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wished to examine this matter, will, we trust, remove the objection.
There are two parties to the suit; plaintiff and defendant. The merits of their respective sides are to be weighed, and the preference given to the most deserving. If, in the consideration of the court and jury, the ill-deserts of the defendant, arising from the blackness of his intentions, overbalance the supposed impropriety of paying a plaintiff for the assertion of a truth concerning him, the determination will be in favour of the latter. And hence is deducible the correctness of the rule we are advocating. Inasmuch as cases of this kind may occur, the proper mode is to leave all this to the jury-the truth, the motives of the defendant in making the publication, and the nature of the matter charged, its criminality or insignificance the deduction will be drawn from a view of the whole. The law adopts this course of reasoning, or rather of conduct, in some cases. We mean the giving an advantage to one party, to prevent the interests of society suffering by a contrary behaviour. A contract is entered into repugnant to the policy of the lawmoney is deposited by one party with the other, who, disregarding the honour of which even thieves are boastful, retains itredress is sought-the maxim “In pari delicto, melior est conditio possidentis," is a complete bar to the plaintiff. It is better, says the law, that an advantage be derived by the defendant, however unworthy, than that an action of that nature be countenanced. In such a case, moreover, as this we have just cited, the parties do not appear in pari delicto: the defendant adds treachery to his previous violation of law. Now, we fearlessly assert, that a plaintiff, who asks for redress for ridicule cast upon him by an exposition of his foibles, however undeniable their existence, has much more to recommend him than a defendant in such a case.
All regulations of jurisprudence must be general: they must be calculated to meet and accommodate themselves to general views, and not bend to the supposed hardship of particular cases. This principle, so essential to the formation of a rule of civil conduct, is preserved by the plan we propose. To instance:-a man is asserted to be a thief, and is so proved on the trial-to allege that under any circumstances he should gbtain damage for this, may be thought a monstrous proposition, and we are willing to admit it would be hard to persuade a jury to give him any, But, again : a perfectly innocent and yet ludicrous failing is incident to another-it is maliciously and for culpable purposes published to the world—we hesitate not to assert most boldly, that any jury, even though convinced of its existence, if the law permitted, would give damages. But, by the present system, the defendant pleads a justifieation; that is, asserts on the record the
truth of what he has charged, and the court, upon proof of that, direct the jury to find for him. The meaning of a justification being merely that the charge is true, not that the publisher's motives are pure. We humbly, submit that the alteration we propose pays a due regard to the merits and demerits of the complaining party, the regulation and preservation of the purity of the press, and the motives and intentions of the publisher; that it pays this due regard to all, and not exclusively to any one; and that, on the contrary, the existing law extends it to neither.
What will be the practical effect of the change? The object of all judicial investigation is, or ought to be, the performance of the most perfect justice possible between the parties. The end proposed in a civil action for a libel, should be to discover the degree of the defendant's culpability; to measure the quantum of his criminality, and the amount of damages for his offence. Every thing that would advance this end is of importance. The charge being true, will not, or rather ought not to make it necessarily no libel. In some cases the evidence of the truth, we grant, would conclusively negative malicious intent; but it would not in all; and it is for this reason the change is desirable. This being the case, where from the truth the conclusion would not irresistibly follow that no malice existed, the defendant should go further, and satisfy the jury of that deduction from the circumstances. To express our idea in as few words as possible, it should be established that the jury, in all suits for a libel, should have the power of assessing the damages from a view of the whole case; of judging whether the truth was an exculpation or not, or whether circumstances of malice appearing in the conduct of the defendant, would not justify them in mulcting him in damages, though he substantiate his accusations. The charge should of course be taken as false, until the contrary were shown by the defendant. If he should fail in this, the known falsehood, both in the criminal charge and civil action, would be decisive of the malicious intent: and that should be the main object of the investigation. This would be placing the law of libel upon a uniform footing throughout. The defendant in both cases, whether he appear to answer criminally or civilly, will have the benefit of the same defence; not more advantages, as he now has, in the latter than in the former.
It has been remarked as a singular omission in the Treasons Act of Edward III., that to murder the king is no treason by the statute; though to compass his death is. The omission has not been singularly unfortunate for the safety of their British majesties; and it may be said, that the defectiveness of the latter branch of our subject, as subjecting private character to injury, is equally harmless in its consequences. We doubt the
assertion. There appears, at present, sufficient ground to apprehend that the knowledge of the impunity consequent on the publication of any matter, provided its truth be made apparent, may, at some future time, make serious inroads
the public morals. To avert this, the change we pro
ose appears to us the best. We may be mistaken; but we have given our views under a thorough conviction of their usefulness.
It is so frequently the fashion in Reviews to take no notice of the work whose title stands at the head of the article, that we have ventured to adopt the custom in the present instance. It was the more unnecessary to enter into an examination of Mr. Holt's work, as its merits are abundantly known and appreciated by the Profession. It has long ranked among the standard elementary books of English law.
1.-History of the States of Antiquity, from the German of
A. H. L. HEEREN, &c. Northampton, Mass. 1828. 1. vol.
8vo. 2.-History of the Political System of Europe and its Colo
nies, from the Discovery of America, to the Independence of the American Continent. From the German of HEEREN, &c. Northampton, Mass. 1829. 2 vols. 8vo.
In judging of an historical work, it is necessary to keep in view the general requisites which constitute the historical character of a narrative, as well as the special purpose for which it is composed. The work of Heeren, which Mr. Bancroft has introduced into our literature, is intended to exhibit an outline of the most important events in ancient and modern history; and to be used particularly as a guide in studying, and as a text-book in delivering lectures on history; for which purpose it is commonly employed in the universities of Germany. It is the object of the following remarks, to show what we consider the general requisites in an historical work, and the particular qualities which fit it for a guide and text-book : and at the same time to determine, how far the work under review is adequate to these demands. The translation, so far as we have been able to compare it with the original, is generally fluent and correct. harsh and obscure expressions may be easily corrected in a second edition, which we hope will soon be called for.
The attempt to fix upon the general requisites or essential qualities of a composition which lays claim to the name of his.
tory, is attended with peculiar difficulties. They arise, not so much from a want of eminent works in this department, as from too great a variety, which, like too many rays of light, are apt to blind the vision as effectually as utter darkness. Every student of history must be struck with the great variety of taste, method, and design, which characterizes the most prominent historical works; and the still greater multiplicity of opinions and criticisms on the peculiar merits of those productions. Take, for example, the histories of Herodotus and Thucydides, of Livy and Tacitus, the chronicles of Tschudi, the history of Hume, and that of John Müller. The more the reader is able and willing to appreciate the peculiar excellence of each of these works, the more he is liable to mistakes in regard to their general historical character and authority ; his judgment being biassed by qualities which may assign to them a rank among works of fiction or moral philosophy, at the expense of their historical merit. Under these perplexing circumstances, a fair estimate of the credit due to an historical work as such, is, perhaps, less to be expected from one who views it as a learned judge, than from a man of common sense, who decides upon it as a juryman, not according to pre-established rules, but as a matter of fact. To such an unbiassed judge of history, language itself seems to point out its true character, by the twofold meaning it assigns to the word. When we speak of the history of the Romans, we mean the deeds and remarkable events relating to this nation. But when we speak of the history of Livy, we do not mean the events in the life of this man, but the account or narrative of the Romans which he has left us. Accordingly, if we be justified in ascribing this double use of the word history (as we find it in several languages) to the philosophy, rather than to the poverty of the language, we would say, that a description can only so far, and no farther, be considered as history, as it is founded on history, that is, on real facts and events. To those who may think that under this play of words, we have brought forward nothing but a truism, we answer, we should be sincerely glad to plead guilty to this imputation. We heartily wish that nothing but history might be related and considered as history. But when we examine the most eminent works designated by this name, we soon discover, besides the only legitimate ground and object of history, many deviations, occasional and systematic, some arising from unfair, and others from conscientious motives. The more the views from which these deviations from truth proceed, are settled and general, so much the more they affect the whole character of the narrative: while personal and temporary interests are more apt to affect the particulars. The characters of the narratives themselves, and that of their authors, and the circumstances under which they wrote, commonly disclose to us the
causes of these deviations; and it is easy to point out a scale of more or less personal or enlarged views, which induced the historians thus to deny their own character.
The biographer who undertakes the description of one individual, if he is himself this individual, is liable to be led away by the insinuations of self-love, which is likely to appear as much in the apparent modesty with which he details his merits, as in the self-complacent humility with which he confesses his faults. On the other hand, if he writes the history of another person, he is frequently tempted to flattery or abuse, by the influence of the elevation or debasement of this individual upon his own standing and prospects. The propensity to exaggerate the merits or the faults of individuals, extends in monarchies and aristocracies commonly to certain families, and standing political and religious institutions, in which all have become so domesticated, that they regard them with a kind of family attachment and implicit faith. In republics, the spirit of exaggeration is commonly directed for or against certain parties. Europe abounds in pompous narratives of the reigning families, and of political and religious establishments, which seem to rise in the admiration of men as their claims to their esteem become more and more uncertain, a matter of reminiscence rather than of reason, and at last outgrowing even the memory of man. Among these panegyrics in the form of histories, the most dangerous to the cause of truth are by no means those which manifestly show that they are written with a golden pen; but those in which falsehood and slavishness appear -strange to tell-as moral and religious principles. The loyal historian thinks it his sacred duty, not only to extol the merits, and to pass over the faults of his prince and his august family, but moreover, by an astonishing resignation of his reason, to find perfection in every act of him to whom he is obliged to ascribe in addressing him or speaking of him, all the attributes which devout persons attach to the Supreme Being. This conscientious servility, the greatest triumph of falsehood over truth, is so much the more injurious in history, as it blinds the understanding of the student, by engaging his esteem and affection for the honest intention of the writer. There is hardly one among the historians of Europe, whose works do not exhibit symptoms of this moral malady. We discover traces of it even in the works of Heeren; though in him this infirmity does not amount to wilful alteration of facts. Yet it appears in the disdain with which he speaks of the undistinguished many as opposed to the privileged few; in his representation of the English, and of the French revolutions ; of the Holy Alliance, and the restoration of political legitimacy in Europe. In general, however, the principle of truth is so predominant in this historian, that it leaves his clear and scrutinizing mind unconfined, as we see it especially in his