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Walter, 2d Campbell 251, and confirmed by this court, in the case of Paddocks vs. Salisbury, 2d Cowen 814. There, a general suspicion that plaintiff was guilty of the offence charged, was admitted in mitigation of damages, and the doctrine is reasonable, as such a suspicion or belief prepares the mind to adopt the opinion on which the charge is founded.

But the judge also said, at the circuit, that the concurrent report was not admissible, unless it appeared that defendants said nothing more than was reported at Albany. This was also an erroneous view of the principle. The principle is, that all mitigating circumstances, are admissible in mitigation. The proposition is so clear, and even identical, that an apology would be necessary for stating it, had it not been contradicted by such high authority. An exaggeration of a report is not so great an offence as a fabricated falsehood. The report showed that others entertained a belief, that the plaintiff was intoxicated at the time referred to, and the different opinions of men, as to the degree of excitement under which he laboured, could not so entirely alter the applicability of the rule, as to exclude the report from the consideration of the jury, in estimating the damages. The judge was misled, by not preserving the distinction between a case, where the offence charged is different in character from that about which the report prevails, and where it only differs in degree, and not in kind. Here the offence was of the same character, and because the exact degree of intoxication was not specified in the report, it is most extraordinary, that the jury should not have been allowed to consider the concurrent opinions of other persons, as to the condition of the plaintiff, even as a circumstance in mitigation;-that a general belief, which, if proved before the jury, from the mouths of the multitude who were present, would have completely exculpated the defendants, shall not be regarded, even as a mitigating circumstance. This is the doctrine of the judge, and it is, in itself, a doctrine so

repugnant to reason and common sense, that the simple statement of it, is a stronger proof of its absurdity, than any argument and illustration that I can offer.

I now pass to the ground assumed by the supreme court, to justify the exclusion of the testimony offered in mitigation of damages. It was perceived that the reasons offered by the judge, at the circuit, were unsound, and that this exclusion could not be maintained on that ground. A new posi. tion was consequently taken, and technical doctrines were interposed, which as effectually excluded the defendants from their legitimate defence. In preparing this cause for trial, the defendants believing that they could substantiate the charges in the publication complained of, had given notice of their justification with their plea. They had also given notice that they would prove, "that the conduct and appearance of the plaintiff, at the time alluded to, were such as to induce the belief, that he was intoxicated, and to justify the obnoxious publication."

This notice was given in good faith, and in a full and honest belief of their ability to prove the charge. I would have a right, if it were necessary, even without proof, to assume this to be so. But it is not necessary. The good faith of the defendants is fully established by the statements of the respectable witnesses produced by them at the trial, who completely substantiated the truth of the belief, as far as human testimony could prove it. It is true, that this evidence did not produce conviction in the minds of a Delaware jury, but it at least established one fact, that the defendants sincerely believed the truth of their statements. The judge himself, said in his charge, that, "there was no doubt of the entire credibility of every witness, upon either side." And this after the defendants' witnesses swore to every particular fact asserted in the libel.

Upon a review of the whole testimony, it is impossible to doubt, that the defendants made the publication with proper motives and in good faith, and

that, believing it to be true, they gave the notice annexed to their plea.

In this state of facts, the supreme court refuses the application for a new trial, on account of the rejection of all this testimony, developing the real motives of the defendants, because (as it is gravely asserted in the opinion of the court,) the defendants admitted malice by undertaking to justify.

"By the notice annexed to the plea, the malice is confessed upon the record." "Such," say the court, after reiterating this doctrine, in various parts of its opinion, "are the conclusions to be drawn from adjudged cases and approved principles.'

Supposing, for the sake of argument, this doctrine to be correct, in what situation does it place defendants in actions of libel? If they intend to justify, they must either plead or give notice of justification. Unless they do that, they are not permitted to offer any testimony establishing the truth of the libel. These are approved principles, and they are conformable to equity and common sense. If the defendant means to establish the truth of the charge, before a jury, it is reasonable that he should give the plaintiff notice of his intention.

But does it necessarily follow, that because defendants sometimes believe the charges they make to be true, they always make them maliciously? This publication was made concerning a public officer, then a candidate before the people for re-election. The statements made therein were concerning his public conduct. The subject matter was deeply interesting to the public. Now, I ask, if every accusation against a public officer necessarily proceeds from malicious motives? This is the effect of the doctrine. Whether true or false, the accusation is malicious. It proceeds from a malignant motive, because the justification must be preceded by a notice, and a notice according to the court "is an admission of malice upon the record." If the defendants in this case believed the statements they made, they were bound to make the publication in

question. They were bound, as good citizens and electors, to communicate these facts to their fellow-citizens. If the plaintiff were intoxicated, or if they believed him to have been so, as citizens of a free country, as editors of a public journal, they ought to have communicated the fact. They did believe it. Their witnesses believed it. They therefore were not actuated by malice in publishing their statement, but by a motive having reference to the public welfare. At all events, their motives were the proper subjects of inquiry before the jury, and not matter of record. If their belief in the truth of their statement continued unchanged, they were compelled to give a notice of justification in order to defend themselves. They do not say by that notice, that they made the charge maliciously, but that they continue to believe it true, and mean to produce their evidence before the jury at the trial. Grant that they labour under a delusion! Is self-deception malice? Is good faith and sincere belief malignity? Or did any defendant ever dream that by giving such a notice in good faith, he gave a written admission of his malice, which he had already, in his previous plea, expressly denied?

If this doctrine be true, it must be true in all cases where this admission of malice is to be found upon the record.

To what conclusions would this lead us? Suppose the plaintiff, on the occasion alluded to, had feigned drunkenness-that, actuated by a holy zeal for his party, like the elder Brutus, he had concealed his sanity and sobriety under the guise of a brutish behaviour and sottish demeanour. The defendants, not penetrating his patriotic motives, believe him to be what he seems, and they say the man is drunk. They also give notice when prosecuted, that they will prove the truth of their statement. At the trial the truth appears. The plaintiff proves that on that particular day, so far from yielding to his ordinary habits of intemperance, he had wholly abstained from drink, that he might act

more to the life the part of a drunken patriot. Are the defendants to be punished because they have been thus entrapped and is their notice to be considered, as the court call it, an admission of malice on the record? Again, suppose the defendants to be informed of the peculation of a public officer, by credible persons, whose statements are fortified by documentary evidence. Upon this authority a statement is made, which is followed by a prosecution. A notice of justification of course is given. At the trial the men, upon whose authority the statement was made, do not appear the documents are produced, and they are shown to be fabrications. The incorrectness of the charge is manifest-the character of a public servant has been injured, and his counsel call for high and vindictive damages for this malicious libel. The defendants now show that they were deceived; nay more, that this deception was set on foot by the plaintiff himself, who employed the informers, and fabricated the documents.

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gation is admissible. Such was the law as declared. by the supreme court of Massachusetts, (the same court, whose decision in Wolcott and Hall met with such approbation from the supreme court of this state,) in the cause of Larned vs. Buffington, 3 Mass. 546. In that case, the general issue was pleaded with a plea of justification, and the court there admitted evidence in mitigation, and said that where, through the fault of the plaintiff, defendant had good cause to believe the charge, it was a ground of mitigation. He may also prove that he made the publication with honest intentions.

The same rule was laid down in the cases of Leceister vs. Walker, 2 Camp. 251, Moor, 1 Maule and Selwyn, 811, and was recognised by the supreme court of New York in Paddock vs. Salisbury, 2 Cowen, 811.

The courts of our sister states have adopted the same rule. The supreme court of Connecticut, in Bailey vs. Hyde, 3 Conn. R. 463; that of Massachusetts in Remington vs. CongI ask if, in this case, the defendants' don, 2 Pickering 311; of New Jermistake is to be visited with vindictive sey, in Cook vs. Barkely, 1 Penningdamages? and yet, such is the legiti- ton 169, and that of Kentucky, in mate consequence of this doctrine of Calloway vs. Middleton, 2 Marshall "malice admitted upon the record." 372. In all these cases, forming one Can a court in this enlightened age unvaried line of authorities, the true assent to doctrines so repugnant to rule of the common law, and I must every principle of justice? Even the say of common sense, is to be found, cases cited by the court to sustain this in clear and distinct language. That extraordinary proposition, are not si- rule is, that where a plea of general milar to the one before the court. In issue is put in, either with or without the case of Wolcott vs. Hall, 6 Mass. a plea of justification, any evidence in 514, nothing was pleaded but a justi- mitigation of damages is admissible: fication. The general issue, denying where the plea of justification is put the averments in the declaration, (of in alone, that evidence is not admissiwhich the malicious publication is a ble. And yet the supreme court reprincipal one,) was not pleaded. No-fuse to grant a new trial, because thing but the truth of the charge was pleaded; and under the rule that nothing comes in issue, but what is put in issue by the pleadings, the jury were confined to that simple inquiry, The case of Matson vs. Buck, 5 Cowen, 499, is placed upon the case of Wolcott vs. Hall. Here the general issue was pleaded with a notice, and in such cases all evidence in miti

"the malice is admitted on the record," and therefore this evidence in mitigation is inadmissible. Nay more, in all these cases, the question of the admissibility of the evidence in mitigation arose under a plea of justification. Here it was a notice, and that of a qualified character. Now, in the case of Vaughan vs. Havens, 8 John. R. 110, the supreme court of this

state expressly decided that "the notice forms no part of the record, (I cite the words of the court,) and cannot therefore be considered as a special plea." "The notice is intended for the ease and benefit of the defendant. He may or he may not rely upon it. It has been uniformly held that it is not an admission of the matters charged in the declaration. The plaintiff is bound, notwithstanding the notice, to prove the facts alleged in the declaration." The notice here spoken of, like the one in this cause, was a notice of justification in an action of slander; and yet, notwithstanding the strong and emphatic language of the court in that case, the same court now holds that a notice is a part of the record, and an admission of malice-one of the material averments in the declaration.

I forbear all further comment upon the decision on this point in the

cause.

It formed another objection on the part of the defendants to the judge's charge to the jury, that the jury was told that "the evidence of the plaintiff's character for intemperance was not admissible in mitigation of damages unless of the same quality and degree charged in the libel," and this was reiterated to them in the morning when they came into court for further and more explicit directions.

The character of the plaintiff for temperance had been attacked-for the injury sustained or likely to be sustained from that attack he had brought his action. His character, therefore for temperance became the subject of consideration in estimating the damages, unless it is contended, that a man of infamous character is entitled to the same damages for any imputation upon his name as a person of unimpeachable reputation.

What the judge at the circuit meant by "general character of the same quality and degree" is explained in the next sentence of his charge. For instance, he says "the defendants cannot be permitted to say that the plaintiff was drunk and an object

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of loathing and disgust at a specific time, and then to diminish the damages by proving him to be generally reputed to be addicted to the free use of spirituous liquors and often exhilarated by them." The doctrine of the judge therefore is, that if a man be charged with being dead drunk; a general habit of staggering drunkenness shall not be deemed a reason for mitigating the damages. In all the different degrees of intemperance,—that of booziness-half seas over-staggering drunk-beastly drunk, and— dead drunk:-In speaking of a person in that situation, you must be careful to graduate your expressions precisely to his general habit. A slight exaggeration of the degree will expose you to as fearful a retaliation as if, like Shylock in exacting the penalty of your bond, you had cut deeper than your pound of flesh. Is this reconcileable either with law or reason? For what are the jury called upon to give damages? For the injury done to the plaintiff's character for temperance and sobriety. If this be bad, no matter in what degree, it is a subject of consideration with the jury in estimating the damages; not only because the character of the plaintiff was injured by his own misconduct, but because if the plaintiff was at all addicted to the use of ardent spirits in excess, the defendants would naturally ascribe his extraordinary appearance and behaviour at the time alluded to, to intemperance. Their motives, therefore, would be shown to be free from malice, which, where it does exist, is universally admitted to be a good ground for aggravated damages.

It is not a little remarkable, and it adds to the force of this exception, that notwithstanding this direction of the judge to the jury, he had previously prevented the defendants from asking a witness (E. J. Roberts) on cross-examination "How often he had seen the plaintiffintoxicated, and to what degree." Thus preventing the defendant on one hand from inquiring into the degree of intemperance in which the plaintiff habitually indulged, and then on

the other hand charging the jury, that unless his general character for intemperance was of the same degree with that charged in the libel, it was not admissible in mitigation of damages. The striking injustice done to the defendants by these decisions was so manifest that the supreme court did not attempt to sustain the judge's charge at the circuit, but assumed a technical ground for the exclusion of this testimony. Whether this new ground be more tenable, we shall now examine. The supreme court in its decision admits, that the character of the plaintiff is a proper subject of inquiry, but denies that any examination ought to take place into his character for temperance. Inquiry, says the court, may be made into his general moral character, but not into his character for any particular quality. This extraordinary proposition, advanced I venture to say for the first time in a court of justice, is not only contrary to the ordinary practices, but also to the plainest principles. The very inquiry of the jury is concerning the character of the plaintiff for temperance and for nothing else. 1st, because his character in that particular had been attacked, and it was the duty of the jury to ascertain how much it had been injured.

2dly, because the evidence would tend to rebut the presumption of malice.

The court however, carried away by some idea concerning general character which I must confess I cannot comprehend, determined that all inquiry into his character for temperance was inadmissible-as if in an action by a female for a libel stigmatizing her as a prostitute, the defendant should be prohibited from any inquiry into her character for chastity, but confined to an investigation of her general character excluding that particular. Such are the reasons, which induce the defendants to ask a new trial on that branch of the case touching the measure of damages, and it is but seldom that a case presenting a greater violation of principle has been brought be

fore this court for supervision. The defendants complain, that great injus tice has been done them in the charge to the jury, and that several novel and extraordinary principles have been advanced in this cause, and all militating against their defence. On that account we ask a new trial, but not on that account alone. These reasons all refer to an injury affecting the defendants personally, but there were other principles advanced at this trial touching the freedom of political discussion, compared with which the doctrines I have already commented upon, sink into insignificance. These principles strike directly at the freedom of the press, and practically place it at the mercy of the judges, and I know I speak the sentiments of my clients when I say, that more on account of what they deem a violence perpetrated upon the cause of freedom and upon our liberal institutions, than because of the injustice done to themselves (though that is not trivial) they have deemed it their duty to resist this judgment to the last, and not to submit to it, until it is declared to be the law of the land by the court of final resort. At the trial of this cause, the jury were told that the question of malice was a legal inference, and it forms the 3d point in the case presented to this court, that the question of malice was not submitted upon all the evidence as a question of fact for the decision of the jury.

To prevent any misapprehension, as to the principles for which we contend, I shall submit them to the court in the shape of distinct propositions.

1st. Where the subject matter of the publication is such that no good motive can be assigned, malice is necessarily inferred.

2d. Where public motives are assignable for the publication, malice then becomes a doubtful question, and whether it is to be inferred or not, is a question of fact for the decision of the jury.

3d. When a publication is made concerning the official conduct of a public officer, good motives, and probable

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