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King v. Burdett, a it was held, that where a libel imputes to others the commission of a triable crime, the evidence of the truth was inadmissible, and that the intention was to be collected from the paper itself, unless explained by the mode of publication, or other circumstances; and that if the contents were likely to produce mischief, the defendant must be presumed to intend that which his act was likely to produce. "The liberty of the press," as one of the judges in that case observed, "cannot impute criminal conduct to others, without violating the right of character, and that right can only be attacked in a court of justice, where the party attacked has a fair opportunity of defending himself. Where vituperation begins, the liberty of the press ends." Whether the rule of the English law was founded on a just basis, and whether it was applicable to the free press and free institutions in this country, has been a question extensively and laboriously discussed in several cases which have been brought before our American tribunals.

In the case of The People v. Croswell, which came before the supreme court of New York in 1804, and was argued at the bar with very great ability, the court were

a 4 Barnw. & Ald. Rep. 95.

b3 Johns. Cas. 337. The legislature of New York in April, 1805, passed a declaratory law, that on indictment or information for a libel, the jury had the right to determine the law and the fact, under the direction of the court, as in other criminal cases; and that the defendant upon the trial might give in evidence, in his defence, the truth of the matter contained in the publication. The act as to the former part of it, was taken from the English statute of 32 Geo. 3. c. 60. See also the provisions on this subject in the amended constitution of New York, post, p. 22. The English court of Q. B., in Baylis v. Lawrence, 11 Adolph. & Ellis, 920, held the practice under the stat. of 32 G. 3, to be, that the judge left it to the jury to say whether, under all the circumstances, the publication amounted to a libel. The judge may, but he is not bound to give his opinion. He acts in his discretion. See also Fairman v. Ives, 5 Barn. & Ald. 642, to the same

equally divided in opinion on the point, whether, on an indictment for a libel, the jury had a right to determine the law and the fact under the direction of the court, as in other criminal cases, and whether the defendant was entitled to give in evidence to the jury the truth of the charges contained in the libel. In the court of appeals in South Carolina, in 1811, the court unanimously decided, in the case of The State v. Lehre,a that by the English common law it was settled, on sound principles of policy derived from the civil law, that the defendant had no right to justify the libel by giving the truth of it in evidence. The court, in the learned *and able opinion which was delivered in that case, considered that the law, as then declared, was not only the law of England, but probably the law of all Europe, and most of the free states of America. The same question has been frequently discussed in Massachusetts. In the case of The Commonwealth v. Chase,b in 1808, it was decided, that the publication of a libel maliciously, and with intent to defame, was clearly a public offence, whether the libel be true or not; and the rule was held to be founded on sound principles, indispensable to restrain all tendencies to breaches of the peace, and to private animosity and revenge. The essence of the offence consisted in the malicious intent to defame the reputation of another; and a man may maliciously publish the truth. against another with the intent to defame his character, and if the publication be true, the tendency of the publication to inflame the passions, and to excite revenge is not diminished. But though a defendant on an indictment for a libel, cannot justify himself for publishing the libel, merely by proving the truth of it, yet he may repel the

22 Rep. Const. Court, p. 809.

b 4 Mass. Rep. 163. State v. Burnham, 9 N. H. Rep. 34. S. P.

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criminal charge, by proving that the publication was for a justifiable purpose, and not malicious; and if the purpose be justifiable, the defendant may give in evidence the truth of the words, when such evidence will tend to negative the malicious intent to defame.a The same question was again agitated and discussed before the same court in 1825, in the case of The Commonwealth v. Blanding, and the court strongly enforced the doctrine of the former case, that, as a general rule, the truth of the libel was not admissible in evidence upon the trial of the indictment; and this principle of the common law was declared to be founded in common sense and common justice, and prevailed in the code of every civilized country. It was further held, that whether in any particular case such evidence be admissible, was to be determined *by the court; and if admissible, then the jury were to determine whether the publication was made with good motives, and for justifiable ends. The same rule, that the truth cannot be admitted in evidence on indictment for a libel, though it may be in a civil suit for damages, has been adjudged in Louisiana; and the

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■ Giving the name of the author to oral slander at the time of its repetition Mapes v. Weeks,

Dole v. Lyon, 10

is no justification in this country in an action of slander. 4 Wendell's Rep. 659. Inman v. Foster, 8 Id. 602. Johns. Rep. 44. Treat v. Browning and wife, 4 Conn. Rep. 408. This seems to be the better opinion also of Mr. Starkie, in his Treatise on Slander and Libel, vol. 1. 300, Wendell's ed. 1843; and of English judges in the more recent cases. Holroyd, J. and Best, J., in Lewis v. Walter, 4 B. & Ald. 611. Best, Ch. J., in DeCrespigny v. Wellesley, 5 Bingham, 392. Though it was otherwise in England until recently. Davis v. Lewis, 7 Term Rep. 17. Maitland v. Goldney, 2 East, 426, and so held in S Carolina, in Miller v. Kerr, 2 M'Cord's Rep. 285. Nor is it any defence either in England or America, in an action for a libel. Dole v. Lyon, ut supra. Runkle v. Meyer, 3 Yates' Penn. Rep. 518. See Wendell's edit

of Starkie on Libel, Int. 24, and vol. 1, 301, note.

b3 Pick. Rep. 304.

C

Territory v. Nugent, Christy's Dig. of Louisiana Decisions, tit. Ev. No. 161.

weight of judicial authority undoubtedly is, that the English common law doctrine of libel, is the common law doctrine in this country, in all cases in which it has not been expressly controlled by constitutional or legislative provisions. The decisions in Massachusetts and Louisiana were made notwithstanding the constitution of the one state had declared, that, "the liberty of the press ought not to be restrained," and that the other had said, that "every citizen might freely speak, write, and print, on any subject, being responsible for the abuse of that liberty." Those decisions went only to control the malicious abuse or licentiousness of the press, and that is the most effectual way to preserve its freedom in the genuine sense of the constitutional declarations on the subject. Without such a check, the press, in the hands of evil and designing men, would become a most formidable engine, and as mighty for mischief as for good. Since the decision in 1825, the legislature of Massachusetts have interposed, and by an act passed in March, 1827, have allowed the truth to be given in evidence in all prosecutions for libels, but with a proviso that such evidence should not be a justification, unless it should be made satisfactorily to appear upon the trial, that the matter charged as libellous was published with good motives, and for justifiable ends.

The constitutions of several of the United States have made special provision in favour of giving the truth in evidence, in public prosecutions for libels. In the constitutions of Pennsylvania, Delaware, Tennessee, Kentucky, Ohio, Indiana, *and Illinois, it is de- *22 clared, that in prosecutions for libels on men in respect to their public official conduct, the truth may be given in evidence, when the matter published was proper for public information. In the constitutions of Mis

a In Tennessee the truth is as much an absolute justification on indictment, as in actions for Libels. Statute, 1805, ch. 6.

VOL. II.

3

sissippi and Missouri, the extension of the right to give the truth in evidence is more at large, and applies to all prosecutions or indictments for libels, without any qualifications annexed in restraint of the privilege; and an act of the legislature of New-Jersey, in 1799, allowed the same unrestricted privilege. The legislature of Pennsylvania, in 1809,a went far beyond their own constitution, and declared by statute, that no person should be indictable for a publication on the official conduct of men in public trust; and that in all actions or criminal prosecutions for a libel, the defendant might plead the truth in justification, or give it in evidence. The decision of the court of errors of New-York, in Thorn v. Blanchard,b carried the toleration of a libellous publication as a privileged communication, to as great an extent as the Pennsylvania law; for it appeared to be the doctrine of a majority of the court, that where a person petitioned the council of appointment to remove a public officer for corruption in office, public policy would not permit the officer libelled to have any redress by private action, whether the charge was true or false, or the motives of the petitioner innocent or malicious. The English law on this point seems to be founded in a juster policy. Petitions to the king, or to parliament, or to the secretary at war, for the redress of any grievance, are privileged communications, and not actionable libels, provided the petition be made in good faith, and the privilege be not abused; but if it appear that the communication was made maliciously, and without probable cause, the pretence, under which it is made, aggravates the case, and an action lies. The

a Commonwealth v. Duane, 1 Binney's Rep. 601.

b 5 Johns. Rep. 508.

c Fairman v. Ives, 5 Barnw. & Ald. Rep. 642. Best, J. Woodward v. Lander, 6 Carr. & Payne's Rep. 548. All communications made in the discharge of duty, public or private, legal or moral, are in England, if

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