New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1890-03-18
THE LAW OF LIBEL
RIGHTS AND OBLIGATIONS OF PUBLISHERS.

AND IIBEL. John IOWnsnchu oN", PP' W.
s4e New-lork Baker. NoOrhs 4" Co.
Tho cause Of free speech and free press in America
owes much TO Mr.. TOwnshend. For more thah IorV
rears he has been the valued legal ADVISER of Inc
New-York Herald" under both the ciuer anu '"o
Younger Bennett. lie has played an important parV
in the remarkable development which the press mas
made In those four decades particularly i'll this com
munity In 1850, the new order OF Iourlaiism III
a,grra,ed nv The sun In 1888 and continued by the
founding of The Herald" in 1885 and The lrpuhc III
1s4l had barely established itself as against the ola
school of newspaper methods, but hac not YET sup
planted it, Its chief struggles and tl1nmphs came
after that time and in those struggles and ti1umphs
Mr. Townshend no insignificant sharer. lie haS
probably done more than any other man or any other
agency during the time mentioned to secure Just ana
liberal adjudications upon questions OF libel law ana
to spread among the members OF his piolessio" "
broader and clearer comprehension of the pnncpIcs
governing the freedom Of the press At the same 'l'c
he has not hesated to insist that it should be hed 10
strict responsibility for any abuse of It's privileges
This s the fourth edition of his work SANDER ana
Libel, which has long been recognized as the chet
American authority on the subject The charac'er VI
tha work done upon this revision, well as OF some
OF his other recent professional labors lhdica'e o
breadth Of Mr.. Townshend's requirements ana INC
kcenness Of his intellectual activities. In former ed'
tions of his work he cleared up many OF the points VI
libel law which before had been obscure lie also
boldly advocated principles which were Doth mover anu
contrary what the members OF the most conserve"
tive Of all professions had commonly accepted from
the English and early American courts as eooo law
Most OF these propositions Mr.. ToW1lshcnd has had hc
Eattafactaon of seeing embodied in the Opinions Oh our
ceurts or enacted into statutory law In the pie>c"O
edition he modestly rcrains from appropria'ns 10 MN
self any credit for this, he merely states rs DeoTe HIS
propositions, no longer novel, ana 'l'eS ''o
statutes and decisions of the highest courts as the best
reason for no longer making EXTENDED argument 10
there
NJ the law as TO which Mr.. Townshend is stu In al
vance Of the courts and the legislatures From 'he>e
he does not reccde in this last edition. but
rather renforccs his former opinions ny sim
more cogent reasoning, apparently full OIL
faith thai II is merely a question of time when these
two will become part of the accepted law mus
xvhile Mr. Town shend has disclaimcd innovation ana
his avowed aim has been To elicit the true rnie ol
decision on some leading points in the law OF hbel'
he has In fact presented clearly what shond DE- te
law that it has actually resulted in its becoming 'e
law.
ono OF the main principles upon which Mr.. Town
sbend has ALWAYS insisted is that the sist Of civil
action for libel is the pecuniary injury II the "u'Nor
had done no more than to demonstrate the tTu'l oi
this proposition his labors would be OF incalonhpe
value. For. obvious the correctness OF inc stare
ment appears 10 unhampered by the teohnicalticS
and traditions of the old common law. II nevertheless
has been great stumbling block to the courts. ana
the law upon the subject l. even yet III most IN
settled condition. In criminal prosecutions LOT noe
II is of course, the intent OF the publisher N"'
is the chief subject of inquiry and criminal proSe'"
ton is the proper method of procedure If the punish
ment of the offender the main purpose TO he served
INT the civil action has for It's primary object the
obtaining Of damages for injury done 10 the 'oh
plainant's character. He Is seeking 10 nave 'HN' ia
tury measured In dollars and cents. Therefore, inc
intent of the defendant in publishing the dciama'oy
matter is of much consequence than the question
Of the degree and manner in winch the character
of the plaintiff has been affected
This reasonable distinction has been almost entirely
lost sight of in much OF the libel ntgauoh thal Has
becn carried on in the courts. even III recent tunes
Rules with regard TO the admission OF testimony anu
the responsibility Of defendants in libel suits nave
been laid down In civil cases that should Only De ~
rncablc to criminal prosecutions. one example VIII
he sufficient. our Court of Appeals, Hike the old
English courts has held, in civil action that facts
affecting plaintiffs character coul1 not be received
in evidence in mitigation OF damages. unless tey
we're known to the defendant at the time OF the pub
lication that Is that the publisher could only mitigate
damages by showing his good intentions. 1t Is true
the Cont of Appeals In making such rulings was con-
siderng Onl, the point 10 whether the evidence
offered would affect the question of the defendants
malice. But the language in which the opinions are
given made The basis for many absolute rulings by
the lower courts refusing any proofs Of facts In mga
ton Of damages not known when the publication was
made.
The inevitable consequence is TO put the man OF
good character upon the level. under such cir
cumstsnces, as the man of bad character. For in
stance newspaper has by mistake inserted the names
of two persons the list of those connected with
immoral or criminal occurrence. Both utterly
unknown to the publishers; one man OF the highest
respectabity and strictest integrity while the other
is rascally vagabond with no character to lose.
But il they beth bring libel suits. the rascal stands
before the court with the right TO damages a
the other under this rule OF evidence which positively
excludes all testimony showing how rotten his life has
been, because the publishers did not know Of it when
they made the incorrect publication. Fortunately
OF lower courts have recently refused 10 be bound
by the apparent authority of decision that
leads TO such a rnonstrous conclusion. and there j.
prospect that the question shortly bo squarely
reviewed by the Court Of Appeals. But this serves
to illustrate one Of the anomalie, in the law
OF libel that have arisen from disregard Of the
central truth upon which Mr. TownsEcnd insists 10
the peounary injury being the gfst Of the action.
The limitations of criticism the principles govern
ing the making of privileged publications are also
subjects upon which the authors learning and clear
ness of thought and expression have thrown uc
fullest light.
The difficulties encountered in the production Of
such work as this. well the guiding purpose
that has directed it,. are well defined by Mr.. Town
shend. The law Of libel" he says. has been
denounced vague. fuctuating ard nconprehenslle.
OF the decisions on the subject many conflicting,
more scarcely recOncilable and the reasoning in
support Of all is, with very few exceptions, or
less weak. obscure and Unsatisfactory II has almost
been claimed conceded that there Is something
so subtle In the principles Of the law Of libel As 70
eludc detection. and the law Of libel has come to be
regarded as parasItical growth on the main body
of the law. presenting features so exceptional a. 10
render iDapPicable those general principles which
govern other branches of legal science. 1t viii be
our endeavor to show that properly understood there
is nothing exceptional in the wrongs called SANDER
and libel nor in the legal principles applicable 10
these wrongs that these wrongs governed by tine
same principles which apply to all other wrongs and
that there Is nothing in the law Of libel Itself which
should render il more difficult TO comprehend than
any other division Of jurisprudence"
The author shows that one difficulty in the way Of