... required even to comprehend the other and higher merits of his original. We shall venture to recommend this exquisite specimen of Mr. Erskine's powers, by extracting a few passages almost at random. . . . After the passage just quoted, he contends (always taking care to protest against the innuendoes in every particular) that, though a man in the situation of the author should happen, in a long work, to use one or two intemperate expressions, he must not, on this account, be "subjected to infamy." "If," says he, "this severe duty were binding on your consciences, the liberty of the press would be but an empty sound; and no man could venture to write on any subject, however pure his purpose, without an attorney at one elbow and a counsel at the other." This leads to another of those highly wrought, and yet argumentative passages, which so eminently distinguish this oration: "From minds thus subdued by the terrors of punishment there could issue no works of genius to expand the empire of human reason, nor any masterly compositions on the general nature of government, by the help of which the great commonwealths of mankind have founded their establishments; much less any of those useful applications of them to critical conjunctures, by which, from time to time, our own constitution, by the exertions of patriot citizens, has been brought back to its standard. Under such errors all the great lights of science and civilization must be extinguished; for men cannot communicate their free thoughts to one another with a lash held over their heads. It is the nature of everything that is great and useful, both in the animate and inanimate world, to be wild and irregular,—and we must be contented to take them with the alloys which belong to them, or live without them. Genius breaks from the fetters of criticism, but its wanderings are sanctioned by its majesty and wisdom when it advances in its path:-subject it to the critic, and you tame it into dullness. Mighty rivers break down their banks in the winter, sweeping away to death the flocks which are fattened on the soil that they fertilize in the summer: the few may be saved by embankments from drowning, but the flock must perish for hunger. Tempests occasionally shake our dwellings, and dissipate our commerce; but they scourge before them the lazy elements, which without them would stagnate into pestilence. In like manner Liberty herself, the last and best gift of God to his creatures, must be taken just as she is; you might pare her down into bashful regularity, and shape her into a perfect model of severe scrupulous law; but she would then be Liberty no longer; and you must be content to die under the lash of this inexorable justice which you had exchanged for the banners of Freedom.” . . . 923. JAMES BRYCE. The American Commonwealth. (1888. Vol. II, Ch. LXXIX, pp. 232, 325.) Organs of Public Opinion. How does this vague fluctuating complex thing we call public opinion-omnipotent yet indeterminate, a sovereign to whose voice every one listens, yet whose words, because he speaks with as many tongues as the waves of a boisterous sea, it is so hard to catch-how does public opinion express itself in America? . . . The press, and particularly the newspaper press, is of course the chief organ of opinion. ... Newspapers are powerful in three ways-as narrators, as advocates, and as weathercocks. They report events, they advance arguments, they indicate by their attitude what those who conduct them and are interested in their circulation take to be the prevailing opinion of their readers. In the first of these regards the American press is the most active in the world. Nothing escapes it which can attract any class of readers. It does not even confine itself to events that have happened, but is apt to describe others which may possibly have happened, however slight the evidence for them; "pariter facta atque infecta canebat." . . . Journalists working under keen competition and in unceasing haste are disposed to take their chance of the correctness of the information they receive. Some harm there is, but probably more good. . . . If the heedlessness of the press sometimes causes pain to the innocent, it does a great and necessary service in exposing evil-doers, many of whom would escape, were it never to speak except upon sufficient evidence. It is a watch-dog whose noisy bark must be tolerated, even when the person who approaches has no bad intent. No doubt charges are so promiscuously and often so lightly made as to tell less than they would in a country where the law of libel was more frequently appealed to. . . . What struck me was that in America a leading article carries less weight of itself, being discounted by the shrewd reader as the sort of thing which the paper must of course be expected to say, and is effective only when it takes hold of some fact (real or supposed), and hammers it into the public mind. This is what the unclean politician has to fear. Mere abuse he does not care for, but constant references to and comments on misdeeds of which he cannot clear himself tell in the long run against him. ... ... ... Public opinion is a sort of atmosphere, fresh, keen, and full of sunlight, like that of the American cities, and this sunlight kills many of those noxious germs which are hatched where politicians congregate. That which, varying a once famous phrase, we may call the genius of universal publicity, has some disagreeable results, but the wholesome ones are greater and more numerous. Selfishness, injustice, cruelty, tricks, and jobs of all sorts shun the light; to expose them is to defeat them. No serious evils, no rankling sore in the body politic, can remain long concealed, and, when disclosed, it is half destroyed. . . . Opinion declares itself legally through elections. But opinion is at work at other times also, and has other methods of declaring itself. It secures full discussion of issues of policy and of the characters of men. It suffers nothing to be concealed. . . . It is the existence of such a public opinion as this, the practice of freely and constantly reading, talking, and judging of public affairs with a view to voting thereon, rather than the mere possession of political rights, that gives to popular government that educative and stimulative power which is so frequently claimed as its highest merit. 924. FRANCIS LIEBER. Manual of Political Ethics. (1875. 2d ed., Vol. I, p. 187.) . . . As, however, free utterance is an equally important right, and as society and consequently each individual has the greatest interest in free discussion, without which no advance in civilization is possible, it is exceedingly difficult to ascertain the precise limits between the two, and various nations have of course differed very materially upon this point. The following are some general rules: . . . The more an attack upon a man is directed against his capacity, skill, or performance of duty as the means of maintaining himself or acquiring property, the more it requires the action of the State. This is perhaps chiefly on the ground that the State shall protect my property and myself in the process of acquiring it. Yet the previous rule holds, that, if the charge carries its possible remedy with it, it does not so much, if at all, require public action. If a person charges a physician with being a quack, it is a serious attack; but if a reviewer says that a physician, in the reviewed book, has shown himself a quack, and gives the facts by which he thinks to support his charge, the same necessity does not exist. A professor of a university depends for support upon his capacity; but, if a person says he knows no more than his freshmen, he has ample means of proving the contrary. The more definite the charge, and the more it implies a crime or gross immorality, the more it requires to be repressed. It is a very serious charge against a whole cabinet of the English Crown that all the members are "shabby, silly, truckling, and fomenting revolt," as thousands of times the Melbourne administration were called; but what is "shabby, silly"? As to "fomenting revolt," their conduct is public, let them abide by it. But, when Mr. O'Connell publicly charged the Tory committees of the Commons with "foul perjury," they were right to take up the matter, if they felt a clear conscience. Had he stated at once why he charged them so, the case would not have been so urgent, according to the rule given, as the first.1 (1) Definite Public Interest 925. LAKE v. KING KING'S BENCH. 1668 1 Wms. Saund. 131 b ACTION upon the case for printing and publishing a scandalous libel of the plaintiff Lake, by the defendant King. The plaintiff declared that for the last six years he was a doctor of laws, and vicar general to the bishop of Lincoln throughout the whole diocese, in which office he had demeaned himself justly and uncorruptly, without any extortion, corruption, or oppression; yet the defendant on the first day of December, in the eighteenth year of the reign of the now King, caused to be printed and delivered, published and dispersed to divers subjects of our said lord the now King, a certain false, malicious, and scandalous libel of the plaintiff, in the execution of his office, in this form, viz., "To the honorable the committee of Parliament for grievances, the humble petition of Edward King, of Gray's Inn, in the county of Middlesex, esquire, showeth," etc. (and in fact the petition charged the plaintiff with many horrible and great abuses, such as extortion, oppression, vexation, and other misdemeanors in his office), whereas in truth (as the plaintiff averred) all the matter contained in the said libel was false and malicious, to the damage of the plaintiff, etc. The defendant pleaded in bar that the matter contained in the petition was true, and showed how in some particulars. Wherefore the defendant said that upon the last day of November, in the eighteenth year aforesaid, he caused to be written and engrossed the said petition in the said declaration specified, and delivered the said petition, containing the said matter as aforesaid, to a committee then and there constituted and appointed, by the Commons then and there assembled 1 [See also Sir J. F. Stephen, "History of the Criminal Law," III, Ch. 24, pp. 298-384.] in Parliament, to hear and examine the grievances of this realm of England, which said committee then and there had full power and authority to hear and examine grievances of this kind; by which said committee the said Edward Lake afterwards, to wit, on the same day and year, at Westminster aforesaid, was summoned to appear and give an account to the same committee of the matters contained in the said petition. And the said defendant further saith that he, for the better manifestation of the grievances contained in the said petition, afterwards, to wit, on the said first day of December, in the eighteenth year aforesaid, at Westminster aforesaid, caused the said petition to be printed, and then and there delivered the same to divers subjects of our lord the now King, being members of the said committee, according to custom used by others in that behalf, and approved of by the members of the said committee; which is the same printing, publishing, and dispersing of the writing, whereof the said plaintiff above now complains against him. And this, etc., wherefore, etc. To which plea the plaintiff demurred in law. And this case was oftentimes debated. And it was agreed that the exhibiting of the petition to a committee of Parliament was lawful, and that no action lies for it, although the matter contained in the petition was false and scandalous, because it is in a summary course of justice, and before those who have power to examine whether it be true or false. But the question was whether the printing and publishing of it, in the manner alleged by the defendant in his plea, was justifiable or not? And it was argued that it was not justifiable. For, if it were, then, under a pretense of proceeding in a course of justice, a libel might be printed, published, and dispersed of any man throughout the whole kingdom, and yet he should have no remedy; and, therefore, it was said that, although the exhibiting of the said petition was lawful, yet the printing of it was a publication of it to all the world, which is not lawful to be done in any case. And of such opinion KELYNGE, C. J., in his lifetime, seemed to be strongly. But TWYSDEN, J., was of a contrary opinion, because it is no more than if the defendant had employed several clerks to write as many copies as he has now printed. And after this case had depended twelve terms, now this term judgment was given for the defendant by HALE, C. J., TWYSDEN, and RAINSFORD, upon this point, namely, that it was the order and course of proceedings in Parliament to print and deliver copies, etc., whereof they ought to take judicial notice. Sir William Jones, counsel for the plaintiff, and Saunders, for the defendant. 926. THORN v. BLANCHARD COURT OF ERRORS OF NEW YORK. 1809 5 Johns. 508 THIS cause came before the Court on a writ of error from the Supreme Court. The present defendant in error brought an action for a libel, in the court below, against the plaintiff in error. . . The defendant pleaded not guilty, and the cause was tried the 27th of October, 1807, at the sittings in Albany, before Mr. Ch. J. Kent. At the trial, the defendant in error produced in evidence a petition signed by the plaintiff in error, and set forth in the declaration; and proved, by a clerk in the office of the secretary of state, that the same petition was found amongst the files of the Council of appointment, deposited in the secretary's office; and it was admitted, that the same petition, while the defendant in error was district attorney, was read in the Council of appointment, immediately preceding the plaintiff's removal. The petition is as follows: "To the honourable Council of appointment of the state of New York. We, the undersigned, inhabitants of the county of Washington, humbly represent, that the manner in which the public prosecutions have been managed by the present district attorney is highly improper. That, in our opinion, a number of indictments have been found by the influence of the district attorney, who, at the time, was actuated by improper motives. That malice towards some, and the emoluments arising from the public prosecutions in other cases, have given rise to many indictments. Your petitioners, therefore, pray, that Anthony I. Blanchard, the present district attorney, may be removed from that office." . . . The chief justice decided that the matters so produced and given in evidence on the part of Anthony I. Blanchard were sufficient to entitle him to maintain his action. . . . On the bill of exceptions the writ of error was brought. ... Russel, counsel for the plaintiff in error, stated two grounds, on which they contended the judgment below ought to be reversed. (1) Because the Council of appointment, to whom the petition was addressed, had competent power to examine the charges exhibited against the defendant in error; and that to address a petition to the Council of appointment for the removal of an officer, the tenure of whose office is during the pleasure of the Council, cannot be deemed libellous. (2) To constitute a libel, implied or express malice must be shown. . . The Council having competent authority to inquire into the truth of the charges, and redress the grievance complained of, it was incumbent on the defendant in error to have shown, on the trial, express malice; which not being done, the plaintiff in error was entitled to judgment. . . |