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vised Statutes, i Rev. Stat. 513, $ 77 et seq., providing for laying out private roads. Such a proceeding in effect transferred the property of one person to another, and the owner of the road became substantially the owner of the land; or, at least, the original owner was deprived of the beneficial use of it without his consent. The Convention of 1846 amended the Constitution by providing specifically for laying out private roads.

This provision does not apply to a way by necessity nor to a way used by the owner for his own convenience, and which crosses land afterwards subdivided and sold. Wheeler v. Gilsey (1867) 35 How. Pr. 139.

In Berridge v. Shults (1900) 32 Misc. 444, 66 N. Y. Supp. 204, Justice Chase at special term held unconstitutional the provision of the highway law, $ 111, providing for a jury of six in a proceeding to lay out a private road, saying this was not the jury contemplated by the Constitution, and cited People ex rel. Eckerson v. Haverstraw (1896) 151 N. Y. 75, 45 N. E. 384


The provision in relation to drainage, added to this section in 1894, was not retroactive, and did not affect proceedings pending under prior drainage laws, which limited the drainage of agricultural lands to cases where it was necessary for the preservation of the public health. Re Penfield (1896) 3 App. Div. 30, 37 N. Y. Supp. 1056.

In Re Lent (1900) 47 App. Div. 349, 62 N. Y. Supp. 227, the East Chester drainage act of 1871, chap. 882, was held unconstitutional because it did not require notice of assessment to be given to property owners.

In Re Tuthill (1900) 163 N. Y. 133, 49 L. R. A. 781, 79 Am. St. Rep. 574, 57 N. E. 303, the drainage act of 1895, chap. 384, intended to carry into effect the new drainage provision of the Constitution, was held unconstitutional so far as it authorized the assessment of any part of the expense upon owners of land adjoining the land sought to be drained. The amendment only "authorizes laws which will enable an agricultural landowner, desirous of draining his lands, to exercise the right of eminent domain, and thereunder to appropriate another's lands for the purpose, under such restrictions as shall be deemed proper to be made, and upon his making due compensation. No right is conferred or implied to assess a portion of the cost and expense upon the other landowners." It was inti

mated, but not decided, that the amendment to $ 7 is obnoxious to the provisions of the Federal Constitution. Judge Gray said he was unable "to resist the conclusion that the constitutional amendment is invalid and inoperative;" but Chief Judge Parker thought the amendment was not in conflict with the Federal Constitution.

§ 8. (Freedom of speech and press; evidence in libel cases.] -Every citizen may freely speak, write, and publish his sentiments on all subjects, being responsible for the abuse of that right; and no law shall be passed to restrain or abridge the liberty of speech or of the press. In all criminal 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 libelous is true, and was published with good motives and for justifiable ends, the party shall be acquitted; and the jury shall have the right to determine the law and the fact.

(Const. 1821, art. 7, 8 8; 1846, art. 1, $ 8.)

Freedom of the press.- In the Introduction I have quoted the prohibition against the freedom of the press which was contained in the instructions issued to Sir Edmund Andros on his appointment as governor of several American provinces, including New York, in 1688, and have noted the fact that the prohibition was continued in subsequent instructions.

The provision of the Revised Statutes (1 Rev. Stat. 665, $ 28) which prohibited an advertisement of a lottery was not obnoxious to the constitutional provision securing liberty of the press. The Constitution prohibits lotteries, and the statute was intended to carry that prohibition into effect; but it did not prohibit an editorial article "showing the existence of an illegal lottery, and where the same is carried on, for the purpose of denouncing and exposing it.” Hart v. People (1882) 26 Hun, 396.

A by-law of an associated press prohibiting the associates, under a specified penalty, from receiving and publishing regular news despatches from any other association, is not a violation of this provision relating to the liberty of the press. It is a proper subject of contract between publishers. Matthews V. Associated Press (1891) 61 Hun, 199, 15 N. Y. Supp. 887.

In People v. Most (1902) 71 App. Div. 160, 75 N. Y. Supp. 591, the provision of $ 675 of the Penal Code, that a person who wilfully and wrongfully commits any act which disturbs or endangers the public peace is guilty of a misdemeanor, was made the basis of an indictment for the publication of an article in a newspaper which "characterized government as 'nothing more than murder dominion,' and called upon the adherents of anarchypersons supposed to be in sympathy with the editor of the paperto execute the judgment by killing" the heads of nations by various means particularly specified. The court say: "That the promulgation of such unnatural and outrageous doctrines in this state of civilization 'seriously endangers' the public peace is a question which to us does not seem to admit of debate. Every civilized nation heretofore has existed, and hereafter must exist, if at all, by the enforcement of law. Its recognition and enforcement are the safeguards of the state. Indeed, upon it depends its existence. Whoever openly or secretly advocates the resort to force, in opposition to the law of the state, for the accomplishment of any purpose, or the righting of any wrong, either real or imaginary, seriously endangers the public peace." The Constitution "does not give to a citizen the right to murder, nor does it give him the right to advise the commission of that crime by others."

Libel.—The controversy relating to the right of the jury to determine both the law and the fact in libel cases, which had continued many years, was settled in this state by the act "concerning libels,” passed April 6, 1805, in which the preamble recited that “doubts exist whether, on the trial of an indictment or information for a libel, the jury have a right to give their verdict on the whole matter in issue;" wherefore it was enacted that in libel cases "the jury, who shall try the same, shall have a right to determine the law and the fact under the direction of the court, in like manner as in other criminal cases, and shall not be directed or required by the court or judge, before whom such indictment or information shall be tried, to find the defendant guilty, merely on the proof of the publication by the defendant of the matter charged to be libelous, and of the sense ascribed thereto, in such indictment or information," and the defendant was permitted "to give in evidence in his defense the truth of the matter contained in the publication charged as libelous; provided always, that such evidence shall not be a justification, unless, on the trial, it shall be further made satisfactorily to appear that the matter charged as libelous was published with good motives and for justifiable ends."

This statute was the basis of the provision on this subject incorporated in the Constitution by the Convention of 1821, and which has been continued without change in subsequent Constitutions. On the question of justification the court, in People v. Sherlock (1901) 166 N. Y. 180, 59 N. E. 830, said "the belief of the defendant in the truth of the article is not admissible in justification of the libel. This was the rule at common law, and neither the statute of 1805 nor the constitutional provision has changed it."

In George v. Jennings (1875) 4 Hun, 66, the opinion is not reported, but the headnote states that the provision of this section that "in cases of libel, if it shall appear to the jury that the matter charged as libelous is true, and was published with good motives and for justifiable ends, the party shall be acquitted," applies "only to criminal prosecutions. In civil actions where the truth of the alleged libel is pleaded in justification, it may be proved as a complete bar to the suit. In such cases the motive with which the publication was made is not material. The rule is the same in slander cases."

The subject of reports of judicial proceedings was considered in Johns v. Press Pub. Co. (1892) 46 N. Y. S. R. 859, 19 N. Y. Supp. 3, where the court say that “aside from ex parte petitions and the like, any publication made in the ordinary course of judicial proceedings is privileged if the article be a fair and impartial account thereof. Though the publication may be to the disadvanatge of the particular suitor, the paramount advantage to the public fully justifies the end attained;" and the opinion of Lawrence, J., in Rex v. Wright (1834) 8 T. R. 298, is cited, in which he says, in substance, that, "though the publication of proceedings in courts of justice may severely reflect on individuals, yet such publications, if they contain true accounts, are not libels, nor the subjects of actions, because it is of great importance that the proceedings of courts of justice shall be known; that the general advantage to the country in having these proceedings made public more than counterbalances the inconvenience to the person whose conduct may be the subject of the proceedings ;” and also the opinion of Pollock, C. B., in Ryalls v. Leader (1866) L. R. 1 Exch. 299: “We ought to make as wide as possible the right of the public to know what takes place in any court of justice, and to protect a fair, bona fide statement of proceedings there.” The court in the principal case say further that "the truth, irrespective of motives, is a complete justification to a civil action for libel. In criminal prosecutions the accused is


obliged to go a step further and prove that the publication was made with good motives and for justifiable ends.

Every one has a right to comment on matters of public interest and general concern, provided he does so fairly and with an honest purpose. Report and comment are two separate and distinct things. A report is the mechanical reproduction of what actually took place. Comment is the judgment passed on the circumstances reported by one who has applied his mind to them. ... Blending the reports and comment together does not make the article libelous if it would not be such if the one were separated from the other.”

Schuyler v. Curtis (1895) 147 N. Y. 434, 31 L. R. A. 286, 49 Am. St. Rep. 671, 42 N. E. 22, is an interesting case in relation to the right of privacy, considered especially with reference to a project to erect a statue to a deceased person, and the weight to be given to objections to the project made by such person's living relatives. An injunction to restrain the erection of the statue was denied.

§ 9. (Right to assemble and petition; divorces; lotteries prohibited.]—No law shall be passed abridging the right of the people peaceably to assemble and to petition the government, or any department thereof; nor shall any divorce be granted otherwise than by due judicial proceedings; nor shall any lottery or the sale of lottery tickets, pool-selling, book-making, or any other kind of gambling hereafter be authorized or allowed within this state; and the legislature shall pass appropriate laws to prevent offenses against any of the provisions of this section.

(Const. 1846, art. 1, $ 10.)


"The right of the people peacefully to assemble to discuss or deliberate upon matters of a public or private nature is one of those fundamental rights secured by the Constitution itself, and the privilege of animadverting freely upon public men and public measures is an instance growing out of that right." This is clearly distinguishable from an assemblage "to resist the execution of the laws, to disturb public order, or for the perpetration of acts inspiring public terror or alarm." The court defined a riot as a "tumultuous dis

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