The republic. [volume] (Washington [D.C.]) 1849-1853, 1853-05-10
until it is determined whether they arc to be in

- Il Il l. - IL -
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until it is determined whether they arc to be In
| evidence.
Mr.. MAY. I have read an able decision of the
supreme court of New York, in which the position
is taken, in libel suit growing out of the publica
tions of matters developed in the progress of q
trial in court of justice in that State that if
publish every thing that transpir publicly In the
face OF the court. take this to be<ne law on the
subject.
The Couar. I said myself, in an early stage o
the trial. that all ought to be published, If any.
| Mr.. MAY. So understood the court. 1t Is the
duty of the reporter to take the whole thing; and
| from the beginning of this case, the fact whether
evidence has been ruled out or admitted has beer
stated in the report. Your honor told the iury
that they should not pay any attention To pewspa-
per reports. In my judgment, faithful report
| presents what occurred as II occurred.
Mr.. BRADLEY. If your honor be of opinion thai
| these papers cannot be admitted in evidence, q
prejudice will be effected on the jury by their pub
LEGATION. We DO not desire to have the jury influ.
| enced in that manner, and have thereiore called
attention to the notice of the intended publication
If they be published, and put in the hands Of the
jury it is impossible that they should fail to have
| an influence. ~ -aHt.
| State of New York, and the decision of the SUI
preme court of that State in reference the publ
cation Of proceedings. may state that have also
read in the London Tines, within the last three OF
|
| similar state of facts. in which Lord Campbell! de
cidcd that a newspaper had right to publish
,rhafeper in evidence, and that an action fol
| libel would not lie in such case; but that where
CT parte statements we're given in a newspaper te
the prejudice either of plaintiff or defendant dur
ing the progress of trial, the author and publish
err of such statement might be held responsible.
| The CoURT. 1t is impossible for me to control
this thing if reporters furnished with copies fol
| publication.
Mr.. BRADLEY. But the court can express an
opinion that it is wrong to publish these letters be
4 fore they are admitted in evidence
The CoURr. II is all idle nonsense for the court
| to pretend to control the press.
| Mr.. MAY. ] am frank to cay that l told the re
porter it was not only his right but duty if he un
| dertook to make report, that he should note
to "nothing extenuate, nor aught set down in
malice" The judges of England take the same
ground.
Mr.. CARLISLE No doubt they take the ground
of the counseps quotation, that the prees and the
jury should "nothing extenuate aught set down
in malce;" but as TO their taking the ground that
paper shall be read in open court and published te
the world before the questSG ia decided whether il
shall 90 to the jury not, I think is exceedingly
doubtful, and that it will be very difficult for the
counsel to cite case in which any such opinion il
| expressed. Az have always been accustomed te
understand the English practice, it is this tina
where paper is presented to which objection i.
made it is handed to the judge, whose eye alone il
meets-in addition to that of the counsel-and it,
contents not allowed to transpire until its ad
instability ia decided upon.
The CoURr. think l have seen business done
as we'll in days when there we're no reports, except
when gentlemen were appointed who knew what
the decisions and arguments were. dare say the
| reporters make faithful reports.
| The DIsTRIcT ATTORNEY. The old practice, both
| in Eng land and this country, was to prohibit tht
publication of the proceedings Of trials until they
had been gone through with, for fear of prejudice
| being produced on one side or the other. THAI
practice has since been changed, and new one
| has grownup of reporting proceedings from day te
day. My opinion is that the reports should be in
full. The public have right to know whatever
transpres in open court. therefore concur in the
views presented by Mr.. May.
| Mr.. CARLISLE. The suggestion was thrown ou
that the gentlemen on the other side might see tbs
propriety of not furnishing these papers to the
porters themselves.
| Mr.. MAY. We offered the papers in evidence
and they were all read in open court. The re-
porter asked for correct copy, and acknow
ledge that allowed him to copy from the transla
ton of the originals told him he had right anc
that it was his duty to take a correct copy, and
| am re sponsbe for that.
MIR. BRADLEY. Is it his duty to publish the let
| tiers before the decision of the court?
| MIR. MAY. 1t is his business to publish the pro
ceedings they take place. Judge Grier hae
every fact which transpired in the trial of Hanway
| taken down by two sworn reporters, and thos
facts were published on the morning following. l
| is the usual practice
Mr.. Carlisle. 1t may be the usual practice Il
| publish what goes to a Jury. That ia all fair. Blu
nobody ever heard of piece of evidence being sen
| to jury through any other medium than the rule
which govern the practice OF courts, otherwise Their
would be no use in objecting to any thing, nor an,
value in rules determining what was evidence AM
| what was not
The Counr. Well, gentlemen, this is matte
| in which have no control.
| The court then adjourned.
FORTY FIFTH DAY-TAursday, May 5.
| Mr. BRADLEY. 1t would have been gratifying t.
me if the counsel for the United States had follow
| ed the example Of my excellent colleague in open
| ing the argument on this objection by assuming
for the sake of saving time, that these letters
| genuine, and then combining themselves to tn
| naked question of law, and the grounds on which
their admissibility was to depend. Notwithstand
| ing this, it seems to me-and l hunIbly submit
for their consideration and that of the court-tha
both the counsel for the United States have pursue
a course ofargument which would have been muc
more appropriate if presented to another tribunal
On the question now pending, plain and definite q
| it ia, we have had the whole of this cause argued
i believe there is no. point which has struck m
| in the course OF the evidence which has not bee
| called to the notice of your honor, as bearing il
some remote degree upon the first question nov
presented as to whether these papers evdenc
for any purpose; and secondly, If for any purpose
| for ,phat purpose?
/ agree with the counsel that one of the bee
guides in looking into these questions Of law is
| which exists in the mind of every man, whether b
ID lhWyeT not, anu tuht Suioc ID Wudt mas pee
termed 'the rule of common sense" By that ex
preston extend the rule little wider than Lor,
Coke did, who confined it to the common sens
of the learned in the law" but undoubtedly one o
the best rules is, first to submit question to tina
crterion-the rule of common sense and looking
at this question in that point of view, and measur
ing it by that rule, have come to the conclusion
in spite of all the precedents and arguments which
have been ndduced to the contrary, that the evi
| dence now forced is not and cannot be Admissible
at this stage Of the proceedings. / am perfect,
aware, sir, that the learning of modern courts ant
| legislatures ia to break down what ! have beer
| taught to regard as our great safeguards in jur,
trials and to admit into them evidence exceedingly
| loose, the effect of which ia to be judged of by
Jury, matter whether learned unlearned il
the law. How far this learning tends to promot
the object of all courts Of ustice-the ascertainmen
ishment of wrong-bas yet to be determined; ant
| much fear that this ''modern progress" is but
branch of another modern progress which strike
at the independence of the judiciary, making it tn
| mere creature of the popular will. They are twill
brothers; and that day ia coming, just as certainl!
as it is urged by counsel learned, able, and elo
| Quent, that there ia to be moral evidence, indie
pendent of and over and above legal evidence
which is to affect the community at large. and thu
exercise its influence upon jury trials. That result
must necessarily come, because 30 long as on
judges are guided by the rules they have learned
in their infancy, under which they have grow
up, and which by their oaths they are bound to ad
minister, they must run counter to this popula
opinion founded upon this moral evidence.
Sir, what have we been told in the progress OF thi
cause3 Why. that although evidence may not b
admissible according to the established ruies Of
l - . No ~