Year: 1865

definition Of these duties entirely independent
There some things which the jury must take from
give 10 the jury aids In determining the case and
Which il is their duty, 70 make the rule Of ths1
action We had called 70 attention during the
progress OF this trial memorable case in the colonial
history OF this city, In which the doctrine was put
forth that tho libel made the greater by being true
or Otherwise that the greater the truth eAs
libel In the celebrated case Of the people againA
Crosswe in 1904 the right q tn the s asfenTsn. 70 prs
sion brought the matter before the courts OF the stss
and resulted in the passage Of the State laws OF isos
The principle had sunk deep into the minds Of ths
people OF the State that in the year 1905 they perempt


ly desired their representatives 70 declare hat IN =
In evidence and If it should appear agree In justA
able ends that the defendant should stand acquitted


minds Of the people, that when their reprssen
tatyes and delegates were elected in 1871 The
same principle was affirmed And again In ne
with but slight alteration. Instead OF saying in the
constitution n prosecutions libel" says lin ndies
ments for hbe the defendant may give truth in ush
cation; IL the jury should be satisfied the
tves give show Of jushable ends the defendant shall
acquitted. And they did add that provision q
the constitution that in indictments for libel the jury
should be the judges both Of the law and the Nos
gentlemen desire state you the planest sim.
pest and familiar what is the real meaning
Of this civil action for damages AS the law stands
may give the truth usdcaton and f he establshes
the truth OF the libel before the court and jury he
wholly acquitted of publication without stopping %
inquire into tho motives by which he is acLuatsd-
different rule obtains where The prosecution Is by in
dictrnent libel in civil action and an indctmcn. fos


bellous publication tending to breach Of the peace
different things. Tho duty of the defendant u
establish the truth TO satisfy the jury that be
published the truth justihabe ends There may b
cases, and there in the books, where man lnay
prove the literal truth Of libel, and yet should b.
punished just as severely as though ne naa


ton may be greater. man may publish IN The
public press some physical narmy Of LIS neshbor ID
sting to the quick tho sensbilites of the who 70
lbelled, and yet the libel may all be true. AS have
said to you in this civil cause damages the law allows
given In evidence the truth Of the libel and II thA
defendant establishes that truth then he stands fuhy
acquitted Before proceeding TO tho allow me 10
state another principle wherein there has been contro
vesy and wherein stand in this state IN direct COZ
lison with the courts Of England o. tins Gay
l should be obliged to say TO You that the Inv
you the judges in this civil action, both Of TIE


law and of the fact far as TO determine whether the
article lbelous not They hold the rule there tbt
the Judge charge the jury wha. constitutes lis


Thay The asS have had a. 2 rich under his rule i
England which shows the folly OF the rule itself cage
came before the Queens Bench in IN which lhe ladss
brought in their yerd.c.. Then came rule TO snow
why trial should not be granted because tns


jury had found that to be no libel which was hoe Ihe
case was argued, and the counsel conceded that TIA
Judge charged the law of libel correctly but the jury


under the rule administered in England, having The
right to say whether or not after all il libel, had
found that be libel which was libel The rule was


made obsolete and the verdict aside In year from
that time another before the Court OF E1.
chequer and rule 70 show cause why avefuict shouao


not be set asde and Il was conGeaea IA Una, case tnss
Jury orsooh, had found that TO be libel which was n


law no be-the very converse of the other case The


result of it was the judge there also granted the ru


obsolete and set aside the verdict That is where the


courts stand in Engand-adherng still to the rule that
in every conceivable case the judge must stand up and
say that any article published is belIous If II holds


person to disgrace Tidcue contempt; that he must
state what constitutes libel and leave ,n,S the ury IN eysy
The very consequences which have flown from that u
the courts England within the last ten show The
absurdy Of the rule. II s duty TO state 10 yen
what rule in this State II understand IT. II y
sound rule, founded on practical wisdom and paa4
practical common sense This brings me TO . part
Of the case where should be very CAREFUL and
you should be very observant in looking 70 the
long 70 you is my right and my duty to define to ron
wherein must say 70 this article beous where


in must say that to you ihe Saessp ets to deteros
the charge az published leaves ground for dosR,


where there Is nothing left for interpretation-as


court and drew pistol and shot Mr. Weed Wee and muersa
him. and should publish that in the papers In the morn


ing, and should turn out to be false and should -


sued for libel, would it not be mere nonsense for ths


Judge who should try that case when there is not plain


Interpretation Of MURDER tethe jury what constitutes


be stating the various definitions Of It, leaving fer


TO determine whether this is bellous notf Our


rule Is that plain case the Judge must say the article


ibeous and is then the duty Of the jury 70 regard
it, But this rule Is universal II only applies TO the


where there s doubt IN regard to the inter
ton of the matter published. When the publication ,





the jury say which Of the two ~


was intended In this connection s my duty to adv ~


You in regard another rule which you carry with


you In interpreting these publications. and that Is ths


where the publication Is susceptible OF two construo
lous and another would give to them crinnsa
aud defamatory meaning, which would npute lip~k
where they we'll susceptible Of one construction "a


OF the other then Is your duty 10 give tho more


construction Courts and jures not W pr


malice In tho publication, II Is necessarily


and clearly be inferred from language OF the !ib~
"A innocence


unless they Obliged by the evidence te inpute guilt


There are other cases where the language Is couched n
ambiguity. There when the mater rests


exrnsc evidence, when has reference ~ something


outside, and then belongs to the jury alone to dcccs
whether the matter Is bellous or not To bring u down
TO very brief and concise statement hiS rs the fuie
Where the article is plain and cloar In It's accusations


aud there is no doubt about the Interpretation u H. a


the Judge must say to the jury that Is hoecus ara
the must take the Court and 80 vin.
Where there is any doubt about H. where one man might
read it and interpret IL in way aud another in


other way then the jury entirely independent OF lbs
Bench, and they must Say What construction they "M
put upon the article. think can better Illustrate IA
your understanding and comprehension tue rns-
which desire 70 iay do~n ~ calling your
10 the complaint lbcllous Is tho following
'1This has made money BY secret partner.
ships in army cloth, blankets c1t and gun r.cu
than any hity shaspers jew eaie, la the city Of
New York. That language not clear that have
right TO say to you, II is ibeiio and you must 50 Ind
it, IL is where belongs 10 you TO put oonsruc
on upon the language and to whether you apply
10 IL the construction which Judge feiropont and
bsMts S"o"'u P"t uPon ~ VI you
will adopt the other construction put upon II by the
other side. In other words whether you will say that


Mr Weed meant to accuse this man Of making from The
government dishonesty by sharp contracts, In the way


shafpers make their money these sums more than any
ifty sharpers, Jew Gentle There Il good


referring this TO jury instead OF 10 the Court because
the Interpretation Is " be not by any technical rus
Of law, but as the language itself Is understood
In connon parancc among men Seu VIII, therefore,
take this article 10 which have adverlet, and faf
whether you understand this TO impute 10 Mr. Opdyks


dishonest or sharp praceesi and upon the construcoa
not IL libel This brings to the precise point
where should advise you what constitutes libel.
libel is q malicious deiamaory publication Of another


calculated 20 hold him up Disgrace contempt or even


70 ridicule Is not necessary TO charge crime or crs


offence That is the distinction between written and


verbal SANDER Anything published OF man that hoids
him up 10 disgrace, rldcue, contempt and deiames him,
and lessons his character and fair fame Is libel Now
say 70 you that when article is found by the jury "


be libel there are certain legal presumptons which