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against a candidate for an elective office, is beyond the reach of legal inquiry. To such a proposition I can never yield my assent. Although it was urged by the defendant's counsel, I cannot discover any analogy whatever between the proceedings of such meetings and those of courts of justice, or any other organized tribunals known in our law for the redress of grievances. That electors should have a right to assemble, and freely and openly to examine the fitness and qualifications of candidates for public offices, and communicate their opinions to others, is a position to which I most cordially accede. But there is a wide difference between this privilege and a right irresponsibly to charge a candidate with direct specific and unfounded crimes. It would, in my judgment, be a monstrous doctrine to establish, that, when a man becomes a candidate for an elective office, he thereby gives to others a right to accuse him of any imaginable crimes, with impunity. Candidates have rights as well as electors; and those rights and privileges must be so guarded and protected as to harmonize one with the other. If one hundred or one thousand men, when assembled together, undertake to charge a man with specific crimes, I see no reason why it should be less criminal than if each one should do it individually, at different times and places. All that is required, in the one case or the other, is, not to transcend the bounds of truth. If a man has committed a crime, any one has a right to charge him with it, and is not responsible for the accusation; and can any one wish for more latitude than this? Can it be claimed a privilege to accuse ad libitum a candidate with the most base and detestable crimes? There is nothing upon the record showing the least foundation or pretence for the charges. The accusations, then, being false, the prima facie presumption of law is, that the publication was malicious; and the circumstance of the defendant being associated with others does not per se rebut this presumption. How far this circumstance ought to [*437] affect the measure of damages is a question not arising

on the record. It may in some cases mitigate, in others enhance, them. Every case must necessarily, from the nature of the action, depend upon its own circumstances, which are to be submitted to the sound discretion of a jury. It is difficult, and perhaps impossible, to lay down any general rule on the subject." 1

Lewis v. Few, 5 Johns. 1, 35. See also Curtis v. Mussey, 6 Gray, 261; Aldrich v. Printing Co., 9 Minn. 133.

The difficulty one meets with in the examination of this opinion is in satisfying himself in what manner the privileges of electors, of which it speaks, are protected by it. It is not discovered that the citizen who publicly discusses the qualifications and fitness of the candidate for public office who challenges his suffrage is, by this decision, so far as suits for recovery of private damages are concerned, placed on any different footing in the law from that occupied by one who drags before the public the character of a private individual. In either case, if the publication proves to be false, the law, it seems, attaches to it a presumption of malice. Nothing in the occasion justifies or excuses the act in either case. It is true it is intimated that it may lie in the sound discretion of a jury to be moderate in the imposition of damages, but it is also intimated that the jury would be at liberty to consider the circumstances of the public meeting an aggravation. There is absolutely no privilege of discussion to the elector under such a rule; no right to canvass the fitness of candidates beyond what exists in other cases. Whatever reasons he may give his neighbors for Voting against a candidate, he must be prepared to support by evidence in the courts. In criminal prosecutions, if he can prove the truth of his charges, he may be protected in some cases where he would not be if the person assailed was only a private individual; because in the latter case he must make a showing of a justifiable occasion for uttering even the truth. But in all cases where the matter is proper for the public information, the truth justifies its publication.

The case above quoted has the sanction of a subsequent decision of the Court for the Correction of Errors, which in like manner repudiated the claim of privilege. The office then in question was that of Lieutenant-Governor, and the candidate was charged in public newspapers with habits of intoxication which unfitted him for the position. And this last decision has since been followed as authority by the Superior Court of New York; in a case, however, which does not seem to be analogous, since there the gen

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eral public was addressed in regard to a candidate for [* 438] an office which was not elective, but was to be filled by an appointing board.2

1 King v. Root, 4 Wend. 113.

Hunt v. Bennett, 4 E. D. Smith, 647; s. c. 19 N. Y. 173. See Duncombe

v. Daniell, 8 C. & P. 213.

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The case of King v. Root 1 will certainly strike any one as a very remarkable one, when the evidence given in the case is considered. The Lieutenant-Governor was charged in the public press with intoxication in the Senate Chamber, exhibited as he was proceeding to take his seat as presiding officer of that body. When prosecuted for libel, the publishers justified the charge as true, and brought a number of witnesses who were present on the occasion, and who testified to the correctness of the statement. There was therefore abundant reason for supposing the charge to have been published in the full belief in its truth. If it was true, there was abundant reason, on public grounds, for making the publication. Nevertheless, the jury were of opinion that the preponderance of evidence was against the truth of the charge, and being instructed that the only privilege the defendants had was "simply to publish the truth, and nothing more," and that the unsuccessful attempt at justification which in fact was only the forming of such an issue, and putting in such evidence as showed the defendants had reason for making the charge was in itself an aggravation of the offence, they returned a verdict for the plaintiff, with large damages. Throughout his instructions to the jury by the judge presiding at the trial, no privilege of discussion whatever is conceded to the elector, springing from the relation of elector and candidate, or of citizen and representative, but the case is considered as one where the accusation was to be defended precisely as if no public considerations had in any way been involved.2

The law of New York is not placed by these decisions on a footing very satisfactory to those who claim the utmost freedom of discussion in public affairs. The courts have considered the subject as if there were no middle ground between absolute immunity for falsehood and the application of the same strict rules which prevail in other cases. Whether they have duly considered the importance of publicity and discussion on all matters of general concern in a representative government must be left to the consideration of judicial tribunals, as these questions shall come be

fore them in the future. It is perhaps safe to say that the [* 439] general public sentiment and the prevailing customs allow a greater freedom of discussion, and hold the elector

1 4 Wend. 113. See the same case in the Supreme Court, 7 Cow. 613. See also Onslow v. Hone, 3 Wils. 177; Harwood v. Astley, 1 New Rep. 47.

less strictly to what he may be able to justify as true than is done by these decisions.1

A much more reasonable rule though still, we think, not sufficiently comprehensive and liberal - was indicated by Pollock, C. B., in a case where it was urged upon the court that a sermon, preached but not published, was the subject of criticism in the enlarged style of commentary which that word seems to introduce according to the decided cases; and that the conduct of a clergyman with reference to the parish charity, and especially the rules of it, justified any bona fide remarks, whether founded in truth in point of fact, or justice in point of commentary, provided only they were an honest and bona fide comment. "My brother Wilde," he says, " urged upon the court the importance of this question; and I own I think it is a question of very grave and deep importance. He pressed upon us that, whenever the public had an interest in such a discussion, the law ought to protect it, and work out the public good by permitting public opinion, through the medium of the public press, to operate upon such transactions. I am not sure that so extended a rule is at all necessary to the public good. I do not in any degree complain; on the contrary, I think it quite right that all matters that are entirely of a public nature-conduct of ministers, conduct of judges, the proceedings of all persons who are responsible to the public at large are deemed to be public property; and that all bona fide and honest remarks upon such persons, and their conduct, may be made with perfect freedom, and

1 "Freedom of speech is a principal pillar of a free government; when this support is taken away, the constitution of a free society is dissolved, and tyranny is erected on its ruins. Republics and limited monarchies derive their strength and vigor from a popular examination into the action of the magistrates; this privilege in all ages has been and always will be abused. The best of men could not escape the censure and envy of the times they lived in. Yet this evil is not so great as it might appear at first sight. A magistrate who sincerely aims at the good of society will always have the inclinations of a great majority on his side, and an impartial posterity will not fail to render him justice. Those abuses of the freedom of speech are the excesses of liberty. They ought to be repressed; but to whom dare we commit the care of doing it? An evil magistrate, intrusted with power to punish for words, would be armed with a weapon the most destructive and terrible. Under pretence of pruning off the exuberant branches, he would be apt to destroy the tree." Franklin, Works by Sparks, Vol. II. p. 285.

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without being questioned too nicely for either truth or justice." 1 But these remarks were somewhat aside from the case then before the learned judge, and though supported by similar remarks from his associates, yet one of those associates deemed it important to draw such a distinction as to detract very much from the value of this privilege. "It seems," he says, "that there is a distinction, although I must say I really can hardly tell what the limits of it are, between the comments on a man's public conduct and on his private conduct. I can understand that you have a right to comment on the public acts of a minister, upon the public acts of a general, upon the public judgments of a judge, upon the public skill of an actor; I can understand that; but I do not know where the limit can be drawn distinctly between where the [*440] comment is to cease, as being applied solely to a man's public conduct, and where it is to begin as applicable to his private character; because, although it is quite competent for a person to speak of a judgment of a judge as being an extremely erroneous and foolish one, and no doubt comments of that sort have great tendency to make persons careful of what they say, and although it is perfectly competent for persons to say of an actor that he is a remarkably bad actor, and ought not to be permitted to perform such and such parts, because he performs them so ill, yet you ought not to be allowed to say of an actor that he has disgraced himself in private life, nor to say of a judge or a minister that he has committed felony, or any thing of that description, which is in no way connected with his public conduct or public judgment; and therefore there must be some limits, although I do not distinctly see where those limits are to be drawn. No doubt, if there are such limits, my brother Wilde is perfectly right in saying that the only ground on which the verdict and damages can go is for the excess, and not for the lawful exercise of the criticism."2

The radical defect in this rule, as it seems to us, consists in its assumption, that the private character of a public officer is something aside from, and not entering into or influencing, his public conduct; that a thoroughly dishonest man may be a just minister, and that a judge who is corrupt and debauched in private life may

1 Gathercole v. Miall, 15 M. & W. 331-333. See Commonwealth v. Clap, 4 Mass. 163, per Parsons, Ch. J.; Townsend on Libel and Slander, § 260. 2 Alderson, B., same case, p. 338.

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