THE ALBANY LAW JOURNAL: A WEEKLY RECORD OF THE LAW AND THE LAWYERS. A The Albany Law Journal. ALBANY, JULY 7, 1888. CURRENT TOPICS. N esteemed correspondent sends a communication on libel, based on an article in a Rochester newspaper, copying and approving some views of the Michigan newspapers on the subject, reinforced by the opinions of the Tribune, Buffalo Express, Chicago News, etc. Our correspondent is too long and too mealy-mouthed to suit us, and he takes the matter too seriously, wasting a good deal of ink and time in demonstrating what the present wise and well settled law of libel is. It seems that the Michigan newspapers, to the number of seven hundred, have formed a conspiracy to boycott every candidate for the legislature who will not pledge himself unequivocally to advocate the adoption of amendments to cover the following requisitions: "1. The fact of publication shall not in itself create the presumption of malice. 2. The word 'malice' shall be restricted to its plain, common and obvious meaning, and shall cease to be the cover and ambush of legal fictions. 3. Malice, in the sense of a desire or design to commit injury, shall be proved or a probable ground for its existence established by evidence, before any question of exemplary damages will lie. 4. When malice' is not proved by the plaintiff, no damages other than actual damages shall be assessed. 5. The plaintiff shall give security for costs. 6. Whenever a verdict of acquittal or a verdict for nominal damages is rendered the plaintiff shall pay all costs with attorney fee. 7. No action for libel shall be sustained unless the plaintiff has first made a demand upon the publisher for a correction of the alleged libelous publication. 8. In any action for libel only actual damages shall be recovered, providing the publication was due to misapprehension of the facts, and the publisher, as soon as possible after learning of its falsity, makes a full and fair correction." The Chicago News recommends one other amendment, namely, that damages VOL. 38 No. 1. should go to the State, and not to the plaintiff in civil actions. One would suppose that the newspapers were ill used, if he put any faith in their complaints, but it is a notorious fact that it is a very difficult and unusual thing to get a verdict for more than six cents against a newspaper. At this very moment we read of an English jockey, accused by a newspaper of pulling horses, recovering one farthing damages. The newspapers are not oppressed nor is there any danger of their being oppressed. They constitute a tremendous and nearly irresponsible power already, and are calling for more power and greater license. It is like the wolves demanding to have the lambs muzzled. Society is pretty much at the mercy of the zealous young man with pencil and pad, who goes about seeking whom he may devour, with an eager desire to get the start of all rivals, and ingratiate himself with his employer, and with no discretion, or inquiry, or even care for reputations or probabilities. The newspaper "interviewer," intrusive, impudent, slangy, reckless, lying, is one of the worst pests of modern society. The employer too frequently cares for nothing but to give the news" ahead of the other journals and put dollars in his own pocket. The reputation of men, and women too, is at the mercy of these scavengers. So liberal is the law on the subject of privileged statements, and so strict is it in regard to the necessity of proof of malice, that under the guise of criticism or comment on public men and public affairs, the license of the press has become almost intolerable. We wonder how any man dares run for office in view of the inevitable torrent of filth and falsehood and scandal that is sure to be discharged upon him. Give security for costs, forsooth! Suppose the man abused is poor and can't? It would be much more just to compel every newspaper to give general security not to libel. Of course, such a law as these seven hundred crazy inkslingers demand would be unconstitutional, but they do not know enough law to know that. Ask for a retraction and apology! That is a very ineffectual remedy! After a man's character has been cruelly and indecently assailed in startling head-lines, to put a retraction of three lines in an issue a week or two later, is a weak antidote to the potent poison. A libel will be eagerly copied all over the country news," der to the gatherers and disseminators of " Dr. T. D. Crothers, of Hartford, Conn., sends us a paper on the case of Otto, who was hanged for murder of his wife at Buffalo, 1884. The defense was insanity, and the pretext for the crime was a delusion that his wife was unfaithful. The ancestry of the prisoner was marked by insanity, and he appears to have been half crazy, partly by inheritance and poor living, and partly from hard drinking for twenty years. Dr. Crothers, who was called to examine him in jail pending his sentence, gives an ex parte and ingenious array of the circumstances going to show that he was insane and the victim of delusion, but he has nothing to say of the recognized legal test, the prisoner's ability to discriminate between right and wrong. Although he does not say so, it is quite probable that he does not believe in the justice of this test. But in one place he lets out an expression made by the prisoner just after the murder which shows that he did know right from wrong he "talked of getting into a bad job.'" There is nothing in this array of the case which shows that the prisoner was any thing more than a victim of a bad temper and strong drink. Two physicians examined him in jail pending sentence, and pronounced him sane and shamming insanity. Dr. Crothers pronounces him "another victim of medical non-expertness and judicial incompetency," and compares his case to that of the Salem witches. This is as logical as the modern physician usually is when he gets this "bee in his bonnet" of struggling to save a drunken, badtempered, ignorant fellow from the gallows on the plea of insanity. For ourselves, we are growing to believe that when a man commits a murder under the influence of strong drink, especially as the re in twenty-four hours; the retraction is never or very rarely copied; that isn't "news." That sort of apology reminds us of one which we heard Mitchell Sanford tender to Judge Wm. B. Wright. In summing up for the plaintiff in a railroad accident case in which the judge was presiding, Sanford talked with great power about "railroad judges sitting in railroad cases, with pockets stuffed with free railroad passes." It was generally supposed that the judge was not in the habit of paying fare. The judge, who was rather slow of apprehension except in regard to law, did not at first take offense, but next morning he came into court and at once proceeded to rebuke "Mitch" for his indecorous remarks. Whereupon "Mitch" arose, spread out his hands deprecatingly, and with his indescribable grin, said, "I take it all back, your honor, I take it all back!" The judge leaned back, perfectly aghast at his impudence, and that was the end of it. The jury gave the usual verdict as much as the law would let them. "Take it all back!" that is what these impudent newspaper libellers propose to do about it, and what is all that worth? Prove malice! how is it ever possible for anybody to prove actual maliciousness "in the sense of a desire or design to commit injury?" No more is it possible than in many a case of murder. Our correspondent very reasonably says: "To hold that when a man commits a crime he shall not be presumed to intend all which his act implies, strikes at the very root of justice, and is an absurdity so glaring as to shock all reason." What would the seven hundred scribes say to a law that when a man kills an editor he shall not be convicted until a desire or design to hurt him shall be affirmatively proved? The offender must be judged by his act, and such is the wise presumption of the law. Pay "attorney fee!" meaning counsel fee probably. This is like compelling St. Lawrence's executors to pay for the gridiron on which he was roasted. So powerless is the private citizen against the press that we are inclined to believe that an unretracted libel on him or one who is near to him, will go far toward justifying the southern method of taking the law into his own hands, and demonstrating that if the pen is mightier than the sword, it is not so mighty as a stout cowhide.sult of a long course of dissipation, even though he The latter proved the only efficient remedy against the founder of the great New York libelous press fifty years ago, and it may prove so again, especially if the seven hundred Michiganders bulldoze the political candidates effectually. The abuse which the newspapers so plentifully heap on one another do not salve the smart of citizens who have no newspaper behind them. Now what we have written is not intended to apply to high-minded journalists, of whom there are many. Such do not need any such law as the seven hundred clamor for. The Tribune does not need it. No decent newspaper was ever oppressed by black-mailing libel suits. A law cannot be enacted for scrupulous newspapers alone. The law proposed would make a numerous class of newspapers perfectly reckless, and they would break the small restraint that now exists. We would ten may be crazy from drink at the time, the best thing for society is to put an end to his dangerous life. Not if he becomes insane through the visitation of God, but only when he becomes insane through the indulgence of his own vicious passions. If he wants to do so, the doctor may set us down as an adherent to what he describes as "the mediæval theory that inebriety is ever and always moral depravity and controllable wickedness,” and that this is not "mistaking insanity for wickedness." There is always a time in the lives of most men when they know it is wrong to kill, and if they lose this sense through a voluntary yielding to this vile appetite for strong drink, let them be judged as responsible. And if necessary let it be made a criminal offense to sell strong drink to one habitually. Society has a right to take care of itself regardless of the appe |