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

3

the question of privilege. It is that the provisions of law then in force, requiring 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.

Rex p. 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 of 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

*It has been intimated, however, that what a representa- [* 459] tive is privileged to address to the house of which he is a member, he is also privileged to address to his constituents; and

dale. In this complicated state of affairs, the proper and dignified mode of relieving the difficulty by the passage of a statute making such publications privileged for the future was adopted. For an account of this controversy, in addition to what appears in the law reports, see May, Law and Practice of Parliament, 156–159, 2d ed.; May, Constitutional History, c. 7. A case in some respects similar to that of Stockdale v. Hansard is that of Popham v. Pickburn, 7 Hurl. & Nor. 891. The defendant, the proprietor of a newspaper, was sued for publishing a report made by a medical officer of health to a vestry board, in pursuance of the statute, and which reflected severely upon the conduct of the plaintiff. The publication was made without any comment, and as a part of the proceedings of the vestry board. It was held not to be privileged, notwithstanding the statute provided for the publication of the report by the vestry board, which, however, had not yet been made. Wilde, B., delivering the opinion of the court, said: "The defendant has published that of the plaintiff which is undoubtedly a libel, and which is untrue. He seeks to protect himself on the ground that the publication is a correct report of a document read at a meeting of the Clerkenwell vestry, which document must have been published and sold at a small price by the vestry in a short time. But we are of opinion this furnishes no defence. Undoubtedly the report of a trial in a court of justice in which this document had been read would not make the publisher thereof liable to an action for libel, and reasonably, for such reports only extend that publicity which is so important a feature of the administration of the law in England, and thus enable to be witnesses of it not merely the few whom the court can hold, but the thousands who can read the reports. But no case has decided that the reports of what takes place at the meeting of such a body as this vestry are so privileged; indeed the case eited in the argument [Rex v. Wright, 8 T. R. 293] is an authority that they are not. Then, is the publication justified by the statute? It is true that the document would have been accessible to the public in a short time, though not published by the defendant; but this cannot justify his anticipating the publication, and giving it a wider circulation, and possibly without an answer which the vestry might have received in some subsequent report or otherwise, and which would then have been circulated with the libel. This defence therefore fails.

"It was further contended that this libel might be justified as a matter of public discussion on a subject of public interest. The answer is: This is not a discussion or comment. It is the statement of a fact. To charge a man incorrectly with a disgraceful act is very different from commenting on a fact relating to him truly stated; there the writer may, by his opinion, libel himself rather than the subject of his remarks.

"It is to be further observed that this decision does not determine or affect the question whether, after the statutory publication, it might or might not be competent to others to republish these reports, with or without reasonable comments."

that the bona fide publication for that purpose of his speech in the house is protected. And the practice in this country [* 460] appears to proceed on this idea; the speeches and proceedings in Congress being fully reported by the press, and the exemption of the member from being called to account for his speech being apparently supposed to extend to its publication also. When complete publicity is thus practised, perhaps every speech published should be regarded as addressed bona fide by the representative, not only to the house, but also to his constituents. But whether that view be taken or not, if publication is provided for by law, as in the case of Congressional debates, the publishing must be considered as privileged.

The Jury as Judges of the Law.

In a considerable number of the State constitutions it is provided that, in prosecutions for libel, the jury shall have a right to determine the law and the fact. In some it is added, 66 as in other cases;" in others, "under the direction of the court." For the necessity of these provisions we must recur to the rulings of the English judges in the latter half of the last century, and the memorable contest in the courts and in Parliament, resulting at last in the passage of Mr. Fox's Libel Act, declaratory of the rights of juries in prosecutions for libel.

In the year 1770, Woodfall, the printer of the "Morning Advertiser," was tried before Lord Mansfield for having published in his paper what was alleged to be a libel on the king; and his lordship told the jury that all they had to consider was, whether the defendant had published the paper set out in the information, and whether the innuendoes, imputing a particular meaning to particular words were true, as that "the K" meant his Majesty King George III.; but that they were not to consider whether the publication was, as alleged in the information, false and malicious, those being mere formal words; and that whether the letter was libellous or innocent was a pure question of law, upon which the opinion of the court might be taken by a demurrer, or a motion in arrest of judgment. His charge obviously required the jury, if

1 Lives of Chief Justices, by Lord Campbell, Vol. III. p. 167; Davison v. Duncan, 7 El. & Bl. 229, 233.

satisfied the publication was made, and had the meaning attributed to it, to render a verdict of guilty, whether they believed the publication false and malicious or not; in other words, to convict the party of guilt, notwithstanding they might believe the essential element of criminality to be wanting. The jury, dissatisfied with these instructions, and unwilling to make their verdict

cover * matters upon which they were not at liberty to [* 461] exercise their judgment, returned a verdict of "guilty of printing and publishing only," but this the court afterwards rejected as ambiguous, and ordered a new trial.1

In Miller's case, which was tried the same year, Lord Mansfield instructed the jury as follows: "The direction I am going to give you is with a full conviction and confidence that it is the language of the law. If you by your verdict find the defendant not guilty, the fact established by that verdict is, he did not publish a paper of that meaning; that fact is established, and there is an end of the prosecution. You are to try the fact, because your verdict establishes that fact, that he did not publish it. If you find that, according to your judgment, your verdict is final, and if you find it otherwise, it is between God and your consciences, for that is the basis upon which all verdicts ought to be founded; then the fact finally established by your verdict, if you find him guilty, is, that he printed and published a paper of the tenor and of the meaning set forth in the information; that is the only fact finally established by your verdict; and whatever fact is finally established never can be controverted in any shape whatever. But you do not by that verdict give an opinion, or establish whether it is or not lawful to print or publish a paper of the tenor and meaning in the information; for, supposing the defendant is found guilty, and the paper is such a paper as by the law of the land may be printed and published, the defendant has a right to have judgment respited, and to have it carried to the highest court of judicature." 2

Whether these instructions were really in accordance with the law of England, it would be of little importance now to inquire. They were assailed as not only destructive to the liberty of the

1 20 State Trials, 895.

220 State Trials, 870. For an account of the raising of the same question in Pennsylvania, so early as 1692, see The Forum, by David Paul Brown, Vol. I. p. 280.