Summary
In Skinner v. White, 18 N.C. 471, the cases in England and this country are reviewed, and the rule, "that the words, if true, must subject the party to an infamous punishment," is declared to be the settled law of this State: the punishment to be such as involves social degradation by occasioning the loss of the libera lex. That rule is fatal to the plaintiff's case.
Summary of this case from Wall v. HoskinsOpinion
(June Term, 1836.)
To charge a man with harbouring a runaway slave, is not actionable, without proof of special damage; although for such offence, he might, if guilty, be indicted, and upon conviction be fined and imprisoned. The charge, to sustain an action, must impute an offence, to which is annexed an infamous punishment, a punishment which involves social degradation, by occasioning the loss of the libera lex.
THIS was an action of SLANDER, in which the declaration stated, that the defendant said of the plaintiff, "that he harboured a runaway negro belonging to Jonathan Reddick, and he could prove it; and he should be prosecuted for it." Upon the trial at Chowan, on the last Circuit, before his Honor Judge DICK, the jury found the defendant guilty of having spoken the words charged in the declaration, and assessed the plaintiff's damages to three hundred and twenty-five dollars, but subject to the opinion of the Court upon the question reserved, whether the words were in themselves actionable. Upon argument, his Honor being of opinion that the words were not of themselves actionable, directed a judgment of nonsuit to be entered, from which the plaintiff appealed.
Badger, for the plaintiff, contended, that charging a man with harbouring a runaway negro, was actionable. It imputes an act of moral turpitude which subjects a man to indictment and punishment, and degrades him in the eyes of the community. It is certainly actionable, unless it is the law, that the offence imputed must be such, that the punishment of it must be hanging, putting in the pillory, or whipping.
Kinney, for the defendant. The words charged do not necessarily impute the offence of harbouring a runaway slave. The charge is of harbouring a runaway negro, belonging, c., by which might have been meant, that the negro was only an apprentice. It should have been alleged that the defendant meant thereby the harbouring a runaway slave.
But if the words do impute the offence of harbouring a runaway slave, they are still not actionable. They must impute legal infamy — the mere liability to punishment is not sufficient. Brady v. Wilson, 4 Hawks, 93. Liability to the punishment of imprisonment is not of itself sufficient.
Badger, in reply. The case in Hawks has no reference to the present. There the charge itself was not actionable, because there was no averment of the guilt of the offence — like charging one with killing a man simply. But if the words themselves import a criminal offence, the defendant must show that they were not so used. Negro belonging to a man, must mean a slave — it is synonymous with slave. The criterion contended for by the defendant's counsel is not the true one. If the punishment of whipping was taken away from stealing, still it would be actionable to charge a man with stealing. It must therefore be the nature of the offence, and not the punishment, which renders the words actionable. Harbouring a slave partakes of the nature of larceny. In the act of 1816 ( Rev. ch. 918,) relative to the punishment of manslaughter, the Court recognised a distinction between crimes infamous or otherwise, and referred the infamous punishment therein directed to the offences of an infamous nature. State v. Kearney, 2 Hawks, 53.
— An act of assembly passed in the year 1821, (Taylor's Rev. ch. 1120,) declares, that if any person shall harbour or maintain any runaway slave, such person shall be subject to indictment for such offence, and being convicted, shall be fined not exceeding one hundred dollars, and be imprisoned not exceeding six months. The declaration states, that the defendant said of the plaintiff, that "he harboured a runaway negro belonging to Jonathan Reddick, and he could prove it; and he should be prosecuted for it." The question is, whether the words spoken are slanderous, and in themselves actionable? From the contradictory decisions in England, it is not easy to say what is now the rule to determine what words are actionable of themselves, and what not. In Ogden v. Turner, Salk. 696, Lord HOLT said, to render words actionable, it is not sufficient that the party may be fined and imprisoned for the offence, if true; for, says he, there must not only be imprisonment, but an infamous punishment. This decision, which seemed to establish a fixed rule, was shaken, and materially contradicted, by what fell from De GREY, Chief Justice, in giving judgment in the case of Onslow v. Horne, 3 Wils. 177. Mr. Starkie, in his Treatise on Slander, p. 41, says, from all the British authorities, perhaps, it may be inferred generally, that, to impute any crime or misdemeanor for which corporal punishment may be inflicted in a temporal Court, is actionable, without proof of special damage. Any objection to the extent of the above rule, he says, is in a great measure obviated by the statute, which enacts, that when the damage does not amount to forty shillings, the costs shall be limited to the amount of the damages. In Chitty's General Prac. 44, the same rule appears to be laid down. He, in classing slanderous words, says, "nor can any action be supported, unless the words either, first, impute the guilt of some temporal offence, for which the party slandered, if guilty, might be indicted and punished in the temporal Courts, and which words are technically said to endanger a man in law" — he then proceeds to give the other classes of slander, which are not applicable to this case. The rule, as to the extent of words actionable in themselves, has never been carried in this country as far as the above respectable commonplace authors state it to be in England. In several of the states, it seems to be, that where the charge, if true, will subject the party to an indictment involving moral turpitude, or subject him to an infamous punishment, then the words are actionable in themselves, otherwise not. Brooker v. Coffin, 5 John. Rep. 188. Widrig v. Oyer, 13 John. Rep. 124; 2 Bibb, Rep. 473. Shaffer v. Kintzer, 1 Binn. 542. Ross v. McClurg, Ib. 218. Chapman v. Gillett, 2 Conn. Rep. 51. In Andreas v. Hoppenheaffer, 3 Serg. Rawle, 255, the Judges concurred in opinion, that it must be either a felony, or a misdemeanor affecting reputation, and, therefore, to charge a man with having committed an assault and battery, a nuisance, or the offence of forcible entry and detainer, though the party would be subject to indictment and imprisonment, would not be actionable. See also 19 John. Rep. 367. In Shipp v. McCraw, 3 Murph. 466, it was held, that the gravamen in an action of slander is the social degradation arising from the imputation of an infamous offence, and the infamy of the offence is tested by that of the punishment which follows on conviction — the loss of the libera lex: no other degradation will give an action, for no other degradation is a social loss. In Brady v. Wilson, 4 Hawks, 94, the Court said, "inasmuch as the words did not impute to the plaintiff any felony or other crime, the temporal penalty of which would be legally infamous, the action could not be supported." In the other states, when the Courts say, the words are actionable if they subject the party to indictment and infamous punishment, provided they be true, we clearly understand what is the extent of the rule; but when they go on further to say, "or subject the party to an indictment involving moral turpitude," we are left in doubt what charges are embraced within the sentence — it lacks precision; we are compelled to search moral and ethical authors, rather than legal writers, in order to ascertain whether the case made be within the rule. It seems to us, that the rule laid down by Lord HOLT, that the words if true, must not only subject the party to imprisonment, but an infamous punishment, is the settled rule of law in this state. The rule being thus precisely defined, gentlemen of the profession can never be at a loss how to advise their clients, nor can a Judge be at a loss how to charge the jury. In this case, the charge made by the defendant, imported an offence punishable with fine and imprisonment; but the judgment would not render the person guilty of such an offence, infamous. He still would retain his liberam legem, and belong to the boni et legales homines of society, which appears to be the teste by which to ascertain whether words of this class be actionable or not. The judgment must be affirmed.
PER CURIAM. Judgment affirmed.