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sidered, in some degree, one of the jura regalia to file informations for libels, shows how little understood and regarded, and how carefully hedged in by all the formidable apparatus of power, has been the undoubted right of free investigation of public measures.
The interesting nature of any question having reference to the freedom of the press, has drawn from us these observations, aside from our immediate object. It is intended to offer a few reflections upon the existing law of indictments and civil suits for private libels, -it not appearing to us to possess the same perfection, by any means, with the greater part of the law: and in this of innovation, or, in the view of many, of improvement, when an impetus has been given to advancement in every science, and among the rest to this, certainly one of the loftiest, a hint of this kind may not be considered altogether improper; particularly as the policy of the existing law has been the source of regret and disapprobation to many.
As to what the existing law is, there can be neither doubt nor cavil. The truth cannot be given in evidence on a criminal : charge for a libel, the temporary provision allowing it in all cases, having expired without revival. It is, on the other hand, now equally well settled, though, as we shall see, there were formerly great doubts, that in the civil suit for the same offence, the truth of the allegations may be given in evidence, provided it be specially pleaded as a justification. If this be a defect, the remedy is with our legislators. We would endeavour to show, if possible, with great deference for the opinions of those who have otherwise settled the law, that the rule of excluding the truth should be adopted to a certain extent in civil suits for tibels, and that the contrary should obtain in criminal prosecutions; to wit, that in neither case should the truth be a justification, but that it should in both be admitted as evidence for the purpose of ascertaining the intention of the publisher,-of exhibiting the innocence or maliciousness of that intention.
We have, in this design, the advantage wanting in many, of embarking not entirely without the benefit of some light to direct our course. Precedents are numerous for the change, in England, on the Continent, and in our sister states. a considerable time, before, in the first mentioned country, the law was settled in civil suits as it now stands. It was said by Lord Hardwicke when in the King's Bench, in the year 1735, “that the truth could only be given in evidence in mitigation of damages—not as a justification, the law is too careful, said he, in discountenancing such practices." It is a little remarkable, too, that in the case of Harman vs. Delany, in Strange 898, in the fourth year of George II., such a doctrine was not thought of. A short time prior to that case, the very point was laid VOL. V.-NO. 9.
down by the Chief Justice in Rex vs. Betterton, in the same book, page 498. The defendant had published of an apothecary, that he had feigned himself the doctor, and by that means obtained his fee. It came before the court on a motion for an information, and the court said that as the apothecary did not deny the charge, they would not give him the extraordinary remedy of an information; but, they added, in the civil action, the truth was no justification. The very accurate compilers of Bacon's Abridgment, under the title Libel, lay down the law in accordance with the above, and take a distinction in this respect between slander and libel, allowing the truth to be a justification in the former, but not in the latter. The contrary doctrine, however, is now too firmly established to be overturned by judicial decision, and all the Judges of England, in the year 1792, upon questions put to them in Parliament on the libel bill, gave their answers to this effect.
Attempts have been made, hitherto we believe without success, to introduce an alteration. Mr. Brougham, in the year 1816, brought into Parliament, a bill proposing some very important changes in regard to the filing of ex-officio informations, and in the general law of libel. These alterations, with respect to the admission of the truth in evidence, were similar in many points to those now suggested. This bill was postponed until the next session, and, we presume, came to nothing at last; as the government was probably too well satisfied with the existing regulation.
The French have considered this subject with great attention. The revolution, which unsettled so many doctrines and opinions before considered as immoveable, could not be expected to leave the law wholly untouched. As late as the year 1818, in the Chamber of Peers, a select committee was appointed, of which the Duc de Broglie was the chairman, who made a report distinguished by the most profound and enlightened views of the liberty of the press. They recommended to the Chamber, the distinction which obtains here, between imputations upon public conduct and private character: allowing, in the first case, the truth of the matters charged to be given in evidence as an exculpation, but in the second, excluding it altogether, considering no attack upon private character through the medium of publications, however true, in any case justifiable. The report takes likewise a ground similar to that which Mr. Brougham had two years before assumed in England. Dat gentleman proposed to render spoken slander indictable as a misdemeanor, and to take away the distinction between words imputing an indictable offence, and such as are generally defamatory, declaring both actionable, and thus removing the difference in this point between written and spoken slander. The French committee of Peers, too, got rid of the distinction between libel and slander in at
tacks upon private character. The spirit that pervades this report, gave no prognostics of the censorship under which the French press groaned in so short a time afterwards.
The civil law was very severe upon this offence; punishing even with death the false charge of a capital crime. * nised the distinction between slander and libel.
Vinnius, in his commentary upon the Institutes,t remarks, that the truth should be admissible to explain the intent, and not in every instance to justify it ; that the investigation should be restrained to the innocence or maliciousness of the publisher's intentions.
may here mention a striking case which occurred in England, to show that when the intention is not criminal, no action should lie, or prosecution be sustained. In Brook vs. Montague, Cro. Jac. 91, Lord Coke, then at the bar, cites the following decision in his argument. A preacher in his sermon recited a story out of Fox's Martyrology, of one Greenwood, as being a very wicked man, and a persecutor, who died under signal visitations of God's displeasure. The preacher intended to show by that example, the judgment of Providence upon great sinners, but he was totally mistaken as to the fact; for Greenwood was not dead, or diseased, but present at the preaching of the sermon. He brought his action for the defamation; and the court instructed the jury, that the defendant having read or delivered the words as matter of history and without any evil intentions, was not liable in damages.
Let us now turn our eyes for a moment to our own country, and see what view has been taken of this interesting subject here. The constitutions of the states of Delaware, Tennessee, Kentucky, Ohio, Indiana, and Illinois, contain the same provisions as that of Pennsylvania, in regard to publications on the official conduct of men in a public capacity, or where the matter published is proper for public information. Those of Mississippi and Missouri, extend the privilege to all prosecutions for libels, without restriction, whether public or private. New-Jersey, by an act passed in 1799, made a similar regulation.
On the 6th of April 1805, the legislature of New-York enacted, that in every prosecution for writing and publishing any libel, it shall be lawful for any defendant upon the trial of the cause, to give in evidence in his defence, the truth of the matter contained in the publication charged as libellous:—Provided, that such evidence shall not be a justification, unless it shall be made satisfactorily to appear, that the matter charged as libellous, was published with good motives and for justifiable ends. The new constitution of that state, of 1821, contains the same provision; a proof, that in the opinion of the eminent men who framed that
charter, the rule laid down by the legislature previously, and which had been in operation for sixteen years, was productive of no evil consequences.
“ In Massachusetts," says Chancellor Kent,* "a statute passed in March 1827, not only allows the truth to be pleaded by way of justification in all actions for libel as well as for oral slander, but every inference to be drawn from such a plea, in admission of the fact of publication or of malice, if the plea be not proved, is destroyed. The statute affords facility and encouragement to the plea.” Another section of the same statute declares, that in all prosecutions for libels, the truth may be given in evidence, with a proviso couched in exactly the same terms, with that in the constitution of New-York. Some decisions of the Supreme Court of Massachusetts produced, we believe, this act.
This unanimity of views on this interesting subject, all differing in most essential particulars from the law as received in that country whence we have derived the greater part of our own, and it appearing that even there, that law does not receive, by any means, the undivided admiration of its professors, may induce us with great propriety to doubt of its wisdom and justice. We are freed, to be sure, from the terror of ex-officio informations, or indeed, as far as concerns the subject we are at present examining, all informations whatsoever, and the press may be thought, practically, sufficiently free for investigations of public affairs; but we are still subjected to what we respectfully sub
mit is the crying injustice of having the truth excluded upon \ judgments for private libels, in all cases, without qualification ; and, on the other hand, to what appears to us to be an equally pernicious regulation, the allowance of the truth to be a complete justification on the civil side of the court. The few observations. we shall offer, which are intended rather as hints to lead the inquiries of others, than as in any degree a treatise upon the subject, will tend to apply a remedy to both these deficiencies and in the first place to the criminal part of the law of libel.
We may remark here, that it is not our purpose to run into the extreme of abolishing all distinction between libel and slander, which has been the plan both of the French and English jurists above mentioned. There is sound sense and justice in the rule that draws the line of demarcation between them. The less offence is sufficiently punished, by subjecting the slanderer to an action for damages, without swelling the list of misdemeanors, and consuming the public time with criminal prosecutions, for the verbal effusions of temper, or even of malice. There is too, in the deliberate formation and publication of a libel, the law justly says, such inherent evidence of that malice pre
Note to 2d vol. of Commentaries. p. 21.
pense, a feature so important in the composition of crime, that it would be the destruction of an important distinction, to abrogate that existing between written and spoken slander. The law moreover regards as essential, the probability of the more extended duration and permanent continuance of the injury in the one ease than in the other, arising from the difference in the nature of the two means of propagating the offensive expressions. And why the ebullitions of temper, in mere generally defamatory phrases, which have been classed among the privileges of the vulgar, should be put upon an equal footing of criminality with the same when reduced to writing, and deliberately circulated to the world, is not, we confess, sufficiently apparent to induce the adoption of the opinion. But to return,
We do humbly submit, that however far from the intentiorts of those who introduced the rule, or who now advocate its continuance, it does intrench upon the perfect liberty of the press. The position, that in this country the press is not perfectly free, will be thought at first sight, by many, paradoxical; a nearer view of the subject will, we trust, remove this impression.
When we say that the liberty of the press is invaded, we would be understood to speak exclusively of written slander, in the vulgar meaning of the term, written. It is perfectly well known that abusive signs, pictures, statues, and things of that nature, may be libels. Nay, it was in one case held, that the sending of a wooden gun to an officer of the army, was a libellous reflection upon his military character. We are not aware that the press has any thing to do with transactions of this description; though a law, which in all cases should forbid burning in effigy, for instance, would in some degree clog the freedom of communication of thought and opinion, which may be expressed, doubtless, as well by signs as by writing; in many cases more significantly.
What is the liberty of the press ? In what does the true meaning of that phrase, so much discussed, and in some instances so little understood, consist ? Let a more correct and comprehensive definition be pointed out, than that given by the distinguishod jurist and statesman, Alexander Hamilton, in the great case of The people vs. Croswell, 3.Johns. Cases, 337. “The liberty of the press,” said he, “consists in the right to publish with impunity truth, with good motives, and for justifiable ends, whether it respects government, magistracy, or individuals.” Does not the law as it stands violate this liberty, according to the definition we have adopted ? Take an example-A man publishes, with the best intentions, and for ends perfectly justifiable, any truth of any other individual. The press is used of course as the vehicle of communication with the rest of the world. What is the consequence ? he is liable to an indictment for a breach of