The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1853-06-10

| prlbOnel. q. H. D. iUo, Id. he mas rtXnt 10 DO
attended by counsel, and he is to be allowed sufa
Gent time to eend for and advice with counsel.-Id.
| He has right TO introduce witnesses on his own
behalf and to have the assistance OF counsel in ex-
aiming them.-Id IL. 1t is true that such an
examination is merely to ascertain whether there is
probable cause to believe the prisoner guilty OF the
offence charged and the determination OF the q1es-
ton adverse to the accused, amounts only to deci
sion of that question in the affirmative. The case
cited from OF Barn Creswell, holds that the tes
timony given cannot be justidaby published;
but that the nature Of the charge, and the
result Of the action Of the magistrate, may be.
According to this, the decision which adjudges that
there is probable cause may be published but not
the evidence which the decision was made. The
natural presumption is that the magistrate decided
correctly on the evidence before him. and that there
was sufficient evidence 10 show the deisndent to be
probably guilty. There doubtless many cases
in which the public would think more favorably of
the accused, if they could read the evidence on
which the decision was made, than they would from
merely knowing what the charge was, and that
after an examination had been had the accused had
been committed to await the action OF grand jury.
This examination, like that in Duncan vs., Thwates
was mere preliminary inquiry, to determine whe-
Their there was sufficient evidence of the guilt Of the
accused to make it proper to require him to give
security to appear at the next court having cogniz
anee OF the offence to answer any Indictment that
might be found against him. 1t not be-
fore court having authority to make 6nal deter
mination. Are these two facts that it was
preliminary enquiry, and before an officer not
themselves sufficient to make full and fair report
jnstfable If not, does the fact that in the one case
the examination might have been private and the
other not in the strict of the word, determine
whether full and fair report shall be privileged or
not! Even in this country the magistrate, while any
witness is under examination, may exclude from the
place In which the examination is had all witnesses
who have not been examined; and may cause the
witnesses to be kept separate, and prevented from
conversing with each other until they shall all have
been examined. 2, r. s. 7Os, sec. Is. In Duncan
-.
in support Of the principle it declared viz that it
was criminal to publish even fair report of the pro-
ceedings before police justice. Several were cited
BY the counsel. who contended for the same doc
trine. All Of them, except Cox vs. Coleridge, l.
Barn Cress 81, were either criminal prosecutions,
by Indictment for the libel were applications for
leave TO file criminal information for the publica-
ton Of the libel In neither case wasthe article pub
lished full and fair report of the proceedings to
which it related, without being accompanied
by censorlous comments, or criminal imputations
The rights OF defendant when indicted FOR libel
are very different from those of defendant in civil
action, brought by the party belled. In the latter
case the truth is perfect defence, no matter what
motive prompted the publication, or what end was
designed to be subserved by it. On the other hand
the truth of the article does enttle the indicted
publisher to an acquitta unless shall appear to the
jury that it was published with good motives and for
justiiable ends" Il R. s., "a, S2l.) While this dis
tnction is recognized by law, it may very properly
be said that no one shall be authorized the ground
OF privilege, to publish anything the publication of
which cannot be justified by the fact of its being
true. The truth is perfect protection to the pub.
Usher in all civil actions but not in criminal ones,
without regard to the motives and ends sought to be
gratitied and subserved. May not the doctrine of 4
privilege protect publisher of fair and impartial
reports OF proceedings had to investigates crimi-
nal complaint in the presence OF the accuser
and the accused against recovery in civil action,
when it might not in criminal onei The constitu-
abridge the liberty Of speech or of the press. Art
Sec OF Cons. OF 1916; art. Z, sec. of Cons of
1921. Every one is held to responsibility for the
abuse of this liberty. The publication Of the pro-
one ii not of both of the partes yet the publica-
ton Of full and fair reports, unaccompanied by any
disparaeng differences and comments is supposed to
be public advantage more than counter Balancing
the injury that may result to individuals The bene
fit to the public of full and fair reports of judicial
the information thus acquired OF trans
actions which great numbers may have interest
IL knowing, and the interest all have in being
rateiy informed Of the manner in which the laws are
administered by the judicial tribunals, well q, Of
the principles adjudged, and the application made /
fair and accurate publication Of all proceedings I
where both parties are present, and have q
right to introduce witnesses in relation to the
point under investigation, whether the Investigation
be q preliminary one or final trial. The idea
that fair report OF preliminary inquiry may pre-
JUDGE accused party his trial for the imputed
offence is true with respect to those whose minds
are constituted that they cannot render Just and
true verdict upon the evidence which the cause is
submitted to them after having previously read such
report The same disadvantage would result to the
accused by previously publishing that he had been
arrested on charge OF having committed the specific
offence, that witnesses had been examined in relation
to it, and that concluding the examination he had
been required to give security to appear and answer
to any Indictment that might be found against him.
And Duncan VS.. Thwaite5 adjudges that such pub /
LEGATION, in relation to preliminary inquiry before
police Justice which may be strictly private and on
which the accused has not even the right to be aided
by counsel is privileged. Duncan vs.. Thwaites, D.
Balm & Cress, $50 Cox vs. Coeridge, Barn Il Cress
81. Curry vs. Walter, l Bos. P. 525. King
VS.. j. Wright, 8 Term R. 293. In Delegal vs..
Hgley, Bing. N. G. 950 decided in 1887. the
to Justify the libel-which was publication Of a
police report of an examination in relation to an
alleged criminal otlence-on the ground that it was
full and true account of all that took place before
tile Lord Mayor touching the said charge and com
paint." Tindal Ch j., said 1t was unnecessary To
decide whether the publishing of fair and cor
rect account Of proceedings ca pzrc, upon charge
before a magistrate, is or is not privileged COM
munication" Ii this had been 50 often and explicit
~ decided in the negative prior to the decision OF
Duncan Thwaites, in 1924, as not to be then
deemed an open question it is somewhat singular
that CHI. J. Tndal should have hesitated to commit
himself upon the question thirteen years subsequent
ly. In Delegal Va. Hgley, Car u P. Al, tried be-
fore Tindal Ch j., in 1887 the third count for
publication Of libel. The article professed be an
account of proceedings had before the Lord Mayor,
on the plaintiff being charged before him with having
committed criminal offence He charged the jury,
among other things, that the question will be
whether this Is a fair and impartial statement OF
what took place, without any cooring exaggera-
ton putting in all that is in favor OF the plaintiff
az well as all that is against him." II the law had
been long previously well settled in England that the
publication Of q fair and impartial report Of such
proceedings, when containing matter Inducing the
reader to suspect the accused had committed cr-
mnal offence, actionabe, the charge. to say the
least was most extraordinary. IL Ad and Ellis,
~ r Si,,.y,or Do kn Unit Scat
ct AL Car. & Kir., $50, tried in lS47, was an &C.
ton for libel by Of publication rejecting on
the character of the plaintiff aud protesting to
tain q report of the proceedings before two judges
of different courts, at chambers, applications
under the Bankrupt act 6 and 8, Wet l22, 42)
to discharge bankrupt out OF custody The de-
fence was that it was f.ir account OF what took
place before those judges when acting in Judicial
capacity. Coleridge j. charged the jury, among
other things, thus:--" Yeu will, therefore, con-
slider. on the whole Of the evidence which has