PART II. PERSONAL RIGHTS. SECTION 27. General personal rights. 28 Defamation, what. 29. Libel, what. 30. Slander, what. 31. What communications are privileged. 32. Protection to personal relations. 33. Right to use force. personal $27. Besides the personal rights mentioned or General recognized in the POLITICAL CODE, every person rights. has, subject to the qualifications and restrictions provided by law, the right of protection from bodily restraint or harm, from personal insult, from defamation, and from injury to his personal relations. There is no doubt that persistent public insults, e. g., $28. Defamation is effected by: 1. Libel; or, 2. Slander. In all definitions of libel or slander at common law, Defamation, what. ibel, what. (Hunt . Bennett, 19 N. Y.. 173; Lewis v. Chapman, 16 id., 369.) In the definitions of both classes of defamation, therefore, the commissioners omit the ingredient of malice, and consequently the rules concerning presumption of malice. $ 29. Libel is a false and unprivileged publication by writing, printing, picture, effigy or other fixed representation to the eye, which exposes any person to hatred, contempt, ridicule or obloquy, or which causes him to be shunned or avoided, or which has a tendency to injure him in his occupation. 2 Kent Com., 17; Stone v. Cooper, 2 Den., 293; Cooper v. Greeley, 1 id., 347; Steele v. Southwick, Johns., 214. The law of libel has passed in the last hundred years from one extreme to another; from excessive severity to excessive laxity. The abuse of the freedom of the press, not only in the wantonness of its attacks upon public men, but in its assaults upon private citizens, has become so great, that a remedy for the evil must be sought, or violence will take the place of law. The license into which this freedom has degenerated leads, not only to the frequent invasion of private rights, but to the corruption of public morals. If the Commissioners had been certain of the true remedy, they would have proposed it in the text of the Code. They will venture only to suggest that a more certain punishment for wanton or careless defamation being needed, a remedy may perhaps be found in affixing to it a penalty, to be recovered in every civil action for libel, in addition to the damages which the jury may find. This would, at least, render it unsafe for libellers to rely upon the caprice or prejudice of juries as the means of escape with nominal damages. Requiring the name of the writer to be signed to every personal article, might also have a salutary effect. If the Legislature should think these provisions desirable, two sections like the following would auswer the purpose: §. Any article published in a newspaper containing matter which would be libellous if it were false, must be signed by the writer, and his name must be published at the foot of the article. A violation of this section is a misdemeanor. §. In every civil action for libel, if the plaintiff recovers a verdict, he shall be entitled to judgment against the defendant for dollars, as a penalty, in addition to the damages found by the jury, and the costs of the action. what. $30. Slander is a false and unprivileged publica- Slander, tion, other than libel, which: 1. Charges any person with crime, or with having been indicted, convicted or punished for crime;1 2. Imputes in him the present existence of an infectious, contagious or loathsome disease;2 3. Tends directly to injure him in respect to his office, profession, trade or business, either by imputing to him general disqualification in those respects which the office or other occupation peculiarly requires, or by imputing something with reference to his office, profession, trade or business that has a natural tendency to lessen its profit; or, 4. Imputes to him impotence or a want of chastity;3 5. Which, by natural consequence, causes actual damage. 1 This definition is possibly a little broader than the lan- This provision is new. The House of Lords, in a recent $ 31. A privileged publication is one made: 1. In the proper discharge of an official duty; 2. In testifying as a witness, in any proceeding authorized by law, to a matter pertinent and material,1 or in reply to a question allowed by the tribunal; 3. In a communication, without malice, to a person interested therein, by one who was also interested, or who stood in such a relation to the former as to afford a reasonable ground for supposing his motive What com munica tions are privileged. Protection to personal relations. Right to use force. innocent, or who was requested by him to give the information; or, 4. By a fair and true report in a newspaper, without malice, of a judicial, legislative or other public official proceeding, or of anything said in the course thereof.3 'Perkins v. Mitchell, 31 Barb., 461; see 4 H. & N., 569. Lewis v. Chapman, 16 N. Y., 369. 3 Laws 1854, ch. 130. $ 32. The rights of personal relation forbid : 1. The abduction of a husband from his wife, or of a parent from his child;1 2. The abduction or enticement of a wife from her husband,' of a child from a parent, or from a guardian entitled to its custody, or of a servant from his master ;* 3 3. The seduction of a wife, daughter, orphan sister, or servant, and, 4. Any injury to a servant, which affects his ability to serve his master." 1 Perhaps this provision is new, and doubtless as a matter of fact it would rarely be taken advantage of Nevertheless, the injury is a very great one, and one, unhappily, not entirely unknown. "Bennett v. Smith, 21 Barb., 439; Scherpf v. Sczadeczky, 4 E. D. Smith, 110. * See People v. Olmstead, 27 Barb., 9. 5 Lumley v. Gye, 2 Ell. & Bl., 216. This provision is new, as to the sister and daughter (Dain v. Wyckoff, 7 N. Y., 191). The legal fiction, by which the action of seduction has long been sustained, has always been considered too narrow for the purposes of justice. "Woodward v. Washburn, 3 Den., 369; Martinez v. Ger ber, 3 M. & G., 88. $33. Any necessary force may be used to protect from wrongful injury the person1 or property' of oneself, or of a wife, husband, child, parent or other relative to the third degree, a ward, servant or master. 1 Rol. Abr., Trespass, D.; Leeward v. Basilee, 1 Salk., 407; Seaman v. Cuppledick, Owen, 150. PART III. PERSONAL RELATIONS. TITLE I. Marriage. II. Parent and Child. III. Guardian and Ward. IV. Master and Servant. TITLE I MARRIAGE. CHAPTER I. The Contract of Marriage. II. Divorce. III. Husband and wife. CHAPTER I. THE CONTRACT OF MARRIAGE. ARTICLE I. Validity. II. Authentication. ARTICLE I. VALIDITY. SECTION 34. Definition of marriage. 35. Consent, how proved. 36. Persons capable of marriage. 37. Consent must be given to a present marriage. 38. Certain marriages incestuous. 39. Certain marriages, when to be deemed void. 40. Polygamy forbidden. 41. Conjugal rights, &c., not restored by pardon. 42. Marriages of Indians. 43. Certain parts of Code not applicable. 44. Promise of marriage. |