It has, however, been held, that the publication of ex parte proceedings, or mere preliminary examinations, though of a judicial character, is not privileged; and when they reflect injuriously upon individuals, the publisher derives no protection from their having already been delivered in court. The reason for * distinguishing these cases from those where the parties [* 450] are heard is thus stated by Lord Ellenborough, in the early case of the King v. Fisher: 2" Jurors and judges are still but men ; 1 Duncan v. Thwaites, 3 B. & C. 556; Flint v. Pike, 4 B. & C. 473; Stanley v. Webb, 4 Sandf. 21; Charlton v. Watton, 6 C. & P. 385; Cincinnati Gazette Co. v. Timberlake, 10 Ohio, N. s. 548; Mathews v. Beach, 5 Sandf. 256; Huff v. Bennett, 4 Sandf. 120. It seems, however, that if the proceeding has resulted in the discharge of the person accused, or in a decision that no cause exists for proceeding against him, a publication of an account of it is privileged. In Curry v. Walter, 1 B. & P. 525, the Court of Common Pleas held that, in an action for libel, it was a good defence, under the plea of not guilty, that the alleged libel was a true account of what had passed upon a motion in the Court of King's Bench for an information against two magistrates for corruption in refusing to license an inn; the motion having been refused for want of notice to the magistrates. In Lewis v. Levy, El. Bl. & El. 537, the publisher of a newspaper gave a full report of an examination before a magistrate on a charge of perjury, resulting in the discharge of the defendant; and the Court of Queen's Bench sustained the claim of privilege; distinguishing the case from those where the party was held for trial, and where the publication of the charges and evidence might tend to his prejudice on the trial. The opinion of Lord Campbell in the case, however, seems to go far towards questioning the correctness of the decisions above cited. See especially his quotation from the opinion of Lord Denman, delivered before a committee of the House of Lords in the year 1843, on the law of libel: "I have no doubt that [police reports] are extremely useful for the detection of guilt by making facts notorious, and for bringing those facts more correctly to the knowledge of all parties interested in unravelling the truth. The public, I think, are perfectly aware that those proceedings are ex parte, and they become more and more aware of it in proportion to their growing intelligence; they know that such proceedings are only in course of trial, and they do not form their opinion until the trial is had. Perfect publicity in judicial proceedings is of the highest importance in other points of view, but in its effects on character I think it desirable. The statement made in open court will probably find its way to the ears of all in whose good opinion the party assailed feels an interest, probably in an exaggerated form, and the imputation may often rest upon the wrong person; both these evils are prevented by correct reports." In the case of Lewis v. Levy, it was insisted that the privilege of publication only extended to the proceedings of the superior courts of law and equity; but the court gave no countenance to any such distinction. See also Wason v. Walter, L. R. 4 Q. B. 73; Terry v. Fellows, 21 La. Ann. 375. 2 2 Camp. 563. they cannot always control feeling excited by inflammatory language. If they are exposed to be thus warped and misled, injustice must sometimes be done. Trials at law, fairly reported, although they may occasionally prove injurious to individuals, have been held to be privileged. Let them continue so privileged. The benefit they produce is great and permanent, and the evil that arises from them is rare and incidental. But these preliminary examinations have no such privilege. Their only tendency is to prejudge those whom the law still presumes to be innocent, and to poison the sources of justice. It is of infinite importance to us all, that whatever has a tendency to prevent a fair trial should be guarded against. Every one of us may be questioned in a court of law, and called upon to defend his life and character. We would then wish to meet a jury of our countrymen with unbiassed minds. But for this there can be no security, if such publications are permitted." And in another case it has been said: "It is our boast that we are governed by that just and salutary rule upon which security of life and character often depends, that every man is presumed innocent of crimes charged upon him, until he is proved guilty. But the circulation of charges founded upon ex parte testimony, of statements made, often under excitement, by persons smarting under real or fancied wrongs, may prejudice the public mind, and cause the judgment of conviction to be passed long before the day of trial has arrived. When that day of reversed, and the pre [* 451] trial comes, the rule has been sumption of guilt has been substituted for the presumption of innocence. The chances of a fair and impartial trial are diminished. Suppose the charge to be utterly groundless. If every preliminary ex parte complaint which may be made before a police magistrate may, with entire immunity, be published and scattered broadcast over the land, then the character of the innocent, who may be the victim of a conspiracy, or of charges proved afterwards to have arisen entirely from misapprehension, may be cloven down, without any malice on the part of the publisher. The refutation of slander, in such cases, generally follows its propagation at distant intervals, and brings often but an imperfect balm to wounds which have become festered, and perhaps incurable. It is not to be denied, that occasionally the publication of such proceedings is productive of good, and promotes the ends of justice. But, in such cases, the publisher must find his justification, not in privilege, but in the truth of the charges." 1 Privilege of Publishers of News. Among the inventions of modern times, by which the world has been powerfully influenced, and from which civilization has received a new and wonderful impulse, must be classed the newspaper. Beginning with a small sheet, insignificant alike in matter and appearance, published at considerable intervals, and including but few in its visits, it has become the daily vehicle, to almost every family in the land, of information from all quarters of the globe, and upon every subject. Through it, and by means of the electric telegraph, the public proceedings of every civilized country, the debates of the leading legislative bodies, the events of war, the triumphs of peace, the storms in the physical world, and the agitations in the moral and mental, are brought home to the knowledge of every reading person, and, to a very large extent, before the day is over on which the events have taken place. And not public events merely are discussed and described, but the actions and words of public men are made public property; and any person sufficiently notorious* to become an object of pub- [*452] lic interest will find his movements chronicled in this index of the times. Every party has its newspaper organs; every shade of opinion on political, religious, literary, moral, industrial, or financial questions has its representative; every locality has its press to advocate its claims, and advance its interests, and even the days regarded as sacred have their special papers to furnish reading suitable for the time. The newspaper is also the medium by means of which all classes of the people communicate with each other concerning their wants and desires, and through which they offer their wares, and seek bargains. As it has gradually increased in value, and in the extent and variety of its contents, so the exactions of the community upon its conductors have also increased, until it is demanded of the newspaper publisher, that he 1 Stanley v. Webb, 4 Sandf. 30. See this case approved and followed in Cincinnati Gazette Co. v. Timberlake, 10 Ohio, N. s. 548, where, however, the court are careful not to express an opinion whether a publication of the proceedings on preliminary examinations may not be privileged, where the accused is present, with full opportunity of defence. shall daily spread before his readers a complete summary of the events transpiring in the world, public or private, so far as those readers can reasonably be supposed to take an interest in them; and he who does not comply with this demand must give way to him who will. The newspaper is also one of the chief means for the education of the people. The highest and the lowest in the scale of intelligence resort to its columns for information; it is read by those who read nothing else, and the best minds of the age make it the medium of communication with each other on the highest and most abstruse subjects. Upon politics it may be said to be the chief educator of the people; its influence is potent in every legislative body; it gives tone and direction to public sentiment on each important subject as it arises; and no administration in any free country ventures to overlook or disregard an element so pervading in its influence, and withal so powerful. And yet it may be doubted if the newspaper, as such, has ever influenced at all the current of the common law, in any particular important to the protection of the publishers. The railway has become the successor of the king's highway, and the plastic rules of the common law have accommodated themselves to the new condition of things; but the changes accomplished by the public press seem to have passed unnoticed in the law, and, save only where modifications have been made by constitution or statute, the publisher of the daily paper occupies to-day the position in the courts that the village gossip and retailer of scandal occupied two hundred years ago, with no more privilege and no more protection. [* 453] * We quote from an opinion by the Supreme Court of New York, in a case where a publisher of a newspaper was prosecuted for libel, and where the position was taken by counsel, that the publication was privileged: "It is made a point in this case, and was insisted upon in argument, that the editor of a public newspaper is at liberty to copy an item of news from another paper, giving at the same time his authority, without subjecting himself to legal responsibility, however libellous the article may be, unless express malice is shown. It was conceded that the law did not, and ought not, to extend a similar indulgence to any other class of citizens; but the counsel said that a distinction should be made in favor of editors, on the ground of the peculiarity of their occupa - tion. That their business was to disseminate useful information among the people; to publish such matters relating to the current events of the day happening at home or abroad as fell within the sphere of their observation, and as the public curiosity or taste demanded; and that it was impracticable for them at all times to ascertain the truth or falsehood of the various statements contained in other journals. We were also told that if the law were not thus indulgent, some legislative relief might become necessary for the protection of this class of citizens. Undoubtedly if it be desirable to pamper a depraved public appetite or taste, if there be any such, by the republication of all the falsehoods and calumnies upon private character that may find their way into the press, to give encouragement to the widest possible circulation of these vile and defamatory publications by protecting the retailers of them, some legislative interference will be necessary, for no countenance can be found for the irresponsibility claimed in the common law. That reprobates the libeller, whether author or publisher, and subjects him to both civil and criminal responsibility. His offence is there ranked with that of the receiver of stolen goods, the perjurer and suborner of perjury, the disturber of the public peace, the conspirator, and other offenders of like character." And again: "The act of publication is an adoption of the original calumny, which must be defended in the same way as if invented by the defendant. The republication assumes and indorses the truth of the charge, and when called on by the aggrieved party, the publisher should be held strictly to the proof. If he chooses to become the indorser and retailer of private scandal, without taking the trouble to inquire into the truth of what he publishes, there is no * ground for complaint if the law, which is as studious to [* 454] protect the character as the property of a citizen, holds him to this responsibility. The rule is not only just and wise in itself, but, if steadily and inflexibly adhered to and applied by courts and juries, will greatly tend to the promotion of truth, good morals, and common decency on the part of the press, by inculcating caution and inquiry into the truth of charges against private character before they are published and circulated throughout the community." 1 Hotchkiss v. Oliphant, 2 Hill, 513, per Nelson, Ch. J. And see King v. Root, 4 Wend. 138, per Walworth, Chancellor. It has been urged upon you 66 that conductors of the public press are entitled to peculiar indulgences and have |