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pressed by Ch. Baron Gilbert, in his Law of Evidence, vol. 1, page 142,) only stand instead of facts until the contrary be proved. If the proofs on the other hand fail to establish the justification, then the presumption of law that malice is implied if the charges are false stands good, and a verdict must, in such case, be rendered for the plaintiff. This is the whole scope and end of the rule of law with which the judge opens his charge to the jury. For, when the second inquiry arises, what is the extent and degree of the malice? an inquiry most materially bearing upon the amount of damages to be awarded to the injured party, the rule that malice is implied if the charges are false, no longer affords the least assistance. It then becomes material to look to the nature of the charges themselves, the relative situation of the parties, the circumstances attending the publication, and the probable causes existing, if any, which might be supposed to have induced the defendant to believe the charges true prior to publication.

If such probable causes are found to exist, it is manifest that they do more or less repel the presumption of malice with respect to the extent and degree in which it exists. It is self-evident that it is an exhibition of a greater degree of malice for a person to publish a false charge, knowing it to be so, than to publish the same charge, supposing by mistake that it is true. I admit it would be wrong in any case to allow to the probable causes such force as to do away entirely the legal presumption of malice, founded on the falsity of the charges; for a person has no more right to prefer any charge against the character or conduct of another, unless he can substantiate it by legal proof, than a jury would have, to pronounce an accused person guilty without such proof. If it should be asked, has not a person a right to speak or write whatever he honestly believes? the answer is obviNo person is justified as a matter of course, in believing: it is not always honest to believe an injurious


report which cannot be substantiated by sufficient evidence; and if the charge in a given case may be supposed to be true, and yet the proof of it not within the reach of the party, although he may believe it with more or less assurance, according to the apparent force of the evidence before his mind, still an honest regard to the peace of society, his own interest and self-respect, should induce him to be silent. Before giving publicity to any charges injurious to the character of another, the same considerations should induce every person to weigh well, not only the evidence of their truth, but the uncertainty and imperfections of all human tribunals in eliciting it. It is well for the repose of community; it is well for the peace of individuals, that the law imposes upon the accusing party the full responsibility of substantiating his accusations, or, in default thereof, to stand himself convicted of falsehood and of malice. Still, on the question of damages, we see that the consideration of probable cause is a most material inquiry. The existence of such cause shows that the accusing party had some reason to believe what he spoke or wrote was true; and, as we are under the necessity of forming most of our opinions as to facts not certainly known on that species of evidence, it follows that in proportion to the strength of the probability shown, in the same degree is the legal presumption of malice diminished. In that part of the charge of the learned judge which relates to this branch of the subject, it appears to me there is a material and fatal deficiency. In pursuing the subject further, I propose in the first place to show the defectiveness of the charge in this respect; and in the second place to show that the charge was erroneous on the subject of evidence relative to the plaintiff's general character, in mitigation of da


1. On the subject of probable cause shown in mitigation of damages, the doctrine of the judge is stated as follows:

"The defendants have also been

allowed, upon this point of damages, to prove that they had probable cause for making these charges against the plaintiff. To do this, they have offered evidence to satisfy you that it was commonly reported and believed in Albany at the time that the plaintiff was in the condition represented in the libel. This kind of proof must also go as far as is required in regard to general character. It must plainly appear that the defendants have asserted nothing more than was then matter of common report in Albany respecting the plaintiff's condition and conduct in the senate chamber." The judge then proceeds to observe, that "the jury should not only inquire whether such common opinion prevailed, but also whether it influenced the defendants to make the publication; and that, if it should appear that the defendants rested the charges on their own assertion, without any reference to or knowledge of such general belief, then the existence of such common belief, would afford no mitigation in their behalf."

This is all that is contained in the charge on the subject of probable cause shown on mitigation of damages. I observed that in this part of the charge there was a material and fatal defect. The defect I allude to is this: The judge in the first place admits the correct doctrine that probable cause may be relied upon in mitigation of damages; he then proceeds to call the attention of the jury to the evidence supposed to be relied upon by the defendants as showing probable cause, and, in so doing, selects the weakest point in the defendants' testimony on that subject, (the reports current in Albany,) and wholly overlooks the strongest, substantially as I consider, charging the jury that the evidence thus selected, and by him commented upon, was all they had a right to consider in mitigation of damages.

To show that I am not mistaken in giving this construction to the judge's language, I refer to the statements in the bill of exceptions immediately preceding the charge, where it is found

"that the evidence being closed, the counsel for the defendants did then and there insist," among other things, "that if a verdict should be found for the plaintiff, the malice of the publication was taken away, and only nominal damages could be awarded; that the belief of the defendants in the truth of the charge was proved by the evidence, and did away the presumption of malice." This shows what the defendants claimed, the judge should charge the jury on this part of the case. I might well predicate my construction of this part of the charge, on the fact, that the judge utterly neglected and refused to state to the jury this claim of the defendants, which I consider their strongest point on the subject of probable cause, and limits the inquiry of the jury to the single consideration of the reports current in Albany. But that such is the true construction of the charge is further evident, and I think conclusively settled, by the fact, that his honour the chief justice, in delivering the opinion of the supreme court on this branch of the case, not only dissents from the circuit judge on the admissibility of common report as evidence of probable cause in mitigation of damages, but enters into an elaborate argument to show that the proofs offered unsuccessfully in justification could not be relied upon in mitigation as evidence of probable cause. If it had not been considered that the silence of the circuit judge, and his neglect to charge on the last point, as requested by the defendants' counsel, was equivalent to an express dissent from the doctrine asserted by the defendants' counsel, then surely there was no necessity that the supreme court should enter at all into the discussion of the subject. His honour certainly did not intend in this respect to controvert the opinion of the circuit judge. The latter had not advanced any opinion in this respect in collision with that entertained by the supreme court. He was requested to do so, but refused, the very thing which is complained of on the part of the defendants.

By referring to the testimony set forth in the bill of exceptions, it will te seen that eight witnesses on the trial of the cause at the circuit, on the part of the defendants, concurred in testifying that the facts stated in the libel was substantially if not literally true. It cannot be necessary to repeat their testimony here. It is somewhat remarkable, that by comparing the several facts given in evidence by those witnesses, it will appear, that as far as an opinion can be formed from their testimony, viewed by itself, every harsh epithet contained in the libel, every unfavourable representation of the plaintiff's condition and conduct on the occasion specified, is sustained and verified, not by doubtful opinions, but by direct statements of facts occurring under the personal observation of the witnesses. From duly weighing this fact, a consideration arises on the subject of probable cause shown in mitigation of damages, which appears to me to be of paramouut importance on this part of the case, and a leading point in the cause on the part of the defend


If I mistake not, I have already shown, that in proportion to the weight of probable causes tending to show the truth of the charges in any case, in that proportion the legal presumption of malice arising from the fact that those causes do not prove the truth of the charges is diminished.

present, and testify from personal observation, with equal positiveness, that the facts were true. There was no attempt to impeach the defendants' witnesses. One of the plaintiff's witnesses, however, does impeach the character for veracity of another witness on the same side. He states that the general character of that witness for truth and veracity was not good, though there was great difference of opinion as to it; but that he would believe him under oath when his interest was not concerned, or his feelings strongly enlisted, in which case he would not, for he believed he would then square his oath according to circumstances. After making due allowance for this circumstance, I am bound to believe with his honour the judge, who charged the jury, that "there is no doubt of the entire credibility of every witness upon either side, and that they are gentlemen of the first integrity and intelligence." How, then, do they stand on the question of justification? I desire it to be kept in mind that I am not here attempting to show that the justification was made out, but solely that the preponderance in favour of the plaintiff's side was exceedingly slight, a circumstance which, I trust, has been already, and will be yet more clearly shown, to be important on the question of mitigating damages. Ten for the plaintiff depose that the charges were not true; eight for the defendants that they were true. Numerically, there is a preponderance of two. But one of the two is strongly impeached as to character for veracity by another on the same side. The preponderance is therefore seen to be extremely slight.

The question then recurs with new force, how are we to determine what allowance to make in mitigation of damages? I answer, by reference to a principle already established. So far as the object of giving a verdict for the plaintiff in such case is to punish the defendants for malice in publishing the falsehood, the allowance in mitigation of damages is to be determined by es


A slight comparison of the testimony on the part of the plaintiff and defendants in this cause will, I think, satisfy any person, that, on the question of justification, the preponderance in favour of the plaintiff, which was even admitted by the defendants' counsel on the argument, was at the best very inconsiderable. The plaintiff introduced ten witnesses, the defendants eleven. All the plaintiff's witnesses were present on the occasion alluded to in the libel, and concur in acquitting the plaintiff, according to their judgment, of the facts charged, and they speak from personal observation. Eight of the defendants' witnesses were also

timating the weight of the probable causes given in evidence, and tending to show that in making the charges the defendants had reasonable ground for believing that they were publishing the truth. In this cause it has been shown that the preponderance of testimony in favour of the plaintiff below on the question of justification was very slight. That was done by showing that the evidence on the part of the defendants to establish the justification was very nearly of equal force to that by which it was rebutted on the part of the plaintiff. The circumstances thus given in evidence on the part of the defendants, all existed prior to the publication complained of, and they transpired under the observation of the defendants, or of one of them, as well as of the witnesses; and hence we see that they fall under the description of probable causes leading defendants to believe and publish the charges. Their weight or tendency to produce conviction is measured and determined by the fact, that but for a slight preponderance in the number of witnesses opposed, the defence would have been fully established. As the presumption of malice rests on the falsity of the charges, and as in this case that falsity was only proved, or rather presumed from, or by a slight preponderance of testimony, it follows that the presumption of malice in this cause has a very slight and narrow foundation to rest upon.

Hence, I cannot doubt, that under the guidance of these principles, the judge should have charged the jury, that in case they should be of opinion that the evidence failed to establish the justification, they were still bound to consider whether it afforded the defendants probable ground to believe the truth of their publication; that if, in their estimation, it did afford such probable cause, they were bound to consider it in mitigation of damages, and to give it force in that respect so far as the object of their verdict was to punish malice, just to the extent in which they should think it repelled the legal presumption of malice.

It certainly cannot be considered as very remarkable that the defendants should believe, on the testimony of their own observation, a fact which, under exactly similar circumstances, eight "gentlemen of entire credibility, of the first integrity and intelligence," also believed. Nor in my opinion does it require any tax upon credulity to allow that, believing that fact on such evidence, their motives in publishing it to the world, if at any, might have been only at a slight remove from honesty, good faith, and a desire to promote the public interest. In the judgment of charity, which ought to guid all men in dealing out reprehension, under such circumstances, the most that could be safely affirmed against the defendants for making the injurious charges in this case is, that they acted unadvisedly; that they did not, in deciding to publish their opinions, sufficiently consider, that, even if true, it would not be certain that they would be able to prove them when called upon in a court of justice; and that, in penning their remarks, they had infused into them a spirit of asperity at once calculated to arouse the resentment of the accused and his friends, and to create and nourish a vitiated taste in the public at large for that style of newspaper discussion.

But I am called upon to vindicate this view of the case, not only ageinst the charge of the circuit judge, but against the more direct arguments and opinion of the supreme court. That part of their decision which relates to the question now under consideration is as follows:

"When the defendant undertakes to justify because the publication is true, the plea, or which is the same thing, a notice of justification, is a republication of the libel. It is an admission of the malicious intent with which the publication was first made. And upon the trial the jury are instructed, that if the plea is false, it is an aggravation of the offence, and calls for enhanced damages. Such a state of the case, and such an instruction, is totally inconsistent with the idea of

mitigation resting upon the absence of malice. That is confessed upon the record. When, however, the defendant does not by the pleadings admit the malice, then he may excuse his conduct by showing such circumstances as disprove a malicious intent."

solution of a prior question with what intent did the party interpose such a plea or notice. If he did it, knowing it to be false, or from a reckless disregard to consequences, without having reasonable cause to suppose he could substantiate it, then I agree it may and ought to be considered as new evidence of malice, or an admission of malice; for it is a republication of that which, by its utter falsity, is legally presumed to be malicious; and I agree it may and ought, in such case, to enhance the damages.

But no man is bound to be infallible in pleading. If he pleads, or gives notice of justificaiion, sincerely supposing he can sustain such plea or notice by proof; if he has before pleading used all reasonable diligence to inform his judgment on that point, then the plea is very far from affording new evidence, or being an admission of malice, and this too whether in fact it shall turn out that the plea is true, or the pleader mistaken as to its truth, or unable to prove it true; for the premises which I state in such case, the reasonable inquiry, the bona fides, show both in a moral and legal point of view, the absence of that "badness of design or disposition to injure without cause, from mere personal gratification or spirit of revenge," in which malice consists.

In applying these principles to the case in hand, the court go on to say, "When prosecuted, defendants do not disavow the malice, and claim exemption from damages, by bringing themselves within some of the exceptions to the general rule, as to the implication of malice. They come into court, and when they may be supposed to have ascertained whether they were mistaken in the first publication, deliberately assert upon the record that the publication is true. So far, then, from disclaiming malice, they virtually admit it in the face of the court. They are clearly excluded then from the benefit of any defence based upon the absence of malice." I have thus extracted the substantial parts of the reasoning of the supreme court in order to give it its full force. Dissenting as I do from almost every idea contained in the extract, I shall be under the necessity of considering them separately. The court say, "When the defendant undertakes to justify, &c., the plea, or notice of justification, is a republication of the libel. It is an admission of the malicious intent with which the libel was first made. The malice is confessed upon the record." What, I would inquire, is malice? It is defined to be "badness of design, extreme en mity of heart, or malevolence, a disposition to injure others without cause, from mere personal gratification, or from a spirit of revenge." The question then arises, does the failure of an attempt to justify show that the malice is in such case admitted? I appeal to the first principles of moral rectitude and enlightened judgment to decide, if I do not answer correctly when I say, such a state of things may or may not be construed as an admission or evidence of malice: all depends on the

But the court lay it down as a rule, that on a failure to sustain the justification, the plea, or notice of course, and in all cases is an admission of malice and of new malice. If a failure to sustain a justification does, necessarily, prove a libel to be false; if it also proves it impossible that the defendant might have only erred in judgment, in supposing that he could prove that which he could not; if, in short, it proves that there is no such thing in this imperfect world, as a man's being mistaken in judgment, and still honest at heart, and that the guilt of one who errs in judgment, is equal to that of another who errs wilfully, then, and then only, could I subscribe to the doctrine of the supreme court under consideration. We see, therefore, that in order to ascertain, on a failure of

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