Posted by Eugene Volokh:
A Fun Little Judicial Diatribe
http://volokh.com/archives/archive_2009_05_24-2009_05_30.shtml#1243545467
From Stewart v. Howe, 17 Ill. 71 (1855):
This was an action for slander, commenced by Sophia Howe, by her
next friend, complaining of Amos Stewart. The words, as proved,
were: �She stole my money;� ��she stole ninety dollars;� �she is a
smart little thief.� It was also in proof that Sophia was but nine
years and nine months old....
SCATES, C. J.
The slanderer insists, in effect, upon the infancy of his intended
victim, in justification of his malice. Feejee cannibalism could
ask no greater license or security for the gratification and
satiety of its unnatural and morbid appetite. I must confess that
while the law recognizes the speaking and publication of actionable
words as a wrong and injury, for which it offers a remedy, I shall
feel, if judges may be allowed that pardonable weakness, that such
a defence has not a solitary grace to recommend it to favor. I
would sooner see the action abolished, than to read out infancy
from the pale of its protection. If there can be a redeeming trait
in the character of the cormorant, it must be in satiating his
gluttony upon the strong and powerful, at the hazard of physical
retribution. But judges have no right to feel, or at least to make
it a predicate of their judgment. It is the head, and not the
heart; and from it must proceed justice, legal justice, though the
heavens fall by the fiat....
[The defendant's argument was that the statement would only be
slanderous, at least in these circumstances, if it alleged that
plaintiff had committed an indictable crime -- and that couldn't be
the case, because she was under the age of 10, and state law
treated children under 10 as not being criminally responsible. The
judge engaged in an extensive rebuttal of the argument, and
concluded: -EV]
The law may and will spare infancy, but the slanderer cries aloud
and spares not. I am not called on to say how young a plaintiff may
sustain this action for words imputing crime, but, as called upon
in this case, I am compelled to say that this plaintiff shall not
shield himself from accountability, by alleging defendant's
infancy, which should have afforded a conclusive reason for
charitable forbearance of his malice and shall not constitute a
shield and ground of defence to him.
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