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tion 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
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
on the trial, and a verdict given for the verdict; namely, they may add what is plaintiff, the jury having only to fix the called “smart money" to what they would amount of the damage. If such plea be otherwise give as the plaintiff's actual set up, the burden is on the defendant to damage. prove it. The plaintiff rests on the legal This has been much inveighed against presumption of its falsity. The law does by the sort of newspapers which flourish not call on the plaintiff to disprove the and wax rich by invading homes, publishdefamatory matter, but on the defendanting scandal, inventing falsehoods, and disto prove it.
torting the facts in respect of the acts of Nor is it necessary in civil cases that the public men. But on the whole it is a good defendant made the publication with an rule, for persons are often libeled whose evil or malicious intent, as in criminal characters are generally known to be so prosecutions for libel, where such intent is good that they do not suffer a whit by the the gist of the crime, as we have seen, in libel, and the right of the jury to award order that the plaintiff may recover the smart money to teach libelers a lesson damage done to him. No matter though enables them in such a case to give a wholethe defendant published the matter out of
some verdict. the highest and purest motives and with- That the defamatory matter is copied out a particle of malice, he is liable for the or published as the saying of some one else damage it did the plaintiff if it be false. does not save the editor or publisher. By As is said by the highest court in the State revealing himself as a tattler also, a libeler of New York in the case of Holmes (Vol. may heighten his baseness by an additional 147 New York Reports):
odium. Nor is a libel any the less for
being veiled, or made to peek out from The publication of a libel is a wrongful behind an innuendo or a suggestion or a act, presumably injurious to those persons query. Not long ago a London newspaper to whom it relates, and in the absence of published some miserable gossip going the legal excuse gives a right of recovery irre
rounds about a distinguished member of spective of the intent of the defendant who the British cabinet, without mentioning published it, and this although he had rea
Yet for this gossip without son to believe the statement to be true, and
names the publisher had to apologize abwas actuated by an honest or even commen- jectly and pay roundly, when brought into dable motive in making the publication.
Full redress for a libel can be obtained And yet some judges and writers con- of the courts immediately in London. And tinue to say indiscriminately that malice why not in New York? Do we need an is necessary in a civil action for libel. anti-libel society here? Of course we have They do not discriminate between the rule newspapers here which are truthful and in civil cases and that in criminal cases. do not libel; but on the other hand we If a judge should so charge the jury, and have newspapers which have reached they should render a verdict for the de- depths of falsehood and baseness not fendant on the ground of no malice, it known anywhere else in the world. But would have to be reversed on appeal, which they are incapable of harm except with the is a complete test. The complaint does ignorant and degenerate, their proprietors not need to allege malice, as it is not essen- being well known to have no moral sense tial to a recovery.
in respect of the truth, and to be perfectly But malice in the defendant has a bear- willing to forego the esteem of decent peoing in civil libel cases in this, that if it ple so long as they can make gain out of appear from the tone or substance of the falsehood. It has come to be a common defamatory publication itself, or from the thing for even children to say, "Yes, but surrounding circumstances, that its publi- you can't believe what you see in the newscation was malicious, --namely, mean, reck- papers," when mention is made of someless, unnecessary, heedless, -or if malice thing reported in the newspapers. What be shown by any other evidence, such as influence will the press have on them when the actual existence of grudge or ill-will, they grow up? What influence has the the jury are at liberty to take that into
press now? consideration in fixing the amount of their Both the editor and the proprietor of a
newspaper are presumptively liable both soon as it became known to them. Withcivilly and criminally for a libel published out such disavowal the defense is not made therein. But in a criminal prosecution out. And the jury are to judge whether therefor they may show in their defense the disavowal be adequate. A few lines that the libelous matter was published of disavowal or retraction in some obscure without their knowledge or fault, or column is not adequate, at all events unless against their orders or wishes, and that the libel was published in a like place and they disavowed the publication at once as manner.
wild blackberry-bushes, scratching our
hands and faces, and tearing our trousers. T Aunt Malvina's fault, in a way. What were these trifles to us, with two
You see, Jim soft-sawdered her. You fledgling crows fluttering just out of reach could sometimes. That was her weakness. ahead ? She understood this. She just could n't “Say, ain't they dandies!" gloated Billy, help it. Let any poor stray cat or homeless when at last we came together, panting, dog happen along, or any forlorn creature but triumphant, to compare captives. . In that looked as if it had n't a friend in the truth, being just out of the callow stage, world, and Aunt Malvina was all for tak- they were two as scrawny, dirty-black, dising it in, putting the best robe upon it, and reputable-looking rogues as a mother bird giving it the best bit in the cupboard. ever shouldered out of a nest; but in our
We had first met Jim in the woods near eyes (we had just been reading the life of the railway-cut, just where the track, after Dampier the Bucaneer) they were douba great, sweeping curve, straightens out loons, pieces-of-eight, golden loot of the for the home-stretch to the village station, Spanish Main. Ör, shall we say, a capa mile and a half away. 'Bird-nesting here tured slaver, having blown up, had left one fine summer afternoon, our eyes on the these two young Africans the sole sursharp lookout, I suddenly spied Jim skulk- vivors ? ing along under the hazel-brush, and real- Billy's share in the above transaction ized that we had found a prize.
died young. We gave him high burial, as “Hi, Billy," I exclaimed, “get on to the was befitting. It was hard on Billy. He young crow! Gee! two of 'em!" In great mourned so over it that I generously preexcitement we gave chase, stumbling over sented him with twenty-five per cent. of stones, scrambling through the hazel- and the stock in Jim. Of course I could n't