The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1853-12-13

Prosecution Of the New York Herald by
ssgnor Fry, late manager Of the Italian
Opera at .Astor Place.
aHPERIuh COURT.

sssnor Fry, late manager Of tho Italian
Opera at Astor Place.
sgPBRIuh COURT.
Bsfors Hon Judge Oakley.
Dro I2.-At the opening Of thu Court this morning by
Mr. Potter, on the part Mr. Richard Grant White,
the musical critic OF the Courier and Enquirer he stated
= the Court that in the Of this cause testimony
had been given particularly by g. g. Foster Of the
Witnesses for the defer dant which Mr. White considered
casting imputation hs character, and which he
wished to be examined with view to contradcti it. HIS
Homer the Judge dssiea tho motion.
Mr.. Eandford-On the testimony II stands, yeur
homer beg the motion TO dismiss tbs com piant
Mr.. Jsrdan-Wait moment Mr.. Sandfsrd, tne cyl
dsnos not AL in yet propose nov to read an arucis
drom the HRALD dated Nay 80 ls4S (Producing ME OF
HERALD In cout written three years before these
publications.
The Court-To what purpose Mr. Jordan
Mr. Jordan--For the purpose OF showing the express
be dspiaysd the aame vadistiss MALICE that We
0ugpo:s and sllegs these pabliss svinee' ~
to anything that Mr. Fry was ever connected with,
Hr. Jordsn-I will subn it it to the Court
The Court refused to admit the arto to be read.
Mr. Jordan-As the Court rules it out 1t IL
sary for to say much about IT, but excsp-
sion to be taken - portion Of our
Mr.. Sanforc-I now renew my motion to dismiss the
complaint, ON the following grounds
]. That the facts shown Ia evidence, which
PREDICTED establish the truth of the ar.
,css published against Mr. Fry
That these publications we're Of the plaintiff In his
capacity of opera manager, and that his character In
that capacity invited criticism aud the proper OBJ
ject Of CRITICISM and that any Der Of the constantly
had right to state and write his opinion and that IL he
really believed what he wrote be true whether 1t
true IN point Of Act or not his rsmaas and writing are
80 ditmssthe complaint in order 10 take your Hcnors
ruling upon it.
Mr. Jordan-I suppose, your Honor, that whether the
words proved to be true Is matter exclusively for
the jury to decide aware that the evidence on the
subject lies scattered and mixed as nedst described
the orchestra and chorus the to have been bat
am prepared to show, beyond possibility Of Doubt
that there not word OF truth in taoas articles and
that Bennett knew 1t when he Published hem-and also
conspiracy and malice Ia enough for me 70 say that
province Of the jury find ether these bela
true AS to the second point he invited criticism,
and that therefore, any disposed might say any
thing about him; they might cali him jackass-thsy
might call him an ape-thsy might Gall him vain, fam
sastical man. xno don't Iecolect all the epithsts In
BENEFITS vocabulary which probably pretty we'll
haussd Acoereing this view Of the case they might
charge Kim with murder we'll, and then go into
nourt Of Justice, and say that IL was criticism on the
Asalian opera. What IL criticsm2 Il Is no more nor
Less than passing our opinion upon public performance
and giving the for it, whether that performance
be written book, or an article or An Italian opera
he had criticized the cast of the parts any par
tcuar performance the selection Of the performances
the world that he did it for the purpose Of
eism and not Of attach the that would
r1 ps Dssa Ne. word Of that 4: bs oSaSss
that hlaoksgs and prostitutes were admitted Into the
opsI. that l. no part Of the thea ros repre-
admit he would be justified He hasa right to make .
fair and candid criticism upon the proceedings OF cour
Of ust sven he has right when your Honor md the
benoh decide the case to candia crit ,is
upon the dsoion, and have L but have right to
publish the proceedings in court Of justice and rdicue
Or garbe them to suit my interests. We have just
good right to attack court OF Justice IS any thing
they may crticiss the proceedings Of rs ous msstns
thsy do II IN right spirit and 50 long . they pre-
Derve the truth. But, Is there separating place
ma 0veu updA hlo aaN fra0
government has the right to do whatever he plsssss
free government the greatest blessing on EARTH and
i events, t. Now. under flss sovsrnmsnt has man
right to do whatever he pieases9 No, although
shores Of freedom, seem to think 90; but am
happy to see that they are the most ignorant and
hs knows better Freedom consists in enjoying ones
rights In moral or at least in legal manner and the
freedom Of the press consss in publishing truth, news.
and information upon all sub antle msch AMI
PAL misunderstanding, iiteraryerythins. To publish the
ruth and give all useful formation is the province of
Newspaper, bat 1t nut be confined to what Is true;
md man has NO mo right to lie about bis neighbor
because he is An editor and is just Amen.bs Is
private citizen Now, to that Mr. Bennett has writ
en- Is he has Of him. because he is the public manage
theatre, "a most extraos binary. Because he 1,
light Accuie him Of incapacy, to compare him to an
pe to make brute Of hum, and rid ,uls him, and 80
tate and write Of him as to render him stencil in the
ppF equally to the Leg stature and the judicial bodies
the ouDtry Where Is there lawyer the face of
trt such doctrine believe have raid enough to
i've clue to nay general notions in this case ana am
ure that your Honor's iehe .icn the subject will
rnsh you With better arguments than can 1t Is said
bat II he believed what he wrote to DO true, he is not
individual that he hss been guilty Of crime am AZ
sponsibls for 1t as though had made the charge /
ave nc right to % press an opinion to the ga Of
oivdua except as have evidence Of It's truth This
octrne Is mperishable the stars far az regards
uman transactions Again, sir, If man publishes what
believes 70 be true before he publishes what injuri
to the character Of another he take pains to
vestgate He Is not to down idly, and assert just
hat he ple.sss. Now, conceive thai if Bennett was
OF the original athor instigstor of these publca
ons-as thall show that was--if he had received
asss publications, md could show to this jury that
ence that would induce just to believe the truth
them, it would mitigate the offence materially and
Bat 10 the whole extent to which 1t can 20. II he
10 not the author Of these pubiostons--f he really
sved in their truthful upon fair nvsst CATION such
an honest An would enter into, it would be a matter
mitigation Of damages and nothing beyond that Is
responsible FOL the truth Of what he publisher Now
thes ibeIs are proved seoondy, that slthouah ths
tices published refer to Me-. Fry in his capacity of
nage the writer is responsible for the truth of them
ird, that 1t does within the head OF criticism
pronounce judgment In such . case, without giving
hsons for the Judgment, and that although he believed
at be published 1t will only serve in mitigation of the
IMAGES
Mr. sanford-I do not undertake a discussion Of this
estion far have an interest in this case
repre- septing the defendant is that should be SUBJ
tied to jury but there legal questions great
Dor which this case nscssary pres ents Ny learned
that there tfuth I contend howeysr that
testimony given by unimpeached witnesses sblishes
truth OF al the matters of fact contained in slle
lens complained Of - libels We do not therefore,
er as to the sufcisncy of proof to the first PROPOSE
D. We do MT differ upon mis- question OF absract law
a. to its applicability to the circumstances of this
Ny learned friend says that candid criticism the
vlege Of every member OF the munity, and it is
ch the privilege of who speaks rs OF
who writes Now, you make any remark In
erepce to the character of the wares of q
reliant or tne evidence of = jury, even take the
nsive cpl het whi,h my learned friend much de-
bts in" jackass; it is the privilege OF any gentle
who entertsips that opinion, Of judge, to
ss it, and yet mot be amenab to the law; viii refer,
support of this to the OF Tobias HArand, 4
nd, 54O before Judge Marcy Judge Marcy, in de-
ipg the opinion OF the Court said instance can
found believe, where action has teen sustained
words for nisrepressntipg the quality Of any single
iole which person has for sale, unless special do
anda To iunn "a