PREFACE TO THE THIRD EDITION. In introducing a third edition of the following essay, I desire to return my unfeigned thanks for the many flattering notices of previous editions. One kind friend expressed regret that so much labor had been bestowed in the endeavor to treat scientifically a subject which does not admit of scientific treatment, and another described my text as not so much an exposition of the law as it is, as of the law as it probably will be. In reference to these remarks, I hope and believe my labor has not been altogether fruitless, and the care taken in every instance to distinguish my suggestion from the received rule of law will prevent the reader confounding the one with the other. It is gratifying to me to find that many of my suggestions have been legitimized by judicial sanction. I disclaim innovation; my aim has been to elicit the true rule of decision on some leading points in the law of libel, and present them with more distinctness than had been theretofore attempted. Thus, among other things, I have endeavored to demonstrate: I. The gist of an action for slander or libel is the pecuniary injury. II. The malice necessary to maintain an action for slander or libel is only the absence of a legal excuse for making the publication. III. The phrases malice in fact and malice in law do not mean different kinds of malice, but describe only different kinds of proof. IV. The existence of a distinction between language concerning a person and language concerning a thing, and in what the distinction consists. V. "Slander of title," so called, is within the class of language con cerning a thing. VI. The right to give what is termed "a character to a servant" does not arise out of any relation of master and servant, but out of the general right to communicate one's belief, in a bona fide desire to protect one's own or another's rights. VII. The right of "criticism" is within the class of language concerning a thing. VIII. Malicious prosecution is the publication of defamatory language in a court of justice. The present edition differs from the preceding in containing several hundred additional references to decisions in the American, English, Irish, Scotch, Canadian and Australian reports, and also in the addition of a chapter upon "Malicious Prosecution." The numbering of the sections corresponds with previous editions. A strenuous effort has been made to secure accuracy in the citation of authorities, and, while it is known that many errors have occurred, it is believed that more than ordinary correctness has been attained. The references to Holt on Libel are to the American edition, and, as the third edition of Starkie on Slander, by Folkard, has not been reproduced in this country, the references to Starkie on Slander are to the second American edition by Wendell. BENNETT BUILDING, New York, July, 1877. JOHN TOWNSHEND. CONTENTS. WORKS ON THE SUBJECT OF LIBEL IN ADDITION TO THOSE REFERRED TO IN THE NOTES Language as a means of effecting injury-Slander-Libel-Defamation -Redress-The law of libel-Object in view-Division of subject HOW ONE MAY AFFECT ANOTHER BY LANGUAGE. Language can have no effect unless published-It must be true or false, commendatory or discommendatory- Must concern a person or thing-Its effect, direct or indirect, or both-Reputation RIGHTS; DUTIES; WRONGS; REMEDIES. Description of rights and duties-Wrongs, rights and duties, undefin- WHAT IS THE GIST OF THE ACTION FOR SLANDER OR LIBEL. History silent as to the introduction of the action for slander-Hypoth- esis necessary--How the law protects reputation-Fiction-Pecuni- WRONGFUL ACTS. ELEMENTS OF A WRONG. Wrongful acts-Liability-Presumptions of law-Questions of law and fact- Essential acts in slander and libel-Defamatory-Falsity- A publication is necessary-Meaning of the term publication-The lan- guage published must be understood-The publication may be orally or in writing-What amounts to an oral and what to a writ- ten publication-Publication of effigy-Requisites of an oral pub- lication-Requisites of a written publication-Time of publica- tion-Place of publication-Who is a publisher-Republication and repetition, distinction between-Joint publication-Liability for pub- lication-Voluntary and involuntary publications-Liability of prin- Actionable quality of language dependent upon its construction-All language ambiguous or unambiguous-Difficult to determine what is and what is not ambiguous-Points upon which ambiguity may arise-Causes of ambiguity-Ambiguity, how explained-Different effect of language concerning a person and of language concerning a thing-Materiality of questions, what person or thing affected, and whether the person is affected as an individual merely, or in some acquired capacity- Principles of construction; before verdict; Language must be such as does or does not occasion damage-What is meant by actionable per se, and actionable by reason of special damage What language concerning a person as such, published orally, is actionable per se- -What language concerning a person as such, published in writing, is actionable per se-What language concerning one in an acquired capacity is actionable per se-What language concerning a person is actionable by reason of special damage What language concerning the affairs of a person, his Privileged publications generally-Repetition-Truth-Legislative pro- ceedings and reports thereof-Judicial proceedings-Parties to pro- ceedings-Counsel-Witnesses-Judges-Grand jurors-Reports of judicial proceedings-Quasi judicial proceedings-Church discipline -Seeking advice or redress other than judicially-Giving informa- tion or advice generally-Attorney and client-Master and servant- Candidates for office or employment-Insanity-Drunkenness―In- B |