courts it is stated that malice is an essential ingredient of actions for libel or slander. But, as in cases for malicious prosecution, the term malice has a peculiar meaning. It is not synonymous with hatred or ill will. Malice may, in a legal sense, exist where in fact the defendant's real motive was to benefit the plaintiff, for example, where a newspaper publishes the fact that a defamatory charge has been made, and adds the comment that the publisher believes it to be false.

Malice is said to be either express or implied; and the distinction is clearly marked. Radically different principles control. As the equivalents of express and implied malice, the words, "malice in fact," and "malice in law," are also used.

Some confusion in the law has resulted from the failure to keep the distinction clear. The courts have often used the word malice without qualifications to express either meaning, and some decisions have therefore been misleading.

Malice in law or implied malice is such as the court infers without evidence of malice. The inference is made from the fact of the falsity of the charge, in accordance with the presumptions heretofore noted. This inference is not permitted by the law to be overcome by evidence that the motive was not in fact malicious. It can be overcome only by showing that the words complained of were published upon what is called a privileged occasion. On account of this inflexible rule of law, some textwriters have sought to establish the proposition that there is but one kind of malice, that is, express malice, or malice in fact, and that instead of holding that there is "malice in law" in certain cases, the courts should hold that in such cases malice is not essential. The results, however, are the same, and the courts have declined to adopt the nomenclature urged by these text-writers.

Express malice, or malice in fact, includes actual malice in its popular acceptation. As an eminent judge said, "It means a wrong feeling in a man's mind." Any indirect or dishonest motive which induces one to defame another may be malice. Gross negligence or wantonness in the disregard of another's rights may be sufficient evidence to warrant a finding that malice existed.

Actual malice may be shown by intrinsic evidence, namely, the kind of language used, its exaggerated character, the manner of its publication; or it may be shown by extrinsic evidence, namely, by any facts not contained in the publication itself, as for instance, by other publications, subsequent repetitions, refusal to retract, the existence of an old grudge. Actual malice is always a question to be determined by the jury, and not by the court.

By reason of the presumptions in plaintiff's favor, above referred to, it results that the questions arising are usually as to the sufficiency of the facts to afford a defense. The defenses will now be considered.

§ 93. Justification.-In libel and slander this word means only that the charge made is true. The presumption being that a defamatory charge is false, the burden falls upon the defendant to prove, if he can, the truth of the charge. And the uniform rule is that if the defendant wishes to avail himself of this defense he mustaffirmatively plead it. This is called a plea or answer of justification. The defendant may always defend by showing the truth of the imputation, and the defense, if established, is complete; for there can be no legal wrong of defamation by speaking the truth of any one. Under a plea of justification, however, the defendant must show that not only the words but their meaning, as alleged, are true. If he disputes that the words mean what they

are alleged to mean, he does not do so by way of justification, but to that extent by denial.

It is a principle peculiar to civil suits for libel and slander that where the defamatory charge is that crime has been committed, it is necessary, in order to sustain a plea of justification, to prove the truth of the charge by the same degree of proof that would be required to convict the party if under indictment for the crime. In other words, justification of a charge of crime must be proved beyond a reasonable doubt. But if no crime is charged the justification may be established by a mere preponderance of evidence. These rules have been modified by statute in some states.

Where justification is the issue, it is wholly immaterial to the question of liability whether the defendant acted maliciously or not. If the charge is true, the defense is complete, even though there was gross malice; and if the charge is found not true, the defendant is not relieved from liability by the fact that he acted in good faith. The only effect of evidence as to defendant's motive in such case can be to enhance or diminish the amount of damages recovered.

§ 94. Privilege. As has been said, the truth is a complete defense in libel and slander. Wherever truth is shown the action fails. The question now arises, when does the law excuse a defamatory charge that is false? Upon grounds of public policy, common convenience and the general welfare of society, there must be immunity upon certain occasions. Statements made upon such occasions are called privileged communications. They are divided into two classes and are said to be of either: (1) Absolute privilege. (2) Qualified privilege. It is to be noted that the privilege attaches to the occasion, and not to the matter stated, for, if the

same matter be afterward repeated upon an unprivileged occasion, it has no protection.

§ 95. Absolute privilege. The occasions of absolute privilege are few, and the tendency of the courts is to narrow rather than enlarge them. They rest upon the ground that it is advantageous to the public interests that persons on such occasions should not be fettered in their statements. The cases of absolute privilege fall under three heads: (1) Legislative proceedings. (2) Judicial proceedings. (3) Naval and military affairs.

§ 96. Legislative proceedings.-No member of either house of congress, or of either house of the state legislature, is in any way responsible in a court for anything he may say in such house. This rests upon the provisions common to the constitutions of the United States and several states that, "for any speech or debate in either house, they shall not be questioned in any other place." The privilege, however, is confined to the walls of the house, which includes its committee-rooms. If the member publish the speech to the world, he is liable as any other individual would be. The absolute privilege does not extend to inferior legislative bodies.

§ 97. Judicial proceedings.-Everything that a judge says on the bench, or a witness on the stand, or counsel in trying and arguing a cause, is absolutely privileged, so long as it is pertinent to the inquiry.

A judge of a court of general jurisdiction is free to say anything concerning a case, while the case is being tried, no matter what his knowledge or motive is, and whether the statement is relevant or not. But a judge of limited jurisdiction is not privileged, unless the statement be relevant to the matter in hand. A witness on the

stand is not liable for any statement he may make, whatever may be his knowledge or motive, provided such statement is drawn out by questions, or, if volunteered, is relevant or believed to be relevant to the case. For any irrelevant matter, if volunteered from a malicious motive, he may be held liable, and he may be held liable for any statements made while not on the stand, whether in or outside the courtroom.

Counsel in a cause may speak any words, however defamatory and false, and whatever may be their knowledge or motive, provided only that they are acting within their instructions and their remarks are pertinent to the case. They may draw any inference they wish from the evidence. But they may not recklessly assert anything of which they can give no evidence.

All pleadings, affidavits and papers in a cause are privileged if pertinent. A New York court has said: "Whatever may be said or written by a party to a judicial proceeding, or by his attorney, solicitor or counsel. therein, if pertinent and material to the matter in controversy, is privileged. But this is the extent of the privilege; for if a party or his agent will pass beyond the prescribed limits to asperse and vilify another by word or writing, he is without protection."

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§ 98. Naval and military matters.-All reports by a naval or military officer to his superior, and all testimony or argument in a court-martial, as well as all other official reports of like character, are absolutely privileged. In all cases of absolute privilege, the question is only whether the defendant has brought himself within it. If he has not, he is liable as any other person would be; if he has, then the question of his malice is wholly immaterial.

6-Elem. Law.