Music
Review -- © mbsi.org, arcade-museum.com -- digitized with support from namm.org
April Trade
26th, i88r.
101
THE MUSICAL CRITIC AND TRADE REVIEW.
a licentious press, on the other hand, causes great individual suffering. sympathy with the man who loses it, but it is unwilling to concern itself
Three generations of lawyers and statesmen, here and in England, have been much about any man's mental suffering, unless he can show that he is out of
trying to make up their minds which of the two they prefer, and in what pocket by it. It requires that if he is hurt, even in the deepest recesses of
manner they can best secure the object of their choice, but without much his nature, he shall appraise his loss in dollars and cents before the law will
success.
bestir itself in his behalf. This appears very markedly in the other remedy
We have talked thus far as if all libeling were done by newspapers. For for libel, the civil action. If a libel attacks a man in his professional or
the purposes of this paper, at all events, we will assume this to be true. official capacity, the law presumes that he suffers pecuniary damage from it.
Slander, or spoken defamation, contains in the eye of the law the same If it accuses a "doctor of want of skill, the law assumes that he will lose
ingredients as a libel, but to become a libel it has to be written or printed clients by it. If it impeaches the integrity or capacity of a public officer,
and put in circulation. It once figured prominently in the law reports, but the law assumes that he will suffer in his authority or influence, or in his
is now very seldom the subjeqt of legal pursuit. People care comparatively chance of reelection or reappointment or promotion, and accordingly awards
little what evil is said of them, as long as "it does not get into the papers," him pecuniary compensation, the amount of which it leaves the jury to fix;
though for the reason I have already given public officers very seldom seek
as the phrase is.
So much of whatever libeling is done in our time is done in the news- redress in this way.
papers, and it is so necessary, to make a libel effective, that it should appear
Supposing, however, that the libel does not touch you at all in any pro-
in the newspapers, that, although, strictly speaking, it may appear in a fessional capacity, or injure you in your business, but simply assails your
book, pamphlet, placard, or picture, the word libel conveys to most minds character as a man or woman, and yet does not charge you with an indict-
the idea of an attack on somebody in a newspaper, and nothing else. Some, able offence,—that is, if it simply goes to make you ridiculons or odious, or
indeed, whose antipathy to the press is unusually strong, often think of news- make you "the town talk," in a way which is not likely to have any direct
papers as simply instruments for the dissemination of libel, and of editors as effect on your success in your calling, or on your authority or efficiency in
persons who make their living by concocting libels. In fact, when we con- some public station,—the law calls on you for proof of what is called
sider the enormous increase in the number of newspapers which has taken " special damage." It asks you how much, if anything, you have lost in
place within the last half century, and the extent to which vast communities consequence of the libel, and holds that if you cannot show that you have
now rely on them for nearly all they know or wish to know of what goes on suffered any pecuniary loss, or the equivalent of pecuniary loss, through the
in the world outside private houses, one is forced to admit that to no art has libel, you are entitled to no compensation, and the libeler deserves no
the progress of invention and the growth of population made such additions penalty. The law reports and the text-books on slander and libel are full of
as to the art of holding persons up to public odium or contempt. Down to the strongest assertions of the doctrine that the law protects property, not
the beginning of this century, the power of any one person over any other reputation. "Special damage," says one of the authorities (Townshend on
person's reputation or feelings, through what he might say or write about Slander and Libel, \ 198), " consists in the loss of marriage, loss of con-
him, was very trifling. It could be exercise.d over only a very small area sortium of husband and wife, loss of emoluments, profits, customers,
and within hearing of a very small number, and as a matter of fact a man employment, or gratuitous hospitality, or being subjected to any other
could readily get rid of a damaged reputation by moving away a short inconvenience or annoyance occasioning or involving an actnal or construc-
distance.
tive pecuniary loss." "All the cases," said the judges in an action brought
by a woman, " proceed on the assumption that the plaintiff has sustained
Now what is a libel ?
A libel, the books say, is a censorious or ridiculing writing, picture or some pecuniary loss in consequence of the slander. It is not sufficient that
sign. It is a malicious writing, printing, or sign, intended to blacken the she has fallen into disgrace, contempt, and infamy, and lost her credit,
memory of the dead, or expose the living to hatred, contempt or ridicule. reputation, and peace of mind, or the society or good opinion of her neigh-
It is a publication which has a tendency to injure a man's reputation, or dis- bors [as a consequence of the slander], unless she has been injured in her
grace or degrade him in society, or lower him in the esteem and opinion of estate or property." (Woodbury v. Thompson, 3 N. H. 194.)
the world; to hold him up to scorn, or make him infamous or odious; to
It has been held, too, that where a woman was shunned by her neigh-
deprive him of the benefits of public confidence and social intercourse, or bors, and turned out of a moral reform society, she had no remedy, because
impeach his honesty, virtue, or integrity, or publish his natural defects. In she could show no " special damage." It has been held in another case,
fact, if we were to infer the amount of protection against libel afforded by where a woman fell sick under a libel, that " as the law gives no remedy for
the law from the comprehensiveness and liberality of the legal definitions outraged feelings or sentiments, a sickness induced by mental distress in
of libel, we shonld conclude that this protection was complete, and that no consequence of the language published, followed by inability to transact
one was ever libeled with impunity. In truth, however, there is probably business, or expense for medical attendance, does not constitute special
no injury to which man is exposed in civilized society from which the law damage," and that for such a libel no action would lie. (Terwilliger e.
does so little to protect him. There are two ways known to American and Wands, 17 N. Y. 54.) I have said already that editors are in popular estima-
English jurisprudence of punishing a libel: you may either procure the tion the great libelers of the day. There is probably no class of the com-
indictment of the libeler on a criminal charge, or you may sue him in a munity so much libeled,—of course by brother editors,—but they seldom or
civil action for damages. The theory on which the law grants you your never sue for it. Indeed, an editor would have very little chance before a
remedy in either of these courses is very instructive. If you resort to the jury, in an action against a newspaper, so deeply rooted is the popular belief
criminal charge, the law punishes the libeler not on the theory that his that his proper remedy is to libel back. There is one case on record, how-
crime consisted in hurting your feelings and lowering you in the estimation ever, in which an editor did try to get damages for having his paper called a
of your neighbors, but on the theory that he provoked you in a manner "low, ignorant, and scurrilous journal." This language, one would think,
which might have led you to commit a breach of the peace, that is, to must surely be actionable, as touching his professional standing, yet the
assault him or challenge him to fight. In other words, the proceeding is in court ruled otherwise. But it held also that to say that the circulation of
principle simply a means of preventing a brawl. * * *
his paper was small was actionable. So that it seems to be law that you do
Of course, the theory on which the indictment is formed makes little not harm an editor by saying that he publishes a paper not worth reading,
difference, as long as it is laid before a jury. In practice the jury deals with and which ought not"to be read; but that if you say that very few people
the offense as a simple injury, without considering, or being called on to read it you have to pay something by way of compensation. (Heriot v.
consider, whether it was likely to have provoked a breach of the peace or Stuart, 1 Esp. Cas. 457.) As if to make assurance doubly sure, the law also
not. But there is nevertheless a strong disinclination to punish libel as a holds that the mere apprehension of special damage shall not entitle you to
criminal offense. Grand juries are reluctant, except in cases of great gravity redress. It is not enough that the libel makes you fear that it may cause
and in which manifest and tangible injury has resulted, to find bills for you damage, or that disinterested persons, like a jury, may consider your
libel. Libelers whom it is considered worth while to prosecute are often, fear well founded. The damage must have actually occured as the direct
in fact in most cases, persons with greater or less claims to social or political and provable consequence of the defamatory language of the libel. * * *
consideration, and the public is therefore somewhat shocked if they are sent
On the continent, the legal immunity believed to be enjoyed by the
to jail; and juries do not like to send them to jail. The punishment seems newspapers in this country excites surprise so great that a distinguished
too great for the crime. * * * It may be said, indeed, that criminal French publicist has described the American press as " despotism tempered
treatment of libel is unsuited to our manners. Criminal proceedings must, by assassination;" his belief being that the only real remedy against libel
in every country in which the jury trial exists, owe their efficacy largely to enjoyed by the American citizen lies in the murder of editors. He relates,
popular sympathy with the victims of a wrong. Now the great difficulty in in illustration of this, that it is not uncommon for American newspaper
punishing assaults on reputation in all Anglo-Saxon countries, and more offices to have a memorial marble plate over the door, inscribed with the
especially in this, is that sympathy with the victims of this particular wrong names of the editors who have fallen in fight under the weapons of persons
is very deficient. One would not infer this from the amount of de- whom they have slandered, together with the date of each tragedy. * * *
nunciation of slander and the amount of lamentation over the license
But it would be unfair to close without venturing to assert that the
of the press one hears in every direction, and most people will doubt- power over the individual peace of mind and private character, lodged now
less, at first blush, be inclined to deny it. But a little close observa- in the hands of editors, is not on the whole abused to anything like the
tion of some of the phenomena of libelling will put it beyond question. extent to which it might be abused, considering how little the law does to
When a man in good standing—and he is the only man who feels dis- prevent its abuse, and how much the public curiosity in its lowest form
posed to punish libel—finds his character assailed in a newspaper, his pain tends to stimulate its abuse. On the contrary, I think no class of the com-
and mortification, unless he has been long before the public and has been munity makes as remarkable a display of successful resistance to temptation
hardened by it, are apt to be intense. He often suffers more, in many cases as the editors of the daily papers, considering how much they hold in their
vastly more, than if he had been robbed of property. He fancies that every- hands and dispense of what their fellow men both ardently desire and greatly
body who knows him has read the libel, and has been deeply impressed by fear, and considering the lack of sympathy, of which I have already spoken,
it. As he walks down the street he thinks that every eye is turned on him which is usually felt by his friends or neighbors for the victim of newspaper
as the person who has been shown up by the Argus or Cerberus. He hates attacks or explorations. I may add that deliberate assaults on character
to have his family see the article. He winces terribly when he meets any- which have little or no foundation, and for which all redress in the shape of
body who refers to it. As a matter of fact, however, his friends care little editorial correction is refused, are rare. No accurate estimate of them can be
or nothing about it. If the attack is very vituperative, they are amused by formed from the number of libel suits brought, because a very large number
it. Unless it is supported by something in the way of documentary proof, of these suits are brought by persons who have not the least intention of
their opinion of him is not affected by it. With the general public, who do pushing them to trial; and this, not because they shrink from publicity, but
not know him, it has simply had the effect of making the paper in which it because they know that judicial inquiry would leave them worse off than
appeared seem " spicy." It will very likely lower him in their estimation in ever. The commencement of the suit is intended to produce the impression
some degree, but it makes nobody feel sorry for him. Those whom he con- that there exists a complete answer to the charge, which the indignant plain-
sults as to whether he ought to take any notice of it are generally unanimous tiff will lay before the public at the proper time, but he really does not anti-
in advising him not to do so. * * *
cipate that this proper time will ever arrive.
[The above article by E. L. Godkin appeared in a recent number of the
Anglo-Saxon law, as well as Anglo-Saxon politics, has never taken much
account of sentimental grievances; that is, of injury to the feelings. Itcares Atlantic Monthly. We reprint portions of it because it has a special interest at
for property greatly, and attacks on property move an Anglo-Saxon com- this time, and 'because it sets forth clearly and succintly what libel actually
munity to any needful extreme of severity in repression. It feels the deepest is, and,how it may be dealt with by the law.]