Page:The New International Encyclopædia 1st ed. v. 06.djvu/89

* DE FACTO. 65 DEFAULT. or the President and Congress of the Confed- erate States — whose de facto exercise of author- ity gained for them a certain measure of inter- natiuiial rno;;iiilion. hut rcniained to the end, in point of Uiw, an illegal usurpation. Acts per- formed by such an aulliority are wholly void and may he impeached in any procei'ding, direct or collateral. In administrative law, however, the term dv fucio is commonly used in a narrower sense, to describe the exercise of illegal authority, but with apparent right and under color of legal authority. The acts of an ollicer tluis acting have a certain validity, so far as the interests of the public an<i oi tliird persons are concerned, and cannot be questioned in any collateral pro- ceeding. But they may be directly impeached — as by a refusal to recognize the de facto author- ity, or by instituting proceedings to test the usurper's title to the office exercised by him, or, at the common law, by a civil suit for the wrongful intrusion into office or for the profits thereof taken by the usurping official. But the mere possession of an office is prima facie evi- dence of a valid title thereto, and de facto authority is i)resumed to be de jure also, until the contrary is made to appear in an appropriate proceeding instituted for that purpose. See Ad- MixiSTR.Tivr- Law: Office: also the authorities there refirreil to. DEFAMATION (Lat. diffamare, from dis-, priv. + fama, report). The infringement of the right of reputation; specifically, the publishing of any matter concerning an individual which is untrue in fact, and which has a tendency to impair his public reputation. The right of every man to the good name which he has earned by a long course of good conduct is recognized by every developed system of law. It is regarded as a species of property, a valuable asset, of which no one can deprive him with imiiunity. Its violation is a legal wrong, or tort, and it may, tinder some circumstances, be a public wrong or crime. As reputation is the estimation in which a man is held by the community in which he lives, the gist of the injury lies in the publication of the imputation upon his character. If communi- cated to him privately or written out for the purpose of publication, but not actually com- jiuniirated to a third party, it is no violation of the right of reputation, no matter how unjust it niay be. Furthermore, the law will protect repu- tati(m only in so far as it is fairly earned. A truthful imputation tipoti character is no viola- tion of the right. But even the ptiblication of derogatory matter which is in fact imtrue may not amount to defamation in the legal sense. The imputation may be too vague and general, or too trivial to be regarded, or, although defi- nite and harmful, it may be uttered under such circumstances of privilege as to justifj' and excuse it. In general it may be said that an action will lie for defamation in those eases, and in those cases only: (1) In which the charge or accusa- tion is shown to have catised special pecuniary damage to the plaintiff; (2) in which the plain- tiff is charged with the commission of a crime; (3) in which the present . existence of an of- fensive contagious disease is imputed to him; Ml in which the conduct of his profession or trade, or of an office of public trust held by him, or his fitness therefor, is impugned; (5) in which unchastity is imputed to a woman. In all these cases but the first, the words or acts charged are defamatory per sc, and are acticih- able without proof of special damage resulting therefrom, and in all of them the action will lie whether the derogatory words were spoken or written. In the ease of a written imputation, however, which is technically called a libel, spe- cial damage need never be shown, but it is enough to satisfy the jury that the words com- plained of were such as to bring the plaintiff into ridicule, odium, or contempt. The most important and comprehensive ground of justification for iniputations u])on character is the privilege of fair criticism and comment on pultlic men and ali'airs. This exists only in com- munities, like England and the United States, in which the governments is of a free and pojnilar charnclcr, and the liberty of the press and of l)ul)lic discussion has reached a high point. This privilege does not cover mere alnise, nor the inalicious imputation of dishonesty and in- capacity, nor tlic invasion of the private and domestic life of the jjerson accused, unless this has some bearing on public affairs. But every citizen is protected in the honest expression of opinion, however severe and unjust it may be, concerning matters of public interest and general concern, whether political or not, so long as the limits of fair criticism are not exceeded. Privi- lege may also exist in matters of private concern, under special circumstances, as in comments rtn character made by a judge, advocate, or witness in the course of a judicial proceeding, such state- ments being privileged unless made maliciously or recklessly. Reference has been made to the fact that the publication of defamator}- matter may, under some circumstances, be a violation of the criminal law. This is never true of mere slander, or spoken defamation, but only of libel; and it is theoretically justified on the groiuid that written or printed "attacks on character are likely to' lead to breaches of the peace or to prove subver- sive of the good order and morals of the com- munity. It seems more probable, however, that the criminal proceedings in libel cases are a sur- vival of the primitive right of private vengeance for injuries of this character, which has, in process of time, been taken over by the State. See Tort; Libel; Slander ; Privileged Com- munication ; and consult the authorities there referred to. DEFAKGE, de-farzh', Th)Sr£se. The wife of the kecjjcr of the wine-shop in Dickens's Tale of Two Citie/i : a type of the remorseless virago of the French Revolution. She is c(mstantly knit- ting. She and her husband are tlic faithful giuirdians of Dr. Manette during the madnes-; that succeeds his release from the Bastille; but they afterwards seek the life of his daughter's lover, who is connected with a certain noble fam- ily which has incurred their deadly Ivite. DEFAULT (OF. defaulte, It. diffalta. from Lat. dr. away + faUere. to fail). In law. the failure of a party to a suit to take the next step in the process of litigafion incumbent upon him, within the time limited by the practice of the court. Originally, the term was limited to the non-appearance of a party in court on the day assigned in the writ or sununons. btit it is now