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argued with masterly ability. The defendant was aided by Alexander Hamilton, one of the most luminous minds that ever appeared among the sons of men. Some of his eminent associates argued that the truth could never be a criminal libel, and could be published with impunity, however mean and base to do so, and whatever its evil tendency. But Hamilton repudiated this, and went to the heart of the matter.
He would not countenance the doctrine that the truth could always be published with impunity. He declared that "the liberty of the press consisted in publishing with impunity truth with good motives and for justifiable ends." He reprobated "the novel, the visionary, the pestilential doctrine of an unchecked press." "The best character of our country" (Washington), he declared, "had felt its corrosive effects."
The court, consisting of four judges, divided evenly, so that no result was reached. Kent, afterward the great Chancellor, wrote for reversal. The matter was immediately brought before the legislature, and the next year (1805) an act was passed that thereafter on the trial of an indictment for libel the jury "shall have the right to determine the law and the fact, under the direction of the court, in like manner as in other criminal cases"; and that on every such trial it should be lawful for the defendant to give in evidence the truth of the publication, but with the proviso that such evidence should not be a defense "unless on the trial it shall be made satisfactorily to appear that the matter charged as libelous was published with good motives and for justifiable ends," thus incorporating the words of Hamilton in the statute.
Seventeen years later this statute was incorporated in the constitution of the State, and thus the great controversy, which had waged so long, was finally settled in the State of New York, and, as it turned out, throughout this country, by the States generally enacting the same statute or following the principle of it in their courts. The contention that the jury were not the judges of both the law and the facts, as in all other criminal cases, was overthrown. Neither the contention on the one side that the truth of the published matter could not be given in evidence at all, nor on the other that it could
be and was a complete defense, prevailed. The medium rule, contended for by Hamilton, was adopted; namely, that the truth could be given in evidence, but would not be a defense unless it should also appear that the matter was published "with good motives and for justifiable ends." This put every libeler at the mercy of his own base motives. It also left the honest and just sentiment of the community as voiced by the jury to judge of the defendant's motives, and to dispose of the case on the law and the facts, as in all other criminal prosecutions.
The effort had been, as the narrative shows, to make criminal trials for libels an exception to the general rule in all criminal cases that the jury were in the end, when the case was turned over to them, the judges of all questions of law and fact, and resolved the same by their general verdict of guilty or not guilty. It was started by judges in England out of obsequiousness to the crown in cases of political libels. The free genius of the people there and here withstood it. But, strangely enough, some law-writers and codifiers (as witness the code of Criminal Procedure of the State of New York) have made the mistake of supposing that such trials for libel were made an exception by the result of the controversy, and a rule of law applied to them different from the rule for criminal trials generally; namely, that the jury should be the judges of both the law and the facts, whereas that is the general rule.
The matter of civil actions for damages for libel has now to be considered. They present a contrast to criminal prosecutions for libel in this, that proof of the truth of the published matter is and always was a complete defense in all civil cases for libel. It does not matter how mean or base the making of the publication may be; if it be proved true by the defendant, the plaintiff loses his case. That the publication was reckless or malicious makes no difference if it be true. But the defamatory publication is presumed by the law to be false in every case (except in the case of certain publications which are privileged, which we do not need to mention), and the burden is on the defendant to plead and prove it true. If the plea of the truth is not set up in the formal answer, the defamatory matter has to be taken as false
on the trial, and a verdict given for the plaintiff, the jury having only to fix the amount of the damage. If such plea be set up, the burden is on the defendant to prove it. The plaintiff rests on the legal presumption of its falsity. The law does not call on the plaintiff to disprove the defamatory matter, but on the defendant to prove it.
Nor is it necessary in civil cases that the defendant made the publication with an evil or malicious intent, as in criminal prosecutions for libel, where such intent is the gist of the crime, as we have seen, in order that the plaintiff may recover the damage done to him. No matter though the defendant published the matter out of the highest and purest motives and without a particle of malice, he is liable for the damage it did the plaintiff if it be false. As is said by the highest court in the State of New York in the case of Holmes (Vol. 147 New York Reports):
The publication of a libel is a wrongful act, presumably injurious to those persons. to whom it relates, and in the absence of legal excuse gives a right of recovery irrespective of the intent of the defendant who published it, and this although he had reason to believe the statement to be true, and was actuated by an honest or even commendable motive in making the publication.
And yet some judges and writers continue to say indiscriminately that malice is necessary in a civil action for libel. They do not discriminate between the rule in civil cases and that in criminal cases. If a judge should so charge the jury, and they should render a verdict for the defendant on the ground of no malice, it would have to be reversed on appeal, which is a complete test. The complaint does not need to allege malice, as it is not essential to a recovery.
But malice in the defendant has a bear ing in civil libel cases in this, that if it appear from the tone or substance of the defamatory publication itself, or from the surrounding circumstances, that its publication was malicious,—namely, mean, reckless, unnecessary, heedless, or if malice be shown by any other evidence, such as the actual existence of grudge or ill-will, the jury are at liberty to take that into consideration in fixing the amount of their
verdict; namely, they may add what is called "smart money" to what they would otherwise give as the plaintiff's actual damage.
This has been much inveighed against by the sort of newspapers which flourish and wax rich by invading homes, publishing scandal, inventing falsehoods, and distorting the facts in respect of the acts of public men. But on the whole it is a good rule, for persons are often libeled whose characters are generally known to be so good that they do not suffer a whit by the libel, and the right of the jury to award smart money to teach libelers a lesson enables them in such a case to give a wholesome verdict.
That the defamatory matter is copied or published as the saying of some one else does not save the editor or publisher. By revealing himself as a tattler also, a libeler may heighten his baseness by an additional odium. Nor is a libel any the less for being veiled, or made to peek out from behind an innuendo or a suggestion or a query. Not long ago a London newspaper published some miserable gossip going the rounds about a distinguished member of the British cabinet, without mentioning his name. Yet for this gossip without names the publisher had to apologize abjectly and pay roundly, when brought into
Full redress for a libel can be obtained of the courts immediately in London. And why not in New York? Do we need an anti-libel society here? Of course we have newspapers here which are truthful and do not libel; but on the other hand we have newspapers which have reached depths of falsehood and baseness not known anywhere else in the world. But they are incapable of harm except with the ignorant and degenerate, their proprietors being well known to have no moral sense in respect of the truth, and to be perfectly willing to forego the esteem of decent people so long as they can make gain out of falsehood. It has come to be a common thing for even children to say, "Yes, but you can't believe what you see in the newspapers," when mention is made of something reported in the newspapers. What influence will the press have on them when they grow up? What influence has the press now?
Both the editor and the proprietor of a
wild blackberry-bushes, scratching our hands and faces, and tearing our trousers.
could sometimes. That was her weakness. She understood this. She just could n't help it. Let any poor stray cat or homeless dog happen along, or any forlorn creature that looked as if it had n't a friend in the world, and Aunt Malvina was all for taking it in, putting the best robe upon it, and giving it the best bit in the cupboard.
We had first met Jim in the woods near the railway-cut, just where the track, after a great, sweeping curve, straightens out for the home-stretch to the village station, a mile and a half away. 'Bird-nesting here one fine summer afternoon, our eyes on the sharp lookout, I suddenly spied Jim skulking along under the hazel-brush, and realized that we had found a prize.
"Hi, Billy," I exclaimed, "get on to the young crow! Gee! two of 'em!" In great excitement we gave chase, stumbling over stones, scrambling through the hazel- and
"Say, ain't they dandies!" gloated Billy, when at last we came together, panting, but triumphant, to compare captives. In truth, being just out of the callow stage, they were two as scrawny, dirty-black, disreputable-looking rogues as a mother bird ever shouldered out of a nest; but in our eyes (we had just been reading the life of Dampier the Bucaneer) they were doubloons, pieces-of-eight, golden loot of the Spanish Main. Or, shall we say, a captured slaver, having blown up, had left these two young Africans the sole survivors?
Billy's share in the above transaction died young. We gave him high burial, as was befitting. It was hard on Billy. He mourned so over it that I generously presented him with twenty-five per cent. of the stock in Jim. Of course I could n't
very well part with a controlling interest; but it comforted Billy a good deal. It did me good, too. I acquired virtue, I won the gratitude of Billy, and I kept a controlling interest in Jim-three birds with one stone.
As for Jim, the road ahead looked rocky. There was Uncle Caleb. He was a practical, decisive man, with an impatient promptitude dangerous to evil-doers. You could n't get far on soft-sawder with Uncle Caleb. The weeds of the garden fled before his hoe. In his mind the crow and the blackbird were at one with the potato-bug and the seventeen-year locust, conspirators against honest thrift, robbers and thieves all. Black pestilence upon them! I smuggled Jim home after nightfall, and hid him in a box under the wagon-shed till morning. Then, waiting until Uncle Caleb had gotten safely away to the other side of the farm, I brought Jim forth and introduced him to Aunt Malvina.
Now, in the plain and energetic homespun of Uncle Caleb's life there had been one romance. That had been his courtship of Aunt Malvina. He had never gotten over it. At that gentle shrine, after all the years, he still bowed down. To him what Aunt Malvina did was still good. Of the romance I knew little at that time, but the result I knew well. It had more than once been my shield and buckler. Hence my stratagem.
Well, it worked, but it was touch and go. What, a crow!-offspring of devastation and thievery at large upon his farm! What in the name of all black mischief could we be thinking of? Did we mean it? Well, well!
But of course he consented to stand one side. It was a heathenish proposition; but so be it; Aunt Malvina wanted it so. To convert the heathen was no doubt a good thing, even as she said; but if he was goin' to convert 'em, according to his notion, a broad-ax was the thing, swift and sure. Mischief went to the marrow-bone with However, she wanted it; therefore, so be it. He would stand to one side.
Aunt Malvina commiserated Jim. She regarded him as an unfortunate, a foundling, an orphan, a captive, deserted by his father and mother; or perhaps they had been slain by some farmer's gun. He was
alone in the world; there was no one left to love him.
Jim must have chuckled at this. He was wise, though young. His father and mother, he knew, were quite well and hearty; they would be robbing corn-fields, thank you, for many a long year yet. As for having no one to love you and all that, why, had he not Aunt Malvina? To be an orphan where she was matron was simply clover, deep clover, up to your chin. Was she not just my lady-in-waiting, her chief business to fetch and carry for him?
The process was simple for a bright bird. like Jim. Before we knew him he had discovered that if you expect to get anything in this world, you must yell for it; you must "put up a holler." And the louder you yell, the quicker you will be attended to. He found out, of course, after he came to us, that the first person to answer, whenever he turned in an alarm, was Aunt Malvina. You would have thought she was running to a fire. It was equal to Aladdin's lamp. You rubbed the lamp,— that is, you yelled,-and forthwith, behold! the jinnee appeared-Aunt Malvina. Then all you had to do was to turn in your order. Jim's usual order was milk toast. An orphan? An orphan? Why, it was high fortune, clear dividends, ninety-seven per cent. semiannual, payable quarterly in ad
"Seek wisdom and pursue it," says the good Book. Jim obeyed joyously. How good was life, the mere living, in this best of all possible worlds! How benign was Providence! How beautiful was wisdom, and how smoothly turnpiked were the ways of her! How delightful it was to bowl along over them on airy tires, no pebble as big as a wren's egg to jar you, Aunt Malvina having carefully removed them all! What a trump the good woman was, truly! All her ways were pleasantness, and all her paths were paths of peace -peace and milk toast. The rogue praised her upon sackbut and psaltery.
If by any chance Aunt Malvina did deny you anything, it was in the plain way of wisdom to get yourself injured. That brought her round infallibly. You could cash in a sore toe on Aunt Malvina like a bank check. Course of exchange, one sore toe six slabs of milk toast or thereabouts; slight fluctuations according to the market.
But a sore toe is no joke. Would it not be possible to get round this difficulty? An easy problem, solved by substituting a bogus sore for the real one-easy as lying.
It worked, too. Not that she was deceived by it. To have a young crow hobble up to you, desperately wounded, yelling loudly for milk toast; and having got it, to see him walk off sound and whole, miraculously cured, is not convincing. Jim was young at the game, after all. But what could you expect of him? Perfection in roguery at his tender years?
Yet Jim won out even at this transparent game. He would limp up, as I have said, severely injured, scarcely able to navigate, propellers wrecked, masts by the board, a mere log upon the water; for the love of Heaven, help! Aunt Malvina, who would be sitting in the kitchen, perhaps, paring potatoes for dinner, would gaze at him reproachfully over her spectacles. Was he not ashamed of himself to be so deceitful? Fie upon him! Such a bare-faced fraud! The truth was not in him. She would not give him a crumb, not a crumb; let him turn from evil, and refrain his lips from speaking guile.
Then Jim would lift up his voice in protest, loudly, vociferously. It was
shameful to accuse an honest crow soshameful; and he scarcely able to get about, his whole leg out of joint; he had four toes on that foot, each toe sorer than all the other three combined; he was in a fearful state; and to his agony of body she was now adding agony of mind, for she accused him of deceit, of lying-him, Jim! Well, it was hard; but he would not accuse her: he would creep away and hide where his sore toes and his broken heart might heal, far from the callous and unbelieving world.
So, his yells subsiding into a doleful whimper and lamentation, Jim would hobble away.
That would finish Aunt Malvina. His clamors of protestation she might have withstood, but not his final wail. That last pitiful limp and whimper were too much. He was a fraud, alas! and his sore toe was as thin as air; but his heart plainly was broken. Whence otherwise could such sounds of lamentation proceed? And was not the heart as tender an organ as the toe? Would it not respond as readily to the healing medicament of a toast poultice?
The poor bird wanted milk toast, a simple matter, and she denied him; she had driven him to fraud; was assisting him to perdition, by her hard-heartedness. Alas! alas!
Thus Jim got his milk toast, and wound up the game, as was due, by another glad performance, fortissimo, upon sackbut and psaltery.
He might well rejoice. Everything was coming his way. Wisdom was an easy mark. Aunt Malvina was a conquered kingdom; he had her bamboozled to a finish. Billy and I clearly thought him the Only Bird. Our band of boy companions stood at attention, hat in hand, whenever he went by. The best of all possible worlds was spinning like a top, smooth as air, with Jim as king-pin and main axle.
As for Uncle Caleb, it was clear that he did n't count. He stood to one side. did n't have much to do with Jim, and evidently was a little awed by him. Yes, that must be it. How else should it be, indeed? He plainly deferred to Aunt Malvina, and Aunt Malvina deferred to Jim. The inference was easy. Uncle Caleb was one of those fellows who go with the stream, a floater, a hired man, a slave's slave. A babe could grasp that logic.
THINGS were at this stage when Uncle Caleb endeavored to impress upon Jim that he was not the social equal of a Black Minorca, a mere barn-yard fowl. Think of the ridiculousness of it! Yet Uncle Caleb actually held that absurd notion.
Uncle Caleb, you understand, deferred to barn-yard fowl. They laid eggs; roosters were excellent alarm-clocks; you did n't have to wind them, and they went off infallibly very early; they were proper farmers, loving the soil. Yes, indeed, there was much virtue in barn-yard fowl.
In Uncle Caleb's barn-yard hierarchy the Black Minorcas roosted high. In eggs per annum they beat the world. Uncle Caleb, moreover, believed in pure-bred live stock. That was his weakness. It was a farmer's duty to improve the breed. You could improve even on a Black Minorca.
From these barn-yard dicta Jim naturally differed. Born in the top of God's woods, next door to heaven, what had he to do with barn-yard creatures? Improved breeds, forsooth! A Black Minorca was