The publisher of a newspaper, however, even when responsible for all the actual damage which a party may suffer in consequence tion upon character, conduct, or motives. Torrey v. Field, 10 Vt. 353, Gilbert v. People, 1 Denio, 41; Hoar v. Wood, 3 Met. 193; Strauss v. Meyer, 48 Ill. 386; Johnson v. Brown, 13 W. Va. 71. But there are other cases in which the privilege is only prima facie and conditional; it exists so far as to rebut any legal presumption of malice, and constitutes a protection until actual malice is shown. It is therefore a privilege conditioned on the publication having been made with proper motives, but the proof of bad motives or, in other words, of malice in fact-must be made by the party who asserts it. Spill v. Maule, L. R. 4 Ex. 232; Shurtleff v. Stevens, 51 Vt. 501. Such a case is where a voter publicly criticises and condemns the character or conduct of a candidate for public honors; he has a right to do this, and is prima facie protected in his criticism; but if it is made to appear that his privilege is used as a cloak for groundless and malicious assaults, the protection ceases, because the reason on which it rests ceases. The privilege is the handmaid of good faith. "In the cases of qualified privilege, the duty to speak or publish is not imperative in the sense that a law is violated if it is not recognized; it may be a moral or social duty of imperfect obligation. Lord Campbell, Ch. J., in Harrison v. Bush, 5 E. & B. 344. Indeed, most cases of conditional privilege are cases in which a party may speak or abstain at his option; and if he speaks, it is because others desire and have a right to receive information on some subject which specially concerns them, or because in his opinion some moral, social, or political obligation demands it. The law imposes upon no citizen the duty to call the attention of the public to the maladministration of public affairs, or to the misconduct of public servants; but good citizenship may require him to speak, if his real motive in doing so is to bring about a reform of abuses, or to defeat the re-election or re-appointment of an incompetent officer. Palmer v. Concord, 48 N. H. 211, 216. And nothing is plainer than that to hold him to the strict and literal truth of every statement, recital, and possible inference would be to subject the right to conditions making any attempt at public discussion practically worthless. Lord Campbell has well shown in Harrison v. Bush, 5 El. & Bl. 344, and especially by his reference to the cases of Rex v. Baille, 21 State Trials, 1, and Fairman v. Ives, 5 B. & Ald. 642, that the law cherishes this right, and regards liberally its exercise for the public good, so that an honest mistake in seeking the proper remedy through the publication will not be suffered to constitute a ground for recovery. Chief Justice Parker thus states the true rule in State v. Burnham, 9 N. H. 34, 41: If the end to be attained is justifiable; as, if the object is the removal of an incompetent officer, or to prevent the elec tion of an unsuitable person to office, or, generally, to give useful information to the community or to those who have a right and ought to know, in order that they may act upon such information, the occasion is lawful, and the party may then justify or excuse the publication.' Still more comprehensive is the language of the trial judge in Kelly v. Sherlock, L. R. 1 Q. B. 686, 689: Every man has a right to discuss matters of public interest. A clergyman with his flock, an admiral with his fleet, a general with his army, and a judge with his jury, we are all of us the subjects for public discussion. So also is it matter of public interest, the dispute between the plaintiff [a clergyman] and his organist, and the way in which a church is used: they are all public matters, and may be publicly discussed. And provided a man, whether in a newspaper or not, publishes a comment on a matter of public interest, fair in tone, and temperate, although he may express opinions that you may not agree with, that is not a subject for an action for libel; because whoever fills a public position renders himself open to public discussion, and if any part of his public acts is wrong, he must accept the attack as a necessary though unpleasant circumstance attaching to his position. In this country, everything, either by speech or writing, may be discussed for the benefit of the public.' This strong language is approved in Kelly v. Tinling, of injurious publications in his paper, cannot properly be made liable for exemplary or vindictive damages, if the article com L. R. 1 Q. B. 699; and in Henwood v. Harrison, L. R. 7 C. P. 606, 622, the principle is declared to be a universal one, that the public convenience is to be preferred to private interests, and that communications which the interests of society require to be unfettered may freely be made by persons acting honestly without actual malice, notwithstanding that they involve relevant comments condemnatory of individuals.' The same principle is found in Toogood v. Spyring, 1 C. M. & R. 181; Whitely v. Adams, 15 C. B. (N. s.) 417; Gott v. Pulsifer, 122 Mass. 235; Mc Bee v. Fulton, 47 Md. 403; Shurtleff v. Stevens, 51 Vt. 501. [And after recapitulating the facts]: "There is no room for plausible sug gestion that these matters were not of public concern. The Detroit Board of Trade is a public institution, in the sense that it challenges public confidence by giving assurances that it is composed of individuals whose business integrity is known and undoubted. The public had reason to trust and confide in Clark, because he had been accepted as a suitable and proper member for this body; and reason is found in this record for the belief that his associates trusted him because he had won their confidence, and not because of any actual responsibility. It is as important to the city of Detroit that it should have an honorable and trustworthy board of trade - - a board that would reject and spurn association with one known or believed to be unreliable and dishonest as it is that it should have a trustworthy mayor or controller, or police authorities or other public functionaries. The business prosperity of a commercial city must depend quite as largely upon the honor and integrity of its commercial classes as upon the character of its political rulers; and confidence in these must cease unless fraud, when it appears, can be publicly rebuked. The defendant is publisher of a daily journal, established to give the facts of important current events, and to discuss, for the information and instruction of its readers, public affairs. This case affords neither occasion nor excuse for any general discussion of the liberty of the press in giving news; what was done here might have been done by any individual in a pamphlet under the same privilege that protects a newspaper. Nor has the fact that the liberty of the press is frequently and most grossly abused any relevancy in this case; we are concerned only with the question whether the liberty of public discussion was abused in the particular case. The conductors of the defendant's paper, in the regular course of their business, had had brought to their attention the facts of a transaction which no one ventures to defend. This transaction in its direct consequences was calculated to defraud a number of persons of considerable sums of money; in its indirect consequences it was likely to disturb the prevailing confidence in an important public institution, and to injure the business reputation of the city. They investigated the case, and laid the results before the public. No doubt they might have used more carefully-guarded language, and avoided irritating head lines; but in a case of palpable fraud, which this seemed to be and was, something must be excused to honest indignation; for the beneficial ends to be subserved by public discussion would, in large measure, be defeated if dishonesty must be handled with delicacy, and fraud spoken of with such circumspection and careful and differential choice of words as to make it appear in the discussion a matter of indifference. It is complained that the paper followed its first publication with a review of the whole case a week after it was all settled; but this review was quite as proper as the first notice. No settlement could relieve the case of its worse aspects. If Clark had repented before he left Windsor, and had followed his money in its remarkable journey, by hack and sail-boat, on foot and in carriage, and recovered it for the use of his creditors, he ought still to have been brought to the bar of public opinion to be dealt with for his extraordinary conduct whereby a considerable percentage of his assets had already been wasted. Mott v. Dawson, 46 Iowa, 533. The defendant's paper would have been unworthy of the confidence and support plained of was inserted in his paper without his personal knowledge, and he has been guilty of no negligence in the selection of agents, and no personal misconduct, and is not shown habitually to make his paper the vehicle of detraction and malice.1 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 of commercial men if its conductors had shut their eyes to such a transaction. If the plaintiff was not in fault, then it was his misfortune that it was impossible to deal with the case without bringing him into the discussion. "The communication in this case being privileged, and there being in its terms no manifest abuse of the privilege, it was incumbent on the plaintiff to give some evidence of malice before he was entitled to ask a verdict in his favor. Taylor v. Hawkins, 16 Q. B. 308, 321; Henwood v. Harrison, L. R. 7 C. B. 606. The case therefore failed to be made out. If such a discussion of a matter of public interest were prima facie an unlawful act, and the author were obliged to justify every statement by evidence of its literal truth, the liberty of public discussion would be unworthy of being named as a privilege of value. It would be better to restore the censorship of a despotism than to assume to give a liberty which can only be accepted under a responsibility that is always threatening, and may at any time be ruinous. A caution in advance after despotic methods would be less objectionable than a caution in damages after, in good faith, the privilege had been exercised. No public discussion of important matters involving the conduct and motives of individuals could possibly be at the same time valuable and safe under the rules for which the plaintiff contends. It is a plausible suggestion that strict rules of responsibility are essential to the protection of reputation; but it is most deceptive, for every man of common discernment, who observes what is taking place around him, and what influences control public opinion, cannot fail to know that reputation is best protected when the press is free. Impose shackles upon it and the protection fails when the need is greatest. Who would venture to expose a swindler or a blackmailer, or to give in detail the facts of a bank failure or other corporate defalcation, if every word and sentence must be uttered with judicial calmness and impartiality as between the swindler and his victims, and every fact and every inference be justified by unquestionable legal evidence? The undoubted truth is that honesty reaps the chief advantages of free discussion; and fortunately it is honesty also that is least liable to suffer serious injury when the discussion incidentally affects it unjustly." And see Miner v. Detroit Post & Tribune, 49 Mich. 358. Daily Post Co. v. McArthur, and Detroit Free Press v. Same, 16 Mich. 447; Perret v. New Orleans Times, 25 La. Ann. 170; Scripps v. Reilly, 35 Mich. 371; Same v. Same, 38 Mich. 10; Evening News v. Tryon, 42 Mich. 529; s. c. 36 Am. Rep. 450. A statutory provision that in actions against newspapers only actual damages to property, business, &c., should be recovered, if the publication was in good faith and did not involve a criminal charge, and if, as soon as possible, a correction was published, is bad; a class of citizens cannot be thus favored nor can damages be thus limited. Park v. Detroit Free Press Co., 40 N. W. Rep. 731 (Mich.). But a like statute has been upheld in Minnesota. Allen v. Pioneer Press Co., 40 Minn. 117. 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 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 was 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 more 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.2 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." 1 Rex v. Lord Abington, 1 Esp. 226. 2 Rex v. Creevey, 1 M. & S. 273, 278. 8 Stat. 3 and 4 Victoria, c. 9. The case was that of Stockdale v. Hansard, very fully reported in 9 Ad. & El. 1. See also 11 Ad. & 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 rep resentative 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 recov ered. 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, com pelled by attachments from the Queen's Bench to pay it over to Stockdale. 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 It has been intimated, however, that what a representative is privileged to address to the house of which he is a member, he is also privileged to address to his constituents; and that the bona fide publication for that purpose of his speech in the house is protected. And the practice in this country 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, "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 contests 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 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. A substantially correct report of an open meeting of a town council is privileged. Wallis v. Bazet, 34 La. Ann. 131. 1 Lives of Chief Justices, by Lord Campbell, Vol. III. p. 167; Davison v. Duncan, 7 El. & Bl. 229, 233. |