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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 evi dence in public prosecutions for libels. In the constitutions of Pennsylvania, Delaware, Tennessee, Kentucky, Ohio, Indiana, and Illinois, it is declared, 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 Mississippi 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, 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 this state, in Thorn v. Blanchard,b carried the toleration of a libellous publication 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

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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 the 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 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.a The constitution of this state, as amended in 1821, is a little varied in its language from those provisions which have been mentioned, and is not quite so latitudinary in its indulgence as some of them. It declares, that "in all prosecutions or indictments for libels, the truth may be given in evidence to the jury; and if it shall appear to the jury, that the matter charged as libellous, is true, and was published with good motives, and for justifiable ends, the party shall be acquitted." These provisions in favour of giving the truth in evidence, are to be found only in those constitutions which have been promulgated long since our revolution; and the current of opinion seems to have been setting strongly, not only in favour of erecting barriers against any previous restraints upon publications, (and which was all that the earlier sages of the revolution had in view,) but in favour of the policy that would diminish or destroy altogether every obstacle or responsibility in the way of the publication of the truth. The subject is not without its difficulties, and it has been found embarrassing to preserve equally, and in just harmony and proportion, the protection which is due to character, and the protection which ought to be afforded to liberty of speech, and of the press. These rights are frequently brought into dangerous collision, and the tendency of measures in this country has been to relax too far the vigilance

a 5 Barnw. & Ald. 642. Best, J.


with which the common law surrounded and guarded character, while we are animated with a generous anxiety to maintain freedom of discussion. The constitution of this state makes the facts in every possible case a necessary subject of open investigation; and however improper or unfit those facts may be for public information, and however painful or injurious to the individuals concerned, yet it would seem, that they may, in the first instance, be laid bare before the jury. The facts are to go to them, at all events; for the jury are to determine, as it shall appear to them, whether the motives of the libeller were good, and his end justifiable.

The act of Congress of the 14th of July, 1798, made it an indictable offence to libel the government, or Congress, or the President of the United States; and it made it lawful for the defendant, upon the trial, to give in evidence in his defence, the truth of the matter contained in the publication charged as a libel. This act was, by the terms of it, declaratory, and it was intended to convey the sense of Congress, that in prosecutions of that kind it was the common right of the defendant to give the truth in evidence. So, the case of The People v. Croswell, in this state, was followed by an act of the legislature on the 6th of April, 1805, enacting and declaring, that in every prosecution, for a libel, (and which included public and private prosecutions) it should be lawful for the defendant to give in evidence in his defence the truth of the matter charged; but such evidence was not to be a justification, unless, on the trial, it should be made satisfactorily to appear, that the matter charged as libellous was published with good motives, and for justifiable ends and this was the whole extent of the doctrine which had been claimed in favour of the press in the case of The People v. Croswell.

There appears to have been some contrariety of opinion in the English books on the point, whether a defendant in a private action upon a libel, could be permitted to justify the charge, by pleading the truth. But the prevailing, and the better opinion is, that the truth may, in all cases, be pleaded

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by way of justification, in a private action for damages, arising from written or printed defamation, as well as in an action for slanderous words. The ground of the private action, is the injury which the party has sustained, and his consequent right to damages as a recompense for that injury; but if the charge, in its substance and measure, be true in point of fact, the law considers the plaintiff as coming into court without any equitable title to relief. And yet it is easy to be perceived, that in the case of libels upon private character, greater strictness as to allowing the truth in evidence, by way of justification, ought to be observed, than in the case of public prosecutions; for the public have no interest in the detail of private vices and defects, when the individual charged is not a candidate for any public trust; and publications of that kind, are apt to be infected with malice, and to be very injurious to the peace and happiness of families. If the libel was made, in order to expose to the public eye personal defects, or misfortunes, or vices, the proof of the truth of the charge would rather aggravate than lessen the baseness and evil tendency of the publication; and there is much justice and sound policy in the opinion, that in private, as well as public prosecutions for libels, the inquiry should be pointed to the innocence or malice of the publisher's intentions. The truth ought to be admissible in evidence to explain that intent, and not in every instance to justify it. The guilt and the essential ground of action for defamation, consist in the malicious

a Holt, Ch. J. 11 Mod. 99. Buller's N. P. 8. J'Anson v Stuart, 1 Term, 748. In Massachusetts, a statute passed in March, 1827, not only allows the truth to be pleaded by way of justification in all actions for libels, as well as for oral slander, but every inference to be drawn from such a plea in admission of the fact of publication, or of malice, if the plea be not proved, is destroyed. The statute affords facility and encouragement to the plea.

b Vinnius in last. 4. 4. 1. Edinb. Review, vol. xxvii. p. 102. 142. vol. xxxiii. 207.

intention; and when the mind is not in fault, no prosecution can be sustained. On the other hand, the truth may be printed and published malicio sly, and with an evil intent, and for no good purpose, and when it would be productive only of private misery, and public scandal and disgrace.

(3.) The right of personal liberty, is another absolute right of individuals, which has long been a favourite object of the English law. It is not only a constitutional principle, as we have already seen, that no person shall be deprived of his liberty without due process of law, but effectual provision is made against the continuance of all unlawful restraint, or imprisonment, by the security of the privilege of habeas corpus.

Every restraint upon a man's liberty is in the eye of the law, an imprisonment, wherever may be the place, or whatever may be the manner in which the restraint is effected.b Whenever any person is detained with or without due process of law, unless for treason or felony, plainly and specially expressed in the warrant of commitment, or unless such person be a convict, or legally charged in execution, he is entitled to his writ of habeas corpus. It is a writ of right, which every person is entitled to, ex merito justicia ; but the benefit of it was, in a great degree, eluded in England prior to the statute of Charles II., as the judges only awarded it

a We have a remarkable illustration of this principle, in a decision cited by Lord Coke, when at the bar, and arguing the cause of Brook v. Montague. (Cro. J. 91.) A preacher, in his sermon, recited a story out of Fox's Martyrology, of one Greenwood, as being a very wicked man, and a persecutor, who died under signal visitations of God's displeasure. The preacher intended to show, by that example, the judgment of Providence upon great sinners; but he was totally mistaken as to the fact, for Greenwood was not dead or diseased, but present at the preaching of the sermon. He brought his action for the defamation; and the court instructed the jury, that the defendant, having read and delivered the words as matter of history, and without any evil intention, was not liable in damages.

b 2 Inst. 589.

c 4 Inst. 290.

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