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Mr. Cochran, from the committee to prepare the amendments made in convention on second reading, for a third reading, made the following report :
· That they find the amendments to the fifth article correctly printed and report the same as they stand on the printed files.”
And, on motion of Mr. COCHRAN,
The convention resumed the second reading of the report of the committee, to whom was referred the ninth article of the constitution.
The seventh section of the said report being under consideration in the words following, viz:
Sect. 7. 'That the printing presses shall be free to every person who undertakes to examine the proceedings of the legislature or any branch of government: and no law shall ever be made to restrain the right thereof. The free communication of thoughts and opinions is one of the invaluable rights of man; and every citizen may freely speak, write, and print, on any subject, being responsible for the abuse of that liberty. In prosecutions for the publication of papers, investigating the official conduct of officers, or men in a public capacity, or where the matter published is proper for public information, the truth thereof may be given in evidence; and, in all indictments for libels, the jury shall have a right to determine the law and the facts, under the direction of the court, as in other cases.
A motion was made by Mr. DORAN,
'To ainend the said section by striking therefrom all after the word “ liberty,” in the sixth line, and inserting in lieu thereof the following, viz : "In all prosecutions or indictments for libels, the truth may be given in evidence to the jury; and if it shall appear to the jury that the matter charged as libellous is true, and was published with good inotives and for justifiable ends, the party shall be acquitted, and the jury shall have the right to determine the law and the fact.“
Mr. Duran said, that in submitting this amendment to the consideration of the convention, he wished it to be distinctly understood, that he did not desire the indulgence of private malice and personal slander through the medium of the press. On the contrary, he would check and resist it by every legal means. Yet, he would say that the press was, in his opinion, a restraint upon bad men and the execution of bad acts; and where the public were interested in the knowledge of those men and those acts, every guard should be thrown around it, and no man should be con. victed for a libel where the matter published was true-- was published with the purest motives and for the benefit of the community.
But this cen. sorial power was all important in relation to public officers, for by it thev were compelled to do their duty, and when they failed to do it they were held up as objects of reproach; in fact, with a free press, a magistrate had to choose between his duty and his reputation. So great was the power of the press, that it had in England been emphatically denominated the
fourth estate," and in every free country it was no less effective; and such was its importance to the cause of liberty, that every friend to a free form of government had defended it, whenever an attempt had been made to trample on it. The members of this convention were not ignorant of the deadly struggle between it and certain arbitrary judges of the former country, which eventuated in the passage of a law by which it was rotected from such persons, by the salutary law that in libel cases the jury might determine the law and the fact. But what was the law in Pennsylvania ? Why, in short, let your publication be as true as it may, let it be published from the best of motives, let it be a matter with which the people should be acquainted, unless it relates to a public officer or public men, the publisher may be tried, convicted, and punished; yes, and sent to prison, from which he could not be extricated unless he paid the fine and costs-or if too poor to pay them, where he must remain for at least two months before he could be discharged as an insolvent debtor. this right? was this just ? No man could say that it was, and yet numerous cases had occurred in our criminal courts similar in their severity, and would occur, unless the law was altered. Impostors might now practise the greatest cheats on the community, and any one that would dare to expose them through the press, the only way to warn the public against them, would do it at the risk of a criminal prosecution.
Mr. EARLE said, that he approved in some measure of the object of the proposed amendment of his colleague, (Mr. Doran) but that he (Mr. E.) should like it better, if it was so modified as to allow the jury to judge whether the matters alleged were proper for public information.
He would, therefore, in the hope that his colleague from the county might be induced, on reflection, to accept the modification, move to amend the amendment, by inserting after the word “libel,” the words following : " where the jury shall think the matter published proper for publication."
Mr. DORAN said, he thought it would be found that the amendment he had offered embraced the idea of his colleague (Mr. Earle).
Mr. Merrill, of Union, said that the convention ought to be careful, and to reflect well on what they were doing, before they give their consent to this change in the fundamental law. This matter, continued Mr. M., is admitted to be within the
of the legislature. They have tried it, and found it to fail. But according to the amendment of the gentleman from the county, (Mr. Doran) the jury is to decide. I ask, if such a principle is carried into operation, whether it will not lead to slander and libel in all cases, where a resort to such weapons might answer the ends, or gratify the malice of individuals. The verdict will be made to depend on the will and caprice of the jury, without any rule of law; it will be placed on the simple ground whether, in the opinion of the jury, the matter alleged may be true, or not. Why should men have even the truth told about them, where it may disparage them, from mere pique, revenge or malice! I believe that there is very little danger of injustice being done according to the state of things which now exists ; and if I can imagine a case in which gross injustice would be done, it would be that of publishing a libel against a man where he can
have no remedy. It is a common thing for parties to say, just with a view to affright the jury, that they can prove every thing that has been alleged, when, if brought to the test, they could prove nothing. I know a case of this kind which occurred within my own experience. I offered the truth in justification. The court admitted it; and, when thus put to the test, I could not, to my great chagrin, prove a word of the allegation. Protection of reputation is one of the dearest rights of man; and the government that will not protect it, may do almost what they please with his property or his liberty. Is there not room enough now for all sorts of criticism on private character and reputation ? Are we to throw open the door still wider, and to render the security for the reputation of men less than it is at this time? Sir, I trust not.
Mr. WOODWARD said, that he had at first entertained some doubts as to the expediency of adopting the amendment, in the terms in which it had been originally offered; but that since the gentleman from the county of Philadelphia who introduced it (Mr. Doran) had accepted the modification of his colleague, (Mr. Earle) hè (Mr. W.) could not possibly vote for it.
Mr. Doran begged to explain. The gentleman from Luzerne was entirely mistaken. He (Mr. D.) had not accepted the proposed modification ; it stood before the convention as an amendment to the amendment.
Mr. WOODWARD resumed :
I ain, however, opposed to both these amendments. The effect of them, if I correctly understand their import, will be, that when a libel case is before a court, iwo issues are to be made. The first is, whether the matter published be proper for publication or not. If the jury upon trial say that it is proper-then, in that term and at that time-another issue is to be made upon the truth of the matter thus published. How are you to get at the facts, without the preliminary issue having been first argued and discussed ? I can not vote fer these propositions.
Mr. CHANDLER, of Philadelphia, rose and said :
Mr. President: lam opposed to the amendment of the gentleman from the county of Philadelphia (Mr. Doran). I feel much concerned for the liberty of the press, but I am not less concerned to keep away its licentiousness. It seems to me, however, that we have heretofore got along pretty well under the provisions of the constitution of 1790, and I do not ihink that any one has suffered, unless by his own conduct, he may have jaid himself open to the severest penalties of the law.
I believe that the tendency of the press is to the slander of private character. We all know that in proportion to the number of papers established arises the necessity of something to create attention, especially in these times where parties run so high. It appears to me to be an unwise movement on the part of the convention, to do any thing calculated to break down the guards which are thrown around private reputation, and to up. root the settled feelings of society. That which is denominated a libel
a is, I suppose, a scandal tending to bring any particular person into odium -into ridicule-into unnecessary disgrace. If the amendment of the gentleman from the county of Philadelphia, means any thing more than what is now in the constitution, it is intended to break down the safety
of society, to open the door to the petty slanderer, and to render every individual in the community open to his attacks. We all know how delicate and sensitive a thing private character is; we all know how easy it is to cast a slander upon it. We know that even physical deformity may be made the means of public scandal, and that persons, in every way worthy of the confidence and respect of their fellow men, may be driven from among them by the ignorant scorn and the curled lip which every where meets them. This amendment, as it seems to me, holds out an invitation to the press to cross over those bounds within which the peace and security of society require it should be circumscribed; although, so far as concerns the press of this city, I am happy to say that we are very little troubled with scandal of this kind, however much other parts of the state may suffer under it. This convention should not sanction any amendment to the constitution, the tendency of which may be to destroy those barriers beyond which a person may screen himself. The very attempt to prove the allegation is a scandal, for it would be supposed that there must be some foundation for the charge, even where a person is entirely innocent. The very attempt to investigate will work an injury to reputation.
So far we have gone on very quietly under this constitution. I wish the editors to tell the truth in public matters, and to leave private scandal to the filthy sewers where it belongs; to those who, having no reputation of their own, cannot set a proper value on the reputation of others. But when a man comes before ihe public for office, we have a right to canvass his merits, his capacity, and his character; always, however, holding themselves properly responsible for what they may say or do. But we have no right to drag an individual before the public wantonly—to rake up all that he has ever done or said, and thus to hold him up to public scorn and reprobation.
I have said that, in my opinion, none have suffered except some few, who, by their own reckless or mischievous course, may have subjected themselves to the severest inflictions of the law. Any interference on our part will be offering a premium to scandal, by weakening those barriers which have heretofore been found sufficient for the protection of society.
Mr. Scott, of Philadelphia, said he would very briefly express his views of the provision of the existing constitution, as well as of the amendment which it was now proposed to make.
As the constitution now stands, continued Mr. S., by virtue of the seventh section of the bill of rights, whenever a party is prosecuted in your criminal courts for a libel against an individual as a public man, the party prosecuted for the offence may give the truth as a bar against judgment. Whenever, therefore, a prosecution for libel refers to a man's public conduct, to his conduct in public life, to his acts as a public man, to those matters in which the commonwealth has a concern-whenever, I say, the publication is of that character, the accused party may defend himself in court by giving in evidence the truth of the charge made in the publi.cation.
If however, the charge made in the publication be altogether of a
private character-relating to the private life and conduct of the individual concerned-if it seeks to open his private history or to expose his private transantions to public reproach-is, I say, the charge is of that character and prosecution be commenced in your courts of justice against the libellant by the commonwealth, then he can not defend himself by giving the truth of the charge in evidence. If, however the party thus injured sues him in a civil court, in an action for damages, then, under the existing provision of the constitution, he may defend himself by pleading the truth.
Now, as the constitution at present now stands, the convention will observe that where the charge is against a man as a public man and refers to his public conduct, if that which is called a libel be true in fact, it is constitutional and competent for the party to defend himself, either in a suit for damages or by prosecution—thus allowing the fullest scope for inquiring into the conduct of public men. But where it refers to private life, the truth is an answer in damages, but not in a prosecution of the commonwealth. And the reason for the distinction is this.
The commonwealth, as we all know, will not permit you to disturb the
of society by unnecessary inquiries into the private conduct of men, or by means of publications referring to that private conduct. She will not suffer men to be dragged before the bar of public opinion wantonly or unnecessarily, and to have their conduct exposed to the gaze of their fellowcitizens.
What alteration would the amendment proposed by the gentleman from the county of Philadelphia, who is nearest to me, (Mr. Doran) make in relation to the matter? It provides that in all prosecutions or indictments for which, the truth may be given in evidence. And what would be the consequence? Why, under this amendment, if an individual should choose to investigate the most private transactions of a man's life, at any remote period of time--should expose them to public odium in the public prints-shontd destroy the peace of his family and break down his own reputation and characier-although this might have been a matter with which the public had nothing to do; although it might have been an act which had been atoned for by repentance or compensation ; still, no matter what its character might have been; the person who dragged all this before the eye of the public would be secured by proving the truth of the allegation. This would be the result of the amendment of the gentleman from the county of Philadelphia, (Mr. Doran.)
In regard to the amendment to the amendment, as proposed by the gentleman from the county of Philadelphia, (Mr. Earle) it seems to me to make the natter even worse than the amendment itself; because the effect would be-although I do not by any means attribute that design to the moves--but the effect would be to break down that protection which a man now derives from the law in a case where the publication refers to political matters.
The amendment to the amendment says " when the jury shall think the matter proper for public information ? So that under this amendment even the case of a political publication could be referred to a jury, and if the jury think that political publication improper, the truth might be re