THE LAW OF LIBEL.

1804.

I. The liberty of the press consists in the right to publish with impunity truth, with good motives, for justifiable ends, though reflecting on government, magistracy, or individuals.

II. That the allowance of this right is essential to the preservation of free government-the disallowance of it, fatal.

III. That its abuse is to be guarded against, by subjecting the exercise of it to the animadversion and control of the tribunals of justice; but that this control cannot safely be intrusted to a permanent body of magistracy, and requires the effectual co-operation of court and jury.

IV. That to confine the jury to the mere question of publication and the application of terms, without the right of inquiry into the intent or tendency, referring to the court the exclusive right of pronouncing upon the construction, tendency, and intent of the alleged libel, is calculated to render nugatory the function of the jury; enabling the court to make a libel of any writing whatsoever, the most innocent or commendable.

V. That it is the general rule of criminal law, that the intent constitutes the crime, and that it is equally a general rule, that the intent, mind, or quo animo, is an inference of fact to be drawn by the jury.

VI. That if there are exceptions to this rule, they are confined to cases in which not only the principal fact, but its circumstances can be and are specifically defined by statute or judicial precedent.

VII. That in respect to libel there is no such specific and precise definition of facts and circumstances to be found, that consequently it is difficult, if not impossible, to pronounce that any writing is per se and exclusive of all circumstances libellous; that its libellous character must depend on intent and tendency, the one and the other being matter of fact.

VIII. That the definitions or descriptions of libels to be found. in the books predicate them upon some malicious or mischievous

intent or tendency, to expose individuals to hatred or contempt, or to occasion a disturbance or breach of the peace.

IX. That in determining the character of a libel, the truth or falsehood is in the nature of things a material ingredient, though the truth may not always be decisive, but being abused, may still admit of a malicious and mischievous intent which may constitute a libel.

X. That in the Roman law, one source of the doctrine of libel, the truth in cases interesting to the public, may be given in evidence. That the ancient statutes probably declaratory of the common law, make the falsehood an ingredient of the crime. That ancient precedents in the courts of justice correspond, and that these precedents to this day charge a malicious intent.

XI. That the doctrine of excluding the truth as immaterial, originated in a tyrannical and polluted source, the court of Star Chamber, and that though it prevailed a considerable length of time, yet there are leading precedents down to the revolution, and even since, in which a contrary practice prevailed.

XII. That this doctrince being against reason and natural justice, and contrary to the original principles of the common law enforced by statutory provisions, precedents which support it deserve to be considered in no better light than as malus usus which ought to be abolished.

XIII. That in the general distribution of powers in our system of jurisprudence, the cognizance of law belongs to the court, of fact to the jury; that as often as they are not blended, the power of the court is absolute and exclusive. That in civil cases it is always so, and may rightfully be so exerted. That in criminal cases the law and fact being always blended, the jury, for reasons of a political and peculiar nature, for the security of life and liberty, is intrusted with the power of deciding both law and fact.

XIV. That this distinction results, 1, from the ancient forms of pleading in civil cases, none but special pleas being allowed in matter of law; in criminal, none but the general issue; 2, from the liability of the jury to attaint in civil cases, and the general power of the court as its substitute in granting new trials, and

from the exemption of the jury from attaint in criminal cases, and the defect of power to control their verdicts by new trials, the test of every legal power being its capacity to produce a definitive effect liable neither to punishment nor control.

XV. That in criminal cases, nevertheless, the court are the constitutional advisers of the jury in matter of law; who may compromit their consciences by lightly or rashly disregarding that advice, but may still more compromit their consciences by following it, if exercising their judgments with discretion and honesty they have a clear conviction that the charge of the court is wrong.

LANSING OR BURR.

REASONS WHY IT IS DESIRABLE THAT MR. LANSING RATHER THAN COL. BURR SHOULD SUCCEED.

1804.

1. Col. Burr has steadily pursued the tract of democratic politics. This, he has done either from principle or from calculation. If the former, he is not likely now to change his plan, when the federalists are prostrate, and their enemies predominant. If the latter, he will certainly not at this time relinquish the ladder of his ambition, and espouse the cause or views of the weaker party.

2. Though detested by some of the leading Clintonians, he is certainly not personally disagreeable to the great body of them, and it will be no difficult task for a man of talents, intrigue, and address, possessing the chair of government, to rally the great body of them under his standard, and thereby to consolidate for personal purposes, the mass of the Clintonians, his own adherents among the democrats, and such federalists as, from personal good-will or interested motives, may give him support.

3. The effect of his elevation will be to reunite under a more

adroit, able, and daring chief, the now scattered fragments of the democratic party, and to reinforce it by a strong detachment from the federalists. For though virtuous federalists, who, from miscalculation may support him, would afterwards relinquish his standard, a large number from various motives would continue attached to it.

4. A farther effect of his elevation by aid of the federalists will be, to present to the confidence of New England, a man, already the man of the democratic leaders of that country, and towards whom the mass of the people have no weak predilection, as their countryman, as the grandson of President Edwards, and the son of President Burr. In vain will certain men resist this predilection, when it can be said, that he was chosen governor of this State, in which he was best known, principally, or in a great degree, by the aid of the federalists.

5. This will give him fair play to disorganize New England, if so disposed; a thing not very difficult, when the strength of the democratic party in each of the New England States is considered, and the natural tendency of our civil institutions is duly weighed.

6. The ill opinion of Jefferson, and jealousy of the ambition of Virginia, is no inconsiderable prop of good principles in that country. But these causes are leading to an opinion, that a dismemberment of the Union is expedient. It would probably suit Mr. Burr's views to promote this result, to be the chief of the Northern portion; and placed at the head of the State of NewYork, no man would be more likely to succeed.

7. If he be truly, as the federalists have believed, a man of irregular and unsatiable ambition, if his plan has been to rise to power on the ladder of Jacobinic principles, it is natural to conclude that he will endeavor to fix himself in power by the same instrument; that he will not lean on a fallen and falling party, generally speaking, of a character not to favor usurpation, and the ascendency of a despotic chief. Every day shows, more and more, the much to be regretted tendency of governments entirely popular, to dissolution, and disorder. Is it rational to expect that a man, who had the sagacity to foresee this tendency,

and whose temper would permit him to bottom his aggrandizement on popular prejudices and vices, would desert the system at a time, when, more than ever, the state of things invites him to adhere to it.

8. If Lansing is governor, his personal character affords some security against pernicious extremes, and at the same time renders it morally certain, that the democratic party, already much divided, and weakened, will moulder, and break asunder more and more. This is certainly a state of things favorable to the future ascendency of the wise and good. May it not lead to a recasting of parties, by which the federalists will gain a great accession of force from former opponents? At any rate is it not wiser in them to promote a course of things, by which schism. among the democrats will be fostered and increased, than on fair calculation to give them a chief, better able than any they have yet had, to unite and direct them; and in a situation to infer rottenness in the only part of our country which still remains sound, the federal States of New England?