ridicule and recrimination; but in a republican government, to say that your president and governor can do no wrong, would not be endured. In England, the public officers, who live upon public plunder, are to be shielded from popular animadversion through the medium of the papers, or any other medium, even that of caricature. It is for the purpose of keeping up their monarchy, and therefore the greater the truth there, the greater the libel. In this country, where our governor and other great men are the subjects of scrutiny, we are told that the judges must be entrusted with the exercise of this power, which the honourable gentleman from Montgomery, (Mr. Dodge) has told us was exercised in a case which he had the honour of defending; when the judge determined that the truth should not be given in evidence, and that he was exclusively authorised to seal irrevocably and irremediably, the fate of his fellowcitizens.

Give me, said Mr. R. a Turkish bashaw, who directs the head of an individual to be stricken off, and then proceeds to determine his guilt. This bashaw does not condemn without he has a strong belief that the circumstances will warrant the measure; but our judge can consign to infamy and distress the victim of his caprice, without any regard to truth or justice. If these judges are to be trusted in all cases, where is the boasted privilege of trial by jury, so much eulogised in this country? If all is to be trusted to the judges, why not abolish the form of trial by jury at once? A defendant is summoned to appear at court, he goes with the most perfect confidence in the justice of his cause, supposing that the truth given in evidence will acquit him; but when he comes into the court he is told that the truth cannot be given in evidence. Sit down, sir, is the language which I have frequently heard come from the bench. The man is thus deprived of his defence, and the jury are compelled to pass upon his guilt, after hearing a more powerful and eloquent harangue from the bench than it is in the power of counsel to offer; and they are told that they must give exemplary damages, on account of the audacity and temerity of this defendant, in publishing the truth, and bringing it to be recorded in the journals of the court. Is this the way that justice is to be administered in a free country? It is insisted that the judges must be made independent of the people, and then trust them with the disposal of our lives, liberty, and property. Why are these judges to be rendered independent of the people? It is that they may play the tyrant under the sanction of a constitutional law.

The Dey of Algiers will hesitate before he plays the tyrant, because if his conduct is not justifiable, he knows that strangling is his fate; but our judges are safe; they know that political strangulation cannot be enforced upon them. In 1805, a bill passed both branches of our legislature, declaring that the truth given in evidence was a sufficient justification. The chancellor and judges, or a majority of them, constituting the council of revision, returned it with objections to the (long roll of republicans, as the chancellor has pleased to style them) assembly, and to be sure it did not pass then, but notwithstanding their objections it afterwards passed into a law. At that time our judges were considered the wisest and best of men. Every lawyer, from the most eminent barrister down to the meanest clerk in a law office, was singing praises and hallelujahs to our immaculate judiciary. Their law was gospel, and their word was law.

As we are now called on to amend our constitution, after having seen so many usurpations by our judiciary, we ought to provide against the repetition of such unwarranted abuse.

The sage and venerable council of revision, said, at that time, that men might be attacked for moral foibles or defects; that this was unjustifiable, and that the man who would presume to commit such a crime ought to be punished. Mr. R. would be pleased, if some gentleman who belonged to that council of revision, would define moral foibles, and let us know how far they must extend before they amount to mental vice.

If the mind was sound, and the heart pure, no man in his senses would undertake to publish to the contrary, as it would fill every reader with disgust; and the leader of a political party, who should attempt such publication, would find the act recoiling upon himself.

How many libels were published for years against the sage of Monticello, and what was their effect? They recoiled on their authors, whilst the object of their slander, and the patriot of his age, became more and more endeared to his country. Whilst his venerable predecessor was surrounded by sedition laws, and sanctioned prosecutions for libels, he sunk far below the common level; but since he has retired to private life, his character has been elevated and he again stands endeared to his countrymen. When he was surrounded by all this machinery, and when his friends were enforcing the penalty of the law, by prosecuting and immuring in dungeons, from one part of the union to another how his character sunk! From a patriot, he became a despot; and instead of a republican, he was considered a tyrant!

Are gentlemen anxious for a like state of things at the present day, and in this great and patriotic state?

We are told by the honourable Chancellor, that the character of a female may be assailed. Would not the publisher of a slander against one of the fair ones receive his punishment, whether it was true or false? In either case, let it be determined by a jury: they are the most competent to determine whether his motives are good or bad.

The Chancellor has again referred us to a case which came before Lord Mansfield, in England, when the Chevalier D'Eon was publicly represented as a female, although he appeared in the character of a French ambassador to the court of St. James'. Can the provision which we are about to make affect such a case as that? No: the action could not lie, and the evidence would not be admitted to prove the fact which should so wantonly wound the feelings of this man or woman, as the case might be. He should hope that all such actions might fail; and in all actions of assumpsit, for the recovery of wages, the evidence ought to be rejected.

Mr. R. said he should vote for the amendment offered by the gentleman from New-York, although he did not think it went far enough. He would go further, and say that when a man considered himself libelled, he should not make use of a grand jury and public officers, at public expense, to vindicate his character. Let him bring his action as for verbal slander. He should not make a proposition to that effect, because he knew the attachment to the English libel system was so great that he should not succeed if he attempted it.

MR. SANFORD said, that he conceived it to be of great importance that the freedom of speech and of the press should be secured by the constitution. The freedom of the press is the best security of public liberty; and this truth, so familiar to us all, has become an acknowledged maxim, which requires no discussion. The liberty of the press in this state, now depends upon the pleasure of the legislature. The existing law of the state upon that subject may be at any time repealed, and any other regulation abridging the rights of the citizens in this respect, may be substituted. The point now under consideration, is a very precise question. The provision reported by the select committee is, that in prosecutions for libels, the truth may be given in evidence, if it shall appear that the matter charged as libellous was published with good motives and for justifiable ends. The amendment of this provision, which he, Mr. S. proposed, was, that in all prosecutions for libels, the truth may be given in evidence to the jury, and that if it shall appear to the jury that the matter charged as a libel was published with good motives and for justifiable ends, the truth shall be a complete defence. According to the first proposition, the judge is to decide upon the motive and purpose of the person charged as a libeller. According to the second proposition, the jury are to hear the evidence, and to decide upon the motive and purpose of the publisher of the alleged libel. Mr. S. would never agree that the judge should have the sole power of deciding whether the truth of the libel should be received as a defence or not. Is a ci. tizen prosecuted for a libel, to be tried and condemned by the judge alone? And is no evidence to be given even to that judge? According to this project, no inquiry into the truth of the case can take place, unless the judge shall first decide that the intentions of the party accused were good. How is the judge to decide upon the purpose with which the alleged libel was published? He is to hear no proof of facts, to show a purpose of good or ill; but he is to decide by

divination, or arbitrary discretion, whether the charge in question was published from good or from bad motives. The true motives of the publisher are always a matter of fact; they seldom appear from the supposed libel itself; and they often form the principal question in such prosecutions. Thus the judge is to decide the most difficult question in the cause, upon the mere perusal of the supposed libel. If the judge should think the motives of the publisher unjustifiable, all evidence of the truth of the charges would be excluded, and the party accused would be condemned, even though he might be able to prove both the purity of his motives, and the truth of his charges. If our laws allowed an appeal from the decision of a judge in such a case, to a superior court, the objection would still remain. That objection is, that the party accused is tried upon au important fact in his cause, without evidence and without a jury. It was Mr. S's. object that the whole question of libel and every part of it, should be tried and decided by a jury, upon evidence given to that jury. But it is said that indecent disclosures of facts unimportant to the public, and painful to individuals may sometimes take place. Such disclosures are often necessary, and often occur before the courts of justice in various other cases. In questions of libel, as in other cases where facts are asserted by one party, and denied by the other, the proofs must be heard in order to arrive at the justice of the case. When the publisher of an alleged libel offers to prove the truth of his charges, and his adversary objects to that proof, the suppression of the evidence offered may be justly considered to be quite as scandalous and injurious to the party complaining of the libel, and objecting to the proof, as any exposition of the truth of the charges. If the cause were to be tried by the judge alone, the proofs of all disputed facts should be heard. But the great question is, whether the liberty of the press shall depend upon judges or juries. Mr. S. entertained no unreasonable distrust of judges; but he wished to confide this great trust of protecting the freedom of the press, and deciding upon its abuses, to the juries of the state. In their hands it will be safe. Under their control, it will be efficacious, both in correcting mischief and effecting good. Here is at once the best security for the freedom of the press, and the best security against its licentiousness. Let the jury have the aid of the judge in these, as in other cases; but let the truth of the charges be proved in all these cases. Let the jury decide upon the motives of the publisher, as well as upon the truth of his charges; and with a full knowledge of all the facts of the case, pronounce him guilty or innocent.

CHANCELLOR KENT replied to the remarks which had fallen from the gentleman from Delaware, (Mr. Root,) and the gentleman from New-York, (Mr. Sanford.) The latter gentleman was mistaken in supposing that the effect of his amendment would be, to rescue the liberty of speech and of the press from the hands of the court, and place it in the hands of the jury. Its tendency was to sanction the publication of calumnies, and to disturb the peace of society, by dragging before the public gross indecencies, which ought not to be made the subject of investigation, whether true or false. He had uniformly been in favour of the liberty of the press; and he challenged any gentleman to point to an official act in the whole course of his public life, which contravened this declaration. But he was in favour of rational freedom, not of licentiousness.

MR. N. WILLIAMS agreed with the advocates on both sides of this question, in part; and therefore conceived himself entitled to be received by the Convention as a mediator between them. He admired the trial by jury as much as any man who heard him; indeed, he said, that mode of trial had called forth the admiration of mankind for many centuries, in most parts of the civilized

world.

But, while he would extend the privileges and blessings to be derived from this excellent institution, in every possible manner that was judicious and salutary, yet he could not agree to the proposed amendment. He considered it as going to an alarming extent, and feared that it would be attended in practice with all the evils that had been so ably and feelingly depicted by the honourable and learned gentleman from Albany. The characters of private and unassuming individuals would be wantonly arraigned before the public, and the peace and happiness of families might be destroyed forever, without any possi

ble public good being derived from it, and indeed for no other purpose than to gratify some private malice or resentment. Suppose, in such a case, the truth should be told; was there any reason or justice in exposing even that, in a public print or writing, when there was no plausible pretext of public good?

The distinction he would adopt would be this: Let all public officers, and all who hold themselves up for the suffrages of the people, be exposed to the severist scrutiny; they ought to expect no less. They voluntarily set themselves up as a mark for every assailant. As to such, let the truth be given in evidence to the jury, with the utmost latitude. But in the cases he had before` alluded to, he would restrain this liberty, and not suffer even the truth to be a justification for a libel against a private individual, unless it should appear to the courts that the publication emanated from good motives. This would be a safe rule. And he hoped we should always have some confidence in our

courts.

With a view to this distinction, and in hopes that this amendment, in its prent shape, would not be adopted, he would read to the Convention an amendment which he would then offer, in substance this: That in prosecution for any publication respecting the official conduct of men in a public capacity, or the qualifications of those who were candidates for the suffrages of the people, the truth might be given in evidence to the jury; and if it appeared to them that the matter charged as libellous in such cases, was published with good motives, they might declare it a justification.

Mr. W. hoped that this provision would meet the approbation of every member. The like provision was to be found in the constitution of Maine, and several other states of the union, The amendment under consideration was not only different from all these, but extended the principle much beyond any of them, and even beyond, as he thought, the present statute of this state.

MR. BUEL was compelled to differ from the gentleman from Albany, (Mr. Kent.) He believed the respectability of the bar would be a sufficient barrier against the introduction into our courts of law, of cases of such a gross nature as had been mentioned.

MR. I. SUTHERLAND was surprised to hear such sentiments expressed, as had fallen from the gentleman from Albany, in whose integrity and purity of motives, he had the fullests confidence. The doctrines advanced by him restricted the law, as it now stood, in evidence of which Mr. S. read from the statute, and claimed that the law of this state, as it now stood, does not give to the judge the power of deciding the quo animo of the libel. And if such power had been assumed, it was clearly a usurpation. The judge is to determine the law, and the jury the evidence; and to determine whether a publication was made from good motives and for justifiable ends, was matter of evidence, of which the jury only are competent to decide. He was in favour of the amendment, and thought it was placing the subject upon just grounds.

COL. YOUNG Supported the amendment. He wished to see the same principles adopted in our new constitution, as had hitherto existed in the statute. The argument which had been used, that the testimony adduced in libel suits would be of a gross nature, and have a demoralizing tendency, appeared to be without much weight; since testimony of a grosser nature was daily heard in ordinary suits in our courts of law. He was opposed to the section as reported by the committee. The expression used by them was, if it be made to appear"-to whom? To the court, would undoubtedly be the construction of the court. Whereas the statute has it, "if on the trial of the case," &c. which was undoubtedly intended to mean on the trial by jury; and he concurred with the gentleman last up, that if a different construction has been had, it was in violation of the existing law of the state, and should now be guarded against by a constitutional provision.

MR. JAY observed, that if the amendment were to prevail, the unprincipled Libeller might take advantage of a court of justice, and make it the very means of propagating the slander. It was desirable, therefore, for the peace and harmony of society, that that avenue for the gratification of malice should be closed. But, on the other hand, experience had shown, that too great latitude on this subject had been taken by those with whom the power was entrusted,

and if we were so liable to err, it was better that we should err on the safe side.

The gentleman from Montgomery (Mr. Dodge) had expressed his willing. ness to confide this power to the judges, because they were rendered removable at the will of the legislature. For that very reason, be, Mr. J., was the more inclined to deprive them of this power, lest they might be induced to swerve from the path of duty to propitiate the favour of a political dictator.

MR. DODGE begged the indulgence of the committee whilst he should submit a few additional remarks. He hoped they would not pass over this subject without a careful investigation, as it was one of importance, and one upon which he considered the honour and character of the Convention must in some de gree depend. The law of libel was one on which the good order and harmony of society must rest. Suppose, for a moment, that no such law existed. What would be the situation of public character, or the character of ourselves, our wives, or our children? We should be in the hands of any individual who should be base enough to assail us, without the means of redress.

He would wish a distinction between libels upon public, and upon private characters. When a libel was upon a public character, he would be willing to have the motives of the publisher determined by a jury; but if it was a wanton attack upon the character of a female, or a family, he would leave it in the power of the court to determine, whether the motives were good, and whether it was published for justifiable ends.

Mr. D. thought, the gentleman had reasoned unfairly on this subject, by applying the words, "good motives and justifiable ends," in a political point of view. What political good could result from the libelling of a female, a wife, or a daughter? It must be from malicious and wicked views, and for unjustifiable ends. Why, then, permit this destroyer of character to go into a detail of particulars, which can only spread far and wide the slander thus maliciously engendered? But it is said, that the partiality of judges would prevent them from judging correctly on such occasions: what experience have we had to induce us to believe that such would be the case? Are not these same judges trusted with deciding as to the relevancy of testimony in cases of murder, and other important causes? Mr. D. did not believe so much in the corruption which had been imputed to the judiciary, and circulated throughout the state and the Union, to the disgrace of the Convention. Those, who entertained such sentiments on the subject, must be expected to vote accordingly. These judges are sometimes spoken of as being so independent as to be out of the reach of all accountability; at other times, as being so dependant, as to be incompetent to judge correctly on trifling occasions. Mr. D. again alluded to the case before the Chief Justice, in which he expressed a belief that his decision was a just one, although it was contrary to the law on that subject. He believed there would be no danger in trusting them with the exercise of this power, as long as we trusted them with our lives and fortunes.

COL. YOUNG replied. The gentleman from Montgomery supposed that the judiciary always had been, and always would be, upright and pure. History taught us, that judges were sometimes corrupt, as might be instanced in the character of Lord Bacon. What had been might again occur; and if our judiciary are now upright, it might not always be the case. He cited many instances where the amendment might lead to beneficial consequences. He was for referring libels to a jury, and not to the court.

MR. SHARPE Spoke briefly in favour of the amendment, and announced his intention to vote for it. The reasons assigned by the gentleman from Westchester, (Mr. Jay,) were in his view conclusive.

MESSRS. DODGE and KENT made a few remarks in explanation; and Mr. N. Williams again called the attention of the Committee to the constitutions of other states.

MR. E. WILLIAMS was satisfied that the effect of this amendment was not well understood by some of the gentlemen who had spoken on the subject, as they differed materially from him in opinion. He was desirous that the statute on this subject should be preserved; for it was one of the early efforts of his life to establish the doctrine which it contained; and he well recollected the youthful enthusias:n with which he entered upon the trial alluded to by the Honourable Gentleman from Albany, (the Chancellor,) as well as the extreme