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the truth of charges against private character before they are published and circulated throughout the community. a
The legislature of the state of New York in the year 1854 enacted a statute in some degree modifying the common law as above laid down in regard to newspaper publications, b as follows: "No reporter, editor or proprietor of any newspaper, shall be liable to any action or prosecution, civil or criminal, for a fair and true report in such newspaper, of any judicial, legislative, or other public official proceedings of any statement, speech, argument, or debate in the course of the same, except upon actual proof of malice in making such reports, which shall in no case be implied from the fact of the publication. § 2. Nothing in the preceding section contained shall be so construed as to protect any such reporter, editor or proprietor from an action or indictment for any libellous comments or remarks superadded to, and interspersed or connected with such report."
Some very sensible reasons for a modification of the common law as it regards the publishers of newspapers, may be found in the views of Judge Cooley in his work under the head of "Liberty of Speech and of the Press." c He says, "Among the inventions of modern times by which the world has been powerfully influ enced, and civilization advanced with wonderful celerity, must be classed the newspaper. Beginning with a small sheet, insignificant alike in manner and appearance, published at considerable intervals, and including but few in its visits, it has become the daily vehicle to almost every family in the land, of information from all quarters of the globe, and upon every subject. Through it, and by means of the electric telegraph, the public proceedings of every civilized country, the debates of the leading legislative bodies, the events of war, the triumphs of peace, the storms in the physical world, and the agitation of the moral and mental, are brought home to the knowledge of every reading person, and, to a very large extent, before the day is over on which the events have taken place. And not public events merely are discussed and described, but the actions and words of public men are made public
a Mapes v. Weeks, 4 Wend. 659; Inman v. Foster, 8 Wend. 602.
b Sess. Laws 1854, Ch. 130.
c Cooley, pp. 451-2.
property; and any person sufficiently notorious to become the object of public interest, will find his movements chronicled in this index of the times."
"Every party has its newspaper organs; every shade of opinion on political, religious, literary, moral, industrial, or financial questions has its representative; every locality has its press to advocate its claims, and advance its interests, and even the days regarded as sacred, have their special papers to furnish reading. suitable for the time. The newspaper is also the medium by means of which all classes of the people communicate with each other concerning their wants and desires, and through which they offer their wares, and seek bargains. As it has gradually increased in value, and in the extent and variety of its contents, so the exactions of the community upon its conductors have also increased, until it is demanded of the newspaper publisher, that he shall daily spread before its readers, a complete summary of the events transpiring in the world, public or private, so far as those readers can reasonably be supposed to take an interest in them; and he who does not comply with this demand must give way to him who will.”
The newspaper is one of the chief means for the education of the people. The highest and the lowest in the scale of intelligence resort to its columns for information; it is read by those who read nothing else, and the best minds of the age make it the medium of communication with each other on the highest and most abstruse subjects. Upon politics it may be said to be the chief educator of the people; its influence is potent in every legislative body; it gives tone and direction to public sentiment on each important subject as it arises; and no administration in any free country ventures to overlook or disregard an element as pervading in its influence, and withal so powerful.
And yet it may be doubted if the newspaper, as such, has ever influenced at all the current of the common law in any particular, important to the interests of the publishers. The railway has become the successor of the king's highway, and the plastic rules of the common law have accommodated themselves to the new condition of things; but the changes accomplished by the public press, seem to have passed unnoticed in the law, and save only,
where modifications have been made by constitution or statute, the publisher of the daily paper occupies to-day the position in the courts that the village gossip and retailer of scandal occupied two hundred years ago; with no more privilege and no more protection.
The rule as to the privilege of publication does not seem to be changed when the publication is that of legislative proceedings. Doubtless a member of congress or of the state legislature has a right to publish his speech, but it is upon his own responsibility, and at his own peril if he makes that speech and its publication a vehicle of slander, or a libel against an individual. a To speak in the legislative body, he is protected by the constitution, privileged to say what he will, but he must stop then, if the speech contains libellous matter. If he chooses to publish it abroad, other than for the use of the body of which he is a member, his constitutional privilege has ceased, and he may for that be convicted and fined, for the libel, and be held amenable to the citizen whose character has been traduced. b Whether the publicity given to speeches made in congress by publishing them by order of that body in the Globe, is privileged, has not yet, it seems, been tested by judicial decision. It is exceedingly doubtful whether or not a libel so published would be privileged.
FREE EXERCISE OF RELIGIOUS OPINION.
Upon no subject which calls for the exercise of the human mind is man found to be so incapable of exercising an unprejudiced judgment, as in that of his religious opinions. Prejudices is always incapable of perceiving or of estimating truth. The history of the persecutions in bigoted governments of other days, was a sufficient ground for providing this constitutional security. Neither force or violence, but reason and conviction, should dictate to us the religion, or duty, we owe to our Creator, as well as the manner of discharging it. In vain therefore may the civil magistrate interpose the authority of human laws, to prescribe that belief, or produce that conviction, which human reason rejects; in vain may the secular arm be extended, the rack stretched, and the flames kindled, a King v. Abingdon, 1 Eshmasse, 226.
6 Rex v. Creevy, 1 M. & S. 278.
to realize the tortures denounced against unbelievers by all the various sects of the various denominations of fanatics and enthusiasts throughout the earth. The martyr at the stake, glories in his tortures, and proves that though human laws can punish, they cannot convince. The pretext of religion, and the pretences of sanctity and humility, have been employed throughout the world as the most direct means of gaining influence and power, and have all failed to accomplish that end. Hence, as we learn from history, the numberless martyrdoms, and massacres that have drenched the whole earth with blood, from the first moment that civil and religious institutions were blended together. To separate these institutions by constitutional barriers that can never be overcome, is the only means by which our duty to God; the peace of mankind; and the genuine fruits of charity and paternal love, can be preserved, or properly discharged. This constitutional prohibition, therefore, may be regarded, as the most powerful cement of the federal government. Those who prize the union of the states, will never attempt to touch this fundamental article with unhallowed hands. "The ministry of the unsanctified sons of Aaron, in their unhallowed doing, scarcely produced a flame more sudden and more destructive, than such an attempt would inevitably excite." a
Nor can it be charged that this article, was the result of a feeling of infidelity, or want of respect to the sanctions of religion, on the part of the patriot fathers who prepared it. "Indeed, in a republic, there would seem to be a peculiar propriety in viewing the christian religion, as the great basis on which it must rest for its support and permanence. It may be regarded as above all others, the religion of liberty." b Montesquieu has remarked, that the christian religion is a stranger to mere despotic power. The mildness so frequently recommended in the gospel, is incompatible with the despotic rage with which a prince punishes his subjects and exercises himself in cruelty.c It is the christian religion, that in spite of the extent of the empire, and the influence of the climate, has hindered despotic power from being established in Ethiopia, and has carried into the heart of Africa the manners and laws of Europe. d Citizens professing to believe in the christian religion, a Id. b 2 Story on Const. § 1783. c Montesquieu's Spirit of Laws, B. 24 Ch. 3.
are infinitely more enlightened as to the various duties of life; having the warmest zeal to fulfill them. The more they believe themselves indebted to religion, the more they recognize the duties they owe to their country. The principles of christianity when deeply engraven on the heart, are far more powerful than the influence of the false honor of monarchy, the human virtues of a republic, or the servile fear of a despotism. "The rights of conscience, however," says Judge Story, a "are, indeed beyond the just reach of any human power. They are given by God, and cannot be encroached upon by human authority, without a criminal disobedience to the precepts of natural, as well as revealed religion."
"This amendment," he says, "cut off the means of religious persecution (the vice and pest of former ages,) and of the subversion of the rights of conscience in matters of religion, which had been trampled upon, almost from the days of the Apostles, to the present age. The history of the parent country, had afforded the most solemn warnings and melancholy instructions on this head; and even New England, the land of persecuted puritans as well as other colonies where the Church of England had maintained its superiority, would furnish out a chapter as full of the darkest bigotry and intolerance, as any which could be found to disgrace the pages of foreign annals. Apostacy, heresy, and nonconformity, had been standard crimes for public appeals, to kindle the flames of persecution, and to apologize for the most attrocious triumphs over innocence and virtue." b
"It was under a solemn consciousness of the danger from ecclesiasticle ambition, the bigotry of the spiritual pride, and the intolerance of sects, thus exemplified in our domestic, as well as foreign annals, that it was deemed advisable to exclude from the national government, all power to act upon the subject. The situation too, of the different states, equally proclaimed the policy, as well as the necessity, of such an exclusion." c
Perhaps the constitutional provision of the state of New York on this subject, is, as an epitome, as sound a commentary as can
a 2 Story on Const. § 1876.
b Id. § 1877, Vol. 1 §§ 53, 72, 73; 4 Black. Com. 43-59.
c 2 Story on Const. § 1789; Elliot's Debates. 195-197.