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the laws of his country, and on that indictment is not permitted to show the purity of those motives, the justice of those ends, coupled with the truth of the matter published; he is debarred of the most conclusive answer to the charge, and subject to fine and imprisonment, upon conviction, as a libeller. Does this state of things comport with our ideas of the free communication of thoughts and opinions, and does it not run directly counter to what our constitution very properly calls one of the most invaluable of the rights of man? Show, if possible, the policy or the wisdom of excluding truth from the eye of the public, when it emanates from motives and for ends such as these. Can it be said that no case is supposable, when a fact in regard to the private conduct of an individual is capable of being promulged for justifiable ends, or that can evince any other than evil intentions? If no such case can exist or be supposed, the most that can be said against the adoption of the rule contended for, is, that it is superfluous. But many such cases may exist; nay, more—are constantly occurring. One offers himself a candidate for a public office; another is conusant of a circumstance affecting his private behaviour, which may render him unfit for a post of public trust; the candidate is not a man in an official capacity, and the matter in itself may not be proper for public information; it may be so only as connected with the particular circumstances of the case; and may not therefore come within the provision of the constitution. It is published with the perfectly justifiable purpose of preventing the election of the candidate, the choice of such a man being considered an injury to the community-the author is indicted as a libeller; if these facts were made clearly to appear, would any jury be found to convict? and in his conviction, can it be said that the freedom of the press is in no degree affected? It was the decision in the case of The people vs. Croswell, that produced the law of 1805 in New-York, which in terms adopted the opinions of Mr. Hamilton; and the legislature of Massachusetts, as we have seen, a short time ago sanctioned the principle in his very words.
It may be said, that an unrestricted licence to publish every truth, is licentiousness, and not liberty, there being some truths which it would be improper to expose to the public eye; and this would be an objection hard to be surmounted, if the rule went to the extent of authorizing the truth to be the only matter to be taken into consideration. But when the matter is published with good motives, and what is perhaps of more importance, for ends perfectly justifiable, where is the reason so distinguishing libel from the herd of other offences, that in the criminal prosecution, any more than in the civil, the defendant should be deprived of the benefit of this defence? He is told, that whether true or false, a libel tends to a breach of the peace, and that it is
itself constructively an act of that character. But does not slander tend to a breach of the peace? Nay, inasmuch as slander to be actionable per se, must impute some crime, or have a tendency to injure a person in his trade, or profession, or business, whereas any written imputation likely to make a man appear even ridieulous, is a libel; we ask, does not slander tend more to a breach of the peace? Is an individual not as much provoked, and as likely to commit a violation of order, by being told to his face that he is a thief, as by reading it in a newspaper? Or has the. law so nicely scanned the tempers of men as to draw with correctness the conclusion, that a man is more irascible in the one case than the other? or to push the interrogation farther, but not one whit further than the fact authorizes, is a man less liable to break the peace on being told to his face that he is a murderer, than from reading in print that he has some trifling failing, which may however cause a smile at his expense? We do not find fault with the law of slander; we wish merely to prove that of libel not to be equally faultless. But is every breach of the peace, under any circumstances whatever, no matter what the provocation, to be punished? Is not an assault justifiable when the proseeutor commenced the attack? Is not murder, (to take the highest erime at once,) excusable when in self-defence? And yet is not, in each of these instances, the peace broken? But in libel, the law, with peculiar severity, deprives the defendant of the benefit of such a defence, and shuts his mouth with the declaration-you have broken the peace of the Commonwealth, no matter what the provocation, no matter how true the publication, no matter how pure your intentions, and justifiable your views, and you must consequently be punished. Is this our boasted liberty of the press?
But in the second place, the law considering libel a crime, and punishing it with severity, we may ask what is the criterion by which to judge of crime? Is it not the intention of the party accused? An act, however fatal the consequence, when there exists no maliciousness of purpose, or that culpable negligence, whence the law implies malice, is not criminal. It is surely not necessary to press this principle of natural law. The intention then constitutes the guilt; and in the civil suit, the publisher has a fair opportunity of showing what his intention was. But, says the law, with what propriety we are at present considering, when a man is in danger not merely of being mulcted in damages, but of fine and imprisonment, the consequences of a criminal act; then his motives are not to be scanned. Reversing the cheering expression, it announces, "Though your mind be white as snow, I will make it red as crimson.
The intention then, upon this argument, does not and can not enter into consideration; the publication is the offence. Let us
look well at, and understand our code-the publication of truth, with good motives, and for justifiable ends, is punishable; and let us then be told of the mildness and perfection of our penal constitutions, and believe what the admirers of the criminal law of libel say of it. If we can be satisfied with what they do say, with these results in view, there is of course no necessity for alteration.
Every attack upon character, is in itself an injury; the wrong, however, is a private wrong, and the public take notice of it only because it tends to disturb their quiet. This is the assumption or theory upon which the indictment is founded: and yet, as if from the consciousness that injustice would be the production of so limited an investigation, the law allows many things to be shown, having a tendency to negative malice. We do not complain of this; on the contrary, if it were not the case, we are sure the system would be intolerable; but it is submitted, that the privilege is not sufficiently extensive. For instance, the defendant may prove, that the publication was in answer to an attack upon himself; he may prove that it was an answer to an inquiry concerning the character of a servant. If any part of the libel be given in evidence by the prosecution, the defendant may read the whole. All these considerations are brought before the court and jury to show the animus, and yet the most important of all is the truth, and that is excluded. We are aware that the exclusion is not founded, as is alleged by some, upon a conviction of its inconclusiveness to satisfy all doubts; for it is alleged that admitting the fact that the publication is every word of it true, it is not the less a breach of the peace. It may properly be answered, that when the law admits one circumstance to show the intention, why reject another? light, from whatever quarter it may proceed, particularly in the investigation of crime, is desirable; why then in so important a point, love darkness rather than light? or take a circuitous and conjectural mode of obtaining it, when the path to it is so obvious, were there a willingness to enter? It has been ingeniously said, that as the rule now obtains, on an indictment for a libel, the defendant can prove nothing, but by means of his counsel insinuate every thing. As much injury to character may result in this way, as from direct proof, and possibly without any foundation for the insinuation, and thus the innocent be the sufferer.
Now, what we ask for the defendant, is not that he may be permitted to allege, I have committed no breach of the public peace, because, what I have published is true; the consequences of the doctrine carried to that extent, would be pernicious; many occurrences are improper for publicity, and might be brought forward for the mere purpose of gratifying malignant feelings, without the most distant idea of answering any one good purpose,
All that we seek is this, that he may be put upon the footing of any other alleged offender, and have the common justice of showing that his intentions were pure, his ends justifiable, and as a means to arrive at this conclusion, that the matter published was true. If he can show all this, we would not have him punishable for a constructive breach of the peace. To prevent any surprise to the prosecutor, the defendant might be required to give notice of his intention to avail himself of the truth of the matter complained of, and this should also be required in the civil action, to which we would now beg a momentary attention.
The views we have submitted on the preceding head, will govern our conclusions on this. As in offering our suggestions upon that, we asked no more than the privilege of proving the truth of the alleged libel, not of itself by any means a justification, bút only so to be considered when conjoined with perfect purity of intention and justifiableness of object; so in the civil action, the same arguments would induce the persuasion that the present system, which compels a verdict for the defendant when he can show the truth of the publication, and is required to show that alone, is carrying too far, with singular inconsistency, the doctrine of impunity for publications, when a private person, and not the public, asks for redress.
The natural and common argument in support of this part of the system is, that a plaintiff should not be permitted to come into court, and ask for damages which he is to put into his own pocket, against another, for alleging what is satisfactorily shown to be true. To assent, however, to this proposition, we must admit, that so far as regards the complaint, every one is at liberty to publish, no matter how improper for public information it may be, any thing whatsoever, provided it be true. We are to limit our view totally to the party who says he is injured by the publication, and are to disregard entirely considerations of infinitely higher importance. We are to overlook matters intimately affecting the general morality of society, as connected with the purity of the press, and are to disregard as entirely the maliciousness of the motives, and the culpability of the ends of the publisher. Let us examine how, in each of these points, the defect may or may not be apparent.
That the good order of society, and prevalence of right notions of propriety of conduct and of opinion, are connected with and in some measure dependent upon the state of the public presses, cannot be denied. The press, like the stage, is in a degree the mirror of public sentiment. We need but a glance at the comedies of Aristophanes, to be convinced that the citizens who could suffer the philosopher, whose doctrine has been so aptly denominated "anticipated Christianity," to be the butt of such men as the writers of the old comedies, were not far from 11
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that state of mind, which not very long afterwards, suffered that same sage to swallow hemlock in his dungeon. Fortunately, the good feelings and habits of our fellow-citizens, forbid the idea of the press at present becoming the vehicle of scandalous and indecent narrative. This condition may not, however, exist for ever; and as the theory of the law would, in our opinion, permit it, and that we are anxious to correct, it is better to do away at once with the possibility of such a time ever arriving.
Is it desirable, that a paper of extensive circulation should contain the record of dissipation or debauchery of those in whose behaviour the public can have no possible concern? Will it be denied that there are some occurrences which it would be improper to introduce to general notice? Is it not sufficient that the license is given to the tongue, without extending it to the pen? Is the purveyor to the perverted taste of those who take delight in tales such as these, to repose secure, because the transactions he relates had an actual existence, without regard to the wounded feelings of family or friends, or to the malice that may have dictated the recital? There is a fallacy in the supposition that the intermeddling with the private deportment of another is excusable, even though the facts may support the assertions. We are to bear in mind what a libel is defined to be. If its definition were restrained to the imputation of heinous offences, there would be reason in denying redress to him who had been actually guilty of offences, the punishment of which would be a benefit to society-though even then, it might be said, that the proper course, if one be guilty of a crime, is to punish him in the ordinary way. But when we recollect that the assertion in writing of any fact, having a tendency to raise a laugh at the expense of another, comes within the sweeping signification of the term, our indignation is excited, to think that the harmless foibles of one of us should be exposed to public ridicule to gratify the malice of our enemy, and that he should laugh secure under the dence of their existence. That such cases may exist doubted; that they do not often occur, is a compliment to our taste and refinement; not to our laws, which contain no provision to meet such a case.
We shall probably be told, that the redress is not given to the public, who by the argument are injured, but to the private individual who cannot deny the assertion. But if the suggestions we have offered be persuasive, the answer will not be sufficient. The public redress is sought in the criminal prosecution, but then, according as the law stands, the defendant has not a fair chance, though if the alteration proposed were adopted, there would, to be sure, be less objection to this branch of the libel law. An attention to the other point of view from which we