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out wandering into the regions of absolute falsehood. The press, if unrestrained by the law, would find a never-failing harvest of this sort in perfidious disclosures and unauthorized breaches of private confidence, without being driven to deviate into indictable fancies and dangerous inventions. The vicious appetite for slander and personality would thus be fed to satiety with scandalous exhibitions, only the more attractive for being strictly true-for which the publishers would be rewarded with profits proportionate to their zest, and such as would perpetually stimulate their mischievous curiosity, and afford them the means of continually widening and strengthening a system of lucrative espionnage on private actions.

We must now offer a few observations on the important question, whether the truth of the libellous statement ought to be received in evidence in mitigation of the defendant's guilt, when brought up for judgment. The interest of the subject—and especially at the present moment-must be our apology for the length to which these remarks are extending. Much doubt and discussion have arisen in our courts on this question; and the practice on the subject does not appear to have been quite uniform. In the case of the King v. Finnerty, in 1811, affidavits of the truth of the facts stated were refused. They had been received in the prior case of the King v. Draper; but it would seem that this was by consent of the prosecutor. In the case of the King v. Burdett, 4 Barnewall and Alderson's Reports, 321, the question was much considered and discussed. The libel there consisted of an inflammatory letter, written by Sir Francis Burdett to a friend, on the subject of the military force having been called out to disperse a seditious mob at Manchester; this letter stated that unarmed and unresisting men, women, and children, had been maimed, cut down, and trampled upon by dragoonswhich it styled an unparalleled and barbarous outrage,' and the ' commencement of a reign of terror and of blood.' In mitigation of punishment, the defendant offered affidavits, setting forth the account which he had read in the newspapers of the transactions at Manchester; that, considering the unprovoked aggression of the military on the multitude to demand reprobation, he wrote the letter under excited feelings of indignation; that he had no` seditious intention, nor any other purpose than that of rousing attention to what he considered a wanton outrage, and to the extreme danger of substituting military force for the civil power in the preservation of the peace. These affidavits were received without the slightest objection; but other affidavits, stating the truth of the facts published in the newspapers as to the occurrences at Manchester, were refused by the court. The Lord

Chief Justice Abbott lays down the following, as it appears to us, most sensible rule :

'It seems to me, that the proper course to adopt in the present stage of the proceeding, is to look at the situation in which the defendant himself was placed at the time he composed and published the libel, for which he is now called upon to answer. We should consider ourselves as possessing the same means of knowledge, and no other, of the matters which formed the inducement to the composition, which the defendant himself then possessed. He has informed us by his affidavit, that he was induced to write and publish this address to his constituents, in consequence of representations seen in various newspapers, as to something that either had, or was supposed to have occurred, at Manchester. It seems to me, that we should do great injustice to the defendant if we were to allow ourselves to be induced, for the purpose of aggravating punishment, to receive any affidavits of the falsehood of those representations on which he tells us he was moved to write that which he did. I think as, on the one hand, we cannot with justice to the defendant receive such affidavits, so, on the other hand, we cannot receive affidavits which go to show that a great part of the representation contained in those newspapers, which led the defendant to express his feelings thus strongly, was founded in truth. The affidavit made by the defendant himself, stating that his feelings were strongly excited by the statement he had read in the newspapers, was most properly laid before us. To that, in forming an estimate of the character of that which was written by the defendant, I shall give its due and proper weight; but I am clearly of opinion that the affidavits now offered cannot be received.'

Mr. Justice Bayley, amongst other things, says

The case of the King v. Horne has been mentioned. It is plainly distinguished from the case before the court, on the ground that the libel did not impute to any person there mentioned that they had been guilty of an indictable offence. It appears to me, upon the whole, that it would be a great obstruction to public justice, and a great stigma on the administration of justice in this country, if in a collateral way in a transaction in which the public mind may happen to be interested, person by a voluntary publication on his part should be at liberty to raise the question whether particular individuals had or had not been guilty of particular crimes, instead of doing so in a constitutional mode by bringing forward the charges against those individuals openly, and giving them a fair opportunity of defending themselves against the accusation. I think, therefore, these affidavits cannot be read."

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This important case has, therefore, settled that where the libel alleges the commission of any act legally criminal, the defendant cannot be heard to extenuate his guilt by proving the crime to have been actually committed; and whether the crime is imputed to the party directly libelled, or to other parties incidentally noticed, would make no difference-the law most properly refusing

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to hear grave charges of offence made against individuals on mere affidavit, and in an incidental and collateral manner, where no regular proceeding for punishment has been taken against them. This is the language of sense and philosophy, as well as of law. Cicero, in commending the punishment of libels, says― Præclare -judiciis, enim, ac magistratuum desceptationibus legitimis propositam viam, non poetarum ingeniis habere debemus, nec probrum audire, nisi eû lege ut respondere liceat et judicio defendere.' -De Republicâ, lib. iv. Had the acts charged against the troops at Manchester by the letter of Sir F. Burdett not amounted to legal offences, but only to moral crimes, we conceive that the court would, in all probability, have come to the same decision; though, had the facts alleged as the basis of the libel been entirely innocent and indifferent, no objection at all could have arisen to their being proved,-if their proof could have answered any object of the defendant. Indeed this was the case in the trial of Horne Tooke, where evidence of the firing of the troops on the rebels was received; the terms of the libel in that case in fact imputing no kind of guilt to the troops. The decision in the King v. Burdett certainly does not go the length of expressly determining, that the truth is inadmissible in mitigation, where the libel imputes any mere moral offence. The reasoning of the learned judges, however, seems to tend to such a conclusion. Mr. Justice Bayley alludes to certain possible cases, in which the truth might be heard in mitigation; but he does not by any means hint that this would be so in cases of ordinary libels, imputing vice or immorality;-he mentions merely the publication of a specific statement of a party having been legally convicted of an offence. He says,―

In the observations I have made, I have confined myself to those cases in which the charge is a charge of an indictable offence. There may by possibility be cases in which the publication may be a libel or not, according as the fact be true or false. And in such cases, where the falsehood is essential to constitute the crime, or the truth is sufficient to do away the crime, as it seems to me, the truth may possibly be received in evidence. I do not, therefore, mean to say, that there may not be some cases in which the truth may be brought forward as an answer to the charge, or as a mitigation of punishment. I will put a very plain and familiar case. Suppose that I publish that, on such a day, a man was convicted of perjury, and the fact was so; am I then to be indicted for telling the public that he was convicted of perjury? I am at liberty to show that he was indicted for the crime; that he was convicted, and that therefore there was no offence in my making that communication to the public of an existing fact. That is one instance, and very probably many other instances ejusdem generis might be put.'

The case here supposed by the learned judge is really, as his lordship

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 confirms 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

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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 are 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 confide— that he published a full apology to the party injured that he had never sold a copy of the libel since the action was raisedall 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

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