The Rights of an American Citizen: With a Commentary on State Rights, and on the Constitution and Policy of the United States by Benjamin Lynde Oliver published 1832
PART II; OF SOME PARTICULAR RIGHTS
CHAPTER IV: Of the Law of Libel in relation to Public Officers, &c.
Any species of publication, of a more fixed and durable nature than oral communications, which are merely slanderous, tending either to bring the government, or the rulers for the time being, or public officers in general, or private individuals, into hatred, contempt, or ridicule, is a libel, and is generally actionable at the suit of the party injured, or indictable as a public offence.
It is actionable, on account of the damage which the party libeled, sustains in consequence of it; and therefore where the facts charged in the publication are true, there is generally no redress by action, unless perhaps in the case where personal defects or deformities are maliciously made sport of, where it is presumed the humanity of the law would not permit the truth to be a justification.
A libel is indictable, because of its tendency to lead to the breach of the peace. At common law, therefore, the truth of the libel was never considered as a justification, because the tendency to a breach of the peace would be the same, whether the publication were true or false. It is on this account^ that a libel on the memory of a person deceased, is held to be a libel, because it has a tendency to excite the feelings of his children or kindred, and leads to acts of violence. If, however, a publication should be written as a matter of history and with a proper regard to historical or biographical truth, and without any malicious intention of defaming the dead, it would be justified, notwithstanding the facts which it contained, might impeach the character of the deceased.
In the case of the Commonwealth v. Clap, Parsons, Ch. Jus., assigns another reason, why the truth of a libel ought not to be received as a justification on an indictment. If the law permitted the truth of the libel to be given in evidence on an indictment, the effect would be a greater injury to the party libeled. For, he is not a party to the prosecution, nor is he put on his defence, and the evidence at the trial might more cruelly defame his character than the original libel. See 4 Mass. R. 169. Because, he could have no opportunity to call witnesses to prove the falsehood of it. In general, a libel in a letter sent to the party himself, is not actionable; though there are contrary decisions. See 1 Term R. 110. 2 Esp. R. 625. 2 Starkie, 245 : but it may be punished by indictment, on account of its tendency to produce a breach of the peace. Ibid.
Subject to these restrictions, it is both actionable and indictable as a libel, to charge a person with any act which is punishable as a crime; or, with criminal or vicious practices or propensities; or, with being a man of bad character or principles. So, it is libelous to reflect on him for any personal defect or deformity; to apply to him any contumelious or abusive epithet, as coward, villain, poltroon, &tc.; to miscall him in his business, if done maliciously, for the purpose of degrading him, as to call a shoemaker, ‘ cobbler,’ &sc.; to charge him with having, or having had, any disgraceful disease. So, in general, it is libelous to charge a man with being deranged in mind.
To publish of a member of congress, who had left his seat in congress and accepted an office under the state government, ‘ He is a fawning sycophant, a misrepresentative in congress, and a grovelling office seeker; he has abandoned his post in congress, in pursuit of an office—was held libelous;’ and without doubt either of the propositions contained in the above sentence, is sufficient of itself to constitute a libel. See 7 Johns. 264.
In the case of Stow v. Converse, it was held, that—
To ascribe to a person the expression of any blasphemous sentiment, or one ‘ irreverent toward the Creator and Governor of the world, and so analogous to the modes of thinking habitual to unbelievers and profligate men, (as that contained in the libel,) and which would disgrace any person who is not a professed infidel, must be considered libellous, if false; because, if believed, it can scarcely fail to deprive him of the esteem of mankind, exclude him from intercourse with men of piety and virtue, and render him odious and detestable.’ See 3 Con. R. 342.
To charge a senator with concealing from the senate his knowledge, that a bill contained a particular provision, when he knew that they were ignorant of that fact, by which they were led to pass the bill under false impressions, and under the concealment of what, it was necessary or proper that they should have been acquainted with, was held actionable as libelous. See 10 Johns. 259.
It is held not to be necessary, that the libel, in plain and express terms, should charge criminality; but, if it necessarily implicate the conduct of the party concerned or referred to, it is libelous. ‘The contrary doctrine,’ in the words of Spencer, Chief Justice, ‘in Van Ness v. Hamilton, added to the acknowledged licentiousness of the press, would form a rampart from behind which the blackest scurrility, and the most odious recriminations might be hurled on private character with impunity, and would indeed render the press both a public and private curse, instead of a blessing.’ See 19 Johns. 372.
It is not necessary to constitute a libel, that it should be either written or printed. To set up any disgraceful emblem or symbol, having a personal application is libelous, and is actionable as well as punishable by indictment. Thus to hang a person in effigy; to paint or engrave a caricature of him; or, to exhibit it, or to expose it for sale, is libelous, and actionable and indictable as such, both in the painter and engraver, as well as in the booksellers, whose shop windows are disgraced with such exhibitions. From the instances last mentioned, it is apparent, that it is not the first contriver, inventor or author of the libelous publication, alone, who is punishable for a libel, by action or criminal prosecution; but every one, who, in any respect takes an active part in giving it publicity, is liable. And therefore, where one person posted another in a newspaper, by a letter addressed to him, and subscribed with the writer’s name, charging the person addressed with being a man destitute of honor and courage, it was held that the editor of the newspaper was answerable for the libel. The reason is, that the author may be a vagrant; he may be out of the reach of process, or he may elude it; or he may be irresponsible; and, if the editor were not answerable, the person libeled would be without redress. So, it was held to be no legal excuse for a printer, in a civil action for a libel, that the libel was inserted and paid for as an advertisement in his paper, by one who subscribed his name to it. A printer, who, for so small a consideration, can consent to prostitute his paper for the gratification of private malignity, deserves no better. See 3 Yeates. 518.
In cases of this kind, it is recommended to the person injured by a scandalous libel, to make no inquiry for the author of the libel, but to commence his prosecution against the publisher of it. For, he who publishes a libel against his neighbor, without having previously ascertained the truth of it, though he may not be the inventor, ought to be held answerable for all damages arising from the calumny, which he has assisted to circulate. To prosecute the publisher therefore, notwithstanding he may be willing to disclose the name of the author, will be the most effectual way to put a stop to such libelous publications. Because, however large the damages may be, which he may be compelled to pay, he will have no legal right to call on the author for payment or contribution. On the other hand, where a publication will be justified if true, and the public good will be promoted by the publication, it is recommended to the publisher to assume the responsibility of authorship himself; in which case, if he is prosecuted as a libeler, he may do the public a service by proving the truth of the charge; for which purpose, he will have a legal right to resort to the testimony of the person, by whom the facts, constituting the charge complained of as a libel, were first communicated.
In order that an action may be maintained on a libel, it must have a particular personal application to the plaintiff. If it is uncertain who is intended by it, no action can be maintained. But, it is not necessary, that a person should be named expressly; the rule adopted by the court in this respect, is that of common sense: the court and jury will not affect to be blind, where every body else can see who is meant. Where a libel is of a general description, no action can be maintained upon it; though, in many cases, the libeler may be punished for it by indictment. See 12 Johns. 478.
No member of a legislative body will be liable to a prosecution, either civil or criminal, for any thing said or done in the regular course of any legislative proceedings. The freedom . of debate, observation and discussion, in relation to all public measures, and the conduct of men in office, necessary to wise legislation, seems absolutely to require a total exemption from all such liability. This is the law of the English parliament, and is incorporated in the federal constitution, and, it is believed, is the law of all the states. See Starkie on Slander, 200. It has been held, however, that, if a member of a legislative body should publish his speech, it will be subject to the common rules as to libels, and, if any part of the published speech is libelous, he will be liable to prosecution for it. See 1 Esp. R. 226.
In Massachusetts, it is held, that for slanderous words uttered in the house of representatives, but not in the course of debate, an action for slander may be maintained. In the case of Coffin v. Coffin, Parsons, Ch. Jus., in the course of his opinion in favor of the plaintiff, observed,—
‘To consider every malicious slander, uttered by a citizen who is a representative, as within his privilege, because it was uttered within the walls of the representatives’ chamber, but not uttered in executing his official duty, would be to extend the privilege further than was intended by the people, or than is consistent with sound policy; and would render the representatives’ chamber a sanctuary for calumny; an effect which never has been, and I confidently trust, never will be endured by any house of representatives of Massachusetts.’ 4 Mass. R. 31.
In general, any one who republishes a libel, is answerable in the same manner as the original author, or first publisher. The rule proposed by the district court of Philadelphia is, to leave the motives of the republisher to the jury; and if they should infer that it was made without malice, let him be excused, if he gave the name of his author or authority at the time, so that the party injured may seek redress. But, if they should infer malice, let the original publication go in mitigation of damages. See 2 Bro. Penn. R. 79. But perhaps public policy, as well as justice to the party libeled, would rather require that every one, who contributes to the circulation of a libel, whether it arises from malice, or from heedlessness, which frequently does more harm than malice itself, should be punishable for it on a civil or criminal prosecution. For, in one case why should that dull malice, which, incapable of inventing libelous matter itself, basely adopts it at second hand, escape more than the original propagator? On the other, a republication of a slander in a different place, may do ten times as much injury as the original publication. Thus, it is possible that a libel on a gentleman in Boston, published in Georgia, or in any other distant state, may do him no harm; but, if republished in Boston, may ruin him irretrievably; if he is to look for damages in Georgia, he can recover no more than such as he sustained by the publication in Georgia; if then, he can recover nothing for the republication, he must in effect go without any redress at all.
It is held, that the conductors of a press are entitled to no other indulgence, than any body else; and it is no invasion of the liberty of the press, that they should be held responsible for the truth of what they publish. See 7 Cowen, 628.
The case of Southwick v. Stevens, furnishes a salutary warning to those editors of newspapers, who are in the habit of indulging a propensity to sarcasm, misrepresentation and virulent controversy. The defendant in that case, had published a piece in his paper, representing the plaintiff as attacked with insanity, &c. The judge, in his charge to the jury, remarked in substance, that the publication held up the plaintiff in a ridiculous light, and was therefore libelous; that however, it was merely ironical, and in answer to a piece published by the plaintiff, in which the plaintiff had assumed a most singular style; that though libelous, it was written in the course of a newspaper warfare between the parties, and there was strong provocation to induce the ironical matter complained of, and that, in his opinion, the jury ought to find very trifling or nominal damages for the plaintiff. The jury, notwithstanding this charge, found a verdict for $640. On a motion for a new trial on the ground of excessive damages, it was refused of course, because, in cases of personal wrongs, a new trial is never granted for this cause, unless the damages are absolutely enormous. See 10 Johns. R. 259, 449.
It seems no person will be liable to an action for slander or for a libel, for any thing said or done by him in the course of a legal proceeding; as a judge, juror, witness, &c.
And therefore where charges were brought against a commanding officer, before a court-martial, and he was acquitted, and in the opinion of the court delivered on that occasion, the complainant was censured ‘for endeavoring falsely to calumniate the character of his commanding officer,’ it was held not actionable, being part of the judgment of acquittal. 2 N. R. 341. So, no action for a libel, will lie on a malicious prosecution; however, the party injured in this case, has another remedy by a special action on the case for a conspiracy, or for a malicious prosecution, according to circumstances.
In England, where A. brought a writ of forgery against a peer, and the peer was found not guilty, it was held that the peer could not have a scandalum magnatum. 1 Vin. Abr. 390; cites Hob. R. case, 350.
So, where the defendant told a justice of the peace, that he intended to charge the defendant with felony for stealing, and requested a warrant against the plaintiff; the court held that no action could be maintained. Ibid.
It is a general rule, that where the publication is made in support or furtherance of the interests of society, and not wantonly and insidiously for the gratification of private malice, the author is privileged. See Starkie on Slander, 262.
And therefore a petition for a redress of grievances, made to the proper authorities fairly and decently, can never be libelous, however offensive it may be to individuals. Accordingly, it is held, that an application for the removal of a public officer, made to the proper authority having the power of removal, is not a libel. Malice is never inferred in any such case from the mere act of publication. See 4 Serg. and Rawle, 420. This subject was thoroughly discussed in the case of Thorn vs. Blanchard.
In this case, it appeared, that twenty-four of the inhabitants of a county, had presented before the council of appointment of the state of New York, a petition for the removal of the plaintiff, who was a district attorney, alleging in substance that he was under the influence of improper motives, &c., and had been guilty of improper management in his official capacity. It was proved that this petition was read before the council, and that immediately afterwards, the plaintiff was removed from his office of District Attorney. On the trial before the supreme court of New York, the charges contained in the petition not being proved, it was held, that the several matters were sufficient for the plaintiff to maintain his action for a libel. But, the cause being carried up on a writ of error to the court of appeals, the judgment was reversed. Clinton, Senator, in the course of his opinion, delivered in that court, speaks of the judgment reversed, as a hasty decision, ‘ which violates the most sacred and unquestionable rights of free citizens; rights essential to the very existence of a free government; rights necessarily connected with the relations of constituent and representative; the right of petitioning for a redress of grievances, and the right of remonstrating to the competent authority against the abuse of official functions, &c. &c.
In any such case, he considers it incumbent on the prosecutor, to prove express malice; to demonstrate that an evil intention existed; to show in the words of Hawkins, that the petition was entirely false, malicious and groundless, and instituted, not with a design to go through with it, but only to expose the prosecutor’s character, under the show of a legal proceeding.—The presumption in any such case ought to be against malice.—The power of removal is not intended to punish the man, but to protect the public against official misconduct.— Though such council have no power to try; yet they are so far a proper forum, to receive a complaint for the removal of such grievances. He concludes with the remark, ‘that whether the grievances were true or false, innocent or malicious, the powerful and commanding dictates of public policy, must merge and extinguish all individual claims, and all personal considerations. See 5 Johns. R. 508. Yet, it would seem, that if the charges in any such case are wholly without foundation, and express malice can be proved, the pretense of public policy will not protect a libeler from prosecution. In the case of Gray v. Pentland, Tilghman, Ch. Jus. remarks, ‘in order to protect both the public and the officer, an accusation preferred to the governor, or other persons having the power of removal, is so far of the nature of a judicial proceeding, that the accuser is not bound to prove its truth. If the jury are satisfied that it did not originate in malice and without probable cause, the defendant in the action will be excused. Yeates, Jus., in the same case, remarks, that ‘wherever, under the insidious mask of consulting the public welfare, a citizen renders the investigation of the conduct of a public officer, the mere vehicle of private malevolence, and a jury on the trial shall be fully satisfied, that the publication was wanton and malicious, and without probable cause, he has no pretensions to escape unpunished. 2 Serg. and Rawle, 29. This is in accordance with the case cited in 1 Nott. and Mc. Cord, 426, where it was held, that false and malicious charges, made to a colonel of a regiment against a major in the militia, and praying for a court of inquiry, may furnish ground for a libel before a civil tribunal. .
With regard to candidates for public officers, the law contemplates a certain freedom of remark, in discussing their characters and qualifications, which under other circumstances would unquestionably be libelous. This freedom however has its limits, and should always be accompanied with fair intentions, i. e., without malice towards the candidate, and with a view to the public good. To presume both in such cases, is contrary to the general rule in relation to libels, that the falsehood of the libel, will lead to the inference of malice, unless circumstances are proved, to show that there was no malice. Public policy however seems to require, that this indulgence should be shown to the defendant in such case, in order that those persons, who are public spirited enough to oppose the election of unsuitable candidates, may not be deterred by the apprehension of being prosecuted for a libel, from taking the steps necessary to prevent their election, by exposing their characters, or unfounded pretensions.
The general doctrine on this subject has been laid down thus: ‘Where one becomes a candidate for public lienors, he makes profert of himself for public investigation. All his pretensions become proper subjects of inquiry and discussion. He makes himself a species of public property, into the qualities of which every one has a right to inquire, and of the fitness of which every one has a right to judge and give his opinion, &c. &c. See 1 Nott and Mc Cord, 348.
The case of Lewis v. Few ought not to pass unnoticed here, because the doctrine contained in it, is of very frequent application.
In that case, there had been an assembly of the people, for the purpose of selecting a candidate for the office of governor of the state of New York. At that meeting an address to the voters, containing libelous charges against the plaintiff, was read and unanimously accepted, and ordered for publication. The defendant was chairman of the meeting, and signed the address as such; the action for the libel was brought against him alone. Some remarks of the plaintiffs counsel are particularly deserving of attention.
‘It is the undoubted right of the people to assemble together, to discuss public measures, and the qualifications of candidates for public office. They may freely speak and publish the truth and the whole truth; but this cannot authorize them to publish falsehoods, and atrocious libels concerning public candidates. Political meetings are not to be sanctuaries for libelers and slanderers, from whence they may issue their calumnies with impunity.—
—The people, it is true, in their political capacity constitute the sovereign and supreme power of the state, &c. Who are the people? The great body of electors. But any assemblage of citizens, whether electors or not, for the purpose of promoting the election of a particular candidate, and of influencing the electors to vote for their favorite, is not the people, or sovereign, in this constitutional sense. It would be a most dangerous doctrine and productive of the greatest licentiousness, if such meetings were to be considered as the people, and possessing the attributes and immunities of sovereignty, &c. &c. —The situation of public magistrates, and public candidates would be deplorable, indeed, if the law afforded them no protection against the slanders uttered by such meetings. Individuals may be restrained by shame, fear, or personal considerations ; but an assembly will not be influenced by such considerations. A multitude never blush,’ &c.
It was held by the court, that the circumstances of the case were no justification of the libel. See 5 Johnson’s R. 22.
In the case of The Commonwealth v. Clap, Parsons, Ch. Jus., lays down, that publications of the truth, concerning the character of a public elective officer, and relating to his qualifications for such office, made with intent to inform the people, are not a libel. And every one holding such office, may be considered as a candidate for re-election, if he does not disclaim it.”
On the other hand, he considers the publication of falsehood and calumny, against public officers and candidates, as a very high offence. See 4 Mass. R. 169. See also 3 Pick. 304.
In Tillotson v. Cheetham, it was held, that the public character of the plaintiff as an officer of government, is a consideration for giving exemplary damages. 3 Johns. 57.
But, as a publication, though false, will not always be a libel; so, on the other hand, the truth of a publication will not always be a justification of it.
The true legal criterion seems to be, what the jury, under the direction of the court, shall believe to be the intent with which the publication was made. For, it seems, even erroneous statements, made honestly and on occasions, where a person is called upon by duty, or, where he has a legal right to express his opinion, or, where considerations of public policy require there should be no such restraint, will be excused, though injurious to the character of another. The following distinctions in relation to this subject, it is believed, are well founded.
1. Where the publication is false, the jury are generally to presume, it to be malicious, unless the defendant can show it to come within one of the above classes of privileged communications, in which case, to render it libelous, express malice must be proved, either by the declarations of the libeler, or by showing, that he knew he was publishing a falsehood.
2. Where the publication, though scandalous, is true, it is generally held that no action can be maintained for it; though perhaps there may be cases, as, if one should libel another on account of his personal deformity, with which the public have nothing to do, which is equally barbarous and unnecessary. But, for a libelous publication, though founded on fact, a man is punishable by indictment, unless it comes within some of the above classes of privileged communications.
On an indictment for a libel, if the publication is of a scandalous nature, the question whether it is true or false, according to the common law, ought never to be raised. For, if it is a privileged communication, it will be excused though false; and, if it is not so privileged, it cannot be justified, though true. Comments on candidates for public offices, and on the conduct and character of public officers, must be considered as coming within the protection of privileged communications, and will not be libelous without proof of express malice, which will sufficiently appear, if the charges are groundless and without probable cause.
3. Where a publication is false, and does not come within any general class of privileged communications, though the jury ought generally to presume malice; yet, if the defendant can show, from circumstances, that there was no malicious intention, he will be excused on an indictment, and it will go in mitigation of damages in a civil action. In 1 Hawks. 472, it was held, that where a libel is published, malice will generally be inferred from that act, but it may be explained away by evidence, to show, that in fact there was no malicious intention ; and the circumstance should be left to the jury.
4. A publication, relative to a candidate for public office, purporting to relate facts, of a libelous nature, and which the publisher must have known to be false, or which he had no reason whatever to believe to be true, will be presumed to be malicious in either a civil or a criminal prosecution. In 1 Nott and Mc. Cord, 268, it was held that facts and circumstances showing a ground of suspicion, though not amounting to actual proof of guilt, may be given in evidence in mitigation of damages.
5. It is laid down, and seems to be a safe proposition, that a publication simply denying charges imputed to the author, and confined exclusively to that object, is not a libel, whatever its contents may be. 4 Mc Cord, 322.
In 1 Nott and Mc Cord, 348, it is held in substance, that, ‘to be actionable the libel must contain something, calculated to reflect shame or disgrace, or hold up the person libeled, as an object of hatred, ridicule or contempt. That if the words are not actionable per se, their being false and malicious does not always necessarily render them so, even if special damage could be shown, because, if any such damage should arise from words absolutely innocent in their nature, though false (as to say of an attorney, that he was not witty) it would be damnum absque injuria; i. e. such a damage as the law does not notice as a wrong. And therefore it was held in the case cited> that where a private letter to a political friend, merely contained an opinion that a certain candidate for representative to congress, was so frequently affected in his mind, that he ought not to be supported for that situation, it was not actionable as a libel. The discerning reader will perceive in any such case, the necessity of attending to its peculiar circumstances, in order to determine, whether a communication is actionable or punishable as a libel, or not. In regard to all communications which are privileged, it will be most safe to give no more publicity to them, than is necessary to obtain those objects, on account of which alone, the law bestows the privilege. Any further publication will lead to the inference that there must have been some other motive for it, which if not shown to be innocent, the law will presume to have been malicious. It would be contrary to public policy, however, to punish any person as a libeler, merely for expressing in any of the public journals, a sincere belief that a certain candidate for public office, ought not to be chosen on account of certain facts, transactions, &c. 8ic. which the supposed libeler had probable cause to believe to be true. It has been held, however, that a publication of rumors, is not justified by the fact, that such rumors exist. See 1 Wendell, 456. A man’s character ought not to be at the mercy of a mere scandalous rumor, which it is frequently impossible to trace to any responsible source. . Yet in any such case, it seems, that the existence of such rumors will go in mitigation of damages.
In the case of the People v. Croswell, Kent, Jus., concludes his opinion with the following remarks. ‘The founders of our governments were too wise and too just, ever to have intended by the freedom of the press, a right to circulate falsehood as well as truth, or that the press should be the lawful vehicle of malicious defamation, or an engine for evil and designing men, to cherish for mischievous purposes, sedition, irreligion and 1mpurity. Such an abuse of the press would be incompatible with the existence and good order of civil society. The true rule of law is, that the intent and tendency of the publication, is in every instance to be the substantial inquiry on the trial, and that the truth is admissible in evidence to explain that intent, and not in every instance to justify it. I adopt, in this case, as perfectly correct, the comprehensive and accurate definition of one of the counsel at the bar, (General Hamilton,) that the liberty of the press consists in the right to publish with impunity, truth with good motives, and for justifiable ends, whether it respects government, magistracy, or individuals.’ See 3 Johns. Cases, 394. This doctrine is expressly incorporated into the statute law of several of the states, particularly New York, Pennsylvania, and Massachusetts.
With regard to other publications, it may be remarked, that it is no infraction of law to publish temperate investigations of the nature and forms of government. Commonwealth v. Dennie, 4 Yeates, 267. Further than this the law does not seem to be judicially settled in this country. In the case of the Commonwealth v. Dennie, just cited, that distinguished writer was indicted for publishing the paragraph contained in the note below, and which, whether the result shall show his opinion to be well or ill founded, must be acknowledged to be equally virulent and unbecoming. Yeates, Jus., in the course of his charge to the jury, remarked, in substance, There is a marked distinction between temperate investigations of the nature and forms of government, and those which are plainly accompanied with a criminal intent, deliberately designed to unloosen the social band of union, totally to unhinge the minds of its citizens, and to produce popular discontent with the exercise of power by the known constituted authorities. These latter writings are subversive of all government and good order. ‘The liberty of the press consists in publishing the truth, from good motives, and for justifiable ends, though it reflects on government, or on magistrates.’ (Gen. Hamilton in Croswells Trial.) It disseminates political knowledge, and, by adding to the common stock of freedom, gives a just confidence to every individual. But the malicious publications which 1 have reprobated, infect insidiously the public mind with a subtle poison, and produce the most mischievous and alarming consequences, by their tendency to anarchy, sedition and civil war. We cannot, consistently with our official duty, pronounce such conduct nonpunishable. The jury brought in a verdict of not guilty. See 4 Yeates, 267.*
* The paragraph for which Mr. Dennie was indicted, was as follows:
‘A democracy is scarcely tolerable at any period of national history. Its omens are always sinister, and its powers are unpropitious. With all the lights of experience blazing before our eyes, it is impossible not to discover the futility of this form of government. It was weak and wicked at Athens, it was bad in Sparta, and worse in Rome. It has been tried in France, and terminated In despotism. It was tried in England, and rejected with the utmost loathing and abhorrence. It is on trial here, and its issue will be civil war, desolation, and anarchy. No wise man but discerns its imperfections, no good man but shudders at its miseries, no honest man but proclaims its fraud, and no brave man but draws his sword against its force. The institution of a scheme of polity so radically contemptible and vicious, is a memorable example of what the villainy of some men may devise, the folly of others receive, and both establish in despite of reason, reflection, and sensation.’
There is nothing that can be said to excuse or palliate the public avowal and dissemination in this country, of such sentiments as those contained in the concluding part of the above paragraph, in italics. To publish them in periodical publications, seems almost as unjustifiable, as to attempt to overthrow a government with no better pretense, than that it cannot last. If the experiment is making, let it be made fairly.
Much of this writer’s paragraph is sophistical. Our form of government is not the same with the democracy of Athens, or that of Sparta, or that of Rome, and has never been tried either in France or England; and all arguments drawn from experience must fail, when the experiment has not yet been made.
It has been found to have imperfections, it is true; some of which have been remedied by peaceable and deliberate amendments. In other countries a political reform of any kind, has seldom if ever been obtained, without a.revolution, and not always, with one. Our frame of government has within itself a power to reform, without any danger to apprehend a civil war in consequence of it; which there is no reason to fear will ever take place, unless the constitution is either overstepped or violated.
In England it is held, that any person may discuss the proceedings of parliament, even after they have become final, and express doubts as to their wisdom and policy. See Holt on Libels, 135. The law is the same here; this freedom of speech and of the press, without doubt is the peculiar object of the protection of the provision, contained in the first amendment to the federal constitution.
So, it is lawful, with decency and candor to discuss the propriety of the verdict of a jury, or the decision of a judge. But, if the publication contains no reasoning or discussion, but only declamation and invective, and is written not with a view to elucidate the truth, but to injure the characters of individuals, and to bring into hatred and contempt the administration of justice in this country, they ought to be punished. See 1 Cowp. 359.
And generally, where any public grievance is exposed, whether by way of petition, remonstrance, &c., it seems, that any language, however strong, which is made use of to express the grievance, will be justifiable.
It is for the interests of literature, that a candid review of any literary work should not be esteemed libelous. Accordingly, in the case of Sir John Carr v. Hood, it was held to be no libel to expose a false literary taste, though by satire, burlesque, and ridicule. In that case it was held, that even a caricature of the author, as an author, and not as an individual, was not libelous; and the general doctrine was laid down, that no publication is a libel, which has for its object not to injure the reputation of any individual, but to correct misrepresentations of fact, to refute sophistical reasoning, to expose a vicious taste, or to censure what is hostile to morality. 1 Camp. 350, 354.
It may not be amiss to bear in mind, that a libel is a forfeiture of a bond for good behavior. 3 Yeates, 93.
Continued in CHAPTER V; Of the Rights of Juries.See the other parts of this series: RIGHTS OF AMERICAN CITIZENS: General Rights; Division One RIGHTS OF AMERICAN CITIZENS: General Rights; Division Two RIGHTS OF AMERICAN CITIZENS: General Rights; The Social Compact RIGHTS OF AMERICAN CITIZENS: The Powers delegated to the General Government in the Federal Constitution RIGHTS OF AMERICAN CITIZENS: Powers delegated to the State Governments RIGHTS OF AMERICAN CITIZENS: The Independence of the States RIGHTS OF AMERICAN CITIZENS: The rights reserved to the people of the United States RIGHTS OF AMERICAN CITIZENS: Of the right of suffrage and of elections RIGHTS OF AMERICAN CITIZENS: The Liberty of Speech and of the Press RIGHTS OF AMERICAN CITIZENS: The Power of Courts to punish for Contempts RIGHTS OF AMERICAN CITIZENS: The Law of Libel in relation to Public Officers RIGHTS OF AMERICAN CITIZENS: The Rights of Juries RIGHTS OF AMERICAN CITIZENS: The Rights of Witnesses RIGHTS OF AMERICAN CITIZENS: The mode of obtaining redress for infringement of civil or political rights