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

B

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 injustice 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

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 of Penn. in 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.