The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1852-02-28
forged by the plaintiff. And in regard to the sx-

~
OF equity it never belonged to a court OF lsw. la
none Of the instances which | have mentioned
should absolute privilege exist irrespective OF tho
truth. Ailthe protection demanded by any resssn
Of justice or policy Is afforded where party making
apublication, as sutton judge, juror, witness or in
any other capacity, afiordiug prsd faeie privilege,
is justified where he ID not shown b have wilfoly
stated falsehood, er inadvertently distorted trnth
But where 1t appears that he hos perverted this
capacity in which be acts Tor the qualification of
private malice, under tho pretext OF performing
duty, and where in such case it is atirmatysly
proven that be deliberately uttered false hood that
capacity which would otherwise yield him immunity,
| should 9ggravate his offence, and expose him TO
condigs punishment The rules to be applied 70
the report Of public processing, whore the writer
alleges nothing OF his own knowledge, should be
much more liberal Any fair and impartial report
/ OF such proceeding, is nov fully privileged But
/ IL has been held, that the publication of an &c
parte proceeding, as for instance, the com plant il
/ police office and an account, however correct. Of
what takes place publicly in regard to it. Is neither
absolutely nor quaiifedly privileged. This latter
rule Is founded on aojudicasions in England, which
declare that such publications not only no.
\ privileged by law, but are regarded as great mis
demeanoIs. ii seems to me that the courts have
I erred here IN taking the habikty from the citizen
TO impoEe 1t on the press. Ii the party making a
criminal accusation against his neighbor We're
i held responsible aa for libel, where nc acted
either without probable cause or against what no
knew to be the truth, If absolute and arbitrary
privilege were not secured 10 him, the evil OF the
/ publication would be appropriately rea;aed Quite
as much Injury u done 20 citizen by the lep5s Of
public trial ahere bis character is assailed, IS
\ where mention is made OF 7szrte charge
Counsel may, from some secret spleen, or tho Vicious
habit OF reckless vitureraton, lacorase the feel
mas, and Assem- the reputation OF party or witness
Their csvert inputs lions gains. the Integrity o.
the bench may be in the highest degree Injurious.
These sssaalis may be transmitted, through the
press, TO myria5s, and the publisher IL not respou
sible In England, it was held, and no. long ago,
that to publish the vituperative speech of lawyer,
without the evidence in the case, would de prize
the defendant Of any claim to privilege Yet here,
according to the judicial view Of the subject there
is Lat opportunity for reply, the absence Of which
- assigned as one great reason for the actiona-
bic quality OF an &c aorte publication. The
reason just mentioned is wholly inapplcablo TO our
criminal system, where the party accused OK IN Of
fence has right to be heard. even before tho ma
gstrate who receives the charge, and 5ri Il is had
there the report Of whch, though without jury, is
No more hA ely to inure the accused party than the
account Of the hearing of an equity cause, or Of
proceeding on habeas cOJp,ss. And when we
slider that police Office is in fact court Of jus.
Iice whose transactions ARE and should oe open 20
the public, where the curious may and do at
tend, 1t 10 very questionable whether there
can DO anything ~rop9 in extending tho
publicity tbrous the PRESS which is justified legally
and morally when trial IS had If an inquest Is
taken in q court Of iustice-it damages ny default
be assessed before sheyiiTs jury, the proceedings
may be reported without liability; because, though
the party has made no defence he had an opportu
nifty to 90 so. and where party charged with inc
crime is arrested he has en- opportunity and tho
right to hear the proofs against him, and meet
explain them. If 1t be SAID that the preliminary
charge may reach the PUBLIC before the answer,
that remark is equally applicable to any trial whore
the proofs or allegations of enc party are given to
tie public before the rabustiug testimony is intro
duced. And in case like the latter, although it
has been suggested that t would be wise to restrain
any publication until al the proofs adduced it
is difficult 10 perceive bow any beneficial result
would be attained by such regulation. Those
who would form their opinion on certain evidence,
SO that 1t could not be afe,.ed by proof which coun
tervailed it, would commit the same folly though
the juious charge and its entire refutation ap.
peaIed IN the same column ofthe press. The Amc-
rioan people are en- phatically-pe cularly-a people
Of newspapers. When our gallant army pursued
like that OF Cromwell, career Of victory unbroken
by single defeat, tie press followed in its foot
ste ps-the types were amongst the Apo lntmeDts
OF the phaianx, and even on the red field Of
battle the bulletins of the triumph were s.rick-
en- OF Out OF this popularity asuse msy
and does arise; but We afford to encounter
The accompanying evil in consideration of the
great good it slightly qualities remedy for
tho wrongs of the presa, should, no doubt, be
extensive with that enforced against Individuals
those who can reach thousands Of eyes aui minds
in an instant, being held to strict accountability
!or volanpg tie truth, or wantoniy II aligning cha
iacter. But while they cocipe the statement Ct
what tranfpircs in public proceeding within the
limits q truth, ard do not transcend IN their
merits the legitimate off,e Of censure, they ahoui
i tIlcy q perfect protection under the lag. The
general result Of these observations Is that 10
\ judgment IF him VIE addresses yeu, N ice should
have 10 in unity which is founded on falsahoed;
but truth should be projected by all the meaus
with which the law can surround it, except in those
cases where accom- nunity cannot DC deemed bsno
fitted By the publication Of q defematory truth
without good motive, or for an urjastifable pur.
pose II il be urged, legal writers and eminent
jucges have maintained that there is no good rea-
son for making the public acquainted with &C aarte
Accusations. answer that the ends OF pa olic Justice
and public welfare are more frequently renoted
than frustrated by such publications. They may
prejudice individual with those who arc ready
TO condemn unhea-d; but DC rule Of law sho aid re-
pose, or generally does reposc on the presumption
that mankind will commit injustice SO gross. Ga
the contrary. morality, ordinary prudence, fairness,
iUstice-these presume in law TO be exhibited by
al men towards each other in the affairs Of life.
Ard why should IL not be inferred that where
the accusation proves to be falee and N slevolont,
The same press, which without males, recorded
the charge, will gladly announce the viadication.
am well aware that, in this res pect the press does
rot always discharge the msgnonimous duty of
Eeraldng the triumph OF innocence as readily as it
pIocaims the appearance of guilt; but this evil ia
enc which the law is poweress TO remedy, and must
be corrected by that deliberate and just public SEN
tnert, which shall sustain the right, and condemn
the wong, whenever and wherever they are OK
hibited. B.sides the free publication OF al that
tfenspires in public af1srs, whether legislative or
judicial is means Of eekng tie folly or cor
Iurtion of officials, and making the people 40
qualnted With thoee who. under our POLITICAL system
in this State, are chosen by the community, and
responsible TO hem directly for tho performance CT
their trusts. over these, an honest and uashackled
press may and does stand tho jealous guardian OF
tho public into-eats-tbe sentinel to give alarm
at TIE moment of danser-aDd the champion
10 yindicate the COMMON welfare against ig-
Iorarce, Injustice, ard trea'hery | bnve
conIned these renarss 10 cases Of what sre ususl-
y considered absolute have net advert
Cd particularly 70 those instances in which, though
privilege II, ia tic frst instance, predaable Of The
iacts, IL LAY be overcome by proof Of actual
malice Of, il some times the case, want Of pro-
tablo cause i am vel aTaie that my crude sug-
eestope have Loiher The cieaIness fore. )r dig
nifty 0f a scientific discouTse, and ttat no lawyer
viii derive any instruction on the familiar subject
u ny lecture i5om VIA: have said ia desoltory
way about The legal rules incident Is that subject.
confess that aimed ct no higher obi set than to
c0nmoId X could the study CT this branch Of the
l1w BY those who might do the honor to hear me,
ard rho have lot yet had the tine or the incina-
ten 70 investigate subject Important from its po-
b.icsl md soCieI as well as its legal bearings. |
have rad one other ohinot in Wow IL haa lonr