LIBELLING THE DEAD

Evening Star, Issue 19550, 7 May 1927, Page 13

LIBELLING THE DEAD

SHOULD THE LAW BE ALTERED? Now that the personal reverberations of the Gladstone case have died away a little it may be interesting to glance at the general question of libelling ■ the' dead) is the maxim, “De mortuis nil nisi bonum,” one which should infallibly command respect, at all times and in all circumstances’, a universal obligation of honor, or is it a mere polite convention which individual taste and judgment may bo allowed to set aside? — London ‘ Truth.’

“Such a question presupposes the absence of malice against living persons,” adds ‘Truth,” “To traduce the memory of the departed, out of spite against - their descendants, is the act of a cad, which no decent person would attempt to justify. But the temptation to speak evil of the dead may have no such contemptible motive. > The chivalrous desire to avoid < aspersions upon individuals no longer living may be at war with other worthy impulses, with the duty of dealing fairly and_ accurately with historical events, with the just distribution of retrospective praise aud censure, with the sovereign claims of truth.

“ Resentment against libels upon the dead has never received much encouragement from English law'. In the old case of Rex. v. Hunt it was laid, down that ‘a publication tendingto disturb tho minds of living individuals and bring them into contempt and disgrace by reflecting upon persons who are dead is an offence against the law,’ but it -was stipulated that for a prosecution to succeed there must be ‘ a malevolent purpose to vilify the memory of the deceased with a view to injurying his descendants.’ However, as far as I can discover, no indictment on these lines lias been tried within living memory. “Yet, although in Great Britain the question is closed legally, it remains, ethically, a highly debatable one. _lt is true that in the discussion following the Gladstone case there has_ been a definite preponderance of opinion in favor of silence where dead men’s characters are concerned, but there has also been a noticeable failure to discriminate between mere lying slander aud the libel which is limited to truth.

“To impose upon all writers and speakers the adamantine rule that they shall make no allusion to departed greatness which is nbt couched in terms of flattery or approbation is to set a mischievous premium on hypocrisy and falsehood. Nor is it easy to draw a clear line of demarcation between private character and public conduct. The morals of a statesman, for example, are no mere trivial accident, but an integral part of his personality as it presents itself to the eye of the historian. A rule which is to serve as a universal guide for posthumous commentators must be broad, comprehensive, troubled with no subtle distinctions, easy to grasp avid apply. Can such a rule be found? I think it can. At auy rate I would venture to suggest as a good enough working proposition lor an imperfect vvorld that whenever a historian, memoir writer, journalist, or any selg-appointecl censor of defunct humanity ventures to canvass the honor and reputation of deceased persons, ho should bo at pains patiently to inform himself of the facts, using every available avenue of information, and when research has furnished him with- undeniable knowledge, though not till then, he should be at liberty'to tell tho truth. “ After all, this is the measure of justice and fair dealing with which living persons are forced to content themselves under the existing law of libel. Not that I would favor giving a legal right to action to surviving relatives for libels on the dead—the damage is too purely sentimental to call for the intervention of the courts —but, as a canon of good conduct for critical biographers, nothing better is-to bo desired bv sensible people. "“It would be pleasant, no doubt, to think that the evil that men do could be for ever ‘ interred with their bones,’ but the liberty of historical criticism, sanely and responsibly undertaken, is too precious a thing to bo made the slave of any lower standard than that of truth itself. “ Tho whitewashing memoir is hardly less offensive than the mud-slinging variety. There has scarcely been a, blackguard in history who has not found some literary toady to gild, bis memory with abejet 'lies. “As regards personages who have not long left us .and Whoso near relatives are surviving, there are obvious limits of good taste which delicacy will continue, to respect, but this is a matter of politeness, not .of principle.Morality is content with the less fastidious requirement that estimates of dead men’s lives shall bo inspired only by painstaking sincerity and good faith.” ANOTHER VIEW. “Tbo ordinary law of libel does not apply to the dead: no one, that is to say, can claim damages lor libel on a dead man. This was the difficulty nr which Mr Gladstone’s sons found themselves after Captain Wright’s attack on tho character of their father, and the ‘ Law Journal ’ now suggests that the law should be altered so that the farnilv of a dead man should be able to sue directly for libel,” says the ‘Manchester Guardian.’ Something may be said for that view, but this is a subject that is not without its history. Under certain conditions criminal proceedings may bo instituted for libels on the dead. The Sega! fiction is that the aggrieved relative must show that the libel was so gross ns to be calculated to provoke a breach of tbo peace. “That condition might easily be satisfied, but it has also been held by the courts that there must have been on the part of tbo offender an intent to bring contempt and scandal on the relatives. Therewith there enters a serious element of uncertainty. “ While, therefore, it cannot bo said that there is no remedy for gross libels on the dead) it is true that the application of it is very narrowly circumscribed. It is certain, however, that it an attempt were made to apply the ordinary law of libel to the dead the conditions of its application would have to lie very strictly guarded. , “ There is one judgment of the Hign Court which siys that to discuss the character of dead statesmen and noblemen as a. matter of history is no crime, hut a general and sweeping application of the law of libel to the dead would make it difficult, and sometimes impossible, to examine recent history on the personal side. “No ordinary biographer, for instance, would be willing to run the risk of even the threat of a libel action which, at the best, would involve him in great anxiety and possibly in heavy expense “Perhaps the law asto criminal proceedings might be modified so that action could be taken, more easily than it can be now,” is the conclusion to which tho ‘ Manchester Guardian 5 comes. “ Nothing should be done to impede the serious discussion of the actions and characters of the dead when they ore of public interest, but any modification of the law is worth consideration which would make gross and gratuitous slanders punishable.” .