The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1854-10-25

Court or Com mon Esiea ~.
nAfOvA uou I,A.a p~r-

Court OF Common Pleas
Before Hon. Judge nAly,
THOMAS j.. BARR VS.. HENRY ERBBN-TM JUDGES
CHAkGE.-FIFTH rAY.
GENTLEMEN JrRY:-Tbe specific chsrRO altered
to have been made by the defendant in this action
"ttst Barr, the democratic candidate for Seustor
Of the most pt members Of the Coumos Coun
Gil that he had sald police appo'n ments 1t all prices
from ono hundred dollars down to twsl dslars and
that he had sold the appointment Of Alexander II
G. Smith for one hundred dollars" Theirs are three
substantial charges relied in the plsint and Ia
proof Of them witnesses have bean examined who
present st the meeting in Mr. B. echs house where
the words uttered This nesting was held tor the
purpose q taking into consideration such measures a.
might be dee med advisable for bringing about reform
in tie city government Mr. Baxter, orc Of tho plsa
tns witnesses who was present states that What Err
bee said addressed 70 the coairman. through
him to eighteen twent, Ave GENT emen present
refer to him In the rst place because his account Of
what sa b, Ebep fuller than those OF the ohsr
witnesses He Gays that trien remarked, .sses whts
pretty Damned rascal you hsvs got for Aldsrm 10 hi.
ward Sse hov he has made his money BY selling police
appointments 10 case know that he fsceivsf .
collars ard he as not made The
THIS Is he broadest ststsTosnt made by OF the w,
nssses Dir Beach says that Erbsn spoke Of Mr. Bars
receiving money for police appointments; that he had
that lie knew II to bs fact there is therefore this
distnc oD between the evidence Of Baxter and that
what wss said by Erhen, ana the former prstenis to
give the words themselves Mr. Pease says that Erbeu
stated be knew th Barr disposal of police spgontmsots
asked him il he could prove what he laid, auc
answered that he could This zitness further
be could not state positively whe her Erbsn said that
kr OF his know edge that this charge axaias.
Barr true, but he raid that she knew and cou.
prove it T." Mr. Olauson, another witness says that oe
Goes not rcolect exactly what Erben SAID; SUIT he re-
members his saying thst EArr in the habit Of
eeivng money fer police appointments Mr. Peter
fuhr ttatv that AtnA k.t
Other witnesses Br Warrel gives II his impression
that EIben said Mr. Barr Was one Of the corrupt
men from s. to 500. Nov, 1t appears from eli this
testimony that MT. Erbeu declared tina, M RI vas
one. one Q. the corrupt members OF tue Common Council
f the testimony of Mr Baxter ia to 20 bseved) that
he made specific charge against him Of the particular
care OF Smith This, gentlemen, ID CHI arge which, If
true, would subject Barr An Indictment for mis-
mesnor; it is q charge of misbebAyor In . puoc Off.
must BE- eminepy dissrsceui one; il is cssrs. Of
converting public trust TO ones pecuniary profit
and benefit. presents example Of the most per.
nicious evil that be found In government like ours
One Of the charges again st the republican form of GO
vernment is the facility Afforded for brbiug 10 tbs
discharge Of public trust The freest and m,st en-
iieh'ened nation Of antiquity vas EXEMPTED from
this curse and in government ike ours the
of such . vice assumes . national character In its
greater than that OF the msn who, charged
with "a sacred trust, nsg.cts or besrsys
therefore: that charge of this kind made against
public officer is of sufficiently grave character to
charge if true would subject Mr. Barr to an inctm.n
The character Of the defence is frs that Mr. Erbsn had
the right to make these statements against Mr. Barr
ddate for Senator Of ths State aud that words
spoken in reference 10 his qualifications for the Office
o subject in which all we're interested, and that he
(Erben) could not be he yesponibe for what he said
even II it was untrue In addition tie defendant says
that If the statements be ade of covered o.
privileged communications the charge at all events is
true As to the first ground of defence is usual to
set up . privileged Communication in tho plesd,nga
But this has not been DONE and 1t is nv duty 70 e YOU
that you mus. not take IL into consideration unless 1t
appears from the plaintiffs evidence that the words
were spoken under sh circumstance would excuse
Erben should fna this to be the CASE then the
question of privilege becomes material There
Is, they may not be true but the under
which they were uttered operate privilege to the
who spoke them 1n. Protection s1s,s .s.n
charge Of legal moral duty But If the duty
should net prove to be the real motive tina.
BY malice then he is not shielded BY the privilege
10 illustrate this When man inquiries Of another the
that he has lost certain articles and cay. that the ser
ysnt stole them though the charge may 30 untroe yet
who II Is e sns
raj way: When communication Is made BY citizsn
to the appointing in reference TO the qud stions
Office, the commuI cation is excusabe for the proec
ton of society requires that such ions should
I
This priviltgs is, in some degree, extesded to
what either, say Of o caLdiSare for publ, Office.
hi, sc the to OF c
candidate for public Office il to be considered
putting his character to certain extent in ISSUE far
a. his fitness fer the office ia concerned; and that the
publication Of the truth In this respect is belcus;
but at the same time the pub ication Of falsehoods
against public officers il dangerous oense against the
people and should be punished his honor also quoted
from Gaze determined in the state of south Carolina
in which the justice stated that when candidate for
fR frvu I'D I'M 81
pie, he makes himself species Of public property Of
the fitness Of which all may speak. But his
to what may say Of candidate 1t has its limits
1t is perhaps. difficult to assign this limit 1t 1, ci
cult 80 to adjust the rules o. aw that citizens on the
merits and qualifications of public men, aud the
other hand, that the individual be protected from
presses in respect to the fitness or capacity or moral
character Of candidate for public Office matter of
opinion ustiaabe-for be is even called upon to do
this He also state the grounds Of his opnionhe
may repeat what he has heard from others-he may
even refer to rumour, but If man brings . spesiac
hear ay authority, but the authority of his own
knowledge, the case is very different 1t il longer
Of the charge he makes No Be justiaedin
this. It has been well expressed By eminent judge
that however great blessing this privilege Of freedom
OF speesh may be, II Ia not q shield from under
which any man, secure from the Law, may hurl his
.landers In England too, the doctrine is held.
This rule must be applied to this Gaze 1t il in proof
here that warren made . communication to Erben, Of
certain information he receive from Geo j. smith tits
further stated by Smith that trben called him In
respect to It, Eben had merely ed the purport Of
his international he had stated ply what he had
heard, no would BE- protected, unless circumstances
showed he was actuatsd b. malice In the 6rst place.
therefore, gentlemen, you win have pass upon this %
. question OF fact, whether 1t after which Err
ben gave - having heard or whether he stated IL Of
his own hnowle 60, he ncurs the responsibility. IT,
the other hand, he has given It only . rumor he Il
protected unees Aace be sbo~n. II he only stated
what he had reason to believe trus have no doubt
that his communication would be deemed privlesed.
While this subject should draw your attention TO
distinction This matter Of privileged communications
does not refer to tn publication Of the unhtoess Of
candidate for Office in the columns Of newspaper Such
. case was decided In the English courts individual
candidate for election TO Psrlia uent for the DO
rough Of Finsbury, and publication rejecting on his
character appeared In the Morning Post action was
brought and the defendent urged that the article
question related to the fitness Of the plaintiff for seat
in Parliament and addressed ths electors
bury The court, hewevsr said that this did not jast