If this strong condemnatory language were confined to the cases where private character is dragged before the public for detraction and abuse, to pander to a depraved appetite for scandal, its propriety and justice and the force of its reasons would be at once. conceded. But a very large proportion of what the newspapers spread before the public relates to matters of public concern, but in which, nevertheless, individuals figure, and must therefore be mentioned in any account. To a great extent, also, the information comes from abroad; the publisher can have no knowledge concerning it, and no inquiries which he could make would be likely to give him more definite information, unless he delays the publication until it ceases to be of value to his readers. Whatever view the law may take, the public sentiment does not brand the publisher of a newspaper as libeller, conspirator, or villain, because the telegraph despatches transmitted to him from all parts of the world, without any knowledge on his part concerning the facts, are published in his paper, in reliance upon the prudence, care, and honesty of those who have charge of the lines of communication, and whose interest it is to be vigilant and truthful. The public demand and expect accounts of every important meeting, of every important trial, and of all the events which have a bearing upon trade and business, or upon political affairs. It is impossible that these shall be given in all cases without matters being mentioned derogatory to individuals; and if the question were a new one in the law, it might be worthy of inquiry whether some line of distinction could not be drawn which would protect the publisher when giving in good faith such items of news as would be proper, if true, to spread before the public, and which he gives in the regular course of his employment, in pursuance of a public demand,

and without any negligence, as they come to him from the [* 455] * usual and legitimate sources, which he has reason to rely upon; at the same time leaving him liable when he makes his columns the vehicle of private gossip, detraction, and malice.

especial rights and privileges. The law recognizes no such peculiar rights, privileges, or claims to indulgence. They have no rights but such as are common to all. They have just the same rights that the rest of the community have, and no They have the right to publish the truth, but no right to publish falsehood to the injury of others with impunity." Instructions approved in Sheckell v. Jackson, 10 Cush. 26. And see Palmer v. Concord, 48 N. H. 216.

more.

The question, however, is not new, and the authorities have generally held the publisher of a paper to the same rigid responsibility with any other person who makes injurious communications. Malice on his part is conclusively inferred, if the communications are false. It is no defence that they have been copied with or without comment from another paper; or that the source of the information was stated at the time of the publication; 2 or that the publication was made in the paper without the knowledge of the proprietor, as an advertisement or otherwise; or that it consists in a criticism on the course and character of a candidate for public office; or that it is a correct and impartial account of a

8

1 Hotchkiss v. Oliphant, 2 Hill, 510. Even though they be preceded by the statement that they are so copied. Sanford v. Bennett, 24 N. Y. 20. Dole v. Lyon, 10 Johns. 447; Mapes v. Weeks, 4 Wend. 659; Inman v. Foster, 8 Wend. 602; Hotchkiss v. Oliphant, 2 Hill, 514. 3 Andres v. Wells, 7 Johns. 260; Huff v. Bennett, 4 Sandf. 120; s. c. 6 N. Y. 337; Marten v. Van Schaick, 4 Paige, 479; Commonwealth v. Nichols, 10 Met. 259.

4 King v. Root, 4 Wend. 113. The action was for a libel, published in the "New York American," reflecting upon Root, who was candidate for lieutenantgovernor. We quote from the opinion of the chancellor: "It is insisted that this libel was a privileged communication. If so, the defendants were under no obligation to prove the truth of the charge, and the party libelled had no right to recover, unless he established malice in fact, or showed that the editors knew the charge to be false. The effect of such a doctrine would be deplorable. Instead of protecting, it would be destroying the freedom of the press, if it were understood that an editor could publish what he pleased against candidates for office, without being answerable for the truth of such publications. No honest man could afford to be an editor, and no man who had any character to lose would be a candidate for office under such a construction of the law of libel. The only safe rule to adopt in such cases is to permit editors to publish what they please in relation to the character and qualifications of candidates for office, but holding them responsible for the truth of what they publish." Notwithstanding the deplorable consequences here predicted from too great license to the press, it is matter of daily observation that the press, in its comments upon public events and public men, proceeds in all respects as though it were privileged ; public opinion would not sanction prosecutions by candidates for office for publications amounting to technical libels, but which were nevertheless published without malice in fact; and the man who has a "character to lose " presents himself for the suffrages of his fellow-citizens in the full reliance that detraction by the public press will be corrected through the same instrumentality, and that unmerited abuse will react on the public opinion in his favor. Meantime the press is gradually becoming more just, liberal, and dignified in its dealings with political opponents, and vituperation is much less common, reckless, and bitter

[* 456] public meeting, or of any proceedings in which the public have an interest, unless they were legislative or judicial in their character, and where both parties had [* 457] opportunity to be heard.2 Criticisms on works of art and literary productions are allowable, if fair, reasonable, and

now than it was at the beginning of the century, when repression was more often resorted to as a remedy.

66

1 Dawson v. Duncan, 7 El. & Bl. 229.

2 Sanford v. Bennett, 24 N. Y. 20. Bennett was sued for publishing in the “New York Herald " the speech of a person convicted of murder, made upon the scaffold as he was about to be executed, and reflecting upon the counsel who had defended him. The principal question in the case was, whether a statute of the State, passed after the publication but before the trial, was applicable. The statute privileged any fair and true report in a newspaper, of a judicial, legislative, or other public official proceeding, or statement, speech, argument, or debate in the course of the same. The court held the statute not applicable, both because it was not retrospective in its provisions, and therefore could not apply to publications previously made, and also because this was not any such proceeding as the statute contemplated. Upon the question whether the publication was not privileged, independent of the statute, Denio, J., says: “The want of legal connection between the words spoken and the proceeding which was going forward at the same time and place, which has led me to the conclusion that the statute does not apply, shows that it is not within the reason upon which the common-law rule is based. That rule assumes that the public may have a legitimate interest in being made acquainted with the proceedings of courts of justice and of legislative bodies. The free circulation of such intelligence is of vast advantage in every country, and particularly here, where all reforms in legal or administrative polity must proceed from the people at large. But neither the reason of the rule, nor, as I believe, the rule itself, has any application to a proceeding in which neither forensic debate nor legislative or administrative deliberations or determinations have any place. Where the proceeding is a mere act, with which neither oral nor written communications have any thing more than an accidental or fortuitous connection, there is no room for the application of the doctrine of privilege to whatever may be spoken or written at the time and place where and when it is transpiring. Such transactions are subject to be reported, described, and published in newspapers or otherwise, like other affairs in which individuals and communities feel a curiosity, and with the same liability attaching to the publisher to answer for any injury which may happen to the character of individuals if, in the course of such publications, libellous imputations are applied to any one. It is of course perfectly lawful to publish all the circumstances attending a public execution, including the dying speech of the malefactor; but it is a necessary condition of that right, that if scandalous imputations are used by the culprit or any one else which are untrue, he who publishes them afterwards must be responsible for the wrong and injury thereby occasioned to the person attacked." Mason, J., in the same case gives a reason for concurring in the conclusion of the court, which seems to us to possess some force, independent of

temperate; but the artist or author is not to be criticised through his works, and his personal character is not made the property of the public by his publications. For further privilege it would seem that publishers of news must appeal to the protection of public opinion, or they must call upon the legislature for such modification of the law as may seem important to their just protection.

The publisher of a newspaper, however, though responsible for all the actual damage which a party may suffer in consequence of injurious publications in his paper, cannot properly be made liable for exemplary or vindictive damages, where the article complained of was inserted in his paper without his personal knowledge, and he has been guilty of no negligence in the selection of agents, or of personal misconduct, and is not shown habitually to make his paper the vehicle of detraction and malice.2

Publication of Legislative Proceedings.

Although debates, reports, and other proceedings in legislative bodies are privileged, it does not seem to follow that the publication of them is always equally privileged. The English decisions do not place such publications on any higher ground of right than any other communication through the public press. A member of Parliament, it is said, has a right to publish his speech, but it must not be made the vehicle of slander against any individual, and if it is, it is a libel. And in another case: "A member of the question of privilege. It is that the provisions of law then in force, requir ing capital executions to be within the walls of the prison, or in an adjoining enclosure, and excluding all spectators with limited exceptions, must be regarded as indicating a legislative policy adverse to the publicity of what passes on such occasions.

The libel suits brought by J. Fenimore Cooper may be usefully consulted in this connection. Cooper v. Stone, 24 Wend. 434; Cooper v. Barber, 24 Wend. 105; Cooper v. Greeley, 1 Denio, 347; Stone v. Cooper, 2 Denio, 293. As to criticisms on public entertainments, see Fry v. Bennett, 5 Sandf. 54, and 28 N. Y. 324; Dibdin v. Swan, 1 Esp. 28; Green v. Chapman, 4 Bing. (N. C.) 92. As to how far sermons, preached, but not otherwise published, form a proper subject for comment and criticism by the public press, see Gathercole v. Miall, 15 M. & W. 318.

2 Daily Post Co. v. McArthur, and Detroit Free Press v. Same, 16 Mich. 447.

3 Rex v. Lord Abington, 1 Esp. 226. In this case the defendant was fined, imprisoned, and required to find security for his good behavior, for a libel contained in a speech made by him in Parliament, and afterwards published.

[* 458] [* the House of Commons] has spoken what he thought material, and what he was at liberty to speak, in his character as a member of that house. So far he is privileged; but he has not stopped there, but, unauthorized by the house, has chosen to publish an account of that speech, in what he has pleased to call a corrected form, and in that publication has thrown out reflections injurious to the character of an individual." And he was convicted and fined for the libel.1

The circumstance that the publication was unauthorized by the house was alluded to in this opinion, but the rule of law would seem to be unaffected by it, since it was afterwards held that an order of the house directing a report made to it to be published did not constitute any protection to the official printer, who had published it in the regular course of his duty, in compliance with such order. All the power of the house was not sufficient to protect its printer in obeying the order to make this publication ; and a statute was therefore passed to protect in the future persons publishing parliamentary reports, votes, or other proceedings, by order of either house.2

Rex v. Creevey, 1 M. & S. 278.

2 Stat. 3 and 4 Victoria, c. 9. The case was that of Stockdale v. Hansard, very fully reported in 9 Al. & El. 1. See also 11 Al. & El. 253. The Messrs. Hansard were printers to the House of Commons, and had printed by order of that house the report of the inspectors of prisons, in which a book, published by Stockdale, and found among the prisoners in Newgate, was described as obscene and indecent. Stockdale brought an action against the printers for libel, and recovered judgment. Lord Denman, presiding on the trial, said that “the fact of the House of Commons having directed Messrs. Hansard to publish all their parliamentary reports is no justification for them, or for any bookseller who publishes any parliamentary report containing a libel against any man." The house resented this opinion and resolved, "that the power o publishing such of its reports, votes, and proceedings as it shall deem necessary or conducive to the public interests is an essential incident to the constitutional functions of Parliament, more especially of this house as the representative portion of it." They also resolved that for any person to institute a suit in order to call its privileges in question, or for any court to decide upon matters of privilege inconsistent with the determination of either house, was a breach of privilege. Stockdale, however, brought other actions, and again recovered. When he sought to enforce these judgments by executions, his solicitor and himself were proceeded against for contempt of the house, and imprisoned. While in prison, Stockdale commenced a further suit. The sheriffs, who had been ordered by the House of Commons to restore the money which they had collected, were, on the other hand, compelled by attachments from the Queen's Bench to pay it over to Stock