We have in a libel, 1st. The writing. 2nd. The communication,
called by the lawyers the publication. 3rd. The application to
persons and facts. 4th. The intent and tendency. 5th. The
matter--diminution of fame. The law presumptions on all these are
in the communication. No intent can, make a defamatory publication
good, nothing can make it have a good tendency; truth is not
pleadable. Taken juridically, the foundation of these law
presumptions is not unjust; taken constitutionally, they are
ruinous, and tend to the total suppression of all publication. If
juries are confined to the fact, no writing which censures, however
justly, or however temperately, the conduct of administration, can
be unpunished. Therefore, if the intent and tendency be left to the
judge, as legal conclusions growing from the fact, you may depend
upon it you can have no public discussion of a public measure, which
is a point which even those who are most offended with the
licentiousness of the press (and it is very exorbitant, very
provoking) will hardly contend for.
So far as to the first opinion, that the doctrine is right and needs
no alteration.
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