The New York herald., 1869-06-01
THE FREE PRESS.
IT'S IRlsLS, DUTIES AND RESPONSIBILITIES
Anomalous Condition Of the
Law OF Libel.
Slight Advance Over Anti
quated Notions.
HISTORICAL REMINISCENCE CES.
HISTORICAL "REMINISCENCES.

REVIVAL OF LIBEL SUITS.
1t s the boast Of this country that in its funda-
mental laws-federal as well as State-the mviola-
bfty Of the freedom OF speech and OF the liberty OF
the press fully guaranteed. 1t is 30 by custom ana
Parliamentary enactment In England; but not even
there the reest country Of Europe, s the liberty OF
the press made sacred by written constitutional pro-
visions. II s conceded by all that no healthy poti.
col lie can develop itself among people where the
rst requisite for 1t is wanting-perfect freedom OF
discussion and criticism by word Of mouth and by
the pen, through tine public press. Hence we
see the demand for free press Increase in
France with every passing year. II is for this
reason that regenerated Germany, in the North Ger
man Parliament, at Berlin, as well as in
the Diets at Munich, Stuttgardt Karlsruhe and
Vienna measure upon measure has been introduced,
discussed, and in some instances are emanating
from the liberal MEMBERS and all tending to enlarge
the freedom OF the press and place 1t forever after
upon solid, secure ground. These measures have Of
late succeeded most in Vienna, under the liberal
guidance OF Baron Beust, the present Chancellor
OF the Austro- Hungarian empire, ana latterly there
was introduced by Parliamentary enactment, sane
toned by the Emperor, trial by jury for all offences
against the press law. In the other South German
States this had obtained for years past, but in en-
lghtened Prussia it is still denied and mere edict
of some police official is enough to cause the seizure
Of a whole edition Of paper containing offensive
article just as the same thing is done In France.
The prince OF the politicosatrical journals Of Ger
many, the Klcdderadatsch, Of Berlin has more
than once been the victim Of this super.
vision, and its principal editor has on several 0c-
casions paid for his journalistic emerlty by several
weeks imprisonment In the Mokeu Markt o city
prison In Berlin. In Bavaria they managed things
In more liberal way years ago, even. The editor OF
the volEsoote, at Munich was sued for libel on the
chief Of stan Of the Bavaran army during the memo
yable German war Of 1860, and on the case being
tried before the jury the editor was triumphantly
quilted amid the general applause of the people, 1t
being considered q verdict OF condemnation upon
the manner IN which the Bavarian army had been
managed
iected, the American people fortunately know out
little. From the beginning the liberty Of the press
was considered one OF the main pillars OF tie re-
publican edince, and its safety from encroachment
was not left to legislative whm or caprice but firmly
boasted freedom OF the press is exposed to nsidous
ims Of the common law which we Inherited from from
England, and to the stifI-necked adhesion Of our
courts and judges to the authority Of adjudicated
cases. whether cited from the English or American
bench, and whether recent and IN cons0nance with
the advanced spirit OF the times perhaps gene
refers especially to the system Of libel suits against
the publishers OF newspapers, by means OF which
exposed rogue seeks to establish himself in public
esteem by attempting to bleed the publisher or edi
Tor and I'LL his own pockets ut the latter's expense.
PRESENT CONDITION OF THE LAW OF LIBEL.
gress the antquated ideas Of the last century
II heretofore The outrageous principle. ascrbed
bysome Sir Matthewiale, and for along time rigid
~ adhered In England that 1.-THE greater the truth
the greater the libel" now longer recognized.
In England they have encroached upon this rule
by what rs called Judge made ,,s law the courts
tons aud while our courts have followed tins lead
we have thrown further protective shield over the
that In actions for libel the truth OF the alleged libel
may be given In evidence by the defendant, and that
jnstlable ends (See the constitution OF New YORK
vision sSDsIsnilI ssSsrins svsTy:Si1sI i ;Ss s
ia%Pe SDe' was, however, v,SA cropped down. and
limited by the courts, in that they decided that In
OF an alleged libel, the Truth cannot be given in ev
Gense as Justification, except upon notice to the
Other party and BY laying the nrG for ~ II IN
iher exactng OF the defendants In such cases that
such plea OF justification must be as precise as
count In an indictment and as broad as the original
charge, and the proof In support OF 1t must be as
positive as that required BY the rules Of criminal
practice on the trial OF an Indictment II was only
under the imperative provision Of the Code Of Pro-
Cedure (secton 1861 that the courts relaxed some
what In their severity and allowed mitigating cir
cnnstances TO be given IN evidence II the truth could
be proved, IN Justification, as the rigor or the
criminal code demanded, and this only in mitigation
WHAT rs A LInELp
How firmly our courts and judges adhere 10 the
Old definitions OF what constitutes libel is easily
seen by looking into few OF the decisions OF our
highest courts even OF very recent date. The deli
nition given OF the nature OF a libel by Alexander
Hamilton reads as folows:-"A censorious or ridi-
cung writing, picture sign, made with q mis-
chevous and malicious intent towards government,
magistrates or individually This declaration was
made at time when the federallst party was In
power under John Adams, and the popular excite.
ment provoked by the enforcement OF Tie alien and
else a statement OF what these laws aimed OF as
ever given, and II must be taken Us political decln
IN q number of libel suits, decided by cur former
Court OF Errors ana again by the present Court OF
Appeals this definition Is praised as the very acme
Of legal precision and dscernment.
Again, IN the well known literary libel case OF ].
Fennmore Cooper against the Commercial Adrcr-
savage criticism OF the formers History Of the
United states Navy" referring especially to It's
account OF the naval engagement on Lake Erie
under the late Commodore Perry the opinion OF the
Court, fully reported IN the second volume OF "Dc-
mos Reports on pages 20s.sos goes sun further
Hamilton and quotes approvingly the denntion OF
libel elaborated by the Lord Chief Justice Holt OF
England. as sfOOWS.-"Anvtnlng written OF another,
which holds him up TO scorn and ridcule. or might
reasonably be considered as provoking him TO
breach Of the peace, Is libel.n Under this denni-
ton, rfRldly construed and enforced, as II was IN
Chief Justice Holts day and under his rule, every
police report and every report OF row or per-
eonal debate In Congress or State Legislature, OF
the description OF the inkstand thrown about each
others head occasionally by our city athers would be
ud)udged gross libel and subject the publisher OF
denniton, probably dating back 10 the days OF Sir
Edward Coke and the Year Books was ecidcd By the
aahu ffo In hn tlta frpa
one reading as foows:-'A malicious publication,
expressed IN printing or writing, or by sign and pic
lures tending eitner 10 blacken the memory OF one
dead or the reputation OF one who is alive and ex.
pose him TO public hatred contempt aud ridculeu
n Mass Rep, 1857 And as courts almost as often
not 90 rule that In such cases special proof of.
malice s not needed. as the law presumes its exis
cnce, this definition would also cover almost every.
thing. and would render the publication OF a daiiy
journal such as the wants Of the time demanded not
ony highly difficult, but almost utterly impossible
WHAT OUR LEGIsIATuRE HAS DONE.