or what is equivalent to malice, the mere act of composing or publishing a libel ought not to be the subject of punishment. This objection only becomes specious from the misapprehension of the term malice. Malice, in legal understanding, implies no more than willfulness. The first inquiry of a civil judicature, if the fact do not speak for itself as a malum in se, is to find out whether it be willfully committed; it searches not into the intention or motive any further or otherwise than as it is the mark of a voluntary act; and having found it so, it concerns itself no more with a man's design or principle of acting, but punishes without scruple what manifestly to the offender himself was a breach of the command of the legislature. The law collects the intention from the act itself the act being in itself unlawful [wrongful], an evil intent is inferred, and needs no proof by extrinsic evidence. That mischief which a man does he is supposed to mean, and he is not permitted to put in issue a meaning abstracted from the fact. The crime consists in publishing a libel; a criminal intention in the writer is no part of the definition of the crime of libel at common law.' He who scattereth firebrands, arrows, and death (which if not an accurate, is a very intelligent description of a libel) is ea ratione criminal.' It is not incumbent on the prosecution to prove his intent, and on his part he shall not be heard to say, 'Am I not in sport.' To determine, therefore, the guilt of a civil act, and to inflict punishment on the offender, there is no need of knowing his motives. Human laws require no justification in imposing penalties for an act prohibited by the magistrate, in its consequences injurious, and which has indubitable marks of being voluntarily committed." This exhibits and illustrates our view that the intent which the law regards is that intent which enters

1 See Dexter v. Spear, 4 Mason, 115.

into the question, Was the act voluntary? and this it determines by the knowledge of the actor. Did he know, or ought he to have known, that his act would produce an injury? If he had this knowledge, or might, but for his own misfeasance or omission, have had this knowledge, he is liable for his act and its consequences. And it is altogether immaterial whether we say he is liable for the act and its consequences, or say he is liable for the act because it was voluntary, and for the consequences because he must be presumed to have intended them. The latter mode of statement is the more usual, but we think less correct, and may have contributed to the confusion which pervades our subject.

CHAPTER VI.

PUBLICATION-PUBLISHER.

A publication is necessary-Meaning of the term publication The language published must be understood

The publication may be orally or in writingWhat amounts to an oral and what to a written publication-Publication of effigy-Requisites of an oral publication-Requisites of a written publication -Time of publication-Place of publication—Who is a publisher-Republication and repetition, distinction between-Joint publication-Liability for publication-Voluntary and involuntary publications— Liability of principal and agent-Newspaper publisher-Bookseller.

93. As heretofore observed' (§ 23), for language to affect another than its author the language must be pub

66

1 To publish, means not only a "giving out," but a taking in." In English we have only one word to express the idea, in the German they have two words. They say of a book herausgegeben that it is “given out," but not that it is published until sales of it have been effected.

"Publication [of a writing] is nothing more than doing the last act for the accomplishment of the mischief intended by it." (Rex v. Burdett, 4 B. & Ald. 126.) "The sense in which the word published is used in law, is an uttering of the libel. Though in common parlance that word may be confined in its meaning to making the contents known to the public, yet the meaning is not so limited in law. The making it known to an individual only is indisputably, in law, a publishing. (Id.)

The mode of publication of writings in early times was by scattering them in the highways or fields. (See Darcy v. Markham, Hobart, 120.) The conclusion of "The Outlaw's Song of Trail-le-baston," temp. Edward II, is as follows:

Escrit estoit en parchemyn pur mout remember

E gitté en haut chemyn qe um le dust trover.

[It was written on parchment to be better remembered, and cast on the highway that people may find it.] See Political Songs of England from John to Edward II. Edited and translated by Thomas Wright, Camden Society, 1839. (Astor Library.) And see London Quarterly Review, April, 1857.

This method of publication seems to have continued at least until the sixteenth

lished; that is to say, it must be communicated to some other than its author. There must be a publication.'

94. Publication is an ambiguous term, employed to signify sometimes the matter published, sometimes an act of publication only, and sometimes such an act of publishing as may subject the publisher to legal liability.

century. John Fox mentions "A libel or book entitled the Supplication of Beggars, thrown and scattered at the procession at Westminster, on Candlemas day (2d February, 1526), before King Henry the Eighth, for him to read and peruse;" and again, Wolsey immediately went to his Majesty (Henry Eighth) complaining of divers seditious persons having scattered abroad books. The like mode of publication was adopted by Burdet, tried "for conspiring to kill the king and the prince by casting their nativities, foretelling the speedy death of both, and scattering letters containing the prophecy among the people." (9 Foss's Judges of England, and Croke Car. 121.)

The meaning and etymology of the word trail-le-baston is discussed in 3 Foss's Judges of England, 30, and note to Political Songs of England, and claimed to be different from that given in the law dictionaries.

That the mode of publication of libels among the Romans was by scattering them on the highways, may be inferred from the provisions in the codes in reference to the finding and finders of libels. The 4th resolution in Halliwood's Case, in Coke's fifth report, commences: If any one find a libel." (See 2 Starkie on

Libel, 226.)

A new method of framing and dispersing libels was invented, says Hume, by the leaders of popular discontent: Petitions to Parliament were drawn up, stating particular grievances, presented and immediately printed. And Lord Campbell (6 Lives of the Chancellors, 149) speaks of "a dispersion of libels in Westminster Hall, by means of an explosion of gunpowder, while the judges were sitting there." Of this he gives a further account, same volume, p. 186.

A most cowardly and atrocious, yet ingenious method of defaming is mentioned by Hazlitt in his "Essay on Wills," and referred to in the London Quarterly Review for October, 1860, as thus: "A wealthy nobleman hit upon a still more culpable device for securing posthumous ignominy. He gave one lady of rank a legacy ‘by way of compensation for injury he feared he had done her fair fame;' a large sum to the daughter of another, a married woman, 'from a strong conviction that he was the father;' and so on through half a dozen more items of the sort, each leveled at the reputation of some one from whom he had suffered a repulse; the whole being nullified (without being erased) by a codi cil."

A court of probate, it seems, has power to order the omission from the registry of a will of any defamatory or offensive matter contained in such will. (Re Honywood, Law Rep. 2 Pro. & Div. 251; Re Wartnaby, 1 Rob. Ecc. 423; Curtis v. Curtis, 3 Add. 33; Marsh v. Marsh, 1 Sw. & Tr. 528.) In Texas, by statute, on conviction of one for publishing a libel, the court may order the destruction of the libel. The publication may be made by the telegraph. (See Jeffras v. McKillop, 4 Sup. Ct. Rep. [T. & C.] 578.)

1 Lyle v. Clason, I Caines, 581; Weir v. Hoss, 6 Ala. 880.

Ordinarily the context will disclose in which of these several senses the term is employed.

95. Every communication of language by one to another is a publication. But to constitute an actionable publication, that is, such a publication as may confer a remedy by civil action, it is essential that there be a publication to a third person, that is, to some person other than the author or publisher and he whom or whose affairs the language concerns (§ 107). No possible form of words can confer a right of action for slander or libel, unless there has been a publication to some third person.' The husband or wife of the author or publisher, or the husband or wife of him whom or whose affairs the language concerns, is regarded as a third person.2

1

2 Starkie on Libel, 13, 14, citing 1 W. Saund. 132, note 2; Phillips v. Jansen, 2 Esp. Cas. 226; Hick's Case, Hob. 215; Rex v. Wegener, 2 Stark. Cas. 245; Force v. Warren, 15 C. B. N. S. 806; Edwards v. Wooton, 12 Coke R. 35; Ahern v. Maguire, Arm. Mac. & Og. 39. Where the defendant, knowing that letters addressed to the plaintiff were opened and read by his clerk, wrote and sent a letter directed to the plaintiff, which was opened and read by his, plaintiff's, clerk, this was held to be a publication. (Delacroix v. Thevenot, 2 Stark. Cas. 63.) Where a letter, folded but not sealed, was delivered to a third person to be conveyed to the plaintiff, and was so conveyed without being read by any one, held there was no publication. (Clutterbuck v. Chaffers, 1 Stark. Rep. 471; Day v. Bream, 2 Moo. & Rob. 54.) Where a writing is sent to the plaintiff, and he, in the presence of a third person, repeats the contents of such writing to the writer, who admits having sent such a writing, this is not a publication of the writing to the third party. (Fonville v. M'Nease, 1 Dudley [So. Car.] 303.)

The delivery of a writing by the governor of a colony to his attorney general, not for an official purpose, is an actionable publication. (Wyatt v. Gore, Holt, 299.) So is the delivery of a writing to any third person. (Ward v. Smith, 6 Bing. 749.) Giving a writing to a witness to copy, the copy being immediately sent to a foreign country, and the original retained in the defendant's possession, is a publication upon which the cause of action arises here. (Keene v. Ruff, 1 Clarke [Iowa], 482.

2 A sealed letter, addressed and delivered to the wife, containing a libel on her husband, is a publication. (Schenck v. Schenck, I Spencer, 208; Wenman v. Ash, 13 Com. B. 836; and see Mills v. Monday, Lev. 112.)

Gibbons wrote defamatory matter of Trumbull, and had fifty copies printed in pamphlet form in Massachusetts. Forty-five copies he retained, and five copies he sent to his wife in New Jersey, indorsing four of them with the names of certain persons, acquaintances of the wife, but without any instructions to the wife as to