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cause for believing it to be true, furnish a good defence to an action for libel.

The last of these propositions may be deemed somewhat novel, and I am free to admit that it has not been distinctly sanctioned by the courts, either of England or in this state, but it should be also recollected that this question has never before been distinctly raised in our courts, and I intend to show that, on the law of political libel, the courts of England do not furnish a safe rule for the tribunals of the United States.

It is true that, by a provision of the constitution of the state of New York, the common law of England is adopted as the law of the state. But this adoption was never intended to extend to all the crudities and absurdities growing out of the feudal system, and entirely inconsistent with the institutions of this country. It was, indeed, an adoption of its principles as a body of jurisprudence, but when any of these principles are found to be inconsistent with our own institutions, they are either expressly or silently abrogated. The courts do not acknowledge the principle, that the executive can do no wrong, or that the legislature is omnipotent, and yet these are principles of the common law. They are, however, repugnant to the spirit of our institutions, and the courts therefore reject them.

This qualifying principle must be carried with us in the examination of any doctrine of the British courts, not sanctioned by our own courts, and relative to the political concerns of society. It must especially be applied in all discussions of the law of libel. A law which, protecting as it does private character, also limits and defines the freedom of the press, the great instrument of reform in the science of government.

What then, I may ask, is the common law of libel? It is a legal principle aiming at the protection of character against malicious attacks. The principle, however, does not go to the extent of declaring, that all publications concerning private character are

libellous; nor even that all false publications concerning private character are libellous.

There are things more highly valued by the law, than even the exemption of individuals from untrue aspertions of their good name.

Some of the dearest interests of society depend upon free discussion; and the law, wisely looking to the higher interest, does not concede to individuals any reparation for injuries to their characters, sustained in these discussions. In general individuals are liable for written publications, affecting private character, provided they be untrue: but where the public has an interest in the discussion of the subject matter of the publications, they are then liable only for what is malicious as well as false. The malicious intent then becomes an averment, which the plaintiff must prove. It is always a necessary and material averment; but in general, the jury are at liberty to infer it from the falsehood of the publication. In this class of publications, however, the proof of intent devolves upon the plaintiff, and is one of the preliminary objects of inquiry, on the part of the jury. When that is established, or when grounds for them to adopt such an inference have been laid, it then becomes necessary for the defendants to prove the truth of the publication. Malice is never, as the judge asserted at the trial, an inference of law, but always a question of fact, and a material averment. In 1 Chitty's Plead. 226, it is said that where the law intends or infers a fact, no averment is necessary. The same doctrine is laid down by Lord Coke, Inst. 786. If therefore malice were a legal inference, no averment would be necessary. It may, indeed, be an inevitable inference from the circumstances, but it may also be a doubtful question, and the defendants were entitled to have the decision of the jury upon that point. Where no good motives can be assigned for the publication, the duty of the jury is plain. They then only inquire whether it be true or false, because if false, it is malicious. But where public

motives can be easily assigned for the publication, the law then requires the jury to inquire not only concerning its truth, but also into the motive of the defendants in making the publication. If it be false, the defendant is not necessarily to be condemned. He may have been mistaken, and the law will not condemn him when giving information, in a matter, about which the public is interested in obtaining information for an error in judgment. It concedes this much to human fallibility, and only condemns for what is wilfully or maliciously false. The intent then becomes the criterion of guilt or innocence, and whether the libel be true or false, if published without malice, and in good faith, the defendant is justified. We contend that this is invariably the rule, where the public is interested in the subject matter of the communication. By reference to adjudicated cases, both in this country and in England, the court will find this proposition to be fully established. In the case of Weatherstone vs. Hawkins, 1 Term R. 110, which was an action brought by a servant against the master for giving him a bad character; the court decided that in order to sustain that action, it was necessary not only that the statement made by the master, should be untrue, but that the plaintiff should prove it to have been made with a malicious intent.

So too in discussing the character of a person applying for admission into a volunteer corps, a communication to the committee of election, must be shown to have been made from a malicious motive. Its falsity is not sufficient. Barband vs. Hookham, 5 Esp. R. 109.

The same doctrine is laid down in the case of Hare vs. Meller, 3 Leon. 138, where statement was made in a complaint to the queen: in Lake vs. King, 1 Saund. 131, where it was made in a petition to the house of commons: in Ashley vs. Younge, 2 Burr. 810, in a course of judicial proceedings: in Hodgson vs. Scarlett, 1 Barn. & Ald. 239, where it was made by a counsel in the discharge of his duty:

and in Benton vs. Worley, 4 Bibb. 38, in an application to justice for a warrant.

The courts of the United States have repeatedly recognised this principle. În Jarvis vs. Hatteway, 3 John R. 180, the supreme court of this state held, that a statement made in proceedings in a course of church discipline was not libellous, except malicious as well as false. The same doctrine was held in Thorn vs. Blanchard, 5 John. 508, respecting a petition to council of appointment, to remove plaintiff from his office: and by the supreme court Penn. Gray vs. Pentland, 4 Serg. & Rawle 420, respecting an affidavit sent to governor as to the official misconduct of plaintiff, who held his appointment from the governor, and in Fairman vs. Ives, 7 Serg. & Lowber 221, where the libel was in a petition to the secretary of war, accusing a subordinate officer of not paying his debts. The principle indeed is recognised in its broadest extent, that in an application for relief to the proper authority, the charge is not libellous unless it is both malicious and false, and malice must be proved by the plaintiff. In addition to the cases above cited, the court will find the same doctrine sanctioned in 12 Coke 104, Cro. Eliz. 230, Andr. 229, 3 Camp. 296, 1 Binney 178, 2 Pickering 314, 3 Taunt. 456, 1 Sir Wm. Black 386, 4 Esp. R. 191.

In all these cases, forming an uninterrupted current of authorities, it was held that where the public is interested in the subject matter of the communication, the inquiry is not merely whether the publication be true, but, if false, whether it were published from malicious motives. The plaintiff was held bound to prove the malicious intent. The jury were directed to inquire whether the defendant intended to serve the public, or merely to injure the plaintiff; whether the motive was public or malicious; and if they found that it was published with a belief in its truth: the inference of malice being rebutted, they were directed to acquit the defendant.

In criminal prosecutions for political libels, it has indeed been held by the English courts that malice was a legal inference; and it is from that source that the honourable judge who tried this cause derived the doctrine then advanced by him. But this principle has not been asserted even in England in civil suits; and if it had been, I am prepared to show that the law of England on the subject of political libels is not and never ought to be the law of this country.

In civil actions of this class, the motive has been even there held to be an essential inquiry for the jury, and not, as the judge here called it, a legal inference. The jury are directed to decide upon the question of malice, and not, as they were here repeatedly told, to consider it as a question of law. In this case the question of malice was in effect excluded from the consideration of the jury; and if they might have inferred that the publication could have been made without malice, the charge was incorrect.

It is unnecessary for us to show, that such an inference might have been drawn. Happily the charge of the judge furnishes us with satisfactory evidence of the sincerity and good faith of the defendants in making this publication, where he tells the jury that entire credit is to be given to the statements of all the witnesses; although those of the defendants could not be believed without admitting their justification to be completely made out.

It is scarcely necessary to go into detail, to prove this case to belong to that class, where the public is interested in the subject matter of the publication. It was concerning the conduct of a public officer while discharging his official duties, and it accused him of what ought to have deprived him of the support of the people. His conduct, supposing this charge to have been true, degraded his office, and was offensive to decency. It was a public duty therefore to communicate it to his constituents throughout the state. The motive might have

been a public one as well as malicious, and the defendants were debarred from their legal rights in having that question withdrawn from the jury.

The doctrine, that malice is an inference of law is drawn from the English criminal law concerning libels; and although in the government prosecutions for political libels, precedents in abundance may be found in which this principle is advanced, I shall contend that, that branch of English jurisprudence was never adopted in this country; that it is inconsistent with the character of our institutions; and that the general principle of the common law, that publications concerning subjects affecting the public interest are not libellous unless malicious, applies here to publications made with the intention of communicating in good faith information to the public concerning the official conduct of a public officer; that in all such publications the intent is a material question for the consideration of the jury—a question of fact, and not a legal inference.

The law concerning libels is not to be found in the earlier law books. It is intimately connected with the advance of society, and may be said to depend upon the progress of civilization. It originated in the aspirations of the people for freedom, and to obtain a greater share in the government than they had formerly enjoyed. When these movements became obnoxious to the ruling powers, they directed their attention to the subject, and suppressed political discussion without ceremony.

Shortly after the introduction of printing into England, we find the Starr chamber established:-As if this formidable tribunal, so hostile to freedom, and the abolition of which was its first triumph, was especially instituted to control the press. How government at first exercised its power in repressing political libels we may learn from Lord Bacon's history of Henry VII. In speaking of Lord Stanley's execution, this great philosopher, who with all his sagacity did

not fully appreciate the rights of the commonalty or the power of the press, says, "Hereupon presently came forth swarms and vollies of libels, which are the gusts of liberty of speech restrained and the females of sedition, containing bitter invectives and slanders against the king and some the council; for the contriving and dispersing whereof, five mean persons were caught up and executed." In this summary manner was the offence of libelling the government punished under the Tudors; and although under the Stuarts the form of a trial was gone through, the proceedings were fully as subversive of the principles of freedom and justice.

During the reigns of James and Charles, as we are informed by Hume, (certainly no advocate for the liberal side of the question,) any book commenting upon the conduct or ordinances of the monarch was deemed libellous, and its authors brought before the Starr chamber for punishment. How that tribunal punished them, and what respect was paid by its members for civil rights when they came in collision with the prerogatives of government, we can learn in the civil war and in the overthrow of the monarchical government brought about by their iniquitous judgments.

Even under the commonwealth, a government which rather exemplified the triumph of a party, than the prevalence of liberal principles, although this court was abolished, the restrictions on the press were confined, and a censorship was established, which produced from Milton his celebrated and most eloquent essay in favour of unlicensed printing. An essay from which I shall have occasion hereafter to quote, as high authority illustrating and enforcing the principles advanced in this cause.

The restoration of the Stuarts did not augment the freedom of the press, and, and after this event the state prosecutions for libels against the government begin to appear in the reports of the common law courts. The first case to which I shall refer is that of John Twynn, who was exe

cuted in 1663, shortly after the restoration, for publishing "that when the magistrates prevent judgment, the people are bound to execute jndgment without and upon them."

In 1680 we find the courts advancing the doctrine laid down by the honourable judge at the trial of this cause, and as this seems to be the origin of this doctrine, (and certainly it is not of modern origin,) it will not be amiss to refer particularly to the case. It was at the trial of one Henry Carr for a libel ridiculing the Jesuits, before chief justice Scroggs, that corrupt and unprincipled minion of power. This instrument of the crown then told the jury, that they had no power to judge of the intent, and that (I read from his charge 7 St. Trials 1127.) “as for these words, illicite, maliciose, unlawful; I must recite what all the judges of England have declared under their hands: When by the king's command we were to give in our opinion what was to be done in point of the regulation of the press:-we did all subscribe that to print or publish any newspaper or pamphlet of news whatsoever is illegal; that it is a manifest intent to the breach of the peace, and they may be proceeded against by law for an illegal thing. Suppose now that this thing is not scandalous, what then? If there had been no reflection in this book at all; yet it is illicite, and the author ought to be convicted for it. And that is for a public notice to all people, and especially printers and booksellers, that they ought to print no book or pamphlet of news whatsoever without authority. So as he is to be convicted for it as a thing illicite done, not having authority." "If you find him guilty and say what he is guilty of, we will judge whether the thing imports malice or no." 7th St. Tr. 1127.

After this charge, in which the jury are repeatedly told, that they have no concern with the question of malice, they retired, and in an hour after brought in a verdict of guilty. Whereupon they received from the lips of this imaculate judge, this high com

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mendation, "you have done like hon est men. And his worthy coadjutor, the then recorder of London, Sir George Jeffries, replied, "they have done like honest men."

In this case is to be found the origin of the doctrine, which the honourable judge who tried this cause laid down as a rule for the jury, and we are willing that it should have all the weight due to its antiquity, and to its pure and venerable orgin. Something, however had now been gained in England by the efforts of the presbyterians and puritan whigs. Men were no longer caught up and executed. The Starr chamber was abolished, and libellers were brought before the courts of common law. The crown, as before, was still hostile to the press,and with a view of keeping it in a state of complete control, the doctrine that malice was a legal inference was invented, as a substitute for mere arbitrary will and power. Juries were told to find guilty upon proof of publishing, and the courts would then determine whether malice was imported.

Juries however would not always acquiesce in this doctrine; and in the celebrated case of the seven bishops, they took upon themselves to determine the question of malice, and acquitted the defendants. The conflict now between the court and the jury, had fairly commenced.-The judges, always striving to retain the power of determining the real question at issue in libel prosecutions, i. e. the guilty or malicious intention of the defendants, and the juries generally acquiescing, but occasionally, in matters where the public mind was highly excited, acquitting, in spite of the directions of the judges. In this contest, although the destined victims of arbitrary power would sometimes be protected, it was always with an effort; and in the natural course of events, they were sacrificed to the power of government.

Thus in 1682 we find Thompson, Paine, and Farewell convicted and punished for publishing, that Sir Edmondbury Godfrey had murdered himself; it then being an object with the

alarmists to make the nation believe that he was murdered by the Jesuits.

So too in 1693, after the revolution by which the English people flattered themselves their liberties were secured, Wm. Anderton was executed for a libel. 12 St. Tr. 1246.

In 1719 Littleton Powys took occasion, in his charge to the grand juries at the assizes, to express his opinion, and that of his brethren, concerning "the base libels and seditious papers, whose number had become intolerable," and respecting which he declared "that the government would not be at the trouble of inquiring after the authors, but would consider keepers of coffee-houses responsible for what were found there."

In 1729, at the trial of John Clarke, who was only a pressman, and in 1731, at the trial of Richard Franklin, the publisher of the Craftsman, the same doctrine as to the malicious intent was reiterated, and the jury were told that it was a legal inference, which it was the province of the court. to make, and that they had nothing to do with it.

At the same time, efforts were made to introduce the English law of libel into this country. In 1735, John P. Zenger, who then published a weekly journal in the city of New York, was prosecuted by information for a libel upon the government of the province. Great exertions were made by the government to procure a conviction, and two respectable counsel were struck from the roll for signing his exceptions. All evidence of the truth of his publication was rejected by the court; but the counsel for the defendant contended, that the jury might find a verdict for the defendant from their own knowledge of the truth of the publications. This they did do, in defiance of the charge of the court, and thus ended the first attempt to introduce the English law concerning political libels into this country.

In 1752, another contest took place in England, between the court and the jury, respecting Wm. Owen, who was prosecuted for a libel upon the house

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