ing an abusive private letter to a man is as much a libel as if it were openly printed, for it equally tends to a breach of the peace. For the same reason, it is immaterial, with respect to the essence of a libel, whether the matter of it be true or false;" since the provocation, and not the falsity, is the thing to be punished criminally; though, doubtless, the falsehood of it may aggravate its guilt and enhance its punishment." In a civil

u 2 Brownl., 151; 12 Rep., 35; Hob., 215; Poph., 139; 1 Hawk., P. C., 195.

(21) But now, by the recent statute 6 & 7 Vict., c. 96, s. 4, the falsehood of the libel is made an essential element in the guilt of the defendant; it being enacted thereby, that if any person shall maliciously publish any defamatory libel, knowing the same to be false, he shall be liable, on conviction, to imprisonment for any term not exceeding two years, and to pay such fine as the court shall award. The 6th section of the same statute enacts, that on the trial of any indictment or information for a defamatory libel, the defendant having pleaded such plea as is thereinafter mentioned, the truth of the matters charged may be inquired into; but shall not amount to a defense, unless it was for the public benefit that they should be published; and that, to entitle the defendant to give evidence of their truth, it shall be necessary for him, in pleading, to allege the truth of the matters charg

99.

▾ Moor., 627; 5 Rep., 125; 11 Mod.,

ed, in the manner required in pleading a justification to an action for defamation, and further to allege that it was for the public benefit that the said matters charged should be published, and the particular fact or facts by reason whereof it was for the public benefit; to which plea the prosecutor may reply generally, denying the whole; and if, after such plea, the defendant shall be convicted, the court may consider, in pronouncing sentence, whether his guilt is aggravated or mitigated by the plea, and the evidence given to prove or disprove it. And it is provided that the truth of the matters charged in the libel shall in no case be inquired into without such plea of justification. The defendant may also plead not guilty, and every defense which it is by law competent to him to make under that plea is expressly reserved to him.*

* Long before the statute 6 and 7 Vict., c. 96 (passed in 1843), the principle had been settled in this country that a defendant indicted for writing or publishing a libel might give in evidence, in his defense, the truth of the matters alleged to be libelous, provided it was shown that the publication was made with good motives and for justifiable ends; or, in other words, for the public benefit. As long since as 1805, a declaratory act was passed by the Legislature of New York. enacting, "that in every prosecution for writing or publishing any libel, it shall be lawful for the defendant, upon the trial of the cause, to give, in evidence in his defense, the truth of the matter contained in the publication charged as libelous; provided always, that such evidence shall not be a justification, unless on the trial it shall be further made satisfactorily to appear that the matter charged as libelous was published with good motives, and for justifiable ends."-(Statutes of New York, 4th vol., Webster's and Skinner's edit., ch. 90, p. 232.) This act was passed in consequence of the doctrine held by the court in the famous case of The People v. Croswell, in which the distinguished ALEXANDER HAMILTON appeared as the advocate of the liberty of the press. Croswell was indicted for a libel on THOMAS JEFFERSON, then President of the United States, and was convicted by the verdict of the jury. He applied to the Supreme Court for a new trial, and the principal questions submitted by counsel and passed upon by the court were, 1. On the trial of an indictment for a libel, can the defendant give the truth in evidence in justification of the publication? and, 2. Have the jury the right to decide both the law and the fact? Justices Kent and Thompson held the affirmative upon both of these questions, and Chief-justice Lewis and Justice Livingston held the negative. The case was argued in February, 1804. At the succeeding May term the chief justice announced that the court were equally di vided upon the questions submitted to them in the case, in consequence of the court, temporarily, being composed of but four judges, and that the public prosecutor was entitled to move for judgment. No motion, however, was made, because on the last day of the session of the legislature in April, 1804, a bill, entitled

action, we may remember, a libel must appear to be false, as well as scandalous;w for, if the charge be true, the plaintiff has received no private injury, and has no ground to demand a compensation for himself, whatever offense it may be against [151] the public peace; and, therefore, upon a civil action, the truth of the accusation may be pleaded in bar of the suit. But, in a criminal prosecution, the tendency which all libels have to create animosities, and to disturb the public peace, is the whole that the law considers. And, therefore, in such prosecutions, the only points to be inquired into are, first, the making or publishing of the book or writing; and, secondly, whether the matter be criminal; and, if both these points are against the defendant, the offense against the public is complete." The w See vol. iii., page 125.

(22) For a long time it was warmly lieved these, they were to find the decontested who were the proper judges fendant guilty; so that with the guilt or of the libelous character of the matter innocence of the party they had no concharged; the court or the jury. It was cern. 1 Barnard., 304, 5, 6; 9 Harg., repeatedly held, by Lords Raymond, St. Tr., 255; 3 T. R., 428, and in notes; Mansfield, and Kenyon, that the jury 5 Burr., 2661; 1 Erskine's Speeches. had no question submitted to them but This strange anomaly was so ably exthe fact of writing, printing, or publish- posed by Mr. Erskine, in the case of ing, and the truth of the innuendoes in- the Dean of St. Asaph, that, in conseserted in the proceedings; if they be- quence of his exertions, the 32 Geo. III., "An Act relative to Libels," had been passed by both houses, and transmitted to the Council of Revision, with whom it remained at the May term, and until the next session of the legislature in 1805, when it was sent back with objections, the principal of which was, that the bill did not contain a proviso similar to that incorporated in the act as finally passed. The legislature acquiesced, and an act containing the proviso was accordingly passed.-(The People v. Croswell, 3 Johns. Cas., 337, et seq.) The principle of the act was subsequently incorporated into the BILL OF RIGHTS, 1 R. S., 94, § 21, and into the amended CONSTITUTION of 1821, art. 7, § 8, and also in the Constitution of 1846.

Similar provisions respecting giving the truth in evidence in cases of libels and the motives of publication, are contained in the Constitutions of Mississippi and Michigan. The language of the Constitution of Pennsylvania is different; it authorizes the truth to be given in evidence, and empowers the jury to determine the law and the fact in prosecutions for publications investigating the official conduct of officers or men in public capacity, or when the matter published is proper for public information. The provision on this subject, in the Constitutions of Kentucky, Illinois, Delaware, Ohio, Indiana, and Arkansas, is similar to the provision in the Constitution of Pennsylvania; and so is the provision in the Constitution of Maine, except that it embraces publications respecting candidates as well as officers already in existence. The Constitution of Connecticut provides for giving the truth in evidence, and authorizes the jury to determine both the law and the fact. In the constitutions of several of the states there is only a general provision in favor of the liberty of the press; and in some the subject is not noticed. The Constitution of South Carolina is silent upon the subject; but the Supreme Court of that state has declared the law to be that, in prosecutions for libels, the intention with which the publication is made, as well as the fact of publication and the truth of the innuendoes, are involved in the general issue, and that the whole case, law as well as fact, is resolved by a general verdict, State v. Allen, 1 M'Cord's R., 525; and in Massachusetts, the Supreme Court of that state, in 1808, held, in the case of The Commonwealth v. Clapp, 4 Mass. R., 168, which was an indictment for a libel, that the defendant may not justify himself for publishing a libel merely by proving the truth of the publication, but that he may prove that the publication was for a justifiable purpose, and not malicious, or with the intent to defame; and when the purpose is justifiable (the court say), there may be cases when the truth may be given in evidence.

punishment of such libelers for either making, repeating, printing, or publishing the libel, is fine, and such corporeal punish

c. 60, was passed, which has entirely was allowed him before the passing of done it away. That statute is entitled the statute. "An Act to remove Doubts respecting Whether, however, a particular pubthe Functions of Juries in case of Libel;" lication be so far noxious in its bearing and after reciting that "doubts have and tendencies as to amount, in the abarisen, whether on the trial of an indict- stract, to a libel, is a pure question of law, ment or information for making or pub- just as much as it is a question of law lishing any libel, where an issue or is what will constitute an assault. If the sues are joined between the king and publication in consideration of law be lithe defendant or defendants, on the plea belous, then it is a question of fact for of not guilty pleaded, it be competent the jury, whether it was willfully and to the jury impaneled to try the same, maliciously published, subject, however, to give their verdict on the whole mat- to the ordinary presumption of law, that, ter in issue," proceeds to declare and in the absence of proof to the contrary, enact, "that on every such trial the jury a man intends that which is the natural sworn may give a general verdict of guilty consequence of the means which he emor not guilty, upon the whole matter put ploys. It follows that neither the jury in issue upon such indictment or in- nor the parties have a right to expect formation; and shall not be required or from the court any specific and direct directed by the court or judge before whom such indictment or information shall be tried, to find the defendant or defendants guilty, merely on the proof of the publication by such defendant or defendants, of the paper charged to be in point of law, as dependent and cona libel, and of the sense ascribed to the same in such indictment or information." But it is provided that the court shall direct the jury according to their discretion, as in other criminal cases; that the jury shall have the same liberty as in other offenses of finding a special verdict, and the defendant the same right of moving in arrest of judgment which (k).-[CHITTY.]*

opinion upon the whole of the case, or any other than that which is ordinarily given, at the discretion of the court, to the jury in parallel cases, with respect to the verdict which they ought to find

tingent upon their conclusions in point of fact, drawn from the alleged libel itself, and all the circumstances of the case, as to the meaning, motives, and intention of the defendant. See Mr. Starkie's Treatise on Evidence, part iv., 882; and see 5 T. R., 436; 4 B. & Ald., 95; 6 M. & W., 105; 1 Saund., 132, b., note

However the doctrine may be held in England as to the right of a jury, on the trial of an indictment for a libel, to determine the law as well as the fact of the case, it is supposed there can be no doubt that such is the province of the jury in this country.-(See ante, p. 150, note *.) The act of 1805, referred to in that note, is broader in its terms, and more explicit than the statute 32 Geo. III., c. 60, as it not only declares the right of the jury to find a general verdict, and forbids a direction by the judge to find the defendant guilty merely on the proof of the publication of the matter charged to be libelous, and of the sense ascribed to it in the indictment; but it enacts that on every indictment for a libel the jury who shall try the same shall have a right to determine the law and the fact, under the direction of the court, in like manner as in other criminal cases. With deference to the learned English annotator, who holds and advances the doctrine (in the above note, 22) that the question, whether the matter published amounts to a libel, is in England now, as it was before the passage of the act 32 Geo. III., c. 60, a pure question of law, the observation is hazarded that such doctrine is not supported by the English cases. It is true that BEST, J., in The King v. Burdett, 4 Barn, and Ald., 95, 131, cited in the above note, 22, charged the jury that they must take the law from him as to whether the publication was or was not a libel; and that subsequently he was sustained in that direction by the whole court, who held, in 1820, that such was the correct mode of leaving the question to the jury, under the act 32 Geo. III.; and that in 1827, the same learned judge, then advanced to the office of Chief Justice of the King's Bench, repeated, in Levi v. Milne, 4 Bingham, 195, the doctrine put forward by him in The King v. Burdett, as to the effect of the act 32 Geo. III. upon the rights of the jury, and insisted that it had no applicability to civil cases. In 1840, however, that act received a construction in Baylis v. Laurence, 11 Adolph. and Ellis, 920, more in conformity with the intention of the law-makers, according to the history of the

By

ment as the court in its discretion shall inflict; regarding the quantity of the offense, and the quality of the offender. the law of the Twelve Tables at Rome, libels, which affected the reputation of another, were made a capital offense; but, before the reign of Augustus, the punishment became corporeal only.y Under the Emperor Valentinian it was again made capital, not only to write, but to publish, or even to omit destroying them. Our law, in this and many other respects, corresponds rather with the middle age of Roman jurisprudence, when liberty, learning, and humanity were in their full vigor, than

Panaque lala, malo quæ nollet carmine quenquam

Describi;-vertere modum formidine fustis.-HOR. ad Aug., 152. z Cod., 9, 36.

act given in the sixteenth chapter of the second volume of Starkie on Slander, American edition of 1843. Previous to that act, the only questions submitted to the jury on the trial of an indictment for a libel were, 1. As to the publication of the alleged libel; and, 2. As to the truth of the innuendoes, leaving the question of libel or no libel to be determined by the court; and, to remedy the mischief which had thus crept into the administration of the law, the act was passed. In Baylis v. Laurence, which was an action for a libel, the judge submitted the case to the jury without expressing any opinion whatever as to whether the publication was or was not libelous, or giving any instructions as to what constituted a libel. Of the course thus taken by the judge, complaint was made on the part of the plaintiff, against whom the verdict was found. Lord DEN MAN, C. J., held that the judge was not bound to state his opinion to the jury whether the publication was or was not libelous. The act of 32 Geo. III., he said, was applicable only to criminal cases; but it was a declaratory act, and the importance of declaring the law existed only in the case of criminal libels. The act, therefore, furnished clear evidence that the judge is not in civil cases bound to state his opinion. He further observed, that he had always followed the practice adopted in this case by the presiding judge, of leaving it to the jury to say whether, under all the cir cumstances, the publication amounts to a libel. The other judges acquiesced in the doctrine of the chief justice, that the law in criminal cases, as declared by the act 32 Geo. III., is the law in civil cases, in respect to which a jury has never been required to find a verdict against the defendant upon the mere proof of publication and of the truth of the innuendoes, leaving the question of libel or no libel to the determination of the court. Previous to the decision of Baylis v. Lawrence, Lord Chief-justice ABBOTT, in Fairman v. Ives, 5 Barn. and Ald., 642, submitted to the jury the facts and circumstances attending a publication alleged to be libelous, and left it to them to declare whether it was or was not libelous; and the jury having found for the defendant, the court unanimously refused to grant a new trial. The same course was pursued in Haire v. Wilson, 9 Barn. and Cres., 472, decided in 1829, and in Fisher v. Clement, 10 Barn. and Cres., 472, decided in 1830. See, also, 1 Starkie on Slander, ch. 13, Amer. edit. of 1843, treating of cases relating to privileged communications, in all of which the question, whether the publication was or was not libelous, was invariably submitted to the jury.

In The King v. Burdett, BEST, J., observed, "It must not be supposed that the statute of George the Third made the question of libel a question of fact; if it had, instead of removing an anomaly, it would have created one." The anomaly alluded to by the judge as created by the act, doubtless was the constituting the jury judges of the law, and thus depriving the defendant of the right to move in arrest of judgment. Did such a consequence ensue, the suggestion would be decisive; but the right to move in arrest is expressly reserved to the defendant by the act 32 Geo. III., and obviates the only plausible ground upon which rests the refusal to give effect to the act. The truth of the matter is, the judges in the beginning yielded an unwilling obedience to the law-making power of the government, but in the progress of time gave up their opposition,

with the cruel edicts that were established in the dark and tyrannical ages of the ancient decemviri, or the later emperors." In this and the other instances which we have lately considered, where blasphemous, immoral, treasonable, schismatical, seditious, or scandalous libels are punished by the English law, some with a greater, others with a less degree of severity, the liberty of the press, properly understood, is by no means infringed or violated. The liberty of the press is, indeed, essential to the nature of a free state; but this consists in laying no previous restraints upon publications, and not in freedom from cen[152] sure for criminal matter when published. Every freeman has an undoubted right to lay what sentiments he pleases before the public; to forbid this, is to destroy the freedom of the press; but if he publishes what is improper, mischievous, or illegal, he must take the consequence of his own temerity. To subject the press to the restrictive power of a licenser, as was formerly done, both before and since the revolution,a is to subject all

a The art of printing, soon after its introduction, was looked upon (as well in England as in other countries) as merely a matter of state, and subject to the coercion of the crown. It was, therefore, regulated with us by the king's proclamations, prohibitions, charters of privilege and of license, and finally by the decrees of the Court of Star Chamber; which limited the number of printers, and of presses which each should employ, and prohibited new publications, unless previously approved by proper licensers. On the demolition of this odious jurisdiction in 1641, the Long Parliament of Charles I., after their rupture with that prince, assumed the same powers as the Star Chamber exercised with respect to the licensing of books; and in 1643, 1647, 1649, and 1652 (Sco

(23) But now, as we have seen, the publication of a defamatory libel, with knowledge of its falsehood, subjects the offender to imprisonment not exceeding two years, and fine. 6 & 7 Vict., c. 96, 6. 4. And by the 5th section of the same statute, the malicious publication of any defamatory libel renders the party liable, on conviction, to fine or imprisonment, or both, the imprisonment not to exceed the term of one year.* By the 8th section, the defendant is entitled, on judgment given for him upon any indictment or information by a private prosecutor for the publication of a defamatory libel, to recover costs from the prosecutor; on the other hand, upon

bell, i., 44, 134; ii., 88, 230) issued their ordinances for that purpose, founded principally on the Star-Chamber decree of 1637. In 1662 was passed the statute 13 & 14 Car. II., c. 33, which (with some few alterations) was copied from the parliamentary ordinances. This act expired in 1679, but was revived by statute 1 Jac. II., c. 17, and continued till 1692. It was then continued for two years longer by statute 4 W. & M., C. 24; but though frequent attempts were made by the government to revive it in the subsequent part of that reign (Com. Journ., 11 Feb., 1694; 26 Nov., 1695; 22 Oct., 1696; 9 Feb., 1697; 31 Jan., 1698), yet the Parliament resisted it so strongly, that it finally expired, and the press became properly free, in 1694, and has ever since so continued.

a special plea of justification to such indictment or information (under s. 6, supra, n. (21)), if the issue be found for the prosecutor, he shall be entitled to recov er costs from the defendant.

The civil remedy for the publication of defamatory words or writings has been already treated of, ante, vol. iii., p. 123; where it is considered what writings are actionable, and what publications are justifiable, as being written in confidence, or under lawful authority, as being fair comments upon other publications, or as reports of the proceedings of courts of justice, &c. Reports of papers published by the authority of Parliament are expressly privileged by the

* The punishment of a libeler by the common law is fine and imprisonment. In New York, by a general provision relative to common-law punishments, it would seem, a court is not authorized to impose a fine exceeding $200. There is no restriction, however, as to the imprisonment.—(2 R. S., 700, § 13, 16.)