jury must be convinced, before they find guilty of libel, that his intention was to libel-not to state facts, which he believed to be true."

Such are the principles held by the great leaders of the whig party of England, in opposition to the arbitrary doctrines of the court. The principles of our revolutionary ancestors were no less clear and decided. At the commencement of the struggle, when it became apparent that no compromise could take place, but that their principles must be enforced, they despatched commissioners to Canada to induce that province to join the confederacy.

These commissioners were directed to establish a free press as one of the essential requisites, to qualify the Canadians for a participation in the privileges of freedom, for which they were then entering upon a war of no speedy termination.

The constitutions of the several states also afford evidence of the peculiar importance of a free press, and of the views of our own ancestors, of the common law respecting political libels. The constitutions of Massachusetts and North Carolina, established during the contest, and even amid the din of arms, furnish strong contemporary testimony of their intentions. The sixteenth article of the declaration of rights, contained in the former, asserts, that "the_liberty of the press is essential to the security of freedom in a state; it ought not therefore to be restrained in this commonwealth." The fifteenth article in the constitution of the latter declares in still stronger terms, that the free dom of the press is one of the great bulwarks of liberty, and therefore ought never to be restrained.

The constitution of New Hampshire contains the same provision as that of Massachusetts. Those of Maryland, South Carolina, and Georgia, also declare the inviolable freedom of the press, and the trial by jury, as theretofore enjoyed in those several states, as if they meant to pointedly reprobate the conduct of the English

courts, in denying the right of the jury, to decide upon the intent in prosecutions for libels upon government.

The provisions in the constitutions of some of the sister states, are still more pointed. That of Pennsylvania, article 9, section 7, declares immediately after the provision relative to the trial by jury, that "the printing presses shall be free to every person who undertakes to examine the proceedings of the legislature, or any branch of government, and no law shall ever be made to restrain the right thereof," and after providing for the admission of the truth in evidence, it authorizes the jury, upon indictments for libels, to determine the law and the facts as in other cases.

The constitutions of Delaware, Illinois, Kentucky, Tennessee, Louisiana, Ohio, Indiana, and Mississippi, contain a similar provision, and refer particularly to the conduct of public officers, as a proper subject of privileged discussion.

The provision in the constitution of Vermont, article 13, on this subject, is as follows: "the people have a right to freedom of speech, and of writing and publishing their sentiments concerning the transactions of government, and therefore the freedom of the press ought not to be restrained."

These provisions, all declaring the freedom of the press, and some pointing particularly at that subject of discussion, which in England had been a prohibited topic, i. e. the proceedings of government, and the conduct of public officers, furnish strong reasons, almost amounting to demonstration, of the abrogation in this country of the distinction which the judges of the court had so long endeavoured to preserve in England.

If the character of our institutions was not in itself a sufficient argument in favour of a free discussion of the conduct of public men; those declarations, by the founders of our political institutions, inserted in the constitutions themselves, plainly indicate, that their idea of a free press was one which freely discussed the measures

and conduct of the officers of government, and that they intended expressly to reject the doctrine of the king's bench, as to malice, being a legal inference.

The course of legislation sanctioned under these constitutions has been in conformity with this idea, and strongly illustrates the tendency of our institutions, to still further enlarge the freedom of political discussion. The attempt which was made during the administration of John Adams, to bring libels against the federal authorities under the jurisdiction of the federal courts, resulted, as we well know, in the overthrow of the dominant party. In that contest the legislature of Virginia took the lead, and headed by Madison and Jefferson, after protesting against the constitutionality of the sedition act, declared that “Truth, if left to herself, will prevail. That she is the proper and sufficient antagonist to error, and has nothing to fear from the conflict, unless disarmed of her natural weapons, free argument and debate."

The legislature of Pennsylvania at a subsequent period, 1809, passed an act abolishing all criminal prosecutions for publications concerning the government, or investigating the conduct of public officers, and leaving individuals who had been injured by such publications, to their civil remedies.

So too in New York, when in Croswell's case, in a moment of high party excitement, part of the judges yielding to that propensity so often found in mere lawyers, to regard authorities rather than principles, determined that the truth could not be given in evidence, in defence of a political libel; although they were prevented by an equal division of the bench, from introducing that monstrous doctrine into the body of American jurisprudence, the legislature determined that no doubt should exist on that subject, and by a declaratory act, declared the truth to be a proper and legal defence.

Massachusetts has established the same doctrine, by a declaratory act, passed 1827, and has further declared

that a plea in justification, shall not be deemed evidence of the publication, or of malicious intent, even though the defendant fail to prove his plea.

From this minute, and perhaps tedious examination of the history of the law respecting political libels, it appears that in England, this doctrine of which we complain, was introduced into the common law by the influence of the government, that it then was at variance with, and formed an exception to the common law respecting publications, in whose subject matter the community was interested; that this doctrine was always complained of, and sometimes successfully resisted as illegal; that the whigs of England, a party which was generally found on the side of constitutional freedom, always protested against it, and finally succeeded in triumphing over this encroachment on the rights of juries; that the doctrine itself is inimical to the freedom of political discussion, and inconsistent with the character of our government, and that in the constitutions of most of our sister states, the doctrine is expressly repudiated as incompatible with our system of government. Against these arguments, all converging to one point, what can the learned counsel for the plaintiff urge-the opinions of the judges of the king's bench, in prosecutions on the part of the government, for political libels-opinions originating in chief justice Scroggs, and ending in Lord Mansfield. They may indeed declaim against the licentiousness of the press, and of the impropriety of bringing a man's foibles before the public. But it is not the licentiousness, but the freedom of the press, for which we contend. This vice of intemperance is not a foible as has been alledged. In public men it is a crime. I do not contend for a rigid and austere code,that regards all conviviality as an offence against sound morals, but the vice stigmatized in the publication complained of, is a great and growing evil. It saps the foundation of morals, and when it shall be once tolerated in our public functionaries, it will destroy the character

of our institutions. In some cases it may demand our forbearance, and even our pity.

When a man, after devoting his talents, and expending his fortune in the public service, is seen struggling in the decline of life, amid embarrassments resulting from his devotion to his country,-deserted by the heartless flatterers who, in his day of power, sued for his smiles,-surrounded by money dealers, and merciless harpies; who like vultures, flock round their prey, ere life and sense be gone, we cannot wonder that he should seek relief from the cold ingratitude of the world, by steeping his senses in forgetfulness. We mourn over the wreck of greatness, and while we condemn his weakness, we pity and forgive the infirmity of purpose, which shrinks from contemplating his changed and fallen condition.

Even when men of commanding intellects retire from the glorious conflict of mind, and the discharge of duties for which the most gifted men, alone, are qualified to indulge in this degrading vice: when yielding to its influence, they hide their shame and their infirmity in retirement, admitting the fatal effects of indulgence, but still clinging, with blind infatuation, to the intoxicating bowl, we may deplore while we condemn the weakness of human nature, and mourn over the loss of learning and genius; but here there is nothing of vice to reprobate, except its weakness, and the example has no extensive and desolating influence.

But when a man of strong passions and intellect, whose principles render him popular, and whose political course has elevated him to power, as the favourite of his party,-when such a man indulges in the stimulus of the bowl, there is danger in the example, lest it sanctify the vice, and render it contagious. Should such a man be found in a high and prominent station where the notorious exhibition of his infirmities, must attract the attention of the com

munity,-affecting the character of his constituents, not merely in the opinions of the world, but by the sure though imperceptible contagion which always fol

lows vice, practised with impunity, and placed above condemnation by the rank and popularity of the offender,-in such a case it is the task of a patriot, it is the duty of every citizen, loving his country, and prizing the purity and stability of her institutions, to strip the mask from vice in power, and in strong and nervous language, to hold up the violator of public decency, to the merited scorn and indignation of society.

This is the case before the court, and we complain that the jury were not permitted to pass upon the motives of the defendants in making the publication complained of, as they would have been in the trial of any other libel, the subject matter of which was important to the public. The repudiation of the doctrines laid down at the trial of this cause is required, to restore the unity and harmony of the common law. Under the opposite principle, the intention then becomes, as it ought to be, the criterion of guilt. If the mind is not guilty, the act is not criminal. This is a maxim of the common law in all its branches.

If the publisher intend to tell the truth for justifiable purposes, the law does not infer that his intention is malicious. You prohibit free discussion for all useful ends if you adopt any other principle. You may indeed preserve the form; but the vigour and life of free discussion, the boldness of remark, the active spirit of investigation into public abuses will have departed. What indeed can be expected from writers, cowering under the uplifted scourge of such a maxim? whom no purity of intention, no singleness of purpose, nor patriotic views can save from being classed and punished with the criminal libeller and defamer? No matter how strong his belief, how unsuspecting his good faith; no matter how convincing the evidence presented to his mind; no matter how urgent the necessity of informing the public, if his communication does not conform to the evidence laid before the jury; if his assertions do not square with the conclusions of men equally fallible with himself, his intentions are to be deemed malicious, and him.

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self liable to punishment. It is no answer to say, let men in publishing strictly adhere to the truth. It is a sufficient reply to this, that it is not in conformity with the common law concerning libels of this class, which makes due allowance for human fallibility. If man were of a different nature, and possessed of unerring judgment and sagacity, no objection could be made to this rule. They then would know what truth was. They would not be compelled to inquire with Pilate, when the Saviour of mankind was arraigned before him for preaching false doctrines, what is truth? They would know, and if they erred, they would sin against light and knowledge. They would intend to libel, and their intention would render them guilty. But to make it their duty to speak, and to punish them for speaking what they believe to be true, is punishing them for their fallibility, and not for their guilt. It is visiting upon man what, if it be wrong, is the error of his Maker. A principle like this is the essence of tyranny. It loses sight of the eternal distinction between right and wrong, and would be monstrous in any government.

In this government, it is fraught with the most pernicious consequences. The chief subjects of political discussion in a representative form of government, must be the conduct and principles of those who administer it, or in other words, the conduct and principles of the dominant party. So long as these are examined in a fair spirit of inquiry, with the view of imparting information to the public, and with honest intentions, the limits of discussion cannot be extended too far. In other countries, public opinion most generally acts as a check upon the government, whose official interest is somewhat at variance with the wishes of the people. It therefore is naturally arrayed on the side of those, who are prosecuted for political offences, and is a sure ally in their defence against the power of the government. As in England, it is the judge between the accuser and the accused. But in this country, it is the

source and origin of political power. It stands in the double character of party and judge; and unless it can be addressed with freedom and b›ldness on the conduct of public officers, no abuses on the part of th se in power can be redressed. The avenue to the public mind will be closed; for who will accuse a party of doing wrong, when the members of that party are to decide as jurors, simply upon the truth of the accusation, without reference to the motives and belief of the accuser? No reform, even in the worst state of public affairs, can be effected when such a doctrine prevails in a court of law. But with a press protected in the legitimate scope of its functions, by an appeal to the integrity and uprightness of purpose characterizing its publications, a majority however overwhelming can be kept in check, and within constitutional bounds. An appeal to such motives, when they are recognised by the law as forming a good defence, will obtain a hearing even in the excitement and heat of political conflicts.

On the other hand, those who administer the government are protected from unbounded abuse and calumny, by requiring qualities entirely incompatible with intentional falsehood.

But if the law infers malice when the charge is untrue; if error is to be the criterion of guilt, and a jury is required to decide upon the truth of political publications, and not upon the motives of their authors, and in so deciding, perhaps to condemn the course of those whom they have elevated to power, the rights of the minority will be placed at the mercy of the ruling party of the day. The sacred walls of the temple of justice will resound with the clamour of faction, and the accused will be acquitted or condemned, not in conformity with the principles of equity and law, but according to the excited passions and erring judgment of a fallible and prejudiced jury. The only security which the minority now have, or can have, against the abuses of power, will be destroyed. The dominant party take

possession both of the government and of the jury box, and exercise their authority without the fear of censure or control. The press in effect is silenced; and under the semblance of freedom, the worst kind of despotism is introduced,-the despotism of faction, which sacrifices the rights of the minority according to the forms of the constitution, and silences all remark, and suppresses all investigation according to the forms of law.

I am shocked to think, that a doctrine pregnant with such consequences should be advanced in a court of justice in this country; and that it should now be a question in the court of last resort, whether we should go back to the principles of the Tudors and Stuarts-to arbitrary maxims invented to suppress political discussion; or adhere to maxims which are in accordance with the just and mild spirit of the common law, when not warped to subserve the designs of government. Upon these maxims depend the freedom of political discussion. It cannot exist where they are frowned upon; and in the melancholy history of the progress of truth upon earth, you may see their violation, whenever a martyr for truth's sake was to be of fered upon the shrine of human error and passion. When the Saviour of mankind came upon earth to promulgate the doctrines of charity and peace, his intentions were not questioned by the priests and rabble that called for his crucifixion; but they demanded his life because his doctrines were not true. For ages, his disciples were dragged to the stake as schis matics and heretics, or rather as victims to sustain the heathen superstitions, which they were destined finally

to overthrow.

When this church, established by their blood, became in after times corrupted through the inventions of man, seeking to gratify his avarice and lust of power by the aid of religion, did those, who endeavoured to restore the primitive faith, meet with a kinder hearing or a milder fate? No! Other victims were demanded, and the coun

cils of Constance and the fires of Smithfield, afford ample evidence of our weakness and fallibility, when error and truth appear as antagonists before human tribunals. Nor is it in religion alone, that error has wielded the tyrant's rod, while truth has suffered the martyr's fate. Even in the physical sciences she has usurped the censor's chair, and condemned the humble disciples of truth to imprisonment and death.

Need I name Galileo, imprisoned in the dungeons of the inquisition for declaring that the sun was in the centre of the solar system. That eternal truth was then deemed heresy, and the Italian philosopher suffered, not for his criminal intentions, but for his promulgation of error? The history of politics is full of the violations of this principle, and of the injustice perpetrated by error in the ascendant, upon the advocates of a better and a freer system of government; but in all these instances, it is consoling to find that the

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good old cause" has constantly advanced in the opinions of mankind. Hampden, when contending for the exemption of Englishmen from arbitrary taxation, was condemned by the subservient judges who then sat in the exchequer chamber; but in a few years the judgment was reversed by the commons of England. Algernon Sidney expiated his offence, for denying the divine rights of the Stuarts, upon the scaffold; but the expulsion of that illfated family from their country, and the reversal of his attainder followed close upon his condemnation. The decision of the king's bench against the freedom of the press, in the case of Woodfall, was subsequently overturned by the declaratory act of Mr. Fox, passed with the almost unanimous consent of the British parliament. Such has been, in past ages, the fate of all, who ventured to question the conduct of those invested with power, to suffer in their own persons for the success of the cause; and such will always be their fate, until courts shall learn to inquire concerning the intentions of the accused, instead of