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ment were, in its practical effect, as severe a reprehension of publishers of defamatory truth as it may appear to be in its principleif it had anything like a tendency to repress all exposure whatever even of private delinquents-we should hesitate before we approved of such a proceeding. In the foregoing observations we beg distinctly not to be considered as arguing for the entire exclusion of the press from all censorship over private actions. In a limited degree we believe such exposures may occasionally be useful. But we impugn the prevalent and popular doctrine, that the press exercises a natural and salutary jurisdiction over all private vices and irregularities, as well as over public conduct and public affairs -that news-writers are the legitimate correctors of those who sin against morals without offending the law-and that the reprehension of instances of private vice is as much their undoubted and legitimate province, as the examination of political measures and the discussion of the public conduct of public men. Against this wide and novel extension of their sway we beg to protest as unsound and dangerous; and in opposition to it, we desire to impress on the public what we conceive to be the great and necessary defects of this sort of censorship, and the evils inevitably incident to such interference of the press with private life. The news-writers have at least ample scope and room enough already. The risk at which truth is now published is, indeed, almost next to nothing. There is no liability to the civil action, which puts damages into the individual's purse-no responsibility to the criminal information, which has the attraction of clearing up his fame. But there is the bare possibility of the assailed party being so destitute of common discretion and prudent advice as to come, without interest or advantage, a confitens reus, into a court, to degrade himself by convicting his adversary, on an indictment, in which the punishment of the defendant carries with it the ignominy of the prosecutor. That the admission of proof of the truth of the thing written would be no shield at all to the publishers of political and religious libels, or any other libels than those on private character, we think we have sufficiently shown; and what better safeguard even personal defamers can desire against any excessive disposition to prosecute private truths, than the natural aversion of men to public admission of delinquency, we confess we are at a loss to conceive.

At the same time, however, that we think the allowing truth to be a defence would open a door to a mischievous increase of impertinent, immoral, and vexatious disclosures of private conduct, and would, by thus augmenting an existing evil, be highly prejudicial to society, we must take the liberty to remind writers and publishers that such an alteration, if effected, would by no means

increase

increase their powers in the degree which they may contemplate. They must not suppose that it is the exclusion of the evidence of truth which is the sole cause of their responsibility to the law, even in cases where they profess to set forth matters of fact. Any one who has observed proceedings of this kind in courts of justice, must have seen that in the majority of cases it is the manner as much, and even more, than the matter, which gives the sting to the libel,-which at once provokes the wrath of prosecutors, and influences juries to convict. It is comparatively rare, indeed, to see a prosecution founded on the naked and uncoloured statement of a fact, however inculpatory of an individual. It is the accompanying venom and scurrility, the hard names and epithets enveloping the statement-which exasperate parties to prosecute; and these, it must be observed, would in general be almost equally libellous, whether truth formed a defence to a prosecution or not. Even in the extraordinary instance to which we have just alluded, it is almost certain that, had the law allowed truth to be shown as a justification, the result of the prosecution must have equally been the conviction of the defendant; since, though the main facts of the libel might, perhaps, in that case, have been established by proof, the invective and abuse accompanying it were such as the judge and jury must have, in all probability, held to be malicious and unjustifiable. And, indeed, even under the present state of the law, it seems to be clear, that the mere candid and unexaggerated statement of the fact of a party's having been convicted of a crime, is not punishable as a libel, provided the writer can prove the truth of the statement by legal evidence, which, in the instance alluded to, it must be remembered, was not attempted. In discussing another point, we shall presently allude to the authority of a very learned judge on the legality of such a statement. If writers will state facts with tolerable fairness and accuracy, and comment upon them with sobriety and moderation, they need not have much fear of prosecution, even where the statement may not be altogether wellfounded; and where the statement is true, they certainly need have no dread at all that proceedings will be adopted by which prosecutors incur heavy expenses, and virtually stab their own characters. In civil actions, where the truth is by law a perfect justification of the libel, experience constantly shows how the habitual exaggeration and inaccuracy of authors defeats the protection which the law would in this instance lend them. The extreme difficulty of making out by evidence the truth of a libel in such a proceeding, so that the defendant shall obtain a verdict, is almost proverbial among lawyers. Such justifications are frequently abandoned as hopeless on legal advice, and perpetually fail when

attempted;

attempted; and one principal reason is, that it so rarely happens, that the author, even when the basis of his story is fact,. has not gone beyond the line of truth, either in his statements or his insinuations or that he has not so mixed up his facts with general aspersion, that the libel contains much defamatory matter utterly incapable of proof.

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This is also one of the causes of the small damages so frequently given in actions for libel. Where the main imputations of the libel are proved to be true, but the author has superadded calumny incapable of proof, the damages are of course merely given for the excess beyond the truth, and not in proportion to the general offensiveness of the whole composition. An objection is sometimes made to the present state of the law, which allows to the plaintiff full costs, however small the damages he may recover. It is said that this gives occasion for vexatious actions, instigated by needy attornies for the mere object of costs, where the plaintiff is really indifferent to the aspersion, and would not, on his own account, institute any proceeding. That this is sometimes the motive of such actions we doubt not. But that civil actions are, on the whole, by any means so frequent as to bear at all harshly on the transgressions of the press, we entirely deny. Indeed, the most intelligent and best informed of those who have impugned the libel law in other points as severe, have made it matter of complaint that such proceedings are too rare, and that the remedy by civil action is not sufficiently efficacious in suppressing libels of falsehood; and when it is considered that the action only applies to check the statement of what is false, and is defeated at once when the libel is proved to be true, we cannot imagine a sound reason why such actions should be, in the slightest degree, discouraged, by depriving the plaintiff of costs, merely because the libel happens not to be of so aggravated a stamp as to call for severe damages. However opinions may differ as to the good arising from the publication of defamatory truth, no one will be hardy enough to contend that any benefit can result from the encouragement of calumnious falsehood.

But an objection is made by persons whose acuteness gives weight to their remarks, that the exclusion of the evidence of truth in prosecutions has a pernicious effect-in weakening the efficacy of the proceeding by indictment as a check on the evil of false libels. It is said that persons falsely calumniated are deterred from the proceeding by the fear of appearing to admit the slander; while at the same time the civil remedy by action is objectionable to persons of honour and delicacy, who dislike submitting their characters to estimation in money by a jury. False libels, it is alleged, are thus not sufficiently punished; and it is contended,

tended, that if the truth were admitted as evidence, prosecutions would be more frequently resorted to by innocent individuals, who would then have no fear of endangering their fame, while they punished their calumniators. Now, we do not entirely agree in these premises, and still less do we assent to the conclusion drawn from them. Though we admit that the proceeding by indictment is not a very frequent mode of punishing the false libeller, on account of the objection above pointed out, yet it is by no means entirely inoperative for this object: instances do occasionally occur wherein public bodies, or individuals of high and unquestioned character, do brave the insinuations which may be made against them, and punish by indictment their false calumniators. And, indeed, we much doubt whether, in almost all such cases where the libel does not impute legal guilt, the prosecutor would not be allowed, if he pleased, to prove the falsehood of the libel as a part of his case. In the King v. Hatchard, Sta. Tria. vol. 32, p. 674, this course was adopted; and the defendant was punished for a malignant libel by an indictment, without the least compromise of the prosecutor's character. Nor can we admit that the civil action is by any means so rarely adopted, or is so inefficacious a remedy, as this objection supposes. Our courts are very frequently occupied with such proceedings; and it is not unfrequent for such damages to be awarded, as at once punish the libeller, and cannot wound the honour of the most fastidious plaintiff. Besides, we think that this supposed delicacy on the part of It is pretty persons libelled is more imaginary than real. well understood that the damages given (although in principle compensatory, and not penal) are in reality the measure of the defendant's offence, rather than of the plaintiff's character-and are assessed more with reference to the malignity and offensiveness of the particular calumny, than to any supposed subtraction of general fame from the individual assailed. But besides this, the libeller of falsehood is almost always open (at least in cases of malignity in the statement) to penal proceedings by information granted by the court, in which the injured party has the double advantage of purging himself of the imputation, and of punishing his defamer by fine and imprisonment. If these modes are not sufficiently efficacious, we would have them rendered more so, If libellous falsehoods are not punished with sufficient rigour, let the laws be rendered more efficacious-but do not provide for their suppression at the expense of the only existing check against the libels of truth. In late times, too, the court of King's Bench appear somewhat more readily to have granted criminal informations, in cases of clear malignity and falsehood of statement; and the distinction as to the rank and station of the

applicants

applicants appears of late to have been judiciously less attended to. We, of course, admit that the evil of false calumny is the greater, and is that which mainly demands legal reprehension; -but, for the reasons before given, we think the slanders of truth are also rightly punishable, and we are convinced that, if greater license is allowed for publishing defamatory truth, malignant falsehoods will infallibly follow in greater numbers in its train. But, we conceive the law, if left in its present condition, affords efficient modes of proceeding for checking the evils of both kinds; and from the recent clamours of the press, it would appear as if the public had begun to feel their efficacy, and to testify this by a more frequent resort to them. If, however, the law requires to be strengthened in one quarter, let it not be by an imprudent relaxation in another. Let the remedy by criminal information be more extensively applied by the court of King's Bench, if the growing excesses of an over-active press are found to require such rigour. Let not the remedy by action be weakened by an alteration of the law as to costs; let aspersed parties be prompt to avenge their characters by appeal to the law;-and, above all, let juries strictly do their duty. The libellers who deal in slander, whether false or true, will then, we conceive, find that their profits, enormous as these are, will fail to compensate them against the just inflictions of the law.

It is at least questionable whether, by allowing the evidence of truth, the law would in practice acquire an increased, vigour against false libels. Attempts would be made in every prosecution, by cross-examination of the prosecutor's witnesses, if not by the production of direct evidence, to make out some show of colour for the statement; and the party falsely libelled would thus be assailed and annoyed, and would by no means find the road entirely smooth to the conviction of the libeller. But the main and pernicious consequence would be only to alter the current of slander, and slightly to change its polluted channel. The malicious lies of the press might be a little, we do not think they would be materially, lessened. But we are clear that the number of impertinent, and useless, and nauseous truths disclosed as to individuals, would be alarmingly increased. One great field of scurrilous personality being left beyond the law's reach, the aim of cunning writers would be to asperse and abuse to the utmost, keeping within the bounds of fact. As far as the injury to the public mind is concerned, the evil would be the same,-contaminating exposures and immoral details are certainly not less pernicious to readers when true than when false; and, unfortunately, society is so constituted, that the supply of abundant materials for the corruption of public taste and morals may at all times be found with

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