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answering one, twenty new ones could be laws are in all essential respects the same invented. I have thought it better to trust as those of England. The difference is in to the justice of my countrymen, that they the failure of prosecuting officers to enwould judge me by what they see of my force them, and in the weakness of our conduct on the stage where they have placed courts in the trial of libel cases, criminal me, and what they knew of me before the and civil. If our jurors also deal lightly epoch since which a particular party has with libels against which the jurors of supposed it might answer some view of England sternly set their faces, the fault theirs to vilify me in the public eye. Some, is still with our judges.

is still with our judges. In England the I know, will not reflect how apocryphal is judge fulfils his office. He takes and keeps the testimony of enemies so palpably betray- that legitimate control and direction of ing the views with which they give it. But the case on trial which belongs to him by this is an injury to which duty requires law. He does not loll back in his chair every one to submit whom the public thinks and let the jury be mystified or perplexed proper to call into its councils.

about the law of the case, or in any re

spect in which he should be a light and a Though the American people detest a guide to them, by the misleading contenlibeler, the law of criminal libel is very tions of counsel. These things are cleared poorly enforced, and in most localities, up decisively and promptly as the trial especially in large cities, scarcely at all. proceeds. In the end the jury knows If the individual be not protected by gov- where it stands and exactly what falls to ernment in his character and reputation, it for decision. Our judges have always government fails at an essential point. It had the same wholesome power, but many is worse than if government failed to pro- of them let it slip through their fingers. tect him in his rights of property -- as much The conviction of a libeler presents no worse as a libeler is worse than a property difficulties. The definition of a criminal thief.

libel is the same here as in England. Any The meanest of all libelers are those malicious publication by writing or picture who assassinate character for their own which imputes a criminal offense or moral personal aims and ambitions.

dereliction to any person, or, falling short We in America frequently read of ver- of this, is nevertheless such as to hold him dicts of conviction in criminal prosecu- up to hatred, contempt, obloquy, or even tions for libel in England, followed by ridicule, is a criminal libel. In a criminal sentences of imprisonment. They attract prosecution for libel the published matter our attention because the like seldom oc- is presumed to be false until the defendant curs in this country, and then only in the proves it to be true. The prosecution does case of petty and uninfluential libelers. not have to prove it false. Malicious inThe newspaper proprietor who libels with- tent is the essence of the crime; and such out scruple, and spreads pain and sorrow intent is also presumed from the libelous without a pang, showing an utterly black publication itself until the defendant disheart, goes on here and enriches himself proves it. The burden is on the defendant by his vile trade without the interruption to rebut this presumption. Proof by him of a criminal indictment.

of the truth of the libelous matter may not We still more often read of verdicts in do so, for the truth is not of itself always civil actions for damages for libel in Eng- a defense. The libel may be all the worse land so much larger in amount and so for being true. The law permits the demuch more frequent than we are accus- fendant to give in evidence the truth of tomed to in this country as to present a the published matter, but only as explanalike contrast.

tory of his intent; that is, to show that his Most people think these differences are motives were laudable instead of malicious. because the law of libel in England is Such proof may show the very contrary different from ours. They ask, Why that his motives were mean and base. For should not our libel laws be changed to needlessly and wantonly to rake up and be like those of England, so that we may publish the failings of others, to their inalso punish libelers and stop their de- jury or annoyance, is as inexcusable in law testable trade, the meanest and basest as in morals. The old saying, “The known? They are mistaken. Our libel greater the truth, the greater the libel," that is to say, the greater may be the libel, law as they understand the court to de -is as true and as much a part of the law clare it, but there is no way to make them of criminal libel now as it ever was, al- do so. The law does not permit them to though superficial persons may think it be called to account or punished for failobsolete. The moral philosopher Paleying to do so, even though it be apparent says the malicious publishing of truth or that their failure was intentional; and falsehood is in moral view equally wrong. their verdict of acquittal is unappealable

Proof of the truth of the matter charged and final. They therefore have the as libelous exonerates in a criminal prose- "power" to decide the law as well as the cution for libel only when it is made to facts, whatever their abstract duty may be appear that such matter was published in respect of taking the law from the "with good motives and for justifiable court. As the saying is, they may not do ends.” That the matter is true does not it right, but they have the right to do it. of itself suffice. Good motives appearing, But early in the eighteenth century malice is disproved, and without malice some judges of the common-law courts in the crime does not exist. Malicious intent England began to deny that this rule apis the gist of the crime. And whether such plied in criminal prosecutions for libel. defense be made out is for the jury, not They wanted to exempt libel prosecutions the court or judge, to say. No judge can from it. They were started on this course stand in the way of an honest jury by by certain rulings of the obnoxious court shielding a libeler or forcing the conviction of the Star Chamber, which sat without of a truthful and honest writer. It took juries and lent itself to the despotism of a long time to establish this.

the Stuarts. It derived its name from the The question whether the court or the room it sat in. The theory of these judges jury on the trial of an indictment for libel that it was the province of the court alone, should judge of the meaning of the pub- and not of juries, to judge of the meaning lished matter, and of the malice or motive of the published matter, and of the intent of the defendant, and whether the defen- of the defendant in publishing it - to judge dant might prove the truth of such matter whether his motive was worthy or unworin his defense, was long a floating and thy, or, to use the settled word, malicious litigious one. It has a history and litera- -grew by degrees. They would leave to ture all its own, and over which manyjuries only the question whether the dehave been fascinated. Its final settlement fendant published the libelous matter, and marks an era in the history of the growth require them to render verdicts of guilty of free government, which cannot exist or not guilty according to how they found without freedom of truthful and honest that one fact, leaving all else, meaning, speech; and that is what the phrase "free motive, etc., to the court to decide after speech” means. It may be that a sum- their verdict of guilty was rendered. They mary of the long controversy, begun in said that the meaning and the intent were England and continued here, may prove inferences to be drawn by the law from interesting, and it will serve to make plain the published matter itself, and therefore the law as it now is, and the power of for the court, and not for the jury, to juries over libelers, unhampered by judges. draw. They also refused to allow the de

The jury in prosecutions for all kinds of fendant to prove the truth of the published crime are the judges of both the law and matter. They said that a libel is punishathe facts, and this was so from the begin- ble because of its evil tendency,—that is, ning. The judge or court instructs or its tendency to arouse passion and procharges them as to the law, and it is their voke sedition or a breach of the

peace,

,duty to be attentive and try to understand and that as such tendency would exist the law as it is thus given to them, not whether the matter were true or false, its always an easy job-and to follow it. But truth or falsity was immaterial, and they in the end the case is turned over to them, therefore would not permit evidence of its and then by their verdict they resolve the truth to be given. This left out of acmingled questions of law and fact as best count the motive of the defendant, which they can by a verdict of guilty or not is the gist of the crime. They did not guilty. It is true that it is, and always consider whether proof of the truth might was, their duty to accept and apply the show or tend to show, especially in connection with other circumstances, an honest criminal prosecutions the jury judged both motive instead of a malicious one, although the law and the fact, does not seem to have truth is always an essential ingredient in been supported by a judicial decision until judging justly of the quality of men's acts. the case of Richard Francklin in 1731, These rulings were made in political cases who was tried for seditious libel for pubout of obsequiousness to the crown. The lishing a letter from The Hague concerning Long Parliament had abolished the Court England's treaty relations with France and of Star Chamber in 1641, but its spirit still Spain. The judge charged the jury that survived in some judges.

it was for him alone to determine the The trial of the seven bishops in the meaning of the publication and decide court of King's Bench in the latter part of whether it was a libel, and that it was the seventeenth century in 1688) fur- their duty to find the defendant guilty if nishes striking proof that no notion then he published the letter; and they did so. existed that juries were not the judges of But eminent members of the bar, and the both the law and the facts in prosecutions public generally, continued to refuse to for libels as in all other criminal cases. If acquiesce in the ruling. The controversy there ever was a case in which it would finally culminated in 1770 in the case of have been ruled to the contrary in favor of Woodfall, who was tried before Lord the crown if that was understood to be the Mansfield and a jury on an information law, or if the law was open to doubt, even, for libel for publishing one of the celeit was that case. The seven bishops had brated political letters of "Junius." Lord presented to King James II in person a Mansfield charged the jury that the only petition denying the existence of the dis- question for them to decide was whether pensing power in the crown-of power in the defendant printed and published the him to suspend or dispense with certain letter in his newspaper; that if he did, it religious statutes, which he was attempting was their duty to render a verdict of to do. For publishing this petition they guilty; that the question of intent and of were charged with seditious libel at the in- the meaning of the publication, and stance of the king. And yet the question whether a libel or not, was to be decided of the meaning and intent and of the truth by the court, and that if the publication of the petition all went to the jury with- was not libelous, the court would so decide out objection from the bench of four afterward, and their verdict would do no judges or any of the eminent lawyers who harm. appeared for the crown. The question of This sounded very fine indeed, but not the king's dispensing power was obviously to a jury wary of despotism and imbued one of law and of the gravest character; with the necessity of free speech as a bulbut no one thought of denying to the jury wark of free government. As there was the right of deciding it. One of the jury no dispute that the defendant printed and was a brewer, and brewed ale for the pal- published the letter, the court's instrucace. It is related that all he did in the tion left the jury nothing to do but render jury-room was to bemoan that, however a verdict of guilty. Although the counsel he should vote, he was a ruined man. "If for the defendant seems to have obsequiI say 'Not guilty,' ” said he, “I shall brew ously let this instruction of the court pass, no more for the king; and if I say ‘Guilty,' the jury were of a very different temper. I shall brew no more for anybody else.” They did not deem the letter libelous, but And in this perplexity over his own inter- a just criticism of affairs of government, ests he kept the jury out all night.

and that was the sentiment of nearly all verdict of not guilty was finally agreed Englishmen. They very well knew, howupon and handed in, to the delight of the ever, that if they rendered a verdict of nation. The great question had been sub- guilty, Lord Mansfield would construe the mitted to the unpolished genius of the peo- publication to be a libel and imprison the ple represented in the jury-box, and in one defendant. Much to the annoyance of way or another was decided right, a thing Lord Mansfield, they stubbornly refused that had often happened before and has to render a verdict of guilty. They finally still oftener happened since.

returned the following astute verdict in The new doctrine of taking prosecutions writing: "Guilty of printing and publishfor libel out of the general rule that in all ing only.” This was in effect saying to

But a

LXXXII-103

upon it.

Lord Mansfield: "You told us that all we his newspaper, which denied the king's had to find was the fact of printing and prerogative to establish courts in the colpublishing. We find it for you; now you ony.

Chief Justice Delancey instructed go on and do the rest; enter a judgment the jury that if the defendant published the of guilty if the law be as you say.". libel, of which there was no dispute, they

Just one century before, a London jury should find him guilty, as it was the provhad repeatedly rendered a similar verdict, ince of the court, and not theirs, to judge "Guilty of speaking in Gracechurch of the intent and meaning. The jury restreet," which the court as often refused fused to bend to judicial subserviency to to receive, the case being the trial of Wil- the crown, and rendered a verdict of not liam Penn, the subsequent founder of guilty. The question of the king's power Pennsylvania, on a charge of causing an to establish such courts was one of opinion, alleged tumultuous assemblage in Grace and the jury rightly decided that Zenger church street, whereas the proof only had the right to express his opinion. showed that he preached there as a Quaker. In 1803 the controversy blazed out

Lord Mansfield received the verdict in afresh in the State of New York in the the Woodfall case in silence, though cha- case of Croswell, indicted in Columbia grined by it; but it was afterward found County for a libel on Thomas Jefferson, upon a hearing by the full bench that no then President of the United States, pubjudgment of conviction could be entered lished in his newspaper, “The Wasp,” in

the city of Hudson. It is worth while to This case opened up the whole question give the libel entire, as showing the spirit anew to public discussion. The hostile of the times: sentiment of the nation against the new doctrine ran high and made itself heard.

Jefferson paid Callender for calling The matter was debated in Parliament. Washington a traitor, a robber, and a perIn the House of Lords, Lord Camden, one

jurer; for calling Adams a hoary-headed of the most eminent lawyers of his time, incendiary; and for most grossly slandering attacked the law as laid down by Lord

the private characters of men who he well Mansfield. Seven years later, on the trial knew were virtuous. These charges not a of the celebrated Horne Tooke for libel

democratic editor has yet dared or ever in publishing that the King's troops mur

will dare to meet in an open and manly disdered the Americans at Lexington, Lord

cussion. Mansfield allowed the jury to judge of the meaning of the publication,- whether On the trial the court refused to receive it was a libel or not, -of the motive of the evidence of the truth of the published matdefendant, and of the truth of the matter; ter, and charged the jury (as Lord Mansand the defendant was found guilty. The field did in the case of Woodfall, and case was such a plain one that the jury did Chief-Justice Delancey in the case of Zennot need to be coerced or misled to find ger) that all they had to decide was for the crown. This is the same Horne whether the defendant published it; that Tooke who afterward, when on trial for the motives and intent of the defendant, another political offense before Lord Ken- and the meaning of the published matter yon and a jury, admonished his lordship and whether it was libelous, were excluwhen he tried to interfere that his business sively for the court to decide after the comwas only to help the tipstaffs keep order in ing in of the verdict if it should be one of the court while the jury tried the case—an guilty. This was the extreme to which incident which reveals the rising temper of any of the English judges had gone before the times.

they were stopped by act of parliament in The question continued a disputed one 1793, as has already been stated. That in the English courts until 1793, when it act of course did not apply in this country, was settled by an act of parliament in fa- having been passed after the Independence, vor of the jury judging both the law and and the trial judge therefore professed to the facts and rendering a general verdict lay down the law as it existed prior thereto thereon. It arose in the city of New York and was imported into our colonies. The as early as 1734, on the trial of Zenger jury returned a verdict of guilty. for publishing an alleged seditious libel in On appeal the whole question was

argued with masterly ability. The defen- be and was a complete defense, prevailed. dant was aided by Alexander Hamilton, The medium rule, contended for by Hamone of the most luminous minds that ever ilton, was adopted; namely, that the truth appeared among the sons of men. Some of could be given in evidence, but would not his eminent associates argued that the be a defense unless it should also appear truth could never be a criminal libel, and that the matter was published "with good could be published with impunity, how- motives and for justifiable ends." This ever mean and base to do so, and whatever put every libeler at the mercy of his own its evil tendency. But Hamilton repudia- base motives. It also left the honest and ted this, and went to the heart of the mat- just sentiment of the community as voiced ter. He would not countenance the doc- by the jury to judge of the defendant's trine that the truth could always be motives, and to dispose of the case on the published with impunity. He declared law and the facts, as in all other criminal that "the liberty of the press consisted prosecutions. in publishing with impunity truth with The effort had been, as the narrative good motives and for justifiable ends." He shows, to make criminal trials for libels reprobated “the novel, the visionary, the an exception to the general rule in all pestilential doctrine of an unchecked criminal cases that the jury were in the press.” “The best character of our coun- end, when the case was turned over to try" (Washington), he declared, “had them, the judges of all questions of law felt its corrosive effects."

and fact, and resolved the same by their The court, consisting of four judges, general verdict of guilty or not guilty. It divided evenly, so that no result was was started by judges in England out of reached. Kent, afterward the great Chan- obsequiousness to the crown in cases of cellor, wrote for reversal. The matter political libels. The free genius of the was immediately brought before the legis- people there and here withstood it. But, lature, and the next year (1805) an act strangely enough, some law-writers and was passed that thereafter on the trial of codifiers (as witness the code of Criminal an indictment for libel the jury "shall Procedure of the State of New York) have have the right to determine the law and made the mistake of supposing that such the fact, under the direction of the court, trials for libel were made an exception by in like manner as in other criminal cases"; the result of the controversy, and a rule and that on every such trial it should be of law applied to them different from the lawful for the defendant to give in evi- rule for criminal trials generally; namely, dence the truth of the publication, but with that the jury should be the judges of both the proviso that such evidence should not the law and the facts, whereas that is the be a defense “unless on the trial it shall general rule. be made satisfactorily to appear that the The matter of civil actions for damages matter charged as libelous was published for libel has now to be considered. They with good motives and for justifiable present a contrast to criminal prosecutions ends," thus incorporating the words of for libel in this, that proof of the truth of Hamilton in the statute.

the published matter is and always was a Seventeen years later this statute was complete defense in all civil cases for libel. incorporated in the constitution of the It does not matter how mean or base the State, and thus the great controversy, making of the publication may be; if it be which had waged so long, was finally set- proved true by the defendant, the plaintiff tled in the State of New York, and, as it loses his case. That the publication was turned out, throughout this country, by reckless or malicious makes no difference the States generally enacting the same if it be true. But the defamatory publicastatute or following the principle of it in tion is presumed by the law to be false in their courts. The contention that the jury every case (except in the case of certain were not the judges of both the law and publications which are privileged, which the facts, as in all other criminal cases, we do not need to mention), and the burwas overthrown. Neither the contention den is on the defendant to plead and · on the one side that the truth of the pub- prove it true. If the plea of the truth is lished matter could not be given in evi- not set up in the formal answer, the dedence at all, nor on the other that it could famatory matter has to be taken as false

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