The Albany Law Journal.

ALBANY, SEPTEMBER 14, 1872.

THE PHILOSOPHY OF LAW. The unprecedented agitation of law reform, which is now going on in Europe and America, is not unattended with a corresponding revival of the philosophy of law, without an acquaintance with which all law reform is imperfect, if not unavailing. It is true that the present age, considered with reference to its discoveries, inventions, appliances, and instruments, its knowledge of, and power over, nature, its intellectual and social advancement, may properly be called the scientific age; but, considered in reference to its laws and public institutions, it is not yet deserving that title. Law, being the highest and most perfected of the concomitants of humanity, must necessarily be longer in reaching its possibilities than any other department in which the human mind expresses itself. The one universal succession in development, viz.: the creative, the philosophic, and the scientific periods, is visible in the development of law, as well as of life and mind, of society and nature.

For a time the laws and institutions of mankind came into existence, spontaneously, and by the result of natural forces; this was the creative period of law. Men knew not why their laws were such, they only knew that they were, and that they were the most natural and the most conducive to their welfare

philosophic period of the world, the middle ages, had passed away, and the scientific period, in which we now are, had dawned, that the philosophy of law (always last, and, for that reason, always greatest in human development), came to be publicly known or recognized, while international law was yet in its infancy. But the last two centuries have given to the world many profound works on the philosophy of the law, have given us Kant, Hegel, Röder, Hildenbrand, and Lasalle, in the department of abstract law, including property, contract and penalty, and Montesquieu, Rousseau, Voltaire, Helvetius, Condorcet and Turgot, in the department of applied law, including institutions and customs. It is almost superfluous to say that upon the cardinal points of the philosophy of the law (as well as of all philosophy), leading writers have differed; and that, while Hegel, the stubborn and defiant idealist, tells us, in his Rechtsphilosophie, that free will is the root of law, without which the regulations as to property, contract and penalty would be futile and senseless, yet there are others who deny that free will is the basal fact in law, and even affirm, as the materialists and the chief apostle of nescience, Herbert Spencer, do, that there is no such thing as free will. Nor is there any the less two sides to the question, when we come to the more complex matter of institutions and positive law, of which Montesquieu admirably treats, in his Esprit des Loix, the question, whether institutions are moulded by man (and man, in turn, by his climatic and geologic surroundings), as he affirmed, or whether, as the Encyclopedists affirmed, man is moulded by institutions. So far as the truth of either of the propositions is concerned, it may be said that both are true and both are false, and that men and their institutions

they mutually change in like proportion.

of any that had presented themselves. In such a state of things men are powerless to make systematic changes, for the bonds of ignorance are around them, and each new or untried movement is but an adven-have a reciprocal influence upon each other, and that ture. Law was therefore of slow and arduous development; for at a time, and in a community filled with art, philosophy, poetry, and great self-culture, jurisprudence was a mere fragment. The Solon of Greece could not compare with her Demosthenes, her Sophocles, and her Socrates. And the early jurists were not mere lawyers, as a recent writer observes, "they were scholars of eminence in the mathematics of their day, in natural history, in astronomy, in medicine, in philology; skilled in many accomplishments, masters of many languages." And thus prepared, they went to work to build a structure, which was the first of its kind, and may well be denominated the first system of jurisprudence, in spite of its defects.

The philosophic period of the law, which follows the creative period, is characterized by the effort of the human mind to discover the causes and the order of succession of the changes in law. The Hebrew and Roman jurists, while decrying philosophy as such, nevertheless made great personal and internal use of the principles of philosophy in systematizing and externalizing law. But it was not until after the strictly

But, notwithstanding the diversity of opinions which have already been brought to light relative to the philosophy of the law, truth is constantly evolving and the world may look for great results in this direction. This discussion, this thought, this mental agony and sweat are the inseparable conditions of the philosophic period, and they denote advancement toward the scientific and systematic period. Nevertheless, it is not enough that here and there a statesman or a metaphysician should devote himself to the close study of the causes and conditions of law, it is necessary that the leading minds of the world, that an advanced humanity should understand the fundamental principles of law before there can be devised an enduring and universal law reform, and law itself be made, what we fear it is not now, a science. Theoretically the law is the most perfect exertion of human mind applied to the regulation of human life; practically it is behind every other department of life in that harmony, cohesion, system, and beauty which is the distinguishing characteristic of a perfected science. If the law, then, depending upon all other

secretary should advise her majesty to remove the
plaintiff from the commission of the peace, such
petition was held to be privileged; and Lord Camp-
bell, expressing the opinion of the court of queen's
bench, stated the rule to be that "a communication
made, bona fide, upon any subject-matter in which
the party communicating has an interest, or in refer-
ence to which he has a duty, is privileged, if made to
a person having a corresponding interest or duty,
although it contain criminatory matter, which, with-
out this privilege, would be slanderous and actionable." |
In the present case, little need be said to show that
the communicator had both an interest and a duty in
the subject-matter. And, he added, that duty "can-
not be confined to legal duties which may be enforced
by indictment, action or mandamus, but must include
moral and social duties of imperfect obligation." And
in Whiteley v. Adams, 15 C. B. N. S. 392; 9 L. T
R. N. S. 483, in this court, Erie, C. J., Williams,
Keating and Byles, JJ., acted upon the rule in the
terms that "a communication made, bona fide, upon
any subject-matter in which the party communicating
has an interest, or in reference to which he has, or
honestly believes he has, a duty, is privileged, if made
to a person having a corresponding interest or duty,
although it contains criminatory matter, which, with-
out this interest, would be slanderous or actionable."
It is clear that the privilege so established in respect
of duty or interest, however necessary or valuable,
must be exercised within the limits which the interest
or duty indicates, and that, in many of the instances
of privilege to which reference has been made, a
public statement to an individual not having any
interest in the matter might be held libelous. The
statement must be such as the occasion warrants, and
made to a person who is interested in receiving it.
The mere fact of the presence of a person uninter-
ested has been held to be insufficient to take away
the privilege, as in many of the cases as to master
and servant; but the statement to a person wholly
uninterested would in such case be defamatory, as,
for instance, in the case of a joint-stock company, the
publication of a defamatory report of the auditors of
the company to the shareholders, whom alone it
interested, might be privileged, while its general
publication might be libelous. Lawless v. Anglo-
Egyptian Cotton and Oil Company, L. R., 4 Q. B.
262. In others of the cases referred to, the publica-
tion has been held to be privileged, though made in
the form of a handbill, or a statement in a newspaper,
where the subject was one in which the public had
an interest; and this was remarkably the case in
Wason v. Walter, L. R., 4 Q. B. 73, where the
subject received the most elaborate and satisfactory
consideration. In that case the Times newspaper
published a debate in the house of lords touching a
petition presented by the plaintiff to the house,
charging an eminent judge with misconduct, in the
course of which debate the lord chancellor commented

upon the plaintiff's conduct as false, cowardly and malicious. The Times also published a leading article, in which the conduct of the plaintiff was severely discussed and characterized as false and malicious. The Lord Chief Justice Cockburn held, that the publication of the debate, if honest, bona fide, and truthful, was justifiable, and not the subject of a civil action, upon the same or even stronger grounds than those which justify the publication of proceedings in a court of justice. As to the leading article, which, so to speak, was a statement to the whole world, the lord chief justice held, that the occasion was privileged, in the absence of malice, and left it to the jury, in effect, to say whether the article was one which could be ascribed to malicious and sinister motives, or only a fair comment. The court affirmed the ruling of the lord chief justice upon both points; and upon the latter, as to the publication of the leading article, which, it may be observed, stood in no better or worse position in point of law than a letter addressed or a book sold by one member of the public to another, or other members of the public, containing the same language, the judgment was as follows: "We are of opinion that the direction given to the jury was perfectly correct. The publication of the debate having been justifiable, the jury were properly told the subject was, for the reasons we have already adverted to, pre-eminently one of public interest, and, therefore, one on which public comment and observation might properly be made, and that, conséquently, the occasion was privileged in the absence of malice. As to the latter, the jury were told that they must be satisfied that the article was an honest and fair comment on the facts; in other words, that they must be satisfied that the comments had been made with an honest belief in their justice, but that this was not enough, inasmuch as such belief might originate in the blindness of party zeal, or in personal or political aversion; that a person taking upon himself publicly to criticise the conduct or motives of another must bring to the task, not only an honest sense of justice, but also a reasonable degree of judgment and moderation, so that the result may be what a jury shall deem, under the circumstances of the case, a fair and legitimate criticism on the conduct | and motives of the party who is the subject of censure." That decision necessarily involves the conclusion that the fair and honest discussion of or comments upon a matter of public interest is in point of law privileged, and that it is not the subject of an action unless the plaintiff can establish malice. The case of Stockdale v. Hansard, 9 Ad. & E. 1, so much relied upon in the argument in this court to show that no privilege existed in respect of the discussion of public questions, was thus distinguished in the judgment in Wason v. Walter: "The position that the order of the house of commons cannot render lawful that which is contrary to law, still less that a resolution of the house can supersede the jurisdiction of a court of law, by cloth

ing an unwarranted exercise of power with the garb of privilege, can have no application where the question is, not whether the act complained of, being unlawful at law, is rendered lawful by the order of the house or protected by the assertion of its privilege, but whether it is, independently of such order or assertion of privilege, in itself privileged and lawful." This is obvious, when it is considered that in Stockdale v. Hansard the question arose upon demurrer, so that the plaintiff was entitled upon the argument to assume that, if the case went to trial, he could give evidence of actual malice, and the defense set up was an absolute justification, not a privilege, in the absence of actual malice. In Stockdale v. Hansard the defendant claimed under the authority of one house of parliament the same absolute exemption from suit which, by the general law of the land, upon grounds of public policy, protects a witness or person making an affidavit in the course of an action, or a person speaking or writing in the course of a judicial proceeding, civil or military, from liability even in respect of statements willfully false and malicious. Revis v. Watson, 18 C. B. 126; Henderson v. Bromhead, 4 H. & N. 569; Dawkins v. Lord Paulet, 21 L. T. R. N. S. 584; L. R., 5 Q. B. 94; Dawkins v. Lord Rokeby, Cam. Scac. H. Vac. 1872. The defendant in this case, like the defendant in Wason v. Walter, claims no such absolute exemption, but only the privilege of every subject of the realm to discuss matters of public interest honestly and without actual malice. The judgment in Wason v. Walter further recognized the doctrine that the effect of a privileged occasion, the existence of which it is for the judge to determine as matter of law, rebuts the legal inference of malice, and that the plaintiff must fail unless he can prove malice in fact. "In the English law of libel (per Cockburn, C. J., in Wason v. Walter) malice is said to be the gist of an action for defamation. And though it is true that by malice, as necessary to give a cause of action in respect of a defamatory statement, legal and not actual malice is meant; while by legal malice, as explained by Bailey, J., in Bromage v. Prosser, 4 B. & C. 255, is meant no more than the wrongful intention, which the law always presumes as accompanying a wrongful act without proof of any malice in fact; yet the presumption of law may be rebutted by the circumstances under which the defamatory matter has been uttered or published, and if this should be the case, though the character of the party concerned may have suffered, no right of action will arise. "The rule," says Lord Camp-affirmed by the declaratory act of 1792, 32 Geo. II, bell, C. J., in the case of Taylor v. Hawkins, 16 Q. B. 321; 20 L. J., Q. B. 314, "is that, if the occasion be such as repels the presumption of malice, the communication is privileged, and the plaintiff must then, if he can, give evidence of malice." Where privilege exists, the burden of proof of actual malice rests upon the person who complains. If there is no evidence of such malice, it is the duty of the judge to direct a nonsuit or a verdict for the defendant. Somerville v.

Hawkins, 10 C. B. 583; Spill v. Maule, L. R., 4 Ex. 232; 20 L. T. R. N. S. 675. In the present case there was no suggestion and no evidence of malice in any one. The honesty of the publication and the absence of malice were admitted; and there was nothing to be decided, except the question of law whether the occasion was privileged. The learned judge ruled that it was. In substance, the defendant communicated to another member of the public, a statement of the lords of the admiralty and the public officers under their control, accounting for their proceedings as to the reconstruction of the navy. This statement was made by public servants, intrusted by the crown with the charge of the most important defense of the country, in which every subject of the queen has an interest of the deepest character; and the statement would have been garbled and incomplete, unless it set forth the very discussion which the plaintiff's own suggestions naturally and necessarily challenged and provoked. It was vainly suggested that those proposals of the plaintiff were private and confidential. There was no stipulation that they should be so considered. They were, moreover, simultaneously published by the plaintiff and exposed to honest criticism at home and abroad. The plaintiff's proposal was made upon a subject of public interest to agents of the crown, who were bound to consider and criticise what was put forward by the plaintiff, if they thought it of sufficient importance to be discussed which, as against him, it must be taken to have been; and, in the course of that criticism and discussion, the merits of his plans and the previous experience and judgment of the suggestor on the subject with which he dealt were relevant subjects of remark. The occasion, therefore, was one in which the alleged libeler and every member of society to whom he might issue the blue book had, in common with the plaintiff, an interest incomparably greater than that which, in so many cases, has been held to carry a privilege essential to freedom, and which, in the absence of malice, is an answer to the action. To prevent any misconstruction of this judgment, it may be proper to say that we agree with the learned judge in attributing no legal weight to the high authority under which the publication took place, nor to the particular object with which the documents were printed, and to add that the jury in civil cases, equally as in criminal cases, are the proper tribunal to judge the question of libel or no libel. This was

ch. 68, and has been often recognized. See per Lord
Wensleydale in Parmeter v. Coupland, 6 M. & W.
105. But it is not competent to the jury to find
that, upon a privileged occasion, relevant remarks
made bona fide without malice are libelous. As
Lord Wensleydale said in the same case:
"Every
subject has a right to comment on the acts of public
men which concern him as a subject of the realm, if
he do not make his comment a cloak for malice or

slander." It would be abolishing the law of privileged discussion and deserting the duty of the court to decide upon this or any other question of law, if we were to hand over the decision of privilege or no privilege to the jury. A jury, according to their individual views of religion or policy, might hold the church, the army, the navy, parliament itself, to be of no national importance, or the liberty of the press to be of less consequence than the feelings of a thinskinned disputant. In actions of libel, as in other cases where questions of fact, when they arise, are to be decided by the jury, it is for the court first to determine whether there is any evidence upon which a rational verdict for the affirmant can be founded. The whole argument to prove that the case ought to have been left to the jury was based upon the prima facie case of words printed, which a jury might find to be disparaging of the plaintiff in stating that his plans were worthless. The answer is, that the privileged occasion shifts the burden, and that, in respect of relevant words though defamatory, the plaintiff cannot recover without proving malice, which he has failed to do.

CURRENT TOPICS.

certain physicians were then called by counsel for those who had instigated her commitment, and, upon cross-examination by her counsel, one of the physicians was asked to state all that she had said to him, beginning at the first interview, and concluding with the last. This was objected to, as compelling witness to repeat in detail the evidence given on direct examination. The judge, in deciding the point, upheld the objection, and took occasion to say that, after hearing Miss McCabe's testimony, he had come to the conclusion that she was a monomaniac, and that nobody was in fault in placing her in a lunatic asylum, whereupon, counsel for the complainant indignantly withdrew from the case, stating that His Honor had prejudged the case. The writ was accordingly dismissed, the complainant was remanded to the custody of the commissioners at Bloomingdale, and her counsel declares that he will apply for a writ to some judge who can wait till he hears the evidence before expressing his opinion. It is not, however, an unprecedented action for a judge to state his opinion in a case where the evidence is clear, and even to stop the further presentation of evidence, where nothing new is pretended to be offered; while it is frequently the case that counsel are stopped in the midst of their most glowing arguments, with the arbitrary and impatient observation, that "that is sufficient." Patience in the judge and persistency in the counsel work well together; but the latter without the former is not likely to produce any very amicable state of things in court.

It has always been a leading characteristic of the profession to be chivalrous and decisive in their modes of redressing personal wrongs. Always assisting others to wander through the labyrinth of a suit at law, law

Divorced persons are seldom satisfied with the disposition which is made by the court in case the matrimonial relations have been productive of children. Father and mother, both, actuated by fancy, envy or parental fondness, often claim the possession of the children. And, where there is but one child, and both parents cling to it with zeal, the judicial mind is sorely puzzled to make a decision at all satisfactory, entirely just and perfectly feasible. The abduction of the child of Gen. Viele last week from Lake Mahopac, a summer resort, by the agents of its mother, the divorced wife of the gen-yers are yet, paradoxically enough, quite summary in eral, recalls the difficulty of pleasing both parties in cases of this character. In such cases, we would suggest the ingenious mode resorted to by King Solomon, who, when a child was claimed by two mothers, ordered that it be cut in twain. When the sword is about to descend, the parent who loves the child the more will naturally cry, save the child," and the wise judge will award it to the keeping of the surprised but more devoted parent.

It is not often that a judge is such an embodiment of patience as was that judicial being who is said to have listened for days to the argument of counsel upon the construction of a statute, and at the close of the disputation, quietly informed the exhausted advocates that the statute had been repealed. The judge, before whom the case of Miss McCabe (alleged to have been wrongfully committed to the Bloomingdale Asylum) came, adopted quite a differMiss McCabe had been upon the stand, and examined with a view of ascertaining her sanity;

ent course.

their modes of obtaining justice. It would scarcely be expected, however, that a judicial officer should revive the Preston Brooks mode of obtaining redress for personal wrongs and use a cane, the symbol of dignity, as Judge Dent, of Washington, did recently upon an editor who had been so audacious as to libel him. We trust that this unfortunate episode, this ebullition of personal rage, is not the beginning of a ceaseless physical polemic between the members of the editorial and legal professions.

In view of the developments made in the celebrated causes of Mrs. Wharton and Dr. Schoeppe, it becomes a question of some difficulty whether modern science, in its relations to the administration of justice, has been more disgraced or vindicated, more degraded or elevated. That chemistry is one of the leading sciences of the age cannot be questioned, and that, when judiciously applied, it is a powerful auxiliary to the law, will not be denied. But our modern Lady Macbeth would well complain that the "damned spot won't