subject. The proof of the futility of vaccination would alone take away all constitutional justification of compulsory vaccination. But the opponents of vaccination are confronted with the testimony in its favor of the most prominent physicians of the world, who unhesitatingly pronounce the treatment to be efficacious in reducing the dangers of contagion and the mortality from small-pox; while they declare it to be in no way injurious to the health of the subject.
In the face of such an array of expert testimony, it is not surprising that the courts have uniformly sustained the constitutionality of laws, which make vaccination compulsory. This expert testimony may be erroneous, as expert testimony often is; but its unreliability must be proven to the courts, in order to successfully resist the enforcement of vaccination laws.
For the same reason, viz.: the preservation of the health and life of others, where medical attendance and surgical operations are necessary to procure the successful delivery of a child, the consent of the woman is not necessary. The saving of her life and the life of the child is a sufficient justification for this invasion of the right of personal security. But where the neglect of medical treatment will not cause any injury to others, it is very questionable if any case can be suggested in which the employment of force, in compelling a subjection to medical treatment of one who refused to submit, could be justified, unless it be upon the very uncertain and indefinite ground that the State suffers a loss in the ailment of each inhabitant, which may be guarded against or cured by the proper medical treatment.
Security to health—Legalized nuisance.—
The security against all causes of injury to health and bodily comfort is also highly essential to human happiness, and those acts of individuals which produce injury to health, or seriously interfere with bodily comfort, are called nuisances and are, as a general rule, prohibited. But it is not every annoyance to health and comfort, which constitutes a nuisance.1 Where the annoyance proceeds from some natural cause, and is not the consequence of an act of some individual, it is no nuisance, if the public or private owner should fail to remove the cause of annoyance.2 Thus, it is not actionable, if the owner of swamp lands fails to drain his lands, and in consequence the neighbors are made sick by the injurious exhalations.3 Nor is it any ground for an action against a municipal corporation, that it has failed to provide proper remedies for the prevention of nuisances and other annoyances to health and bodily comfort.4 And although, as a general proposition, no one has a right to do any act which will cause injury to the health or disturb seriously the bodily comfort or mental quietude of another, yet this right of security to health and comfort cannot be left absolute in a state of organized society. It must give way to the reasonable demands of trade, commerce, and the other vital interests of society. While the State cannot take away absolutely the private rights of individuals by the legalization of nuisance,1 yet in most cases of nuisances, affecting the personal health and comfort, there is involved the consideration of what constitutes a reasonable use of one’s property, and that is a question of fact, the answer to which varies according to the circumstances of each case. One is expected to submit to a reasonable amount of discomfort for the convenience or benefit of his neighbor. If a discomfort were wantonly caused from malice or wickedness, a slight degree of inconvenience might be sufficient to render it actionable; but if it were to result from pursuing a useful employment in a way which but for the discomfort to others would be reasonable and lawful, it is perceived that the position of both parties must be regarded, and that what would have been found wholly unreasonable before may appear to be clearly justified by the circumstances.2 Instead of being a question of personal health and comfort on the one hand, and a profitable use of property on the other hand, the question is, on whom in equity should the loss fall, where two adjoining or contiguous land proprietors find their interests clashing in the attempted use of the land by one for a purpose or trade, which causes personal discomfort to the other, who is residing upon his land. The injury to the personal comfort and health is not in such a case an absolute one. For, as was said by the court in one of the leading cases,1 “the people who live in such a city, i. e., where the principal industry consists of manufactures, or within its sphere of influence, do so of choice, and they voluntarily subject themselves to its peculiarities and its discomforts for the greater benefits they think they derive from their residence or business there.” If a noisome or unhealthy trade is plied in a part of a city, which is given up principally to residences, it might be considered a nuisance, while the same trade might, in a less populous neighborhood, or in one which is devoted to trade and manufacturing, be considered altogether permissible.2
Security to reputation—Privileged communications.3 —
A man’s reputation, the opinion entertained of him by his neighbors, is another valuable possession, and the security to which is most jealously, but, it must be confessed in most cases, ineffectually guarded against infractions. The breath of suspicion, engendered by a slanderous lie, will tarnish a fair name, long after the injurious statement has been proved to be an unfounded falsehood. But the aim of all legislation on the subject is to provide the proper protection against slander and libel, and failure in ordinary cases is caused by the poverty of the means of penal judicature, and does not arise from any public indifference. But dear to man as is the security to reputation, there are cases in which it must yield to the higher demands of public necessity and general welfare. Malice is generally inferred from a false and injurious statement or publication, and the slanderer and libeler are punished accordingly. But there are special cases, in which for reasons of public policy, or on account of the rebuttal of the presumption of malice by the co-existence of a duty to speak or an active interest in the subject, the speaker or writer is held to be “privileged,” that is, relieved from liability for the damage which has been inflicted by his false charges. These privileged communications are divided into two classes: first, those which are made in a public or official capacity, and which for reasons of public policy are not permitted to be the subject of a judicial action; and secondly, all those cases in which the circumstances rebut the presumption of malice. In these cases of the second class, the privilege is only partial. As already stated, the circumstances are held to rebut the presumption of malice, and throws upon the plaintiff the burden of proving affirmatively that the defendant was actuated by malice in making the false statement which has injured the plaintiff’s reputation. In these cases the proof of express malice revives the liability of the alleged slanderer.1 As Mr. Cooley says, “they are generally cases in which a party has a duty to discharge which requires that he should be allowed to speak freely and fully that which he believes; or where he is himself directly interested in the subject-matter of the communication, and makes it with a view to the protection or advancement of his own interest, or where he is communicating confidentially with a person interested in the communication, and by way of advice.”1 The cases of a private nature are very numerous, and for a full and exhaustive discussion of them, reference must be made to some work on slander and libel. Under this rule of exemption are included answers to inquiries after the character of one who had been employed by the person addressed, and who is soliciting employment from one who makes the inquiry,2 the answer of all inquiries between tradesmen concerning the financial credit and commercial reputation of persons who desire to enter into business dealings with the inquirers.3 While the private reports of mercantile agencies are privileged,4 the published reports of such agencies, which are distributed among the customers, are held not to constitute one of the privileged classes.5
All bona fide communications are privileged, where there is a confidential relation of any kind, existing between the parties in respect to the subject-matter of the inquiry. “All that is necessary to entitle such communications to be regarded as privileged is, that the relation of the parties should be such as to afford reasonable ground for supposing an innocent motive for giving the information, and to deprive the act of an appearance of officious intermeddling with the affairs of another.”1
The first class of privileged communications, enumerated above, is absolutely privileged, and there is no right of action, even though the false statement is proved to be prompted by malice. They are few in number, and the privilege rests upon public policy, and usually have reference to the administration of some branch of the government. They will be discussed in a regular order.
Privilege of legislators.—
In order that the legislator may, in the performance of his official duties, feel himself free from all restraining influences and able to act without fear or favor of anyone whatsoever, it is usually provided by a constitutional clause that he shall not be subjected elsewhere to any legal liability for any statement he may have made in speech or debate.2 Inasmuch as this absolute privilege is established in behalf of the legislator, not for his own benefit, but with a view to promote the public good, and inasmuch as the houses of Congress and of the State legislatures have the power to punish their members for disorderly behavior and unparliamentary language, a most liberal construction is given to this constitutional provision. “These privileges (the privilege of legislators from arrest and from liability for false statements in speech or debate) are thus secured, not with the intention of protecting the members against prosecutions for their own benefit, but to support the rights of the people, by enabling their representatives to execute the functions of their office without fear of prosecutions civil or criminal. I therefore think that the article ought not to be construed strictly, but liberally, that the full design of it may be answered. I will not confine it to delivering an opinion, uttering a speech, or haranguing in debate, but will extend it to the giving of a vote, to the making of a written report, and to every other act resulting from the nature and in the execution of the office; and I would define the article as securing to every member exemption from prosecution for everything said or done by him, as a representative, in the exercise of the functions of that office, without inquiring whether the exercise was regular and according to the rules of the house, or irregular and against their rules. I do not confine the member to his place in the house, and I am satisfied that there are cases in which he is entitled to this privilege when not within the walls of the representatives’ chamber. He cannot be exercising the functions of his office as the member of a body, unless the body be in existence. The house must be in session to enable him to claim this privilege, and it is in session, notwithstanding occasional adjournments for short intervals for the convenience of its members. If a member, therefore, be out of the chamber, sitting in committee, executing the commission of the house, it appears to me that such a member is within the reason of the article, and ought to be considered within the privilege. The body of which he is a member is in session, and he, as a member of that body, is in fact discharging the duties of his office. He ought, therefore, to be protected from civil or criminal prosecutions for everything said or done by him in the exercise of his functions, as a representative, in debating or assenting to or drafting a report. Neither can I deny the member his privilege when executing the duties of his office, in convention of both houses, although the convention should be holden in the senate chamber.”1 But even to so absolute a privilege as this, there is a limitation. Because a man holds the position of a legislator, the public interests do not require that he be given unlimited license to slander whom he pleases, and to screen himself from a just retribution under his legislative privilege. It is only when he is acting in his official capacity, that he can claim this protection. If, therefore, the slanderous statement has no relevancy to any public business or duty, is not even remotely pertinent to public questions then under discussion, the legislator in his utterance of them subjects himself to civil and criminal liability.2 A similar exemption from responsibility for official utterances is guaranteed to the President of the United States and to the governors of the several States.3
Privilege in judicial proceedings.—
The object of all judicial proceedings is the furtherance of justice by preventing or punishing wrongs and providing protection to rights. Although the law does not support, and is not designed to foster, a litigious spirit, yet whenever one, from all the facts within his knowledge, is justified in believing that he has suffered a wrong; in other words, if the facts within his knowledge make out a prima facie cause of action, he has a right to call to his aid the whole power of the law in the protection and enforcement of his rights, and it is to the public interest that a sufficient remedy be provided, and a resort to the courts be encouraged, in order to diminish the temptation, which is always present, to redress one’s own wrongs. Now, if one, in stating his cause of action to the court, will subject himself to liability for every mistake of fact that he might innocently make, appeals to the courts in such cases would thus be discouraged. It is therefore consonant with the soundest public policy, to protect from civil liability all false accusations contained in the affidavits, pleadings, and other papers, which are preliminary to the institution of a suit. But the courts are not to be made the vehicles for slanderous vilification, and hence the false accusations are privileged only when made in good faith, with the intention to prosecute, and under circumstances, which induced the affirmant, as a reasonably prudent man, to believe them to be true. The good faith rebuts the presumption of malice, and the affiant is protected under his privilege, as long as the statement is pertinent to the cause of action, and where he is not actuated by malice in making it. If the statement is not pertinent, or if express malice be proved, the liability attaches.1 All allegations in pleadings, if pertinent, are said to be absolutely privileged,2 except where the libelous words in the pleadings refer to third person, and not to the defendant. Then they are only privileged, when they are pertinent and are pronounced in good faith.1 Not only are false statements privileged, when made in preliminary proceedings, but a false statement has also been held to be privileged, where it has been made to one, after the commission of a crime, with a view to aid him in discovering the offender and bringing him to justice.2 And so, likewise, is a paper privileged, which is signed by several persons, who thereby agree to prosecute others, whose names are given in the paper, and who are therein charged with the commission of a crime.3
In the same manner is the report of the grand jury privileged, notwithstanding, in making it, they have exceeded their jurisdiction.4
When the case is called up in court for trial, the chief aim of the proceeding is the ascertainment of the truth, and all the protections thrown around the dramatis personæ in a judicial proceeding are designed to bring out the truth, and to insure the doing of justice. We therefore find as a familiar rule of law, that no action will lie against a witness for any injurious and false statement he might make on the witness stand. If he is guilty of perjury, he subjects himself to a criminal liability, but in no case does he incur any civil liability.5 But he is only privileged when the statement is pertinent to the cause and voluntarily offered. He is not the judge of what is pertinent, and is protected if his statement is prompted by a question of counsel, which is not forbidden by the court.1
The most important case of privilege, in connection with judicial proceedings, is that of counsel in the conduct of the cause. In order that the privilege may prove beneficial to the party whom the counsel represents, it must afford him the widest liberty of speech, and complete immunity from liability for any injurious false statement. It is, therefore, held very generally, that the privilege of counsel is as broad as that of the legislator, and that he sustains no civil liability for false, injurious statements, however malicious an intent may have actuated their utterance, provided they are pertinent to the cause on trial.4 Nowhere is the privilege of counsel more clearly elucidated than in the following extract from an opinion of Chief Justice Shaw: “We take the rule to be well settled by the authorities, that words spoken in the course of judicial proceedings, though they are such as impute crime to another, and therefore, if spoken elsewhere, would import malice and be actionable in themselves, are not actionable, if they are applicable and pertinent to the subject of inquiry. The question, therefore, in such cases is, not whether the words spoken are true, but whether they were spoken in the course of judicial proceedings, and whether they are relevant or pertinent to the cause or subject of inquiry. And in determining what is pertinent, much latitude must be allowed to the judgment and discretion of those who are intrusted with the conduct of a cause in court, and a much larger allowance made for the ardent and excited feelings with which a party or counsel, who naturally and almost necessarily identifies himself with his client, may become animated, by constantly regarding one side only of an interesting and animated controversy, in which the dearest rights of such a party may become involved. And if these feelings sometimes manifest themselves in strong invectives, or exaggarated expressions, beyond what the occasion would strictly justify, it is to be recollected that this is said to a judge who hears both sides, in whose mind the exaggerated statement may be at once controlled and met by evidence and argument of a contrary tendency from the other party, and who, from the impartiality of his position, will naturally give to an exaggerated assertion, not warranted by the occasion, no more weight than it deserves. Still, this privilege must be restrained by some limit, and we consider that limit to be this: that a party or counsel shall not avail himself of his situation to gratify private malice by uttering slanderous expressions, either against a party, witness or third person, which have no relation to the cause or subject-matter of the inquiry. Subject to this restriction, it is, on the whole, for the public interest, and best calculated to subserve the purposes of justice, to allow counsel full freedom of speech in conducting the causes and advocating and sustaining the rights of their constituents; and this freedom of discussion ought not to be impaired by numerous and refined distinctions.”1
While the importance of an almost unrestricted liberty of speech to a counsel is recognized and conceded, and likewise the difficulty in restraining abuses of the privilege, still the commonness of the abuse would well make the student of police power pause to consider, if there be no remedy which, while correcting the evil, will not tend to hamper the counsel in the presentation of his client’s case. Personal invective against one’s opponent, the “browbeating” of hostile witnesses, are the ready and accustomed weapons of poor lawyers, while really able lawyers only resort to them when their cause is weak. If the invective was confined to the subject-matter furnished and supported by the testimony before the court, and consisted of exaggerated and abusive presentations of proven facts, while even this would seem reprehensible to us, there are no possible means of preventing it. But it is not within the privilege of counsel to gratify private malice by uttering slanderous expressions, either against a party, a witness or a third person, which have no relation to the subject-matter of the inquiry. Counsel should be confined to what is relevant to the cause, whatever may be his motive for going outside of the record. The courts are too lax in this regard. No legislation is needed; they have the power in their reach to reduce this evil, for it is an evil, to a minimum. The most salutary remedy would be raising the standard of qualification for admission to the bar. The number of poor lawyers, now legion, would be greatly reduced, and consequently the abuse of this privilege lessened.
Criticism of officers and candidates for office.—
When a man occupies an official position, or is a candidate for office, the people whom he serves, or desires to serve, are interested in his official conduct, or in his fitness and capacity for the office to which he aspires. It would seem, therefore, that, following out the analogy drawn from cases of private communications, affecting the reputation of persons, in whom the parties giving and receiving the communications are interested, any candid, honest, canvass of the official’s or candidate’s character and capacity would be privileged, and the party making the communication will not be held liable, civilly or criminally, if it proves to be false. But here, as in the case of private communications, one or the other of the parties, who were concerned in the utterance of the slander or publication of the libel, must have been interested in the subject-matter of the communication. In the case of officials and candidates for office, in order to be privileged, the criticism must be made by parties who are interested personally in the conduct and character of the official or candidate. The subject-matter of the communication must, therefore, relate to his official conduct, if the party complained of be an officer, and, if he be a candidate for office, the communication should be confined to a statement of objections to his capacity and fitness for office. Not that in either case the man’s private conduct cannot be discussed under a similar privilege, although such a distinction is advocated in an English case.1 In this case, Baron Alderson says: “It seems there is a distinction, although I must say I really can hardly tell what the limits of it are, between the comments on a man’s public conduct and upon his private conduct. I can understand that you have a right to comment on the public acts of a minister, upon the public acts of a general, upon the public judgments of a judge, upon the public skill of an actor; I can understand that; but I do not know where the limit can be drawn distinctly between where the comment is to cease, as being applied solely to a man’s public conduct, and where it is to begin as applicable to his private character; because, although it is quite competent for a person to speak of a judgment of a judge as being an extremely erroneous and foolish one,—and no doubt comments of that sort have great tendency to make persons careful of what they say,—and although it is perfectly competent for persons to say of an actor that he is a remarkably bad actor, and ought not to be permitted to perform such and such parts, because he performs them so ill, yet you ought not to be allowed to say of an actor that he has disgraced himself in private life, nor to say of a judge or of a minister that he has committed a felony, or anything of that description, which is in no way connected with his public conduct or public judgment; and, therefore, there must be some limits, although I do not distinctly see where those limits are to be drawn.” Judge Cooley, in criticising this opinion,1 says: “The radical defect in this rule, as it seems to us, consists in its assumption that the private character of a public officer is something aside from, and not entering into or influencing his public conduct; that a thoroughly dishonest man may be a just minister, and that a judge, who is corrupt and debauched in private life, may be pure and upright in his judgments; in other words, than an evil tree is as likely as any other to bring forth good fruits. Any such assumption is false to human nature, and contradictory to general experience; and whatever the law may say, the general public will still assume that a corrupt life will influence public conduct, and that a man who deals dishonestly with his fellows as individuals will not hesitate to defraud them in their aggregate and corporate capacity, if the opportunity shall be given him.”
Where the private character would indicate the possession of evil tendencies, which can manifest themselves in, and influence, his official conduct to the detriment of the public, it would seem but natural that the same privilege should be extended to such a communication concerning a candidate for office, as if the same evil tendency had been manifested by some previous public or official conduct. In both cases, the conduct is brought forward as evidence of the same fact, his unfitness for the office to which he aspires. But a candidate for office may possess defects of character, which cannot in any way affect the public welfare by influencing or controlling his official conduct, and inasmuch as the privilege is granted, if at all, for the sole purpose of promoting a free discussion of the fitness of the candidate for office, such an object can be attained without opening the floodgates of calumny upon a man, and depriving him of the ordinary protection of the law, because he has presented himself as a candidate for the suffrages of the people. Thus while vulgarity of habits or speech, unchastity, and the like, may be considered great social and moral evils, they can hardly be considered to affect a candidate’s fitness for any ordinary office. Integrity, fidelity to trusts, are not incompatible with even libertinism, which is attested by the acts and lives of some of the public men of every country.1 Whereas dishonesty, in whatever form it may manifest itself, blind bigotry, and the like, do enter largely into the composition of one’s official capacity, and consequently the discussion of any acts which tend to establish these characteristics would come within the privileges, although these acts may be of private nature. But, although it may be justifiable in charging a candidate with vulgarity or unchastity, and the like, if they are true, there is no reason why they should be privileged, because they do not enter into the determination of the candidate’s fitness for office, and only raises a question of preference.
Where the party is holding an office instead of being a candidate for office, the only public interest to be subserved in the establishment of a privilege is the faithful performance of his official duty, and where the office is one, the incumbent of which can only be removed for malfeasance in office, only those communications should be held to be privileged, which criticise his public conduct. If, however, the office is appointive, and the incumbent is removable at the pleasure of the appointive power, the privilege should be as extensive as that which should relate to candidates, as already explained.
The foregoing statement presents what it is conceived should be the law. An investigation of the authorities, however, reveals a different condition of the law. The cases which fall under the subject of this section are naturally, as well as by the variance in the authorities, divided into two classes: First, where the office is one of appointment, and the criticism is contained in a petition or address to the appointing or removing power; and, secondly, where the office is elective, and the criticisms appear in publications of the press, or are made in speeches at public meetings, and are intended to influence the votes of the electors at large, who will be called upon to pronounce for or against the candidate. In the cases of the first class, it has been very generally held that the communications are privileged as long as they are bona fide statements, and the burden of establishing malice in their utterance is thrown upon the plaintiff. The Supreme Court of New York characterizes a contrary ruling in the court below, as “a decision which violates the most sacred and unquestionable rights of free citizens; rights essential to the very existence of a free government, rights necessarily connected with the relation of constituent and representative, the right of petitioning for a redress of grievances, and the right of remonstrating to the competent authority against the abuse of official functions.”1 Not only are these petitions privileged when they are presented, but also when they are being circulated for the purpose of procuring signatures.2
This privilege is not confined to communications, in the form of petitions, which relate to the incompetency, and call for the removal, of public officials. It is applied also to similar cases arising in the management and government of other and private bodies, whether incorporated or unincorporated. Thus all communications to church tribunals in reference to the moral character of its members, both lay and clerical, are protected by this privilege so as not to be actionable, if they were not prompted by malice.3 The same privilege protects a communication to the lodge of some secular organization, preferring charges against a member.1 In all these cases the privilege only extends to the communication or petitions, which are presented to the body or person, in whom the power of appointment and removal is vested, and if a petition is prepared, but never presented to the proper authority, any other publication of it would not be privileged.2
There is apparently no rational difference, so far as the justification of the privilege is concerned, between those cases, in which there is a remonstrance or petition to the body or person having the power of appointment and removal, and the cases of appeal or remonstrance to the general public, pronouncing the candidate for an elective office unfit for the same, either through incompetency or dishonesty, and one would naturally expect such a privilege. The electors, and the public generally, are interested in knowing the character and qualifications of those who apply for their suffrages; and the public welfare, in that regard, is best promoted by a full and free discussion of all those facts and circumstances in the previous life of the candidate, which are calculated to throw light upon his fitness for the office for which he applies. Where the statements respect only the mental qualification of the candidate, it has been held that they are privileged. “Talents and qualifications for office are mere matters of opinion, of which the electors are the only competent judges.”3 But where the communication impugns the character of the candidate, it appears that the privilege does not cover the case, and the affirmant makes the statement at his peril, being required by the law to ascertain for himself the truth or falsity of it. And the same rule applies to the deliberations of public meetings, as well as to the statements of an individual. In the leading case on this subject1 the court say: “That electors should have a right to assemble, and freely and openly to examine the fitness and qualifications of candidates for public offices, and communicate their opinions to others, is a position to which I most cordially accede. But there is a wide difference between this privilege and a right irresponsibly to charge a candidate with direct, specific, and unfounded crimes. It would, in my judgment, be a monstrous doctrine to establish that, when a man becomes a candidate for an elective office, he thereby gives to others a right to accuse him of any imaginable crime with impunity. Candidates have rights as well as electors; and those rights and privileges must be so guarded and protected as to harmonize one with the other. If one hundred or one thousand men, when assembled together, may undertake to charge a man with specific crimes, I see no reason why it should be less criminal than if each one should do it individually at different times and places. All that is required in the one case or the other is, not to transcend the bounds of truth. If a man has committed a crime, any one has a right to charge him with it, and is not responsible for the accusation; and can any one wish for more latitude than this? Can it be claimed as a privilege to accuse ad libilum a candidate with the most base and detestable crimes? There is nothing upon the record showing the least foundation or pretense for the charges. The accusation, then, being false, the prima facie presumption of law is, that the publication was malicious, and the circumstance of the defendant being associated with others does not per se rebut this presumption.” This position of the New York court has not only been sustained by later cases in the same State, but it has been followed generally by the other American courts, and it may be considered as the settled doctrine in this country.1
Publications through the press.—
It has been often urged in favor of the press, that a general and almost unrestricted privilege should be granted the proprietors of newspapers for all statements that might be received and printed in their paper in good faith, which subsequently prove to be false and injurious to some individual, provided it pertain to a matter in which the public may justly be supposed to be interested. This view has of late met with a strong support in Judge Cooley. In criticising an opinion of the New York court to the contrary,2 he says: “If this strong condemnatory language were confined to the cases in which private character is dragged before the public for detraction and abuse to pander to a depraved appetite for scandal, its propriety and justice and the force of its reasons would be at once conceded. But a very large proportion of what the newspapers spread before the public relates to matters of public concern, in which, nevertheless, individuals figure, and must, therefore, be mentioned in any account or discussion. To a great extent also, the information comes from abroad; the publisher can have no knowledge concerning it, and no inquiries which he could make would be likely to give him more definite information, unless he delays the publication, until it ceases to be of value to his readers. Whatever view the law may take, the public sentiment does not brand the publisher of news as libeler, conspirator or villain, because the telegraphic dispatches transmitted to him from all parts of the world, without any knowledge on his part concerning the facts, are published in his paper, in reliance upon the prudence, care and honesty of those who have charge of the lines of communication, and whose interest it is to be vigilant and truthful. The public demand and expect accounts of every important meeting, of every important trial, and of all the events which have a bearing upon trade and business, or upon political affairs. It is impossible that these shall be given in all cases without matters being mentioned derogatory to individuals; and if the question were a new one in the law, it might be worthy of inquiry whether some lines of distinction could not be drawn which would protect the publisher when giving in good faith such items of news as would be proper, if true, to spread before the public, and which he gives in the regular course of his employment, in pursuance of a public demand, and without any negligence, as they come to him from the usual and egitimate sources, which he has reason to rely upon; at the same time leaving him liable when he makes his columns the vehicle of private gossip, detraction and malice.”1 We believe that the law should “protect the publisher when giving in good faith such items of news as would be proper, if true, to spread before the public.” But the difficulty is experienced in determining what is proper to be published in an ordinary newspaper. It seems to us that whenever an event occurs in which the public generally is justified in demanding information, the published accounts will be covered by the ordinary privilege which is granted to the injurious and false statements of private individuals, when they are made to those who have a legitimate interest in the subject-matter.1 But there is no reason why any special protection should be thrown around the publisher of news. Any such special protection which cannot in reason be extended to the “village gossiper,” would in the main only serve to protect newspaper publishers in the publication of what is strictly private scandal. Except in one large class of cases, in which we think both the press and the individual are entitled to the protection asked for, viz.: in criticisms upon public officials and candidates for office, the general demand of Judge Cooley may be granted, indeed is now granted by the law which denies “that conductors of the public press are entitled to peculiar indulgences and have special rights and privileges.”2 But the demands of the press extend beyond the limits set down by Judge Cooley. The privilege they ask for is intended to furnish protection for all those thrilling accounts of crime and infamous scandal, the publication of which appears to be required by a depraved public taste, but which the thoughtful citizen would rather suppress than give special protection to the publisher. The only two cases in which a change in the existing law of privilege would perhaps be just and advisable, are, first, the public criticism of public officials and political candidates, and, secondly, the reports of failures or financial embarrassments of commercial personages. In the second case, the privilege is granted to individuals, and even to those well-known mercantile agencies, when they make private reports to their subscribers of the financial standing of some merchant;1 but the privilege does not appear to extend to the publication of such items in the newspapers.2 Recently, laws have been passed in several States, which prohibit the harassment of debtors by the publication of their names as bad debtors; and, in one case, the constitutionality of the law was contested, but unsuccessfully.1 United States statutes also prohibit the writing of “dunning” communications to debtors on postal cards.
The principal inquiry that concerns us in the present connection is, to what extent privileged communications remain so, when they are published through the public press. The privilege does not extend beyond the necessity which justifies its existence. Thus, for example, the law provides for the legal counsellor and advocate a complete immunity from responsibility for anything he says in the conduct of a cause. The privilege rests upon the necessity for absolute freedom of speech, in order to insure the attainment of justice between the parties. A publication of his speech will not aid in the furtherance of justice, and hence it is not privileged. But the law favors the greatest amount of publicity in legal proceedings, it being one of the political tenets prevailing in this country, that such publicity is a strong guaranty of personal liberty, and furthers materially the ends of justice. Hence we find that fair, impartial accounts of legal proceedings, which are not ex parte in character, are protected and are recognized as justifiable publications.2 The publication is privileged only when it is made with good motives and for justifiable ends.3 Observations or comments upon the proceedings do not come within the privilege.1 Nor, it seems, do the defamatory speeches come within the privilege thus accorded to the publication of legal proceedings.2 But ex parte proceedings, and all preliminary examinations, though judicial in character, do not come within the privilege, and are not protected when published in the newspaper. In one case, the court say: “It is our boast that we are governed by that just and salutary rule upon which security of life and character often depends, that every man is presumed innocent of crimes charged upon him, until he is proved guilty. But the circulation of charges founded on ex parte testimony, of statements made, often under excitement, by persons smarting under real or fancied wrongs, may prejudice the public mind, and cause the judgment of conviction to be passed long before the day of trial has arrived. When that day of trial comes, the rule has been reversed, and the presumption of guilt has been substituted for the presumption of innocence. The chances of a fair and impartial trial are diminished. Suppose the charge to be utterly groundless. If every preliminary ex parte complaint, which may be made before a police magistrate, may with entire impunity be published and scattered broadcast over the land, then the character of the innocent, who may be the victim of a conspiracy, or of charges proved afterwards to have arisen entirely from misapprehension, may be cloven down without any malice on the part of the publisher. The refutation of slander, in such cases, generally follows its propagation at distant intervals, and bring often but an imperfect balm to wounds which have become festered, and perhaps incurable. It is not to be denied that occasionally the publication of such proceedings is productive of good, and promotes the ends of justice. But in such cases, the publisher must find his justification, not in privilege, but in the truth of the charges.”1 .
But the English courts have lately shown an inclination to depart from this doctrine, particularly in relation to the publication of police reports. In a late case,2 Lord Campbell indorses and acts upon the following quotation from an opinion of Lord Denman, expressed before a committee of the House of Lords in 1843: “I have no doubt that (police reports) are extremely useful for the detection of guilt by making facts notorious, and for bringing those facts more correctly to the knowledge of all parties in unraveling the truth. The public, I think, are perfectly aware that those proceedings are ex parte, and they become more and more aware of it in proportion to their growing intelligence; they know that such proceedings are only in the course of trial, and they do not form their opinions until the trial is had. Perfect publicity in judicial proceedings is of the highest importance in other points of view, but in its effect upon character, I think it desirable. The statement made in open court will probably find its way to the ears of all in whose good opinion the party assailed feels an interest, probably in an exaggerated form, and the imputation may often rest upon the wrong person; both these evils are prevented by correct reports.” The publication of police reports, or of any other preliminary proceedings of a judicial nature, will bring the news to the ears of countless numbers of strangers, who, not knowing the party accused, will not likely be prejudiced in his favor, and certainly would not have heard or have taken any interest in the rumor of the man’s guilt, but for the publication. The readers of these reports, who are inclined to receive them in the judicial frame of mind, suggested by Lord Denman, are not numerous, and very few will dismiss from their minds all suspicions against the innocence of the accused when there has been a failure to convict him of the charge. Even when there has been a trial of the defendant, and the jury has brought in a verdict of acquittal, the publication of the proceedings is calculated to do harm to the reputation of the defendant. But the public welfare demands the freest publicity in ordinary legal proceedings, and the interest of the individual must here give way. On the other hand, there is no great need for the publication of the preliminary examinations. In only a few cases can the publication prove of any benefit to the public. The public demand being small, the sacrifice of private interest is not justified.
Not only is the publication of the proceedings of a court of law privileged; but the privilege extends to the publication in professional and religious journals of proceedings had before some judicial body or council, connected with the professional or religious organization, which the publishing paper represents.1 And so likewise would be privileged the publication of legislative proceedings, and the proceedings of congressional and legislative investigating committees.2
Security to reputation—Malicious prosecution.—
Although a prosecution on the charge of some crime may result in a verdict of acquittal, even where the trial would furnish to a judicial mind a complete vindication, by removing all doubts of the innocence of the accused, it will nevertheless leave its mark upon the reputation. Even a groundless acccusation will soil one’s reputation. But it is to the interest of the public, as well as it is the right of the individual, that resort should be made to the courts for redress of what one conceives to be a wrong. While a litigious spirit is to be deprecated, since in the institution of legal order the right to self-defense is taken away, except as an immediate preventive of attacks upon person and property, it is not only expedient but just, that when a man believing that he has a just claim against the defendant, or that this person has committed some act which subjects him to a criminal prosecution, sets the machinery of the law in motion, he should not be held responsible for any damage that might be done to the person prosecuted, in the event of his acquittal. The good faith of the prosecutor should shield him from liability. Any other rule would operate to discourage to a dangerous degree the prosecution of law-breakers, and hence it has been recognized as a wise limitation upon the right of security to reputation. But the interests of the public do not require an absolute license in the institution of groundless prosecutions. The protection of privilege is thrown around only those who in good faith commence the prosecution for the purpose of securing a vindication of the law, which they believe to have been violated. Hence we find that the privilege is limited, and, as it is succinctly stated by the authorities, in order that an action for malicious prosecution, in which the prosecutor may be made to suffer in damages, may be sustained, three things must concur: there must be an acquittal of the alleged criminal, the suit must have been instituted without probable cause, and prompted by malice.
A final acquittal is necessary, because a conviction would be conclusive of his guilt. And even where he is convicted in the court below, and a new trial is ordered by the superior court for error, the conviction is held to be conclusive proof of the existence of probable cause.1 But an acquittal, on the other hand, does not prove the want of probable cause, does not even raise the prima facie presumption of a want of probable cause. Probable cause, as defined by the Supreme Court of the United States, is “the existence of such facts and circumstances as would excite belief in a reasonable mind, acting on the facts within the knowledge of the prosecutor, that the person charged was guilty of the crime, for which he was prosecuted.”2
The want of probable cause cannot be inferred; it must be proven affirmatively and independently of the presence of actual malice. The plainest proof of actual malice will not support an action for malicious prosecution, if there be probable cause. With probable cause, the right to institute the prosecution is absolute, and the element of malice does not affect it.3 But when it has been shown that the defendant in the prosecution has been acquitted and that the suit had been instituted without probable cause, the malice need not be directly and affirmatively proved. It may be inferred from the want of probable cause. The want of probable cause raises the prima facie presumption of malice, and throws upon the prosecutor the burden of proving that he was not actuated by malice in the commencement of the prosecution.1 But this presumption may be rebutted by the presentation of facts, which indicate that the prosecutor was actuated solely by the laudable motives of bringing to justice one whom he considers a criminal. The want of probable cause is not inconsistent with perfect good faith. The prosecutor may have been honestly mistaken in the strength of his case. But when a man is about to institute a proceeding which will do irreparable damage to a neighbor’s reputation, however it may terminate, it is but natural that he should be required to exercise all reasonable care in ascertaining the legal guilt of the accused. As it was expressed in one case:2 “Every man of common information is presumed to know that it is not safe in matters of importance to trust to the legal opinion of any but recognized lawyers; and no matter is of more legal importance than private reputation and liberty. When a person resorts to the best means in his power for information, it will be such a proof of honesty as will disprove malice and operate as a defense proportionate to his diligence.” In order, therefore, that the prosecutor may, where a want of probable cause has been established against him, claim to have acted in good faith and thus screen himself from liability, he must show that he consulted competent legal counsel, and that the prosecution was instituted in reliance upon the opinion of counsel that he had a good cause of action.
Advice of counsel, how far a defense.—
It is remarkable with what uncertainty the books speak of the manner in which the advice of counsel constitutes a defense to the action for malicious prosecution. Some of the cases hold that it is proof of probable cause;1 some maintain that it disproves malice, in most cases imposing no limitation upon its scope,2 while others, and it is believed the majority of cases, refer to it as establishing both the absence of malice and the presence of a probable cause.3 If the position of these courts is correct, which hold that the advice of counsel establishes the existence of probable cause, then the advice of counsel will constitute an absolute bar to all actions for malicious prosecution, whenever there has been a full and fair disclosure of all the facts within the knowledge of the prosecutor; and the proof of actual malice as the cause of the prosecution will not render him liable, not even where the procurement of professional opinion was to furnish a cloak for his malice, or as a matter of precaution, to learn whether it was safe to commence proceedings. But probable cause does not rest upon the sincerity of the prosecutor’s belief, nor upon its reasonableness, as shown by facts which are calculated to influence his judgment peculiarly, and not the judgment of others. It must be established by facts which are likely to induce any reasonable man to believe that the accused is guilty. If probable cause depends upon the honest reasonable belief of the prosecutor in the guilt of the accused, it is certainly based upon reasonable grounds, if his legal adviser tells him that he has a good cause of action. But his belief does not enter into the determination of the question of probable cause. Although his honest belief in the guilt of the accused is necessary to shield him from a judgment for malicious prosecution, it is not because such belief is necessary to establish probable cause, but because its absence proves that the prosecution was instituted for the gratification of his malice. The opinion of counsel can not supplant the judgment of the court as to what is probable cause, and such would be the effect of the rule, that the advice of counsel establishes probable cause. As Mr. Justice Story said: “What constitutes a probable cause of action is, when the facts are given, matter of law upon which the court is to decide; and it can not be proper to introduce certificates of counsel to establish what the law is.”1
The better opinion, therefore, is that the advice of counsel only furnishes evidence of his good motives, in rebuttal to the inference of malice from want of probable cause. It does not constitute a conclusive presumption of good faith on the part of the prosecutor. If, therefore, there are facts, which establish the existence of malice, and show that the procurement of professional opinion was to cloak his malice, or as a matter of precaution to learn whether it was safe to commence proceedings, the defense will not prevail, and the prosecutor will, notwithstanding, be held liable.1
4 Bl. Com. 188, 189.
See post, § 60.
See post, § 60.
4 Bl. Com. 8.
4 Bl. Com. 8.
4 Bl. Com. 18.
4 Bl. Com. 9.
U. S. Const. Amend., art. 8.
Done v. People, 5 Park. 364. In People v. Durston, 119 N. Y. 569, and People v. Kemmler, 119 N. Y. 580, in which the New York statute, directing the infliction of the death penalty by electricity, was held to be constitutional, the court declared that this was not a new punishment, but only a new method of inflicting capital punishment. And where a new method of inflicting the same punishment was directed by statute, its constitutionality can be successfully attacked only by proving that the new method would produce extreme and unnecessary suffering. In other words, a new punishment must be both cruel and unusual, in order to fall under the ban of this constitutional provision. See, also, in confirmation of these New York cases, In re Kemmler, 136 U. S. 436, in which it is held that the New York statute does not violate the Fourteenth Amendment of the Constitution of the United States, by imposing a cruel punishment. See post, § 31, as to the application of this constitutional provision to the punishment of crimes in general.
Cooley Const. Lim. 403, 404.
4 Bl. Com. 402-404.
“Without such security society loses most of its value. Peace and order and domestic happiness, inexpressibly more precious than mere forms of government, cannot be enjoyed without the sense of perfect security.” Gilchrist, J., in Beach v. Hancock, 27 N. H. 223.
In Maryland it has been revived as a punishment for wife-beating.
Taylor, Ch. J., in State v. Kearney, 1 Hawks, 53.
“Among all nations of civilized man, from the earliest ages, the infliction of stripes has been considered more degrading than death itself.” Herber v. State, 7 Texas, 69.
Cooley Const. Lim. *330.
Commonwealth v. Wyatt, 6 Rand. 694; Foote v. State, 59 Md. 264 (for wife-beating); Garcia v. Territory, 1 New Mex. 415. In the last case, the corporal punishment was inflicted for horse-stealing.
Cornell v. State, 6 Lea, 624. This power is exercised generally throughout the country; it is hard to say, to what extent with the direct sanction of law.
1 Bishop Crim. Law, § 722. Under the national government, both the whipping-post and the pillory were abolished by act of Congress in 1839. 5 U. S. Stat. at Large, ch. 36, § 5.
See post, §§ 191, 195, 203.
Bartlett v. Churchhill, 24 Vt. 218; Elliott v. Brown, 2 Wend. 497; Murray v. Commonwealth, 79 Pa. St. 311; Lewis v. State, 51 Ala. 1; McPherson v. State, 29 Ark. 225; Holloway v. Commonwealth, 11 Bush, 344; Erwin v. State, 29 Ohio St. 186; Roach v. People, 77 Ill. 25; State v. Kennedy, 20 Iowa, 569; State v. Shippen, 10 Minn. 223.
4 Bl. Com. 217. See People v. Sullivan, 7 N. Y. 396; State v. Dixon, 75 N. C. 275; Haynes v. State, 17 Ga. 465; Tweedy v. State, 5 Iowa, 433.
Shorter v. People, 2 N. Y. 193; Patterson v. People, 46 Barb. 625.
Elem. c. 5.
4 Bl. 186.
Reg v. Dudley, 15 C. C. 624; 14 L. R. Q. B. Div. 273, 560; 54 L. J. M. C. 32, 52. See the Mignonette Case, 19 Am. Law Rev. 118.
Staten v. State, 30 Miss. 619; Briggs v. State, 29 Ga. 733.
Commonwealth v. Malone, 114 Mass. 295; Stoneman v. Commonwealth, 25 Gratt. 887; State v. Johnson, 75 N. C. 174; Staten v. State, 30 Miss. 619; Patten v. People, 18 Mich. 314.
Green v. Goddard, 2 Salk. 641; Beecher v. Parmele, 9 Vt. 352; Harrison v. Harrison, 43 Vt. 417; Ayers v. Birtch, 35 Mich. 501; Woodman v. Howell, 45 Ill. 367; Abt v. Burgheim, 80 Ill. 92; Staehlin v. Destrehan, 2 La. Ann. 1019; McCarty v. Fremont, 23 Cal. 196.
State v. Burwell, 63 N. C. 661; McPherson v. State, 22 Ga. 478; State v. Abbott, 8 W. Va. 741; Pitford v. Armstrong, Wright (Ohio), 94; Wall v. State, 51 Ind. 453; Pond v. People, 8 Mich. 150; State v. Stockton, 61 Mo. 382; Palmore v. State, 29 Ark. 248.
State v. Vance, 17 Iowa. 138. See Loomis v. Terry, 17 Wend. 496. See, also, Bird v. Holbrook, 4 Bing. 628; Aldrich v. Wright, 53 N. H. 398 (16 Am. Rep. 339); Hooker v. Miller, 37 Iowa, 613 (18 Am. Rep. 18), where it is held that the use of spring guns and other like instruments, which cause the death of trespassers upon the land, is not permissible.
Commonwealth v. Haley, 4 Allen, 318; Sampson v. Henry, 13 Pick. 336; Churchill v. Hulbert, 110 Mass. 42 (14 Am. Rep. 578).
Cockroft v. Smith, 11 Mod. 43; Barfoot v. Reynolds, 2 Stra. 953; State v. Gibson, 10 Ired. 214.
Tiedeman on Real Property, § 228.
Reeder v. Pardy, 41 Ill. 261; Doty v. Burdick, 83 Ill. 473; Knight v. Knight, 90 Ill. 208; Dustin v. Cowdry, 23 Vt. 631; Whittaker v. Perry, 38 Vt. 107 (but see contra Beecher v. Parmelee, 9 Vt. 352; Mussey v. Scott, 32 Vt. 82). See Moore v. Boyd, 24 Me. 247.
Harvey v. Brydges, 13 M. & W. 437; Davis v. Burrell, 10 C. B. 821; Hilbourne v. Fogg, 99 Mass. 11; Churchill v. Hulbert, 110 Mass. 42 (15 Am. Rep. 578); Clark v. Kelliher, 107 Mass. 406; Stearns v. Sampson, 59 Me. 569 (8 Am. Rep. 442); Sterling v. Warden, 51 N. H. 239 (12 Am. Rep. 80); Livingston v. Tanner, 14 N. H. 64; Estes v. Redsey, 8 Wend. 560; Kellum v. Jansorn, 17 Pa. St. 467; Zell v. Reame, 31 Pa. St. 304; Todd v. Jackson, 26 N. J. L. 525; Walton v. Fill, 1 Dev. & B. 507; Johnson v. Hanahan, 1 Strobh. 313; Tribble v. Frame, 1 J. J. Marsh. 599; Krevet v. Meyer, 24 Mo. 107; Fuhr v. Dean, 26 Mo. 116. But where force is used after a peaceable entry to eject a tenant, it is lawful and will not sustain a prosecution for assault and battery. Stearns v. Sampson, 59 Me. 569 (8 Am. Rep. 442).
1 Bl. Com. 154.
Commonwealth v. Parker, 9 Metc. 263; State v. Cooper, 22 N. J. L. 52; see Abrams v. Foshee, 3 Iowa, 274; Hatfield v. Gano, 15 Iowa, 177; People v. Jackson, 3 Hill, 92; Wilson v. Iowa, 2 Ohio St. 319; Robbins v. State, 8 Ohio St. 131; State v. Smith, 32 Me. 369; Commonwealth v. Wood, 11 Gray, 85; Mills v. Commonwealth, 13 Pa. St. 631; State v. Morrow, 40 S. C. 221; Com. v. Thompson, 159 Mass. 56; Cave v. State, 33 Tex. Cr. Rep. 335; People v. McGonegal, 136 N. Y. 62. One who abets or assists in procuring an abortion is guilty of a crime. People v. Vanzile, 73 Hun, 534. So, also, is the unsuccessful attempt to commit an abortion a punishable crime. Com. v. Tibbetts, 157 Mass. 519. And see People v. McGonegal, supra, as to the effect of evidence, that the time was not sufficient for the successful commission of the crime of abortion.
See post, § 44.
In Montreal, Canada, during the winter of 1885-86, the enforcement of such a law was resisted by a large part of the population, and serious riots ended. It has been made optional in England by recent statute (1898).
Bissell v. Davison, 65 Conn. 183; In re Walters, 84 Hun, 457; Duffield v. School Dist. of Williamsport, 162 Pa. St. 476; Abeel v. Clark, 84 Cal. 226. In Illinois it has been held that a school board cannot require vaccination as a condition precedent to the attendance of a child upon the public school, except where small-pox is epidemic in the place. People v. Board of Education, 177 Ill. 572.
Morris v. City of Columbus, 102 Ga. 792.
On the general question of the constitutionality of law, requiring all school children to be vaccinated, see Nissley v. School Directors, 18 Pa. Co. Ct. 481; 5 Pa. Dist. 732; Sprague v. Baldwin, 18 Pa. Co. Ct. 568; Duffield v. Williamsport School Dist., 162 Pa. St. 476; Bissell v. Davison, 65 Conn. 183; In re Rebenack, 62 Mo. App. 8; Morris v. City of Columbus (Ga. 99), 30 S. E. 850; Miller v. School Dist., 5 Wyo. 217. There must, of course, be an express statutory authority, in order to justify a board of health in forcing vaccination upon unwilling patients. State v. Burdge, 95 Wis. 390. And where compulsory vaccination is provided for in general terms, it can be enforced against school children only on the occasion of a small pox epidemic. A resolution of a school board, under such a law, denying the privileges of the school to children at other times, who do not produce a certificate of vaccination, is void and without authority. Potts v. Breen, 167 Ill. 67; 47 N. E. 81. But it is lawful, however, to require at all times such a certificate of vaccination when it is authorized by statute. Lawbaugh v. Board of Education, 66 Ill. App. 159.
See post, § 145, for a more thorough discussion of nuisances.
See post, § 154, in respect to the power of the State to compel the owner of land to remove natural causes of annoyance.
Reeves v. Treasurer, 8 Ohio St. 333.
Roberts v. Chicago, 26 Ill. 249. See Wilson v. New York, 1 Denio, 595; Mills v. Brooklyn, 32 N. Y. 489; Carr v. Northern Liberties, 35 Pa. St. 824; Detroit v. Michigan, 34 Mich. 125; Delphi v. Evans, 36 Ind. 90; Cotes v. Davenport, 9 Iowa, 227; Lamber v. St. Louis, 15 Mo. 610; White v. Yazoo, 27 Miss. 357.
See Cooley on Torts, 616.
Cooley on Torts, 596.
Huckenstein’s Appeal, 70 Pa. St. 102 (10 Am. Rep. 669).
St. Helen’s Smelting Co. v. Tipling, 11 H. L. Cas. 642; Whitney v. Bartholomew, 21 Conn. 213; McKeon v. Lee, 51 N. Y. 300 (10 Am. Rep. 659); Huckenstein’s Appeal, 70 Pa. St. 102 (10 Am. Rep. 669); Gilbert v. Showerman, 23 Mich. 448; Kirkman v. Handy, 11 Humph. 406; Cooley on Torts, 596-605; 1 Dillon’s Municipal Corp., § 374, note. “If one lives in a city he must expect to suffer the dirt, smoke, noisome odors, noise and confusion incident to city life. As Lord Justice James beautifully said in Salvin v. North Brancepeth Coal Co., L. M. 9 Ch. Ap. 705, ‘if some picturesque haven opens its arms to invite the commerce of the world, it is not for this court to forbid the embrace, although the fruit of it should be the sights and sounds and smells of a common seaport and shipbuilding town, which would drive the Dryads and their masters from their ancient solitude.’ ” Earl, J., in Campbell v. Seaman, 63 N. Y. 568.
In this and succeeding sections, which relate to security to reputation, the law has remained unchanged, and, as the inclusion of this subject in the present volume may be considered as a reduction of it to an academic question, I have not attempted to collect the later cases which have involved these questions.
“It properly signifies this and nothing more; that the excepted instances shall so far change the ordinary rule with respect to slanderous or libelous matter as to remove the regular and usual presumption of malice, and to make it incumbent on the party complaining to show malice.” Daniel, J., in White v. Nichols, 3 How. 266, 287. See Lewis v. Chapman, 16 N. Y. 369.
Cooley Const. Lim. 425.
Pattison v. Jones, 8 B. & C. 578; Bradley v. Heath, 12 Pick. 163; Hatch v. Lane, 105 Mass. 394; Elam v. Badger, 23 Ill. 498; Noonan v. Orton, 32 Wis. 106. So also is a subsequent communication to one who had employed a clerk upon the former’s recommendation, of the facts which have induced a change of opinion. Fowles v. Bowen, 30 N. Y. 20.
Smith v. Thomas, 2 Bing. N. C. 372; White v. Nichols, 3 How. 266; Cooley on Torts, 216.
Lewis v. Chapman, 16 N. Y. 369; Ormsby v. Douglass, 37 N. Y. 477.
Taylor v. Church, 8 N. Y. 452; Sunderlin v. Bradstreet, 46 N. Y. 188 (7 Am. Rep. 322). See note 2, p. 55.
Lewis v. Chapman, 16 N. Y. 369. See Todd v. Hawkins, 8 C. & P. 88; Cockagne v. Hodgkisson, 5 C. & P. 543; Klinck v. Colby, 46 N. Y. 274 (7 Am. Rep. 360); Joannes v. Bennett, 5 Allen, 170; Hatch v. Lane, 105 Mass. 394; Fitzgerald v. Robinson, 112 Mass. 371; State v. Burnham, 9 N. H. 34; Knowles v. Peck, 42 Conn. 386 (19 Am. Rep. 542); Goslin v. Cannon, 1 Harr. 3; Grimes v. Coyle, 6 B. Mon. 301; Rector v. Smith, 11 Iowa, 302.
The provision in the United States constitution is, “And for any speech or debate in either house, they (the members of Congress) shall not be questioned in any other place.” U. S. Const. art. I., § 6. It is believed that similar provisions are to be found in every State constitution having reference to members of State legislatures, except those of North Carolina, South Carolina, Mississippi, Texas, California and Nevada. Cooley Const. Lim. *446, note 1.
Coffin v. Coffin, 4 Mass. 1, 27 (3 Am. Dec. 189). The constitutional provision, which was in force when this case arose, was as follows: “The freedom of deliberation, speech and debate in either house, cannot be the foundation of any accusation or prosecution, action or complaint, in any other court or place whatever.”
Coffin v. Coffin, 4 Mass. 1 (3 Am. Dec. 189); State v. Burnham, 9 N. H. 34; Perkins v. Mitchell, 31 Barb. 461.
Cooley on Torts, 214.
Kine v. Sewell, 3 Mees. & W. 297; Kidder v. Parkhurst, 3 Allen, 393; Worthington v. Scribner, 108 Mass. 487 (12 Am. Rep. 736); Eames v. Whittaker, 123 Mass. 342; Jarvis v. Hathaway, 3 Johns. 180; Allen v. Crofoot, 2 Wend. 515; Burlingame v. Burlingame, 8 Cow. 141; Garr v. Selden, 4 N. Y. 91; Maurice v. Worden, 54 Md. 233 (39 Am. Rep. 384); Vaussee v. Lee, 1 Hill (S. C.), 197 (26 Am. Dec. 168); Marshall v. Gunter, 6 Rich. 419; Lea v. Sneed, 4 Sneed, 111; Grimes v. Coyle, 6 B. Mon. 301; Bunton v. Worley, 4 Bibb, 38 (7 Am. Dec. 735); Strauss v. Meyer, 48 III. 385; Spaids v. Barrett, 57 III. 289; Wyatt v. Buell, 47 Cal. 624.
Strauss v. Meyer, 48 III. 385; Lea v. White, 4 Sneed, 111; Forbes v. Johnson, 11 B. Mon. 48.
McLaughlin v. Cowley, 127 Mass. 316; Davis v. McNees, 8 Humph. 40; Ruohs v. Packer, 6 Heisk. 395 (19 Am. Rep. 598); Wyatt v. Buell, 47 Cal. 624.
Goslin v. Cannon, 1 Harr. 3.
Klinck v. Colby, 46 N. Y. 427 (7 Am. Rep. 360).
Rector v. Smith, 11 Iowa, 302.
Dunlap v. Glidden, 31 Me. 435; Barnes v. McCrate, 32 Me. 442; Cunningham v. Brown, 18 Vt. 123; Allen v. Crofoot, 2 Wend. 515 (20 Am. Dec. 647); Garr v. Selden, 4 N. Y. 91; Marsh v. Ellsworth, 50 N. Y. 309; Grove v. Brandenburg, 7 Black f. 234; Shock v. McChesney, 4 Yeates, 507 (2 Am. Dec. 415); Terry v. Fellows, 21 La. Ann. 375; Smith v. Howard, 28 Iowa, 51.
See Barnes v. McCrate, 32 Me. 442; Kidder v. Parkhurst, 3 Allen, 393; White v. Carroll, 42 N. Y. 166 (1 Am. Rep. 503); Calkins v. Sumner, 13 Wis. 193.
Cooley on Torts, 214; Townshend on Slander and Libel, § 227.
Dunham v. Powers, 42 Vt. 1; Rector v. Smith, 11 Iowa, 302.
Hastings v. Lusk, 22 Wend. 410 (34 Am. Dec. 380); Warner v. Paine, 2 Sandf. 195; Marsh v. Ellsworth, 50 N. Y. 309; McMillan v. Birch, 1 Binney, 178 (2 Am. Dec. 426); McLaughlin v. Cowley, 127 Mass. 316; Harden v. Comstock, 2 A. K. Marsh. 480 (12 Am. Dec. 168); Spaids v. Barnett, 57 Ill. 289; Jennings v. Paine, 4 Wis. 358.
Hoar v. Wood, 3 Metc. 193. See Bradley v. Heath, 12 Pick. 163; Mower v. Watson, 11 Vt. 536 (34 Am. Dec. 704); Gilbert v. People, 1 Denio, 41; Ring v. Wheeler, 7 Cow. 725; Hastings v. Lusk, 22 Wend. 410 (34 Am. Dec. 380); Stackpole v. Hennen, 6 Mart. (n. s.) 481 (17 Am. Dec. 187); Marshall v. Gunter, 6 Rich. 419; Lester v. Thurmond, 51 Ga. 118; Ruohs v. Backer, 6 Heisk. 395 (19 Am. Rep. 598); Lawson v. Hicks, 38 Ala. 279; Jennings v. Paine, 4 Wis. 358.
Gathercole v. Miall, 15 Mees. & W. 319.
Cooley Const. Lim. 440.
But the retirement from public life during the present year (1886) of a prominent English statesman on account of his conviction of the act of adultery, would indicate that public sentiment is changing in this regard, and at no distant day will require that the private character of public men shall be as pure as their public character.
Thorn v. Blanchard, 5 Johns. 508. In Howard v. Thompson, 21 Wend. 319, it was held in order that plaintiff may sustain his action in such a case, he must not only prove actual malice, but also show the want of probable cause, the action being considered by the court of the nature of an action for malicious prosecution. See, generally, in support of the privilege, Bodwell v. Osgood, 3 Pick. 379 (15 Am. Dec. 228); Bradley v. Heath, 12 Pick. 163; Hill v. Miles, 9 N. H. 9; State v. Burnham, 9 N. H. 34 (31 Am. Dec. 217); Howard v. Thompson, 12 Wend. 545; Gray v. Pentland, 2 Serg. & R. 23; Van Arnsdale v. Laverty, 69 Pa. St. 103; Harris v. Huntington, 2 Tyler, 129 (4 Am. Dec. 728); Reid v. DeLorme, 2 Brev. 76; Forbes v. Johnson, 11 B. Mon. 48; Whitney v. Allen, 62 Ill. 472; Larkin v. Noonan, 19 Wis. 82. In George Knapp & Co. v. Campbell (Tex. Civ. App.), 36 S. W. 765, it was held that the publication in a newspaper of false accusations against a candidate for an appointive Federal office, was not privileged.
Vanderzee v. McGregory, 12 Wend. 545; Street v. Wood, 15 Barb. 105.
Kershaw v. Bailey, 1 Exch. 743; Farnsworth v. Storrs, 5 Cush. 412; Remington v. Congdon, 2 Pick. 310; York v. Pease, 2 Gray, 282; Fairchild v. Adams, 11 Cush. 549; Shurtleff v. Stevens, 51 Vt. 501 (31 Am. Rep. 698); Haight v. Cornell, 15 Conn. 74; O’Donaghue v. McGovern, 23 Wend 26; Wyick v. Aspinwall, 17 N. Y. 190; Chapman v. Calder, 14 Pa. St. 365; McMillan v. Birch, 1 Binn. 178 (2 Am. Dec. 426); Reid v. DeLorne, 2 Brev. 76; Dunn v. Winters, 2 Humph. 512; Lucas v. Case, 9 Bush, 562; Dial v. Holter, 6 Ohio St. 228; Kleizer v. Symmes, 40 Ind. 562; Servatius v. Pichel, 34 Wis. 292.
Streety v. Wood, 15 Barb. 105; Kirkpatrick v. Eagle Lodge, 26 Kan. 384. A report by officers of a corporation to a meeting of its stockholders falls under the same rule. Philadelphia, etc., R. R. Co. v. Quigley, 21 How. 202.
Fairman v. Ives, 5 B. & Ald. 642; Woodward v. Lander, 6 L. & P. 548; State v. Burnham, 9 N. H. 34; Hosmer v. Loveland, 19 Barb. 111; Cook v. Hill, 3 Sandf. 341.
Mayrant v. Richardson, 1 Nott & McCord, 348 (9 Am. Dec. 707); Commonwealth v. Clapp, 4 Mass. 163 (3 Am. Dec. 212); Commonwealth v. Morris, 1 Va. Cas. 175 (5 Am. Dec. 515); Sweeney v. Baker, 13 W. Va. 158 (31 Am. Rep. 757); Mott v. Dawson, 46 Iowa, 533. But see Robbins v. Treadway, 2 J. J. Marsh. 540 (19 Am. Dec. 152); Spiering v. Andree, 45 Wis. 330 (30 Am. Rep. 744).
Lewis v. Few, 5 Johns. 1, 35.
See King v. Root, 4 Wend. 113 (21 Am. Dec. 102); Powers v. Dubois, 17 Wend. 63; Hunt v. Bennett, 19 N. Y. 173; Hamilton v. Eno, 81 N. Y. 116; Thomas v. Crosswell, 7 Johns. 264 (5 Am. Dec. 269); Tillson v. Robbins, 68 Me. 295 (28 Am. Rep. 50); Hook v. Hackney, 16 Serg. & R. 385; Sweeney v. Baker, 13 W. Va. 158 (31 Am. Rep. 757); Foster v. Scripps, 39 Mich. 376 (33 Am. Rep. 403); Wilson v. Noonan, 35 Wis. 321; Gottbehuet v. Hubachek, 36 Wis. 515; Gove v. Bleehen, 21 Min. 80 (18 Am. Rep. 380), Rearick v. Wilcox, 81 Ill. 77; Russell v. Anthony, 21 Kan. 450 (30 Am. Rep. 436). See Barr v. Moore, 87 Pa. St. 385 (30 Am. Rep. 367).
Hotchkiss v. Oliphant, 2 Hill, 510-513, per Nelson, Ch. J.
Cooley Const. Lim. *454.
See Commonwealth v. Nichols, 10 Met. 259; Mason v. Mason, 4 N. H. 110; Carpenter v. Bailey, 53 N. H. 590; Lewis v. Few, 5 Johns. 1; Andres v. Wells, 7 Johns. 260 (5 Am. Dec. 257); Dale v. Lyon, 10 Johns. 447 (6 Am. Dec. 346); Marten v. Van Shaik, 4 Paige, 479; Sandford v. Bennett, 24 N. Y. 20; Hampton v. Wilson, 4 Dev. 468; Parker v. McQueen, 8 B. Mon. 16; Fowler v. Chichester, 26 Ohio St. 9; Cates v. Kellogg, 9 Ind. 506; Farr v. Rasco, 9 Mich. 353; Wheeler v. Shields, 3 Ill. 348; Cummerford v. McAvoy, 15 Ill. 311; Hawkins v. Lumsden, 10 Wis. 359; Beardsley v. Bridgman, 17 Iowa, 290.
“The law recognizes no such peculiar rights, privileges or claims to indulgence. They have no rights but such as are common to all. They have just the same rights that the rest of the community have, and no more. They have the right to publish the truth, but no right to publish falsehood to the injury of others with impunity.” King v. Root, 4 Wend. 113 (21 Am. Dec. 102).
Lewis v. Chapman, 16 N. Y. 369; Ormsby v. Douglass, 37 N. Y. 477.
Thus, the reports of a mercantile agency, published and distributed among its subscribers, have been held not to be privileged. Giacona v. Bradstreet, 48 La. Ann. 1191; Taylor v. Church, 8 N. Y. 452; Sunderlin v. Bradstreet, 46 N. Y. 188 (7 Am. Rep. 322). It may be assumed that if any one, having an interest in knowing the credit and standing of the plaintiffs, or whom the defendants supposed and believed to have had such interest, had made the inquiry of the defendants, and the statement in the alleged libel had been made in answer to the inquiry in good faith; and upon information upon which the defendants relied, it would have been privileged. This was the case of Ormsby v. Douglass, 37 N. Y. 477. The business of the defendant in that case was of a similar character to that of the present defendants; and the statement complained of was made orally, to one interested in the information, upon personal application at the office of the defendant who refused to make a written statement. There was no other publication, and it was held that the occasion justified the defendant in giving such information as he possessed to the applicant.
State v. McCabe, 135 Mo. 450.
Lewis v. Levy, E. B. & E. 537; Hoare v. Silverlock, 9 C. B. 20; Torrey v. Field, 10 Vt. 353; Stanley v. Webb, 4 Sandf. 21; Fawcett v. Charles, 13 Wend. 473; McBee v. Fulton, 47 Md. 403 (28 Am. Rep. 465); Cincinnati Gazette Co. v. Timberlake, 10 Ohio St. 548. The privilege is also extended to the publication of investigations ordered by Congress. Ferry v. Fellows, 21 La. Ann. 375.
Saunders v. Baxter, 6 Heisk. 369.
Stiles v. Nokes, 7 East, 493; Clark v. Binney, 2 Pick. 112; Commonwealth v. Blanding, 3 Pick. 304 (15 Am. Dec. 214); Pittock v. O’Neill, 63 Pa. St. 253 (3 Am. Rep. 544); Scripps v. Reilly, 38 Mich. 10; Storey v. Wallace, 60 Ill. 51.
Saunders v. Mills, 6 Bing. 213; Flint v. Pike, 4 B. & C. 473. See Stanley v. Webb, 4 Sandf. 21.
Stanley v. Webb, 4 Sandf. 21. See Usher v. Severance, 21 Me. 9 (37 Am. Dec. 33); Matthews v. Beach, 5 Sandf. 259; Cincinnati Gazette Co. v. Timberlake, 10 Ohio St. 548; Duncan v. Thwaites, 3 B. & C. 556; Charlton v. Watton, 6 C. & P. 385.
Lewis v. Levy, E. B. & E. 537.
Burrows v. Bell, 7 Gray, 301; Shurtleff v. Stevens, 51 Vt. 501 (31 Am. Rev. 698).
Terry v. Fellows, 21 La. Ann. 375.
Witham v. Gowen, 14 Me. 362; Payson v. Caswell, 22 Me. 212; Whitney v. Peckham, 15 Mass. 242; Bacon v. Towne, 4 Cush. 217; Kirkpatrick v. Kirkpatrick, 39 Pa. St. 288; Griffs v. Sellars, 4 Dev. & Bat. 176.
Wheeler v. Nesbit, 24 How. (U. S.) 545. See Gee v. Patterson, 63 Me. 49; Barron v. Mason, 31 Vt. 189; Mowry v. Whipple, 8 R. I. 360; Stone v. Stevens, 12 Conn. 219; Carl v. Ayres, 53 N. Y. 13; Farnam v. Feeley, 55 N. Y. 551; Fagnan v. Knox, 65 N. Y. 525; Winebiddle v. Porterfield, 9 Pa. St. 137; Boyd v. Cross, 35 Md. 194; Spengle v. Davy, 15 Gratt. 381; Braveboy v. Cockfield, 2 McMul. 270; Raulston v. Jackson, 1 Sneed, 128; Faris v. Starke, 3 B. Mon. 4; Collins v. Hayte, 50 Ill. 353; Gallaway v. Burr, 32 Mich. 332; Lawrence v. Lanning, 4 Ind. 194; Shaul v. Brown, 28 Iowa, 57 (4 Am. Rep. 151); Bauer v. Clay, 8 Kan. 580.
Williams v. Taylor, 6 Bing. 183; Cloon v. Gerry, 13 Gray, 201; Heyne v. Blair, 62 N. Y. 19; Travis v. Smith, 1 Pa. St. 234; Bell v. Pearcy, 5 Ired. 83; Hall v. Hawkins, 5 Humph. 357; Israel v. Brooks, 23 Ill. 575; King v. Ward, 77 Ill. 603; Mitchinson v. Cross, 58 Ill. 366; Callahan v. Caffarati, 39 Mo. 136; Sappington v. Watson, 50 Mo. 83; Malone v. Murphy, 2 Kan. 250.
Merriam v. Mitchell, 13 Me. 439; Mowry v. Whipple, 8 R. I. 360; Closson v. Staples, 42 Vt. 209; Panghurn v. Bull, 1 Wend. 345; McKewn v. Hunter, 30 N. Y. 624; Dietz v. Langfitt, 63 Pa. St. 234; Cooper v. Utterbach, 37 Md. 282; Flickinger v. Wagner, 46 Md. 581; Ewing v. Sanford, 19 Ala. 605; Blass v. Gregor, 15 La. Ann. 421; White v. Tucker, 16 Ohio St. 468; Ammerman v. Crosby, 26 Ind. 451; Harpham v. Whitney, 77 Ill. 32; Holliday v. Sterling, 62 Mo. 321; Harkrader v. Moore, 44 Cal. 144.
Campbell, J., in Stanton v. Hart, 27 Mich. 539.
See Olmstead v. Partridge, 16 Gray, 383; Besson v. Southard, 10 N. Y. 237; Laughlin v. Clawson, 27 Pa. St. 330; Fisher v. Forrester, 33 Pa. St. 501; Ross v. Innis, 26 Ill. 259; Potter v. Sealey, 8 Cal. 217; Levy v. Brannan, 39 Cal. 485. Mr. Cooley, in his work on Torts, p. 183, says: “A prudent man is, therefore, expected to take such advice (of counsel), and when he does so, and places all the facts before his counsel, and acts upon his opinion, proof of the fact makes out a case of probable cause, provided the disclosure appears to have been full and fair, and not to have withheld any of the material facts.”
Snow v. Allen, 1 Stark. 409; Sommer v. Wilt, 4 Serg. & R. 20; Davenport v. Lynch, 6 Jones L. 545; Stanton v. Hart, 27 Mich. 539; Murphy v. Larson, 77 Ill. 172; Williams v. Van Meter, 8 Mo. 339; Center v. Spring, 2 Clarke, 393; Rover v. Webster, 3 Clarke, 502.
See Soule v. Winslow, 66 Me. 447; Bartlett v. Brown, 6 R. I. 37; Ames v. Rathbun, 55 Barb. 194; Walter v. Sample, 25 Pa. St. 275; Turner v. Walker, 3 G. & J. 380; Gould v. Gardner, 8 La. Ann. 11; Phillips v. Bonham, 16 La. Ann. 387; Lemay v. Williams, 32 Ark. 166; Wood v. Weir, 5 B. Mon. 544; Wicker v. Hotchkiss, 62 Ill. 107; Davie v. Wisher, 72 Ill. 262; Wilkinson v. Arnold, 13 Ind. 45; Bliss v. Wyman, 7 Cal. 257. In the case of Blunt v. Little, 3 Mason, 102, Mr. Justice Story said: “It is certainly going a great way to admit the evidence of any counsel that he advised a suit upon a deliberate examination of the facts, for the purpose of repelling the imputation of malice and establishing probable cause. My opinion, however, is that such evidence is admissible.” So, also, in Walter v. Sample, 25 Pa. St. 275, we find the law stated thus: “Professors of the law are the proper advisers of men in doubtful circumstances, and their advice, when fairly obtained, exempts the party who acts upon it from the imputation of proceeding maliciously and without probable cause.”
Blunt v. Little, 3 Mason, 102.
Burnap v. Albert, Taney, 344; Ames v. Rathbun, 55 Barb. 194; Kimoall v. Bates, 50 Me. 308; Brown v. Randall, 36 Conn. 56; Prough v. Entriken, 11 Pa. St. 81; Fisher v. Forrester, 33 Pa. St. 501; Schmidt v. Weidman, 63 Pa. St. 173; Davenport v. Lynch, 6 Jones L. 545; Glascock v. Bridges, 15 La. Ann. 672; King v. Ward, 77 III. 603; Rover v. Webster, 3 Clarke, 502; Chapman v. Dodd, 10 Minn. 350. In Snow v. Allen, 1 Stark. 409, one of the earliest cases in which the advice of counsel was set up as a defense, Lord Ellenborough inquired: “How can it be contended here that the defendant acted maliciously? He acted ignorantly. * * * He was acting under what he thought was good advice, it was unfortunate that his attorney was misled by Higgin’s Case (Cro. Jac. 320); but unless you can show that the defendant was actuated by some purposed malice, the plaintiff can not recover.” In Sharpe v. Johnstone (59 Mo. 577; s. c. 76 Mo. 660), Judge Hough said (76 Mo. 674): “Although defendants may have communicated to counsel learned in the law, all the facts and circumstances bearing upon the guilt or innocence of the plaintiff, which they knew or by any reasonable diligence could have ascertained, yet if, notwithstanding the advice of counsel, they believed that the prosecution would fail, and they were actuated in commencing said prosecution, not simply by angry passions or hostile feelings, but by a desire to injure and wrong the plaintiff, then most certainly they could not be said to have consulted counsel in good faith, and the jury would have been warranted in finding that the prosecution was malicious.” See the annotation of the author to Sharpe v. Johnstone, in 21 Am. Law. Reg. (n. s.) 582