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Not that in either case the man's private conduct cannot be discussed under a similar privilege, although such a distinction is advocated in an English case. In this case, Baron Alderson says: “ It seems there is a distinction, although I must say I really can hardly tell what the limits of it are, between the comments on a man's public conduct and upon his private conduct. I can understand that you have a right to comment on the public acts of a minister, upon the public acts of a general, upon the public judgments of a judge, upon the public skill of an actor; I can understand that; but I do not know where the limit can be drawn distinctly between where the comment is to cease, as being applied solely to a man's public conduct, and where it is to begin as applicable to his private character; because, although it is quite competent for a person to speak of a judgment of a judge as being an extremely erroneous and foolish one,and no doubt comments of that sort have great tendency to make persons careful of what they say,— and although it is perfectly competent for persons to say of an actor that he is a remarkably bad actor, and ought not to be permitted to perform such and such parts, because he performs them so ill, yet you ought not to be allowed to say of an actor that he has disgraced himself in private life, nor to say of a judge or of a minister that he has committed a felony, or anything of that description, which is in no way connected with his public conduct or public judgment; and, therefore, there must be some limits, although I do not distinctly see where those limits are to be drawn." Judge Cooley, in criticising this opinion,? says: “ The radical defect in this rule, as it seems to us, consists in its assumption that the private character of a public officer is something aside from, and not entering into or influencing his public conduct ; that a thoroughly dishonest man may be a just minister, and that a judge, who is corrupt and debauched in private life may be pure and upright in his judgments; in other words, that an evil tree is as likely as any other to bring forth good fruits. Any such assuniption is false to human nature, and contradictory to general experience; and whatever the law may say, the general public will still assume that a corrupt life will influence public conduct, and that a man who deals dishonestly with his fellows as individuals will not hesitate to defraud them in their aggregate and corporate capacity, if the opportunity shall be given him.”
i Gathercole v. Miall, 15 Mees. & W. 319. 2 Cooley Const. Lim. 440.
Where the private character would indicate the possession of evil tendencies, which can manifest themselves in, and influence, his official conduct to the detriment of the public, it would seem but natural that the same privilege should be extended to such a communication concerning a candidate for office, as if the same evil tendency had been manifested by some previous public or official conduct. In both cases, the conduct is brought forward as evidence of the same fact, his unfitness for the office to which he aspires. But a candidate for office may possess defects of character, which cannot in any way affect the public welfare by influencing or controlling his official conduct, and inasmuch as the privilege is granted, if at all, for the sole purpose of promoting a free discussion of the fitness of the candidate for office, such an object can be attained without opening the floodgates of calumny upon a man, and depriving him of the ordinary protectiou of the law, because he has presented himself as a candidate for the suffrages of the people. Thus while vulgarity of habits or speech, unchastity, and the like, may be considered great social and moral evils, they can hardly be considered to affect a candidate's fitness for any ordinary office. Integrity, fidelity to trusts, are not incompatible with even libertinism, which is attested by the acts and lives of some of the public men of every country. Whereas dishonesty, in whatever form it may manifest to be actionable, if they were not prompted by malice.' The same privilege protects a communication to the lodge of some secular organization, preferring charges against a member. In all these cases the privilege only extends to the communication or petitions, which are presented to the body or person, in whom the power of appointment and removal is vested, and if a petition is prepared, but never presented to the proper authority, any other publication of it would not be privileged.
1 But the retirement from public life during the present year, of a prominent English statesman on account of his conviction of the act of 8 Fairman v. Ives, 5 B. &. Ald. 642; Woodward v. Lander, 6 L. & P. 548; State v. Burnham, 9 N. H. 34; Hosmer v. Loveland, 19 Barb. 111; Cook v. Hill, 3 Sandf. 341.
There is apparently no rational difference, so far as the justification of the privilege is concerned, between those cases, in which there is a remonstrance or petition to the body or person having the power of appointment and removal, and the cases of appeal or remonstrance to the general public, pronouncing the candidate for an elective office unfit for the same, either through incompetency or disbonesty, and one would naturally expect such a privilege. The electors, and the public generally, are interested in knowing the character and qualifications of those who apply for their suffrages; and the public welfare, in that
3 regard, is best promoted by a full and free discussion of all those facts and circumstances in the previous life of the candidate, which are calculated to throw light upon his
1 Kershaw v. Bailey, 1 Exch 743; Farnsworth v. Storrs, 5 Cush. 412; Remington v. Congdon, 2 Pick. 310; York v Pease, 2 Gray, 282; Fairchild V. Adams, 11 Cush. 549; Shurtleff v. Stevens, 51 Vt. 501 (31 Am. Rep. 698); Haight v. Cornell, 15 Conn. 74; O'Donaghue v. McGovern, 23 Wend. 26; Wyick v. Aspinwall, 17 N. Y. 190; Chapman v. Calder, 14 Pa. St. 365; McMillan v. Birch, 1 Binn. 178 (2 Am. Dec. 426;) Reid v. DeLorne, 2 Brev. 76; Dunn v. Winters, 2 Humph. 512; Lucas v. Case, 9 Bush, 562; Dial o. Holter, 6 Ohio St. 228; Kleizer v. Symmes, 40 Ind. 562; Servatius v. Pichel, 34 Wis. 292.
Streety v. Wood, 15 Barb. 105; Kirkpatrick v. Eagle Lodge, 26 Kan. 384. A report by officers of a corporation to a meeting of its stockholders falls under the same rule. Philadelphia, etc. R. R. Co. v. Quigley, 21 How. 202.
fitness for the office for which he applies.
Where the statements respect only the mental qualification of the candidate, it has been held that they are privileged. 6. Talents and qualifications for office are mere matters of opinion, of which the electors are the only competent judges.” 1 But where the communication impugns the character of the candidate, it appears that the privilege does not cover the case, and the affirmant makes the statement at his peril, being required by the law to ascertain for himself the truth or falsity of it. And the same rule applies to the deliberations of public meetings, as well as to the statements of an individual. In the leading case on this subject ? the court say: “ That electors should have a right
" to assemble, and freely and openly to examine the fitness and qualifications of candidates for public offices, and communicate their opinions to others, is a position to which I most cordially accede. But there is a wide difference between this privilege and a right irresponsibly to charge a candidate with direct, specific, and unfounded crimes. It would, in my judgment, be a monstrous doctrine to establish that, when a man becomes a candidate for an elective office, he thereby gives to others a right to accuse him of any imaginable crime with impunity. Candidates have rights as well as electors; and those rights and privileges must be so guarded and protected as to harmonize one with the other. If one hundred or one thousand men,
when assembled together, may undertake to charge a man with specific crimes, I see no reason why it should be less criminal than if each one should do it individually at different times and places. All that is required in the one case or the other is, not to transcend the bounds of truth. If a man has committed a crime, any one has a right to charge him with it, and is not responsible for the accusation; and can any one wish for more latitude than this? Can it be claimed as a privilege to accuse ad libitum a candidate with the most base and detestable crimes? There is nothing upon the record showing the least foundation or pretence for the charges. The accusation, then, being false, the prima facie presumption of law is, that the publication was malicious, and the circumstance of the defendant being associated with others does not per se rebut this presumption.” This position of the New York court has not only been sustained by later cases in the same State, but it has been followed generally by the other American courts, and it may be considered as the settled doctrine in this country.
1 Mayrant v. Richardson, 1 Nott & McCord, 348 (9 Am. Dec. 707); Commonwealth v. Clapp, 4 Mass. 163 (3 Am. Dec. 212); Commonwealth o. Morris, 1 Va. Cas. 175 (5 Am. Dec. 515); Sweeney v. Baker, 13 W. Va. 158 (31 Am. Rep. 757); Mott v. Dawson, 46 Iowa, 533. But see Robbins 0. Treadway, 2 J. J. Marsh 540 (19 Am. Dec. 152); Spiering v. Andree, 45 Wis. 330 (30 Am. Rep. 744). ? Lewis 0. Few, 5 Johns. 1, 35.
§ 17d. Publications through the press. - It has been often urged in favor of the press, that a general and almost unrestricted privilege should be granted the proprietors of newspapers for all statements that might be received and printed in their paper in good faith, which subsequently prove to be false and injurious to some individual, provided it pertain to a matter in which the public may justly be supposed to be interested. This view has of late met with a strong support in Judge Cooley. In criticising an opinion of the New York court to the contrary,” he says:
1 See King v. Root, 4 Wend. 113 (21 Am. Dec. 102); Powers v. Dubois, 17 Wend. 63; Hunt o. Bennett, 19 N. Y.173; Hamilton v. Eno, 81 N.Y. 116; Thomas v. Crosswell, 7 Johns. 264 (5 Am. Dec. 269); Tillson v. Robbins, 68 Me. 295 (28 Am. Rep. 50); Hook 0. Hackney, 16 Serg. & R. 385; Sweeney v. Baker, 13 W. Va., 158 (31 Am. Rep. 757); Foster v. Scripps, 39 Mich.376 (33 Am. Rep. 403); Wilson o. Noonan, 35 Wis. 321; Gottbehuet
Hubachek, 36 Wis. 515; Gove v. Blethen, 21 Min. 80 (18 Am. Rep 380), Rearick v. Wilcox, 81 Ill. 77; Russell v. Anthony, 21 Kan. 450 (30 Am. Rep. 436). See Barr v. Moore, 87 Pa. St. 385 (30 Am. Rep. 367.) 2 Hotchkiss v. Oliphant, 2 Hill, 510-513, per Nelson, Ch. J.