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lordship observes, one in which the truth would be admitted as a defence to the prosecution in toto, and not merely as a mitigation of punishment; and it contirms the observations which we have before made as to the latitude allowed for the plain statement of a fact, such as the conviction of a party of a crime, which would almost always be held innocent—though the exaggerated and virulent blazoning forth, with calumnious comments, or the malicious repetition of, the very same fact, might be held, as it was in the late instance before alluded to, a malicious and illegal publication. We have, therefore, the high authority of Mr. Justice Bayley, for saying that the press would incur no danger by the simple and often useful statement of the fact of a party having been convicted of a crime in a court;—and this, although the statement is made or alluded to quite independently of a regular report of the judicial proceedings, which is the supposition of the learned judge—it being always remembered that, in order to justify such a statement, it would be necessary to give legal and regular proof of the fact of the party's conviction, in answer to the proceeding for the libel.
The law being, therefore, as we conceive, settled, or nearly settled, that the truth of libellous imputations cannot be given in evidence in mitigation of punishment, whether the calumny imputes a legal or only a moral crime, we will offer a few words on the soundness and propriety of the law, in point of reason and justice. The question is one of much nicety and difficulty. It is obvious that, in estimating the degree of a defendant's guilt, everything ought to be heard by the court that tends to throw light on his animus and intent, in which his legal guilt is held to reside; while nothing of course can consistently be received, which goes to deny any facts or inferences established by the previous verdict of the jury. The evidence of the truth of the libel certainly is not fairly open to objection on this latter ground; since the verdict of the jury by no means establishes the falsehood of the composition—its truth or falsehood being considered as collateral to the inquiry at the trial. The question then is, does showing the truth of the statement necessarily, or even probably, tend to reduce the malicious intent of the defendant ?-does it tend to raise a presumption of a motive comparatively innocent and harmless? That it does not tend to reduce the offensive and hurtful character of the writing is obvious; but is the malice of the publisher necessarily or even probably less in the case of a true than of a false libel? We confess, we do not think that the truth raises any such presumption; and we think that, on sound principle, the law is right in excluding the evidence in this last stage of the proceedings. We conceive that the evidence is inadmissible here, precisely on the same grounds on which it is rightly excluded on the
question .guilty, or not guilty. If the proof of the truth does not tend (as we think it does not) to raise any presumption of absolute innocence in the publisher, we do not see in what way it has a tendency to show his comparative innocence—his less degree of guilt. The fact really arising here for investigation is not so much the fact of truth or falsehood in the statement, as the defendant's supposition and belief on that subject. The defendant's object should be, not so much to prove the actual truth, which will still leave his motive uncertain, as to show that he had every good reason to think the matter true, or at least no reason at all to suppose it false—which goes directly to negative a malicious design. This is the line drawn by the Lord Chief Justice in the King v. Burdett. To show that the defendant knowingly and wilfully published a false libel, makes strongly in aggravation of his guilt ; but the proof of the falsehood alone would have no such tendency, unless his knowledge were also established. In the same way the defendant, by merely proving the truth of the libel, would not do enough, unless he went on to prove other circumstances, tending to reduce the presumption of malice-as, an intention to caution others, a publication limited to persons whom the matter concerned, &c. The mere fact of the truth is consistent with aggravated malice against the object of the writing-or with mischievous designs towards society; and when other exculpatory circumstances, as to the manner of the publication, and the accompanying or subsequent conduct of the defendant shown, it is these circumstances that tend to diminish the degree of malice—but they would have this effect in a great, and generally in an equal degree, whether the libel were false or true. Το show that the defendant was the mere publisher, and not the author, of the libel—that he received it in the regular course of his business from a writer in whom he had reason to contidethat he published a full apology to the party injured—that he had never sold a copy of the libel since the action was raised all these facts are admissible as weighing clearly and strongly in reduction of the defendant's guilty intent; and proof of the contrary facts is, of course, admissible in aggravation of his guilt: but all these palliations equally apply, whether the libel be true or false. If, indeed, the prosecutor endeavours to aggravate the punishment, by giving evidence of the falsehood of the libel, and of the defendant's knowledge of such falsehood, we do not see how the defendant can in justice be precluded from opposing this evidence, by showing the truth of his statement. Though even here it would be more strictly to his purpose to show that he firmly believed, on plausible grounds, that it was true at the time of the publication ; for this evidence goes directly
to the innocence of his motive,—whereas proving the actual truth of his story is still not inconsistent with the supposition, that he published it maliciously, and believing it false. Whether a prosecutor ought to be allowed to press for a severe sentence, by proving the defendant to be the fabricator of the libel, knowing its falsehood, is another question; though we confess we think this is a crime so far aggravated above the ordinary guilt of casual publishing in haste or negligence, that the court ought to hear such facts in awarding the punishment. According, however, to the rule of the King v. Burdett, it is clear, that neither the falsehood nor the truth can be received in proof, where the calumny imputes an indictable crime; and, from the language of the Lord Chief Justice, it is obvious that his acuteness saw that proof of the mere falsehood by the prosecutor has really no bearing on the point of the degree of guilt, unless the evidence goes further, and shows the defendant's knowledge of the falsehood ;- in the same way that his lordship considered that the actual truth of the occurrences at Manchester could not extenuate Sir Francis Burdett's letter, when it appeared that the letter was written merely on the faith of a newspaper report, and in ignorance whether the alleged occurrences were really true or false.
In the case, therefore, of a prosecutor seeking to enhance the punishment, by showing the falsehood and the guilty knowledge of it, and in this case alone, we think the defendant ought to be allowed to rebut the evidence against him by proving the truth of his libel. Where the highly-aggravated guilt of being the malicious inventor of a calumny is sought to be fixed on the libeller, he must be allowed to meet such an attempt by adequate evidence ; but where the defendant stands before the court as the mere publisher of a defamatory statement, neither the false and malicious invention thereof, nor even the guilty knowledge of its falsehood being charged upon him, we think the truth of the statement is really immaterial to the question touching the amount of his malice; and, we conceive, that evidence in mitigation can, in such case, only be fairly sought in collateral circumstances attending, preceding, or following the publication, which go to the very root of the defendant's views and intentions in putting it forth. If this be a correct view of the matter on principle, it is obvious that, practically considered, the allowing the defendant to repeat his libel with proofs in the face of the court, by way of mitigation of his guilt, is a proceeding most offensive to the court, open to most grave objections, in fact likely to be attended with all the bad effects which, as we have before shown, must follow from allowing such evidence in total bar of the proceeding. It would also have one additional and serious evil, viz., that the trial of the
truth or falsehood of the libel must, in this stage of the proceeding, be upon affidavits, cut off, therefore, from the advantage of cross-examination, or any of the other safeguards which attend a vivá voce inquiry. In the case before supposed, where the prosecutor himself calls for such a trial, by producing affidavits proving the falsehood of the writing, he, and not the defendant, is the cause of the investigation of the question; and it might perhaps form a recommendation of the plan of allowing a prosecutor to open this question, by proving the falsehood, accompanied with guilty knowledge, in aggravation, that this course would free the proceeding by indictment from the objection before alluded to, -namely, that it amounts almost to a tacit admission of guilt on the part of the prosecutor.
One word more on the practical execution of the law which we have been reviewing and discussing. We have before applauded the wisdom of the legislature, which intrusts the application of so critical a code to the pure and popular tribunal of a jury. If our property and lives are safe in their hands, individual fame, (the outwork which defends all other possessions, and makes them all valuable,' must equally depend for security on their verdicts. We trust that juries will never forget that they are invested by the law of libel with a two-fold trust; and that while they are the guardians of all useful freedom of discussion, they are the constitutional safeguards on which society relies against anonymous detraction and ribaldry. It is with them in practice to draw the delicate line between the legitimate uses and the pernicious excesses of authorship; and let them remember, that while the press justly looks to them for defence against any arbitrary aggressions of power, the public equally demand at their hands effectual protection against licentious invasions from the press. It is not less their duty to check its excesses, than to guard its legitimate exertions from obstruction. By the help of juries the press has triumphed over all its enemies and antagonists, and is in possession of an authority and influence daily increasing, and already immeasurably beyond anything that could have been anticipated, even at a very short distance of time. It is for juries now to defend society and individuals against the excesses of a triumph valuable in itself, but indescribably perilous in the extravagances to which it has a tendency. They saved the press from becoming a victim,--let them restrain it from growing into a tyrant. Let them not fancy (though many noisy writers perpetually tell them so) that injury and persecution are, in all circumstances, the characteristics of the press when it appears in a court, or severity and oppression the invariable attributes of those who make complaints against it. Let them separate clearly in their minds
between the public discussions and animadversions, and the private inquisitions and calumnies of authors. Let them neyer imagine that they are serving the cause of useful freedom of discussion, by shielding from punishment that scurrility, which is separated from it by a broad and palpable line, not to be confounded by all the efforts of interested writers, who would abuse the valuable immunities of the press to the wretched purposes of venal detraction, and a lucrative pandaring to the morbid tastes of the public. But, above all, let them not fancy that the undefined and peculiar nature of the libel-law can ever leave them, consistently with their consciences or their oaths, any latitude to adjust, and balance, and legislate on the cases coming judicially before them. It is not for them, in their ministerial office, to speculate, whether the law is wise or unwise in declaring, as it does, that a writing tending to defame, or degrade, or render ridiculous an individual, is a punishable libel; while such is the undoubted law, jurors are bound by their oaths to respect and enforce it, whenever its violation is established before them, as much as if fifty statutes had defined its terms. When they are satisfied that the writing prosecuted has the illegal tendency, it is not for them to canvass, whether, under all the circumstances, it is fit or unfit that it should be punished—whether the probable sentence or the costs of a conviction may or may not be a hard measure of justice on the individual libeller. If they see clearly the illegal tendency and quality of the writing, they cannot acquit, from any such considerations, without tampering with their consciences, and perilously violating a religious obligation. If motives and views of this sort ought not to influence jurors, we believe they are, and ever will be, equally above being swayed by the insolent intimidations and the insidious flatteries by which certain parts of the press unblushingly endeavour to practise on them. Let them not mistake the interested clamours of journalists (differing on all possible subjects, and only unanimous on their own right to full and eternal privilege of tongue') for the voice of the public at large. When an acquitted journal overloads them with its interested gratitude, put forth with all the consequential air of an award of impartial praise, let them not become the dupes of such shallow flattery, which they could only laugh at if addressed to them by aụy other defendant, not the proprietor of a printing press: and when they fearlessly do their duty, in convicting a libeller according to law, let not their satisfaction of conscience be diminished, or their firmness shaken by the threats .or insinuations, which the convicted defendant and his literary compeers may put forth, with the pompous pretensions of expressing the public censure, when, in truth, they are only upholding their private and pecuniary