The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1852-02-28


with something like the power which was taken from
them IN England. When the language of p1sliea
ton was ambiguous, il became question whetherit
should be left to the court or jury to say whether it
was hbellous. In such a casei IL was held that the
jury should determine. Bu. there arose case, Dol
lowsy and Turrill, reported as decided 10 the ate
Court Of Errors, in 10th Wendell, 3S3, in which an
article complained of as libel alleged that the
plaintiff, who had been busy in concerning measures
to prevent the re- appointment Of certain person TO
Office, had affixed his name as judge to the jurat
OF an AFFIDAVIT TO be used Ia defeating such re- APP
pointment though no oath was administered to the
party named rs deponent, ANA it was submitted by
the writer to the public, whether, under the cif-
cumstsnces the plaintiff had not committed gross
violation Of his official oath for the purpose of ruin.
ing the incumbent in Office The able judge before
whom the cause tried, whose charge was in this
respect confirmed by tho Supreme Court instructed
the jury az matter Of law that the publication was
ibellous, ard not susce ptible of an innocent con-
struction The plaintiff had a Judgment which, for
tunately, the Court Of Errors reversed That court
held that the question, in what sense tho wore
were used, should have been submitted to the Jury.
think that the legal profession, who have been,
and are, tho guardians OF the people against judi
cial usu patiens, should be watchu to prevent the
principle of the just cited being impaired or
altered in the slightest degree. This duty is more
important now than it ever has been hitherto
We have an elective judiciary. The claims and
merits Of candidates for Judicial position are neces
sarily and freely discussed in speech and writing
The successful competitor can scarcely avoid feel
ing gratitude toward his political friends and may
not be wholly iusensible to what he considers the
deserts of political fees. q. course he weuld not
ely permit any such feeling TO influence his
official conduct; but, being merely human, be is not
above the reach of the impulses, We tknesses. or
fraity, iAsepsra bic from our eTing and imperlecs
natures. I'll the intellectual o. msral tendencies
which dstort our m nsal visit n, peryert our WILL
exercise their il auence, without even suspect
ing that our gaze IS 40, wholly unclouded, our
tive perfectly pure, and our objeos unexcep-
IN N NAV gall hat
elected Judge, especially when the end of his off,
cial term draws nigh, may DO invol1ntarily le
to consider tho influence OF some friendly OF
hostile press, or he may, in case where an
editors conduct IS called in question, perceive how,
by following public sympathy or pablo projuaice,
he may commend himself 10 public favor To pro.
tect the press and te protect themselves against be
consequences OF o judicial weakness which might,
in any such nstance have aladed TO, in .ertere
unpleasantly with our immunity against the per-
version Of our language, or against assault upon
our tight OF free thought, rom any scarce. we
should restrict the judiciary il libel ca TO sphere
OF authority as limited as possible, consistent vita
an effective discharge Of their duties In these de
cursive observations, have already alluded TO tho
defence Of justification in criminal and civil prose-
outoIs for libel, when tie defence ia founded on the
truth OF the matter published. There is another
defence OF frequent NC recently, the application Of
which extends as the interests and dutios Of man
multiply. Il is called privilege" and the publ
cations which 1t is supposed TO protect usually
called privileged communal cations" This de-
fence is allowed foc reasons of real or sup
posed public necessity; and If it has not, it
certainly should have been the aim of The
judiciary SO far as they possessed the power TO re-
strict thu privilege within the limits Of the necessity
which produced it. 1t is what the law calls the
occasion which protects party from alleging what,
without the security of that occasion. he could
utter without being made liable for defamation.
A familiar illustration, applicable to an ordinary
in sidept ia life, is where person is applied
to concerning the character Of one lately in his
employment The Communication made IL answer
to such an enquiry, is qualtfedly privileged, aud is
absolutely protected, unless the party inquired Of
state a falsehood about the party enquirea about,
with actual malice. Similar immunity would be
afforded to merchant speaking of anothers credit
to one who, in the ordinary course of business,
suited him. But, in q recent case, which occurred
in this city, 1t was ruled at the trial that the de-
fence Of privilege would not avail men who, in
reference to any business in which they had no in.
terest, and without any actual necessity arising ia
their own affairs, undertook to give Information
about the credit or responsibility Of merchants to
persons with whom the latter were dealing, or
about TO deal it must be confessed, however,
tina, the rules applicable TO this subject Of privi-
lege, are not in all cases very clearly stated,
nor are they recoDeleabie with each other
The defence OF privilege Is not usually ranged under
the hes Of justif cation, and yet in instance at
least, it clearly belongs TO that category Privilege
is either absolute qualified Where it is absolute
10 action lies, however malicious the publication
may be Where i is qualified, the action canIot
defendant was moved by actual naiicehy what is
sometimes called express malice and sometimes
maace in fact In the case Of absolute Or VII age,
the defence Is clearly that Of iustic ation-a usti
hcation arising iron the occasion instead OF the
truth, but as complete Is If the latter were its
foundation, And even IN the cass Of qualified
privilege. the occasion furnishes 2rioa fqsie usti
fcation only to be overcome by proof Of the actual
malice. IL seems mat no member Of a legislative
body ID responsible for what he says ia the legla
tive chamber hswever false, unjust or uucalled Tor
lHastir Is vs. Lusk, I'D Wend Ill, per Chancellor
Walwor,h.l And this Immunity is supposed ne
ccssaIy IN order 10 encourage the legislator in a
bold and fearless discharge ofwhat he deems his
duty, uninhuenced By any private considerations
The peers Of England, or the representative here,
only enjoy this privilege within the walls Of the
holsc to which he belongs, ana, although he can
not be II ade liable II bis speech be communicated
to the world By reporter, not acting under his
immediate direction, the contrary is the rule if he
procure his speech 70 be published, where it con-
forded to judges counsel, parties jurors, and wit
nesses, Il respect Of anything published in the
course Of a Judicial pToce edirg Il has even been
extended TO grand Jurors where they insert defama
tory matter in those general presentmelts which
never effect any object FOR which they profess to be
intended, and seem designed, quite as often, to
crafty the vanity Ct those from whom they ema-
nate as to hepef. ;hc community to which they
ore addressed. The reasons assigned for tho pro.
lection OF grand Jurors are, that they supposed
20 be returned without their own 7eekipg-are sworn
70 act impartally--sre presumed TO have proper
evidence for wat they do, end il Is considered
dangerous to discourage them from making
their inquiries with entire learleesness and freedom
Chancellor Walworth, In the case before referred
=, speaking Of communications absolutely pri-
yilegcd, says Upon TALL consideration Of 81 the
authorities en- the subjeet, | think that the pri-
ylcge Il counsel 10 advocating the causes OF their
clients, and e parties who Conducting their i'm
cases, belongs 70 tbs Same class, where thoy have
confined themselves TO what was relevant acd per.
tinent 70 the question before tho court, and that
tie motives Win whi5h they have spoken what vas
relevant and pertinent 70 the cause they we're aAgo
eating cannot be questioned action Of san1sr."
Afterwards no reIna'ks: 81 do not understand from
tas, viewer, that everything tina in any state CT
facts would be relevant ard pertinent to tho uaa..
Ter "a question before tho court comes within this
rule Z! protection, where those facts wh oh would
have rclG eIed j; relevant and pertinent do not
exist Thus, II counsel, IN the argument of his
clients cause, should avail himself Of opportunity
To say et . party OF Of witness against whom
there was nothing in the cYdcnce TO Justify suspi.
clon OF thc kuu, that be was thief or murderer,
II might ba proper case for jury to cay whether
Ua mt - aI nv nolf apd4 tn.