Peter Vivian Daniel

“ He has no power to compel the attendance of witnesses, or to administer an oath. He could not inquire in a judicial way into the truth or falsehood of the charges. The plaintiff then turned to the Circuit Court for redress, and brought his action on the case. But that court refused, as the exceptions show, to allow him to read the libel to the jury, and to prove it 'false and without probable cause,' and that the defendants were actuated by malice in fact, or 'express malice.' But falsehood and want of probable cause are in themselves evidence of malice in fact. ”

“ The last is a legal requisite to maintain an action upon a privileged libel; and when malice in fact can be proved, the privilege that surrounded the libel, and in legal contemplation purified it, is stripped off, and the exposed libeller stands on the same level with the rest of his kind. ”

“ That every publication, either by writing, printing, or pictures, which charges upon or imputes to any person that which renders him liable to punishment, or which is calculated to make him infamous, or odious, or ridiculous, is prima facie a libel, and implies malice in the author and publisher towards the person concerning whom such publication is made. ”

“ Publications duly made in the ordinary course of parliamentary proceedings have been ruled to be privileged, and therefore not actionable. As where a false and scandalous libel was contained in a petition which the defendant caused to be printed and delivered to the members of the committee appointed by the House of Commons to hear and examine grievances, it was held not to be actionable. ”

“ But the privilege of this libel is very questionable. It prefers charges not relating in any wise to the plaintiff's official character. It alleges political offences committed before his appointment to office. It shows a personal aspiration after the office held by plaintiff. It is couched in terms of great asperity, and breathes throught a spirit wholly incompatible with the honest purpose of redressing a public grievance. The privilege is doubtful upon the face of the libel, and whether privileged or not was a question for the jury. ”

“ The parliament, it is said, is a court, and it is difficult to perceive how malicious and groundless prosecutions before it can be placed on a ground of greater impunity than they can occupy in another appropriate forum. The case of Lake v. King, therefore, interpreted by the known principles of the law of libel, would extend the privilege of the defendant no farther than to require as to him proof of actual malice. A different interpretation would establish, as to such a case, a rule that is perfectly anomalous, and depending upon no reason which is applicable to other cases of privilege. ”

“ For the same reason, the publication of falsehood and calumny against public officers, or candidates for public offices, is an offence dangerous to the people, and deserves punishment, because the people may be deceived, and reject their best citizens, to their great injury, and, it may be to the loss of their liberties. ”

“ In every instance of slander, either verbal or written, malice is an essential ingredient: it must in either be expressly or substantially averred in the pleadings; and whenever thus substantially averred, and the language, either written or spoken, is proved as laid, the law will infer malice until the proof, in the event of denial, be overthrown, or the language itself be satisfactorily explained. The defence of the defendants in error, the defendants likewise in the Circuit Court, is rested upon grounds forming, it is said, an established exception to the rule in ordinary actions for libel ”

“ And the result of these authorities, with many others which bear upon this head is this, that if the conduct of the defendant entirely consists of an answer to an inquiry, the absence of malice will be presumed, unless the plaintiff produces evidence of malice; but if a master unasked, and officiously gives a bad character to a servant, or if his answer be attended with circumstances from which malice may be inferred, it will be a question for the jury to determine, whether he acted bona fide or with malice. ”

“ If we look to the position of men in common life, we see the law drawing providently around them every security for their safety and their peace. If not only forbids the imputation to an individual of acts which are criminal and would subject him to penal infliction; but, regarding man as a sympathetic and social creature, it will sometimes take cognisance of injuries affecting him exclusively in that character. It will accordingly give a claim to redress to him who shall be charged with what is calculated to exclude him from social intercourse ”

“ If he be assailed unjustifiably in a judicial proceeding in a court, its dignity is offended and its censures secured; besides, the benefit of evidence to vindicate himself and disprove such charges is afforded. The true criterion of the privilege in the first class, (which creates a bar to an action,) is to be found in the power of the tribunal to afford this redress. If the libel be published before those who cannot afford this summary redress, then the occasion does not bar an action, and the libel belongs to the second class of privileged communications ”

“ The publication of a libel maliciously, and with intent to defame, whether it be true or not, is clearly an offence against law on sound principles, &c.'
In the case of Bodwell v. Osgood, 3 Pick. (Mass.) , 379, it was ruled, that a false complaint, made with express malice, or without probable cause, to a body having competent authority to redress the grievance complained of, may be the subject of an action for a libel, and the question of malice is to be determined by the jury. ”

“ But it will be contended that this is distinguished from the ordinary cases of libel, by reason of the occasion of writing and publishing it; it purporting to be a complaint about an official grievance, and being addressed to the President of the United States, the proper authority to redress it; that this is what is termed 'a privileged communication.'
That there is such a description of libels, well classified by stable legal distinctions, is admitted. They are founded upon considerations of public policy and convenience, and do confer upon their authors and publishers certain privileges. ”

“ It follows, therefore, that actions may be maintained for defamatory words published in writing or in print, which would not have been actionable if spoken. Thus, to publish of a man in writing, that he had the itch and smelt of brimstone, has been held to be a libel. ”

“ Beyond this extent no presumption can be permitted to operate, much less be made to sanctify the indulgence of malice, however wicked, however express, under the protection of legal forms. We conclude then that malice may be proved, though alleged to have existed in the proceedings before a court, or legislative body, or any other tribunal or authority, although such court, legislative body, or other tribunal, may have been the appropriate authority for redressing the grievance represented to it ”

“ The principle of the law always implying injury, wherever the object or effect is the exposure of the accused to criminal punishment or to degradation in society. These guardian provisions of the law, designed, as we have said, for the security and peace of persons in the ordinary walks of private life, appear in some respects to be extended still farther in relation to persons invested with official trusts. ”

“ Our examination, extended as it may seem to have been, has been called for by the importance of a subject most intimately connected with the rights and happiness of individuals, as it is with the quiet and good order of society. ”

“ It was a vile slander, put forth so as to evade the responsibility of a legal prosecution. We think he is the last man to hold an office, the value of which depends upon the enterprise and integrity of the very men whose families and business were alike to be overwhelmed with ruin at his special application.
'His removal from an office thus obtained would be doubly gratifying to us, when we know his family does not need its emoluments for support. ”

“ He then joined with an assemblage of forty-eight persons in getting up a memorial, which none but themselves could be induced to sign. These memorialists, with about five exceptions, could not be identified by name or residence, as citizens of Georgetown. Upon investigation, they proved to be apprentices and journeymen, holding a transient residence in the town. Being few in number, they were no doubt believed by Congress, and persons at a distance, to be a select body of experienced merchants and traders, who had some knowledge of the subject of their memorial. ”

“ The necessity for an exclusion like this, it will be admitted by all, must indeed by very strong to justify it: it will never be recognized for trivial reasons much less upon those that may be simulated or unworthy. ”

“ The paper was sent to the Secretary of the Treasury, from whom an agent of the plaintiff obtained it. There was no proof of publication whatever. Some of the exceptions relate to mere matters of aggravation, which were not admissible in evidence unless a ground of action was laid. Publication is essential; and it must be proved before the libel can be given in evidence. Stark. Ev., 351. The defendants are charged, it is true, with having shown the paper to citizens of Georgetown ”

“ A. Duncan, of Ohio, was invited, by a number of office-holders and others, to hold a political meeting in this town.
'The meeting was held on the 26th June, 1840, and the proceedings were published in the Globe, on or about the 3d July.
'Mr. Robert White, our collector of customs, acted as one of the vice-presidents of the meeting, and who was so tickled and delighted with Duncan's vile calumnies upon Gen. Harrison, that he arose and made the motion that he (Duncan) would prepare the speech for publication. ”

“ Mackall-all this, too, before I had said or written a word to Mr. Ewing upon the subject. He wrote me that Mr. Mackall must not be removed until I assigned him my reason for so doing. I obeyed his order; but, on the very day I wrote him that there was no service for Mr. Mackall to perform, Mr. Ewing instructed me to discontinue the office. Mr. Mackall still complained to the Secretary, who wrote me to come to the Treasury Department. ”

“ They denounced General Harrison as 'the nominee of the bank whig federalist, abolitionist and anti-masons,' 'an abolitionist of fraud and concealment,' as being guilty of pursuing a course 'grossly insulting to common sense, honesty, and decency, by shrouding himself in darkness,' 'of courting dangerous fanatics, and countenancing them (abolitionists) in their mad warfare upon our peace, our property, and our lives,' and 'that he should be treated as an abolitionist.'
'Mr. ”

“ White is himself at his retention to the present time.
'We will also take this opportunity to state, that we desire Mr. H. Addison to be appointed to the office of collector in Mr. White's place, whose abundant testimonials and recommendations of our business citizens are already on file with the Secretary of the Treasury. ”

“ White's appointment he circulated 'bushels' of the 'Globe.' He declines to give his formal evidence in the case, upon the ground, that he being a near neighbor of Mr. W., he is unwilling to disturb the friendly personal relations existing between them.
'Such was Mr. White's general political violence, and the unhesitancy with which he descended to the lowest means to secure the favor of the late administration, that no one doubted here but that he would be dismissed when the present party came into power, and no one can be more astonished than Mr. ”