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LIBEL IN ENGLAND AND AMERICA

BY THE HON. WILLIAM J. GAYNOR

Mayor of New York, late Judge of the Appellate Division of the Supreme Court of the State of New York

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There are about 23,000 newspapers in the United States to-day, served by perhaps 100,000 writers. The immensity of the power for good represented by the American press, supplementing the work of half a million public-school teachers, to say nothing of 215,000 ministers of religion, makes it all the more important that no shelter should be given to him who turns journalism into systematic deception or moral assassination.

It is not only that the libeler wickedly invades the home, spoils private character, and spreads social suffering and confusion, but he strikes at the very heart of good government by intimidating public officials. by persistent and systematic misrepresentation, thereby corrupting public knowledge and public sentiment, upon which free government depends. As Alexander Hamilton said of a libelous press: "It would encourage vice, compel the virtuous to retire, destroy confidence, and confound the innocent with the guilty." That con

dition we now see realized in some parts of this country where corrupt newspaper proprietorship is in the ascendant and running its baleful course.

The abuse of the power of the press, especially by that part of the press which, to gain greater circulation, appeals to the passions and prejudices of the ignorant and thoughtless, causes more misery than war or pestilence; and in the United States it is principally responsible for the frequent failure of men of ability, character, and patriotism to enter or continue in the public service. Their wives and growing children beg them to stay out of public affairs for their sake.

The wife of Abraham Lincoln has borne witness to the agony inflicted on him by newspaper libelers when he was staggering under the burdens of the Civil War. "I have enough to bear now, yet I care nothing for them," he said. "If I'm right, I'll live; and if wrong, I'll die, anyhow; so let them fight at me unrestrained." And they kept at him, nagging and belittling him in the most vicious ways they could invent. Even his anxious soul, as limned in his anxious face, was the subject of their brutality.

Through the mists of a century of American history come the words of Thomas Jefferson in a letter to Samuel Smith:

Were I to undertake to answer the calumnies of the newspapers, it would be more than all my own time, and that of twenty aids, could effect. For while I should be

answering one, twenty new ones could be invented. I have thought it better to trust to the justice of my countrymen, that they would judge me by what they see of my conduct on the stage where they have placed me, and what they knew of me before the epoch since which a particular party has supposed it might answer some view of theirs to vilify me in the public eye. Some, I know, will not reflect how apocryphal is the testimony of enemies so palpably betraying the views with which they give it. But this is an injury to which duty requires every one to submit whom the public thinks proper to call into its councils.

Though the American people detest a libeler, the law of criminal libel is very poorly enforced, and in most localities, especially in large cities, scarcely at all. If the individual be not protected by government in his character and reputation, government fails at an essential point. It is worse than if government failed to protect him in his rights of property - as much worse as a libeler is worse than a property thief.

The meanest of all libelers are those who assassinate character for their own personal aims and ambitions.

We in America frequently read of verdicts of conviction in criminal prosecutions for libel in England, followed by sentences of imprisonment. They attract our attention because the like seldom occurs in this country, and then only in the case of petty and uninfluential libelers. The newspaper proprietor who libels without scruple, and spreads pain and sorrow without a pang, showing an utterly black heart, goes on here and enriches himself by his vile trade without the interruption of a criminal indictment.

We still more often read of verdicts in civil actions for damages for libel in England so much larger in amount and so much more frequent than we are accustomed to in this country as to present a like contrast.

Most people think these differences are because the law of libel in England is different from ours. They ask, Why should not our libel laws be changed to be like those of England, so that we may also punish libelers and stop their detestable trade, the meanest and basest known? They are mistaken. Our libel

laws are in all essential respects the same as those of England. The difference is in the failure of prosecuting officers to enforce them, and in the weakness of our courts in the trial of libel cases, criminal and civil. If our jurors also deal lightly with libels against which the jurors of England sternly set their faces, the fault is still with our judges. In England the judge fulfils his office. He takes and keeps that legitimate control and direction of the case on trial which belongs to him by law. He does not loll back in his chair and let the jury be mystified or perplexed about the law of the case, or in any respect in which he should be a light and a guide to them, by the misleading contentions of counsel. These things are cleared up decisively and promptly as the trial proceeds. In the end the jury knows where it stands and exactly what falls to it for decision. Our judges have always had the same wholesome power, but many of them let it slip through their fingers.

The conviction of a libeler presents no difficulties. The definition of a criminal libel is the same here as in England. Any malicious publication by writing or picture which imputes a criminal offense or moral dereliction to any person, or, falling short of this, is nevertheless such as to hold him up to hatred, contempt, obloquy, or even ridicule, is a criminal libel. In a criminal prosecution for libel the published matter. is presumed to be false until the defendant proves it to be true. The prosecution does not have to prove it false. Malicious intent is the essence of the crime; and such intent is also presumed from the libelous publication itself until the defendant disproves it. The burden is on the defendant to rebut this presumption. Proof by him. of the truth of the libelous matter may not do so, for the truth is not of itself always a defense. The libel may be all the worse for being true. The law permits the defendant to give in evidence the truth of the published matter, but only as explanatory of his intent; that is, to show that his motives were laudable instead of malicious. Such proof may show the very contrarythat his motives were mean and base. For needlessly and wantonly to rake up and publish the failings of others, to their injury or annoyance, is as inexcusable in law as in morals. The old saying, "The greater the truth, the greater the libel,"

that is to say, the greater may be the libel, -is as true and as much a part of the law of criminal libel now as it ever was, although superficial persons may think it obsolete. The moral philosopher Paley says the malicious publishing of truth or falsehood is in moral view equally wrong.

Proof of the truth of the matter charged as libelous exonerates in a criminal prosecution for libel only when it is made to appear that such matter was published "with good motives and for justifiable ends." That the matter is true does not of itself suffice. Good motives appearing, malice is disproved, and without malice the crime does not exist. Malicious intent is the gist of the crime. And whether such defense be made out is for the jury, not the court or judge, to say. No judge can stand in the way of an honest jury by shielding a libeler or forcing the conviction of a truthful and honest writer. It took a long time to establish this.

The question whether the court or the jury on the trial of an indictment for libel should judge of the meaning of the published matter, and of the malice or motive of the defendant, and whether the defendant might prove the truth of such matter in his defense, was long a floating and litigious one. It has a history and literature all its own, and over which many have been fascinated. Its final settlement marks an era in the history of the growth of free government, which cannot exist without freedom of truthful and honest speech; and that is what the phrase "free speech" means. It may be that a summary of the long controversy, begun in England and continued here, may prove interesting, and it will serve to make plain the law as it now is, and the power of juries over libelers, unhampered by judges. The jury in prosecutions for all kinds of crime are the judges of both the law and the facts, and this was so from the beginning. The judge or court instructs or charges them as to the law, and it is their duty to be attentive and try to understand the law as it is thus given to them-not always an easy job-and to follow it. But in the end the case is turned over to them, and then by their verdict they resolve the mingled questions of law and fact as best they can by a verdict of guilty or not guilty. It is true that it is, and always was, their duty to accept and apply the

law as they understand the court to declare it, but there is no way to make them do so. The law does not permit them to be called to account or punished for failing to do so, even though it be apparent that their failure was intentional; and their verdict of acquittal is unappealable and final. They therefore have the "power" to decide the law as well as the facts, whatever their abstract duty may be in respect of taking the law from the court. As the saying is, they may not do it right, but they have the right to do it.

But early in the eighteenth century some judges of the common-law courts in England began to deny that this rule applied in criminal prosecutions for libel. They wanted to exempt libel prosecutions from it. They were started on this course by certain rulings of the obnoxious court of the Star Chamber, which sat without juries and lent itself to the despotism of the Stuarts. It derived its name from the room it sat in. The theory of these judges that it was the province of the court alone, and not of juries, to judge of the meaning of the published matter, and of the intent of the defendant in publishing it-to judge whether his motive was worthy or unworthy, or, to use the settled word, malicious -grew by degrees. They would leave to juries only the question whether the defendant published the libelous matter, and require them to render verdicts of guilty or not guilty according to how they found that one fact, leaving all else, meaning, motive, etc., to the court to decide after their verdict of guilty was rendered. They said that the meaning and the intent were inferences to be drawn by the law from the published matter itself, and therefore for the court, and not for the jury, to draw. They also refused to allow the defendant to prove the truth of the published matter. They said that a libel is punishable because of its evil tendency,- that is, its tendency to arouse passion and provoke sedition or a breach of the peace, and that as such tendency would exist whether the matter were true or false, its truth or falsity was immaterial, and they therefore would not permit evidence of its truth to be given. This left out of account the motive of the defendant, which is the gist of the crime. They did not consider whether proof of the truth might show or tend to show, especially in connec

tion with other circumstances, an honest motive instead of a malicious one, although truth is always an essential ingredient in judging justly of the quality of men's acts. These rulings were made in political cases out of obsequiousness to the crown. The Long Parliament had abolished the Court of Star Chamber in 1641, but its spirit still survived in some judges.

The trial of the seven bishops in the court of King's Bench in the latter part of the seventeenth century (in 1688) furnishes striking proof that no notion then existed that juries were not the judges of both the law and the facts in prosecutions for libels as in all other criminal cases. If there ever was a case in which it would have been ruled to the contrary in favor of the crown if that was understood to be the law, or if the law was open to doubt, even, it was that case. The seven bishops had presented to King James II in person a petition denying the existence of the dispensing power in the crown-of power in him to suspend or dispense with certain religious statutes, which he was attempting to do. For publishing this petition they were charged with seditious libel at the instance of the king. And yet the question of the meaning and intent and of the truth of the petition all went to the jury without objection from the bench of four judges or any of the eminent lawyers who appeared for the crown. The question of the king's dispensing power was obviously one of law and of the gravest character; but no one thought of denying to the jury the right of deciding it. One of the jury was a brewer, and brewed ale for the pal

ace.

It is related that all he did in the jury-room was to bemoan that, however he should vote, he was a ruined man. "If I say 'Not guilty,'" said he, "I shall brew no more for the king; and if I say 'Guilty,' I shall brew no more for anybody else." And in this perplexity over his own interests he kept the jury out all night. But a verdict of not guilty was finally agreed upon and handed in, to the delight of the nation. The great question had been submitted to the unpolished genius of the people represented in the jury-box, and in one way or another was decided right, a thing that had often happened before and has still oftener happened since.

The new doctrine of taking prosecutions for libel out of the general rule that in all

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criminal prosecutions the jury judged both the law and the fact, does not seem to have been supported by a judicial decision until the case of Richard Francklin in 1731, who was tried for seditious libel for publishing a letter from The Hague concerning England's treaty relations with France and Spain. The judge charged the jury that it was for him alone to determine the meaning of the publication and decide whether it was a libel, and that it was their duty to find the defendant guilty if he published the letter; and they did so. But eminent members of the bar, and the public generally, continued to refuse to acquiesce in the ruling. The controversy finally culminated in 1770 in the case of Woodfall, who was tried before Lord Mansfield and a jury on an information for libel for publishing one of the celebrated political letters of "Junius." Lord Mansfield charged the jury that the only question for them to decide was whether the defendant printed and published the letter in his newspaper; that if he did, it was their duty to render a verdict of guilty; that the question of intent and of the meaning of the the meaning of the publication, and whether a libel or not, was to be decided by the court, and that if the publication was not libelous, the court would so decide afterward, and their verdict would do no harm.

This sounded very fine indeed, but not to a jury wary of despotism and imbued with the necessity of free speech as a bulwark of free government. As there was no dispute that the defendant printed and published the letter, the court's instruction left the jury nothing to do but render a verdict of guilty. Although the counsel for the defendant seems to have obsequiously let this instruction of the court pass, the jury were of a very different temper. They did not deem the letter libelous, but a just criticism of affairs of government, and that was the sentiment of nearly all Englishmen. They very well knew, however, that if they rendered a verdict of guilty, Lord Mansfield would construe the publication to be a libel and imprison the defendant. Much to the annoyance of Lord Mansfield, they stubbornly refused to render a verdict of guilty. They finally returned the following astute verdict in writing: "Guilty of printing and publishing only." This was in effect saying to

Lord Mansfield: "You told us that all we had to find was the fact of printing and publishing. We find it for you; now you go on and do the rest; enter a judgment of guilty if the law be as you say."

Just one century before, a London jury had repeatedly rendered a similar verdict, "Guilty of speaking in Gracechurch street," which the court as often refused to receive, the case being the trial of William Penn, the subsequent founder of Pennsylvania, on a charge of causing an alleged tumultuous assemblage in Gracechurch street, whereas the proof only showed that he preached there as a Quaker.

Lord Mansfield received the verdict in the Woodfall case in silence, though chagrined by it; but it was afterward found upon a hearing by the full bench that no judgment of conviction could be entered upon it.

This case opened up the whole question anew to public discussion. The hostile sentiment of the nation against the new doctrine ran high and made itself heard. The matter was debated in Parliament. In the House of Lords, Lord Camden, one of the most eminent lawyers of his time, attacked the law as laid down by Lord Mansfield. Seven years later, on the trial of the celebrated Horne Tooke for libel in publishing that the King's troops murdered the Americans at Lexington, Lord Mansfield allowed the jury to judge of the meaning of the publication,—whether it was a libel or not,-of the motive of the defendant, and of the truth of the matter; and the defendant was found guilty. The case was such a plain one that the jury did not need to be coerced or misled to find for the crown. This is the same Horne Tooke who afterward, when on trial for another political offense before Lord Kenyon and a jury, admonished his lordship when he tried to interfere that his business was only to help the tipstaffs keep order in the court while the jury tried the case-an incident which reveals the rising temper of the times.

The question continued a disputed one in the English courts until 1793, when it was settled by an act of parliament in favor of the jury judging both the law and the facts and rendering a general verdict thereon. It arose in the city of New York as early as 1734, on the trial of Zenger for publishing an alleged seditious libel in

his newspaper, which denied the king's prerogative to establish courts in the colony. Chief-Justice Delancey instructed the jury that if the defendant published the libel, of which there was no dispute, they should find him guilty, as it was the province of the court, and not theirs, to judge of the intent and meaning. The jury refused to bend to judicial subserviency to the crown, and rendered a verdict of not guilty. The question of the king's power to establish such courts was one of opinion, and the jury rightly decided that Zenger had the right to express his opinion.

In 1803 the controversy blazed out afresh in the State of New York in the case of Croswell, indicted in Columbia County for a libel on Thomas Jefferson, then President of the United States, published in his newspaper, "The Wasp," in the city of Hudson. It is worth while to give the libel entire, as showing the spirit of the times:

Jefferson paid Callender for calling Washington a traitor, a robber, and a perjurer; for calling Adams a hoary-headed incendiary; and for most grossly slandering the private characters of men who he well knew were virtuous. These charges not a democratic editor has yet dared or ever will dare to meet in an open and manly discussion.

On the trial the court refused to receive evidence of the truth of the published matter, and charged the jury (as Lord Mansfield did in the case of Woodfall, and Chief-Justice Delancey in the case of Zenger) that all they had to decide was whether the defendant published it; that the motives and intent of the defendant, and the meaning of the published matter and whether it was libelous, were exclusively for the court to decide after the coming in of the verdict if it should be one of guilty. This was the extreme to which any of the English judges had gone before they were stopped by act of parliament in 1793, as has already been stated. That act of course did not apply in this country, having been passed after the Independence, and the trial judge therefore professed to lay down the law as it existed prior thereto and was imported into our colonies. The jury returned a verdict of guilty.

On appeal the whole question was

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