provision. . . . When an act which is really useful to society, an act of a sort which it is desirable to encourage, has been done, it is absurd to inquire into the motives of the doer, for the purpose of punishing him if it shall appear that his motives were bad. . . . If A sets on fire a quantity of cotton belonging to Z, it is proper to inquire whether A acted maliciously; for the destruction of valuable property by fire is prima facie a bad act. But if Z's cotton is burning, and A puts it out, no tribunal inquires whether A did so from good feeling or from malice to some other dealer in cotton, who, if Z's stock had been destroyed, would have been a great gainer; for the saving of valuable property from destruction is an act which it is desirable to encourage, and it is better that such property should be saved from bad motives than that it should be suffered to perish. Since, then, no act ought to be made punishable on account of malicious intention, unless it be in itself an act of a kind which it is desirable to prevent, it follows that malice is not a test which can with propriety be used for the purpose of determining what true imputations on character ought to be punished and what true imputations on character ought not to be punished; for the throwing of true imputations on character is not prima facie a pernicious act. . . . We are sure that it may be very pernicious when it is not done from malice, and that it may be a great public service when it is done from malice. It is perfectly conceivable that a person might, from no malicious feeling, but from an honest though austere and injudicious zeal for what he might consider as the interests of religion and morality, drag before the public frailties which it would be far better to leave in obscurity. It is also perfectly conceivable that a person who has been concerned in some odious league of villany and has quarreled with his accomplices may, from vindictive feelings, publish the history of their proceedings, and may, by doing so, render a great service to society. Suppose that a knot of sharpers lives by seducing young men to the gaming table and pillaging them to their last rupee. Suppose that one of these knaves, thinking himself ill-used in the division of the plunder, should revenge himself by printing an account of the transactions in which he has been concerned. He is prosecuted by the rest of the gang for defamation. He proves that every word in his account is true. But it is admitted that his only motives for publishing it were rancorous hatred and disappointed rapacity. It would surely be most unreasonable in the Court to say, "You have told the public a truth which it greatly concerned the public to know; you have been the saving of many promising youths; you have been the means of ridding society of a dreadful pest; you have done, in short, what it was most desirable that you should do; but as you have done this, not from public spirit, but from dislike of your old associates, we pronounce you guilty of an offense, and condemn you to fine and imprisonment." It is evident that society cannot spare any portion of the services which it receives. Far from scrutinizing the motives which lead people to render such services, and punishing such services when they proceed from bad motives, all societies are in the habit of offering motives addressed to the selfish passions of bad men for the purpose of inducing those men to do what is beneficial to the mass. We offer pardons and pecuniary rewards to the worst members of the community for the purpose of inducing them to betray their accomplices in guilt. That the quarrels of rogues are the security of honest men is an important truth which has passed into a proverb; and of that security we should, to a certain extent, deprive honest men if we were to make it an offense in one rogue to speak the truth about another rogue under the influence of passions excited in the course of a quarrel.

884. W. BLAKE ODGERS. The Laws of Libel and Slander. (2d ed., 1887, p. 178.)... Before 1843 the truth of the libel was no defense at all to an indictment; the maxim prevailed, "the greater the truth, the greater the libel." Yet it was always otherwise with a civil action; there the truth was always a complete defense. For in a civil action the benefit or detriment to the public is not in issue; the plaintiff is seeking to put in his own pocket damages for an alleged injury to a character to which he had no right. In the vast majority of cases it is clearly right that culprits should be made to appear in their true colors: "peccata enim nocentium nota esse et oportere et expedire" (Paulus). And some men may be deterred from committing an act of dishonesty or immorality by the knowledge that, if discovered, it may always be brought up against them, wherever they go, to the end of their lives. But in other cases, where a man has retrieved his character by long years of good behavior, it is clearly morally wrong for one who knows of his early delinquencies to come and blast the reputation which he has fairly earned. It has, therefore, been urged that an action ought to lie, where the plaintiff's antecedents have been maliciously raked up and wantonly published to the world, without any benefit to society. Prisoners constantly complain that it is impossible for them to earn a livelihood by honest labor on coming out of prison, because, as soon as they obtain employment anywhere, the police inform their master of the fact of their previous conviction, and they are at once discharged. . . . No doubt it is part of the punishment of a criminal that he can never escape from his misdeeds; but, nevertheless, to unduly proclaim them is malicious and uncharitable.

Yet it is difficult to see how any change can be made in the law in this respect. No law can be framed which cannot be made to press harshly on individuals under exceptionable circumstances and in the hands of uncharitable persons. As a rule, the strictness with which a defendant is made to brave his plea of justification is a sufficient protection to a plaintiff; for, if a man is really malicious in making a statement, he is almost sure to go beyond the truth, and say too much.

885. HERBERT SPENCER. Justice: being Part IV of the Principles of Ethics. (Appleton ed., 1891, p. 115.) (Ch. XIII.) The Right of Incorporeal Property,-Reputation. Though another's good character, when taken away, cannot be appropriated by the traducer, the taking of it away is still a breach of the law of equal freedom, in the same way that destroying another's clothes or setting fire to his house is a breach. This reasoning concerns only those cases in which the good reputation enjoyed has been rightly obtained, and does not touch those cases in which it has been obtained by deception or survives through others' ignorance. Consequently, it cannot be held that one who injures another's good reputation by stating facts at variance with it which are not generally known breaks the law: he simply takes away that which ought not to have been possessed. Whatever judgment may be passed on his act, it cannot be assimilated to acts in which the character taken away is one that is legitimately owned. Indeed, in many cases his act is one which conduces to the welfare of others, and in some cases is prompted by the desire to prevent trespasses upon them. Hence, though it may be held punishable, in common with acts which take away character rightly possessed, there does not seem to be any ethical warrant for the punishment.

Topic 2. Untrue Statements

887. JOHN MILTON. Areopagitica: A Speech for the Liberty of Unlicensed Printing. (1644. Prose Works, London ed., 1878, Vol. II, p. 55.) ... Unless wariness be used, as good almost kill a man as kill a good book. Who kills a man kills a reasonable creature, God's image; but he who destroys a good book kills reason itself,-kills the image of God, as it were, in the eye. Many a man lives a burden to the earth; but a good book is the precious life-blood of a master-spirit, embalmed and treasured up on purpose to a life beyond life. It is true, no age can restore a life, whereof, perhaps, there is no great loss; and revolutions of ages do not oft recover the loss of a rejected truth. . . . Truth, indeed, came once into the world with her divine master, and was a perfect shape most glorious to look on; but when he ascended, and his apostles after him were laid asleep, then straight arose a wicked race of deceivers, who (as that story goes of the Egyptian Typhon with his conspirators, how they dealt with the good Osiris) took the virgin Truth, hewed her lovely form into a thousand pieces, and scattered them to the four winds. From that time ever since the sad friends of Truth, such as durst appear, imitating the careful search that Isis made for the mangled body of Osiris, went up and down gathering up limb by limb still as they could find them. We have not yet found them all, lords and commons, nor ever shall do, till her Master's second coming; he shall bring together every joint and member, and shall mold them into an immortal feature of loveliness and perfection. Suffer not these licensing prohibitions to stand at every place of opportunity, forbidding and disturbing them that continue seeking, that continue to do our obsequies to the torn body of our martyred saint. . . . And though all the winds of doctrine were let loose to play upon the earth, so Truth be in the field, we do injuriously by licensing and prohibiting to misdoubt her strength. Let her and Falsehood grapple; who ever knew Truth put to the worse, in a free and open encounter? Her confuting is the best and surest suppressing. . . . For who knows not that Truth is strong, next to the Almighty? She needs no policies, nor stratagems, nor licensings, to make her victorious; those are the shifts and the defenses that Error uses against her power. Give her but room, and do not bind her when she sleeps, for then she speaks not true, as the old Proteus did, who spake oracles only when he was caught and bound; but then rather she turns herself into all shapes except her own, and perhaps tunes her voice according to the time, as Micaiah did before Ahab, until she be adjured into her own likeness.

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888. JAMES BOSWELL. Life of Samuel Johnson, LL.D. (1791. Ed. Dent, Vol. II, p. 13.) . . . This led us to agitate the question whether legal redress could be obtained, even when a man's deceased relation was calumniated in a publication. Mr. Murray maintained there should be reparation, unless the author could justify himself by proving the fact. Johnson. "Sir, it is of so much more consequence that truth should be told than that individuals should not be made uneasy. . . If a man could say nothing against a character but what he can prove, history could not be written; for a great deal is known of men of which proof cannot be brought. A minister may be notoriously known to take bribes, and yet you may not be able to prove it." Mr. Murray suggested that the author should be obliged to show some sort of evidence, though he would not require a strict legal proof; but Johnson firmly and resolutely opposed

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any restraint whatever, as adverse to a free investigation of the characters of mankind.

889. ALEXIS DE TOCQUEVILLE. Democracy in America. (1835. Ch. XI, Reeves' transl., Appleton ed., Vol. I, p. 185.) . . . I confess that I do not entertain that firm and complete attachment to the liberty of the press which things that are supremely good in their very nature are wont to excite in the mind; and I approve of it more from a recollection of the evils it prevents than from a consideration of the advantages it insures. If any one could point out an intermediate and yet a tenable position between the complete independence and the entire subjection of the public expression of opinion, I should perhaps be inclined to adopt it; but the difficulty is to discover this position. If it is your intention to correct the abuses of unlicensed printing and to restore the use of orderly language, you may in the first instance try the offender by a jury; but, if the jury acquits him, the opinion which was that of a single individual becomes the opinion of the country at large. Too much and too little has therefore hitherto been done. If you proceed, you must bring the delinquent before a court of permanent judges. But even here the cause must be heard before it can be decided; and the very principles which no book would have ventured to avow are blazoned forth in the pleadings, and what was obscurely hinted at in a single composition is then repeated in a multitude of other publications. . . . If you establish a censorship of the press, the tongue of the public speaker will still make itself heard, and you have only increased the mischief. . . . If it be allowed to speak freely in any public place, the consequence is the same as if free speaking was allowed in every village. The liberty of discourse must therefore be destroyed as well as the liberty of the press; this is the necessary terminal of your efforts; yet, though your object was to repress the abuses of liberty, they have brought you to the feet of a despot. You have been led from the extreme of independence to the extreme of subjection without meeting with a single tenable position for shelter or repose.

In this question, therefore, there is no medium between servitude and extreme license; in order to enjoy the inestimable benefits which the liberty of the press insures, it is necessary to submit to the inevitable evils which it engenders. To expect to acquire the former and to escape the latter is to cherish one of those illusions which commonly mislead nations.

890. RICHARD BRINSLEY SHERIDAN. The School for Scandal. (1777. Temple ed.) ACT I, Scene 1. Lady Sneerwell's Dressing-room. (Lady Sneerwell discovered at her toilet. Snake drinking chocolate.)

Lady Sneer. The paragraphs, you say, Mr. Snake, were all inserted?

Snake. They were, madam; and, as I copied them myself in a feigned hand, there can be no suspicion whence they came.

Lady Sneer. Did you circulate the report of Lady Brittle's intrigue with Captain Boastall?

Snake. That's in as fine a train as your ladyship could wish. In the common course of things, I think it must reach Mrs. Clackitt's ears within four-andtwenty hours; and then, you know, the business is as good as done.

Lady Sneer. Why, truly, Mrs. Clackitt has a very pretty talent and a great deal of industry.

Snake. True, madam, and has been tolerably successful in her day. To

my knowledge, she has been the cause of six matches being broken off and three sons being disinherited; of four forced elopements and as many close confinements; nine separate maintenances and two divorces. Nay, I have more than once traced her causing a tête-à-tête in the "Town and Country Magazine," when the parties, perhaps, had never seen each other's face before in the course of their lives.

Lady Sneer. She certainly has talents, but her manner is gross.

(Re-enter Servant.)

...

Ser. Madam, Mrs. Candour is below, and, if your ladyship's at leisure, will leave her carriage.

Lady Sneer. Beg her to walk in. (Exit Servant.) Now, Maria, here is a character to your taste; for, though Mrs. Candour is a little talkative, everybody allows her to be the best-natured and best sort of woman.

(Enter Mrs. Candour.)

Mrs. Can. My dear Lady Sneerwell, how have you been this century?— Mr. Surface, what news do you hear?-though indeed it is no matter, for I think one hears nothing else but scandal. ... People will talk-there's no preventing it. Why, it was but yesterday I was told that Miss Gadabout had eloped with Sir Filigree Flirt. But, Lord! there's no minding what one hears; though, to be sure, I had this from very good authority.

Mar. Such reports are highly scandalous.

Mrs. Can. So they are, child-shameful, shameful! But the world is so censorious, no character escapes. Lord, now who would have suspected your friend, Miss Prim, of an indiscretion? Yet such is the ill-nature of people that they say her uncle stopped her last week, just as she was stepping into the York Mail with her dancing master.

Mar. I'll answer for't there are no grounds for that report.

Mrs. Can. Ah, no foundation in the world, I dare swear; no more, probably, than for the story circulated last month, of Mrs. Festino's affair with Colonel Cassino-though, to be sure, that matter was never rightly cleared up.

Jos. Surf. The license of invention some people take is monstrous indeed.

Mar. 'Tis so; but, in my opinion, those who report such things are equally culpable.

Mrs. Can. To be sure they are; tale-bearers are as bad as the tale-makers'tis an old observation, and a very true one; but what's to be done, as I said before? how will you prevent people from talking? . . .

(Re-enter Servant.)

Ser. Mr. Crabtree and Sir Benjamin Backbite.

...

(Exit.)

Lady Sneer. So, Maria, you see your lover pursues you; positively you shan't

escape.

(Enter Crabtree and Sir Benjamin Backbite.)

Crab. Lady Sneerwell, I kiss your hand. Mrs. Candour, I don't believe you are acquainted with my nephew, Sir Benjamin Backbite.

that's true-have you heard the news?

Mrs. Can. What, sir, do you mean the report of—

But, ladies,

Crab. No, ma'am, that's not it. Miss Nicely is going to be married to her own footman.

Mrs. Can. Impossible! . . . and I wonder any one should believe such a story of so prudent a lady as Miss Nicely.

Sir Ben. O Lord! Ma'am, that's the very reason 'twas believed at once.