with a levy upon certain cattle, wrote a letter charging the plaintiff with feloniously taking them (Washburn v. Cooke, 3 Denio, 110) or where, at the request of the father, a person made inquiry as to the character of his daughter's husband. Atwill v. Mackintosh, 120 Mass. 177. In each instance the report if made in good faith, and reasonably believed true, was held to be privileged. Atwill v. Mackintosh, supra. So it is said to extend to the confidential communications of friendship (Holt, Libel, 235) and will undoubtedly include every case where in the discharge of any legal, natural, or social obligation, the defendant states what he honestly believes the plaintiff's character to be, whatever the charges may be which he thus imputes to him. Thus in McDougall v. Claridge, 1 Campb. 267, it was held that a letter written confidentially concerning a solicitor, and under an impression that its statements were well founded, could not be the subject of an action; and in Hewser v. Downson, mentioned in Buller's Nisi Prius, page 8, where the defendant said "in confidence and friendship, by way of warning," to one about dealing with the plaintiff, words affecting his credit, no action would lie because the manner of speaking repelled the idea of malice. In White v. Nicholls, 44 U. S. 3 How. 286, 11 L. ed. 600, Justice Daniel enumerates among such communications, "words spoken in confidence and friendship as a caution," and applying the same principle to specific cases, it is laid down in a recent work on this subject (Odgers, Libel & Slander, 210) that a father, guardian or intimate friend may warn a young man against associating with a particular individual, or may warn a lady not to marry a particular suitor, though under the same circumstances a stranger could not do so. Byam v. Collins, 2 L. R. A. 129, 111 N. Y. 143. In an action for libel it is for the court to determine whether the alleged libel was a privileged communication; but the question of good faith, belief in the truth of the statement, and the existence of actual malice remain for the jury. The rule is the same where the alleged libelous charge is made against a public officer as such. Hamilton v. Eno, 81 N. Y. 116. 567. Rules as to Justification. When one who is sued for defamation deliberately reaffirms the slander, and puts it on the records of the court by way of justification, if he fail to establish the truth of his plea, he has done the plaintiff a new injury, which may properly be regarded as an aggravation of the original wrong. It is said that the attempt to justify may be made in good faith, or the honest belief that the plaintiff is guilty of the matter laid to his charge. That may be so, but the injury to the plaintiff is not diminished by the mistaken belief of the defendant. And when a man is called into court for charging another with a crime, he ought to pause and examine before he repeats the charge, and places it on record; and if he makes a mistake in such a matter, it should be at his peril, and not at the peril of the injured party. The justification must be as broad as the charge; and if the defendant fails in an attempt to prove it true, he is entitled to no benefit from the evidence which may have tended in that direction. There is no such thing as a half-way justification. When several distinct things are charged, the defendant may justify as to one, though he may not be able to do so as to all; but as to any one charge, the justification will either be everything or nothing. Fero v. Ruscoe, 4 N. Y. 162. A newspaper article published against the character of the person addressed, and which is referred to in a "threatening letter", is admissible as tending to explain the reason, motive, and the object of the writer of the letter. People v. Tonielli, 81 Cal. 275. § 568. Repetition of a Slander.-The repetition of the slander to a third person without any interest existing to call for the communication, is not admissible; but when the slander is repeated to be connected with instructions injurious to the plaintiff, and necessarily connected with the business or interests of the man to whom the slander was spoken, it may be used for the purpose of showing damage. Olmsted v. Brown, 12 Barb. 657; Fowles v. Bowen, 30 N. Y. 22. § 569. Malice, how Proved.-Although evidence is admissible to prove the general character of the plaintiff to be bad, yet no mere reports or rumors, not amounting to proof of general character, nor information obtained by the defendant from others as to the truth of the charge, unless accompanied by proof that such information is true, can be received for the purpose of rebutting the presumption of malice. This necessarily reduces the defendant to the proof of facts and circumstances known to him at the time of making the charge, having a tendency to induce a belief of its truth, as the only means of showing a want of malice. Bush v. Prosser, 11 N. Y. 347. In this same case, Selden, J., says: "The defendant has the right to prove the absence of malice in mitigation of the verdict, and to do this it is indispensable to prove that he believed, and had some reason to believe, the charge to be true when it was made. There are but two conceivable modes of doing it, one by proving that he received such information from others as induced him to believe the charge to be true; the other by showing the existence of facts within his knowledge calculated to produce a belief." In Cooper v. Barber, 24 Wend. 105, Bronson, J., says: "Facts and circumstances which tend to disprove malice, by showing that the defendant, though mistaken, believed the charge true when it was made, may be given in evidence in mitigation of damages." See also Bisbey v. Shaw, 12 N. Y. 67. § 570. Evidence of Intent Material.-Where an act innocent in itself, becomes criminal, when done with a particular intent, that intent is the material fact to constitute the crime. Rex v. Withers, 3 T. R. 429. And I think there cannot be a doubt, that the mere publication of a paper is not, per se, criminal; for otherwise, the copying of the indictment by the clerk, or writing a friendly and admonitory letter to the father, on the vices of his son, would be criminal. The intention of the publisher, and every circumstance attending the act, must therefore be cognizable by the jury as questions of fact. And if they are satisfied that the publication is innocent; that it has no mischievous or evil tendency; that the mind of the writer was not in fault; that the publication was inadvertent, or from any other cause, was no libel, how can they conscientiously pronounce the defendant guilty from the mere fact of publication? People v. Croswell, 3 Johns. Cas. 364. 571. Accused may Swear to his Intent. To constitute a crime, there must in all cases be a criminal intent. Reg. v. Mullins, 3 Cox, C. C. 526; People v. Farrell, 30 Cal. 316; St. Charles v. O'Mailey, 18 Ill. 407; Campbell v. Com. 84 Pa. 197; Genet v. Mitchell, 7 Johns. 130; People v. Sullivan, 4 N. Y. Crim. Rep. 197. At one time it was looked upon as doubtful whether the party accused could swear directly as to his intent when the question was involved in the issue. In People v. Baker, 96 N. Y. 340, where the indictment was for obtaining property under false pretenses, the defendant was asked by his counsel to state what was his intention in receiving the $575. This was objected to, excluded, and held error. The same principle is decided in McKown v. Hunter, 30 N. Y. 625, was a case for malicious prosecution. Another illustration is found in Kerrains v. People, 60 N. Y. 228, 14 Am. Rep. 158, which was the case of an assault with a deadly weapon with intent to kill. The question in this case was: "What was your intention in taking the axe from the shed?" It was rejected. The court, on appeal, held this to be error, and reversed the judgment. § 572. Fair Criticism Allowed.-Where the evidence shows that the libelous matters complained of were in the way of comments openly made upon the acts and conduct of public officers in matters of public interest and importance, and if they are within the limits of a fair and honest criticism, and are not inspired by actual malice they are privileged by the occasion, and, therefore, not libelous. Folkard, Starkie, Slander & Libel (4th Eng. ed.) p. 311, § 246. The existence of the privilege does not depend upon the truth of the statements made. Folkard, Starkie, Slander & Libel, p. 319, § 256; King v. Root, 4 Wend. 113; Clark v. Molyneaux, L. R. 3 Q. B. Div. 247. The only limit to the privilege, is that the comments shall be within the limits of a fair and honest criticism and without actual malice. Campbell v. Spottiswoode, 32 L. J. Q. B. 185; Cooper v. Lawson, 8 Ad. & El. 746; Wason v. Walter, 38 L. J. Q. B. 34; Henwood v. Harrison, L. R. 7 C. P. 606; Turnbull v. Bird, 2 Fost. & F. 508; Eastwood v. Holmes, 1 Fost. & F. 349; Davis v. Duncan, L. R. 9 C. P. 396; Spill v. Maule, L. R. 4 Exch. 232; Klinck v. Colby, 46 N. Y. 427; Clark v. Molyneaux, supra. The question of malice is exclusively for the jury whenever (as in the case of privilege) express malice-not legal malice-must be proved. Clark v. Molyneaux and Klinck v. Colby, supra. In criticising the productions of an author, the laws allows considerable latitude. The interests of literature and science require that the productions of authors shall be subject to fair criticism; that even some animadversion may be permitted, unless it appears that the critic, under the pretext of reviewing his book, takes an opportunity of attacking the character of the author, and of holding him up as an object of ridicule, hatred, or contempt. In other words the critic may say what he pleases of the literary merits or demerits of the published production of an author; but with respect to his personal rights, relating to his reputation, the critic has no more privilege than any other person not assuming the business of criticism. He may say, as Burke said of the style of Gibbon, that it is execrable; but we cannot say that the author himself is execrable, or that he is personally affected or absurd or wayward. He may say of the orator who uses excessive gesticulation and vociferation, mistaking extravagant action and verbosity for eloquence, that he has all the contortions, without any of the inspiration of the Sybil. He can say of the player that he mouths his speech, as many players do, or that "he saws the air too much with his hand," or that he "tears a passion to tatters, to very rags, to split the ears of the groundlings." The critic can call a painting a daub and an abortion, but he cannot call the painter himself a low, discreditable pretender and an abortion. The most comprehensive freedom in animadverting upon the productions and actions of public men is essential to the very existence of civil and political liberty, and to the progress of civilization, and I heartily say with Lord Ellenborough, in Tabart v. Tipper, 1 Campb. 350: "Liberty of criticism must be allowed, or we should have neither purity of taste nor of morals. Fair discussion is essentially necessary to the truth of history and the advancement of science. That publication, therefore, I shall never consider a libel which has for its object not to injure the reputation of any individual, but to correct misrepresentation of fact, to refute sophistical reasoning, to expose a vicious taste for literature, or to censure what is hostile to morality." "A fair and candid criticism, though severe, of a literary work, exposing its faults, is privileged; but if the criticism is made the vehicle of personal calumny of the author, aside from the legitimate purpose of criticism, it becomes libelous. So of a communication made in good faith by a person in the discharge of some private duty, legal or moral, or in the conduct of his own affairs or in matters in which he is interested; such as a warning to a relative not to marry a certain person for special reasons affecting his character; or a protest by inhabitants of a school district against the character of an applicant to teach; or a complaint to a superior against an inferior officer, in order to obtain redress; or an account of the character of a servant in answer to proper inquiry; or a report of a servant's conduct to his master; or a true |