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concerning which information is not attainable. Second, it may appear that the defendant, in making the charge, did so on grounds of suspicion which to him were grounds of conviction and consequently he made it without malice. And, Third, the plaintiff being still a stranger, it may be said that, as yet

he has acquired no standing or reputation which the [*31] charge could damage. For these reasons it may be argued

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that grounds of recovery are absent in such a case. But if this were the law, it is plain it could not be a just law, and it would fall far short of doing adequate justice. It would enable a person of suspicious nature to exclude another from the good opinion of the world when his motives and efforts fairly entitled him to general esteem. The difficulty in the case is overcome by a series of legal presumptions. These may be stated as follows: First, every man is presumed to be of good repute until the contrary is shown. Second, a derogatory charge against him is presumed to be false. Third, being false, it is presumed to be maliciously made. Fourth, if its natural and legitimate effect is, to cause injury, then it is presumed to have done so in this instance. Thus one fact-that of the publication-and four presumptions of law support the action.' The exception to this is of cases where the charge is one which, in contemplation of law, is not necessarily followed by injury, in which case the law will not presume damage, but will leave the plaintiff to allege and prove it. These presumptions may, in some cases, seem somewhat violent, but they are nevertheless reasonable. They must be so unless human nature, conduct and reputation, are presumptively bad, so as to justify a legal assumption that an injurious charge is true rather than false. Perhaps if that were to be assumed it would still be reasonable to throw the burden of proof upon the party making the charge, because, if he asserts facts, he ought to know where his evidences are and be able to produce them; while the proof of a negative, in case of a false charge, is notoriously difficult, and the more absolutely without foundation the charge may be, the more difficult will often be the showing.

In general, however, the law has to deal with the cases of those

1 In a subsequent chapter it will be shown that the legal definition of malice in the law of defamation is

quite different from the common meaning.

who have acquired a reputation of some kind. Of these there

may be several classes:

1. Those who deservedly stand in good repute.

2. Those who deservedly stand in bad repute.

3. Those who undeservedly stand in good repute.


4. Those who undeservedly stand in bad repute.

*Upon the case of the man who is justly in good repute we need not pause. The man who is undeservedly in bad repute is entitled to overcome this, and he is wronged by whomsoever interposes obstacles, though they consist in the mere repetition of charges which have made his reputation what it is. What are left, then, are the cases of men who deserve a bad repute whether as yet they have it or not.

A man whose reputation is deservedly not good, may be wronged as well as any other by having that said of him which is untrue. A worthless vagabond suffers a legal injury if he is called a thief when he is not. A certain individual may be generally despised with abundant reason; but if he is a kind and indulgent man in his family, he may justly be entitled to maintain an action if he be accused of treating then with cruelty. But if the charge be true he has no legal ground for complaint. The law has never conferred upon any one the right to be protected against the damaging effect of the truth concerning his character. If he has been enabled to put on a good outward appearance by covering himself with the mantle of hypocrisy, it is not illegal for public inquiry and contempt to tear this away. A dishonest man is not wronged when his good repute is destroyed by exposure.

But at this point it may be necessary to make a distinction between the rights of the political community and the rights of the individual. On grounds of public policy a duty may sometimes be imposed to observe silence for the public good when no such duty is imposed for the protection of the individual. The individual is not to be heard to complain if only the truth is spoken of him; but an offensive truth may be published without occasion, and may then be harmful. If it bring to light facts the publication of which can benefit no one, either by way of admonition or warning, the correction of abuses or the punishment of offenders, the probable tendency of the publication must be in the direction of immorality, disorder or violence. It thus

becomes a public offense; the duty to abstain from that which may injure the public morals or disturb the public peace has been disregarded. And here the very truthfulness of the charge may render it the more injurious to the public order; since a truthful charge which subjects one to ridicule or contempt, or which brings out gross immorality or indecency, if made in mere *wantonness and without justifiable occasion, is more likely [*33] to corrupt public morals and incite the party assailed to acts of violence than it would be if its falsity could be shown. In the latter case the party might rely upon his innocence or upon his civil remedy to vindicate him; in the former he might feel that only in violence had he any redress whatever.

Civil Rights. In defining civil liberty reference has been made to civil rights. An enumeration of these in detail is neither expedient nor practicable. In a free country they embrace the right to do everything not harmful to the public or to other individuals. The boundaries are such as are prescribed by general regulations of peace for the public good. Perhaps the whole body of civil rights may be summed up in two: The right to exemption from any restraint that has in view no beneficial purpose and the right to participate in all the advantages of organized society. These give the proper liberty and insure against unjust discriminations.

Religious Liberty. Among the first of civil rights is that of enjoying religious freedom. If this is complete, as it is supposed to be in this country, it implies two things: 1. The right freely to render adoration and worship to the Supreme Being in the manner indicated by the belief, and according to the dictates of the individual conscience; and 2. The right to be exempt from exactions in support of the worship of others. The first of these may exist where there is only religious toleration; the second enlarges toleration into religious liberty and equality.

But the liberty to worship, like all other liberty, must have bounds prescribed to it as a necessary protection to rights that might be invaded by extravagance or excess in its indulgence. These bounds must be fixed by law; and, as in all other cases of restraining laws, the law on this subject must have regard to the circumstances of the people for whom it is made. One of the most important of these circumstances is the religious belief

which generally prevails among the people. The same laws which give reasonable protection to religious liberty where one belief prevails, might be abhorrent and therefore wholly inadmissible where a different belief is general. To illustrate this, we have only to see what is tolerated or required by the religious creeds of some people. The religion of some savage tribes [*34] *permits human sacrifices; and there were saturnalia

among the Greeks and Romans; but in Turkey, to-day, where religious liberty is supposed to exist, such sacrifices and orgies would be abhorrent, and the law would punish them. The religion of the Turk, on the other hand, sanctions polygamy, and this in a Christian country would be forbidden and punished as a high offense. But neither in the one case nor in the other is religious liberty violated when that which is abhorrent to the general public is forbidden. There must necessarily be bounds to religious liberty in every country, varying in each with the religious belief and accepted moral code of the people generally. A single sentence may perhaps be sufficient for the presentation of the general principle. Religious liberty in any country cannot embrace those things which the moral sense or sense of decency of the general public condemns, and which consequently cannot be allowed without injury to the public morals.

The acceptance of this as a general rule cannot preclude any government in its discretion tolerating that which its people would condemn, where for any reason of policy it should think proper to establish regulations to that effect. But the general principle that any class of people in a country can rightfully do that which is offensive to the public morals cannot be accepted. Opinion must be free; religious error the government should not concern itself with; but when the minority of any people feel impelled to indulge in practices or to observe ceremonies that the general community look upon as immoral excess or license, and therefore destructive to public morals, they have no claim to protection in so doing. The State cannot be bound to sanction immorality or crime, even though there be persons in a community with minds so perverted or depraved or ill-informed as to believe it to be countenanced or commanded of heaven. And the standard of immorality and crime must be the general sense of the people embodied in the law. There can be no other.'

1 Cooley, Const. Lim. 471, et seq.; Woolsey's Political Science, § 52.

When religious liberty is defined, there may still be rules for regulating its enjoyment. We say, in general, that every man is at liberty to worship God according to the dictates of his own conscience. But one man's conscience may perhaps impel him to gather a crowd for worship in the streets of a populous city or to invade the house of worship of people of an- [*35] other belief and interrupt their exercises by substituting his own, or, Cassandra-like, to give solemn warnings in legislative halls or courts of justice. These the law must deal with as the excesses of liberty, because they encroach upon the just liberty of others or disturb the public order. Concede to every man the liberty to follow what he may assert to be the dictates of his own conscience, and there must soon be no organized society and no rational liberty of any sort. The reason is obvious: Society and liberty, as has been already shown, depend for their existence on regulations and restraints.

Equality of Civil Rights. In a free country all civil rights must be equal, except as the circumstances of individuals or classes create distinctions which it is necessary or proper for the law to recognize. We may illustrate with the right to maintain suits. Every one must possess it, and one is out of the protection of the law who is deprived of it. But there are classes whom it may not be proper to permit to manage their suits in their own way. The infant or the non compos for instance, who must appear by guardian. But this manifestly is only a regulation of a right; not a denial or even an abridgement of one. The State must deny to no man right and justice, but it may properly regulate the forms and proceedings through which he must obtain. them. So the right to acquire an education is an important civil right; but though the State provides for this, it usually establishes schools for those who are within certain ages, and not for any others. In this case the persons within the prescribed ages have a right in the schools under proper regulations; others have a right to make their own voluntary arrangements. The people are impartially arranged into classes, and that is all that can be required. The public highways are for the common use of all, but discriminating regulations are often essential, and it may be deemed politic to prohibit certain classes being abroad in the streets at hours or under circumstances when they or the public

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