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to dictate. Self-preservation, the first law of our nature, will always raise the arm of power, where it can descend with impunity and effect: but if in England as well as in this country, interferences on political questions now and then take place, which neither law nor right can fully justify, that country at least does not tolerate in any formidable extent, the abominable nuisance'so prevalent here, of tying up to the stake, the private character and domestic life of every political opponent, to be exposed to the calumnies of the vulgar, and worried by overy mongrel description of slanderers and libellists. Yet the public taste of this country seems gratified by the practice; whereas the intermixture of personal slander with public discussion, ought to be regarded as full and complete evidence, that the writer was not actuated by motives of public good. Among the antient Democracies of Greece, every man of superior station, wealth, talent, or character, was considered as a fair object for popular calumny : from which, no public or private virtue could effectually shield him. This was carried to a prodigious excess: nor can any man peruse the history of those turbulent republicans, without strongly feeling that the character of their governments, gave to the people themselves, a character of cruel, unfeeling, insolent injustice; of ferocious and ambitious rapacity; and a morbid jealousy of the most honourable evidences of superiority, that furnish little cause for regret, if such democracies be extinguished to flourish ne Imore, In New-York and some other of our states, something like law on this subject still holds its place in public estimation: but every where there is too much rancorous abuse of every political opponent, and the most flagrant imputation of corrupt and sinister motive on surmises too slight for a cool observer to consider of any weight. Almost every where among us, the antient hatred, not merely to the aristooracy of rank, and the aristocracy of wealth, but to the aristocracy of talent also, strongly prevails; and the licentiousness of publication almost universally indulged in, renders it doubtful, whether the Freedom of the Press itself, may not be purchased at too high a price. In this state, the dread of infringing on personal liberty has been carried to a morbid extent; in so much, that in many cases of injury, even the verdict of a jury will afford neither present compensation, or future security. An insolent or unprincipled disturber of the public peace or domestic intercourse, seduces your wife, debauches your daughter, maims your person, or defames your character. You put yourself to the trouble and expence of suing him for the injury committed: the jury find a verdict against him, and allow you a compensation in damages. He goes to jail for a week or two, applies for the benefit of the insolvent act, is discharged from prison, and laughs in your face. You indict him for the offence : and he is convicted. But he is a moisy partizan of the prevailing politics whatever they may be. His fellow brawlers send round a petition; the Governor is urged by political adherents, a pardon puts an end to the punishment, and the insolvent act, pays the costs. There is no reply to be made to the arguments in favour of Republicanism over Monarchy : in theory they are triumphant. But in practice, there are objections that may give occasion to a considerate man to pause: especially, where under the influence of universal suffrage, the ignorance of the community is almost exclusively represented, and wisdom and wealth, are held in equal distrust. With respect to religious discussion, long experience has now shewn, that the less opposition is given, the more peaceably such controversies proceed, and the less mischief they produce. Complete toleration on the part of the government, and the laws, is the parent of mutual toleration among the people. The more the public is accustomed to dissonance of opinion on these subjects, the more clearly will it be seen, that a man may be a good child, a good father, a good husband, a kind friend, and a good citizen, under any and every system of religious faith, however rigid or however lax: and if a man possesses these qualifications, it is all that society can require. Nor is it easy to draw the line between questions of this description which shall be included, or those that shall be excluded from the Index expurgatorius: every man will be apt to consider his own creed, as all-important to society; and experience will consider none of them as of consequence, except as they tend to make a man a good citizen in the points above mentioned; and each stands forward with similar pretensions in this respect, and perhaps with nearly equal merits. On the subject of private char, cter, I have said sufficient. ( It is never attacked from the press with a good motive. If the statements be true, the laws are open for conviction, and punishment: if dubious, they ought not be advanced ; if false, the calumniator ought himself to be considered as a public nuisance. The absurd privilege of giving the truth in evidence on an indictment, only encreases the mischief, and gives a legal sanction to the practice itself. In a civil action, the first principles of justice require that a man shall not ask for damages for calumny, of which he is afraid to meet the proof. I shall not dwell upon the Law of libels in England, which may be well gathered from the popular compilations: but it may be useful to notice the principal cases that have occurred here.
By an act of Pennsylvania of 16th March, 1809, which if not renewed will expire by its own limitation in April, 1813, the truth is allowed to be given in evidence on every prosecution for libel. I believe this doctrine is adopted no where but in this state, and in New-York state, nor ought it to be. The public have nothing to do with the truth or fals—hood of a libel on a private individual. Has he been guilty of a crime : Indict him. Otherwise it is reasonable to conclude, that your own bad passions give rise to the publication. The cases of libel hitherto reported in the U. States, so far as I have met with them, are mostly conformable to the principles of the English decisions. 1 Binney, 393. Kennedy v. Lowry. It is sufficient to lay the substance of the words spoken, and prove it. 1 Binney, 601. Respub. v. Duane, in which the above mentioned act of Assembly, was held to put an end to an indictment for libel, commenced before that act passed. 2 Binney, 34. Brown v. Lamberton. Words are to be taken according to their plain and obvious meaning. 2 Binney, 514. Respub. v. Sharf, wherein judgment was reversed, in consequence of the finding of the Jury not corresponding to the indictment. Green v. Long, 2 Caines, 91. “He is perjured.” It is sufficient to prove that the words were spoken of the plaintiff, in allusion to an oath taken in court. If the court was incompetent to administer it, Defendant must shew this. The People v. Freer, 1 Caines, 485. The intent of a writer of a libel on the court, is of no consequence, if the court are of opinion it is a libel. Lyle v. Clason, 1 Caines, 581, sending a sealed libel to the plaintiff, is not a publication, sufficient to ground a civil prosecution: but it may a criminal one. Hicks case, Poph, 139. Clason v. Gould, 2 Caines, 47. In libel there must be affidavit of special cause to hold to bail. Nor will the court change the Venue on the common affidavit, Clinton v. Croswell. 2 Caines, 245. Foot v. Tracy, 1 Johns. Rep. 46. Can defendant give in evidence on the general issue, the general character of the plaintiff in mitigation of damages: Hatchkiss v. Lothrop. 1 Johns. 286. A libel by the plaintiff on the defendant, may be given in evidence in explanation, but not in justification. Tillotson v. Cheetham, 3 Johns, 56. Judgment by default admits
the fact of publication and the truth of the inuendoes. Nor can defendant give a former recovery in damages by the same plaintiff in mitigation, although it was for part of the words charged in the second suit. The one publication being on the 3d, and the other on the 17th of the month; and they might go into different hands Clinton v. Mitchell. 3 Johns. 144. If defendant gives notice of certain facts on which he means to rely, he shall not withdraw that notice, unless on affidavit that the facts so stated, are stated without sufficient grounds. This is founded on the practice of New-York state, where defendant may plead the general issue to this action, and give notice of special matter to be used in his defence. Lewis v. Few. 5 Johns. 1. U. States, is sufficient to support United States. It is no justification that Defendant signed the libel as Chairman of a public meeting. Whether the plaintiff was the person meant to be libelled, is a question of fact for the jury. Van Vechten v. Hopkins. Io. 211. Witnesses are not admissible to prove that on reading the libel they understood by it that the plaintiff was the person meant. An inuendo cannot be proved; but extrinsic matter introduced by an averment or colloquium may be proved. Where one count is bad for want of sufficient averments, and entire damages assessed on the whole declaration, judgment must be set aside. Cheetham v. Tillotson, in error, 5 Johns. 430. Sed vide, Kennedy v. Lowry, 1 Binney, 397. Neal v. Levis, 2 Bays, 204, and Nelson v. Emerson, 2 Bays, 439. A petition of divers inhabitants to the authority under which a district attorney is appointed, and by which he may be removed, charging him with improper motives of conduct, is not a libel. Thorn v. Blanchard in Error. 5 Johns. 508 The English authorities are well considered in this case, and the cause was decided in error against the opinion of the law characters on the Bench. The Court of crrors in New York consisting of the Chancellor, and of senators who are not lawyers. Thomas v. Rumsey, 6 Johns. 26. One satisfaction for one injury. B and C being partners in a newspaper, A brought suit against B for libel; and then against C: against whom he recovered. B pleaded this recovery puis darein continuance, and well: Genet v. Mitchell, 7 Johns. 120. Plaintiff may abandon one count of his declaration, and use the libel therein stated but abandoned, in explanation of another count. A jury may decide under the circumstances, whether a pub
lic minister publishing his instructions, has thereby traitorously betrayed the secrets of his government. Andries v. Wills. Ib. 261. Action for libel lies against the proprietor of a Gazette, edited by another, though the proprietor did not know of the publication. But where the proprietorship is cast upon a person by operation of law, he does not become thus liable, o Thomas v. Croswell. Ib. 264 To publish of a member of congress that he is a fawning sycophant, and has abandoned his post in pursuit of office, is libellous : and of this, the jury may decide. Guere, whether words charged in the declaration, and in themselves libellous, can be admitted to shew malice in other words relied on 2 Meade v. Daubigny, Peake's N. P. Ca. 125. A man may publish a plain and fair account of proceedings in a court of justice, but not accompanied with comments and insinuations against the characters of the parties concerned. Brooks v Bemiss, 8 Johns. 455. Defendant stated that this was not the first time that falsehood had been associated with the plaintiff, in the minds of many honest men. Evidence that seven persons and others, believed the plaintiff not to be a man of truth, is not admissible: for it leads to vague and additional calumny. The fact of falsehood must be proved. Commonwealth v. Crips, 4 Mass. Rep. 163. The truth of the words is no justification in a criminal prosecution for libel. I find nothing to the purpose in 5 and 6 Mass. Rep. in 1 M'Henry; 1 and 2 Washington; 1, 2, 3 Call ; 1, 2, 3 Hemming and Munford; or 1–6 Cranch. But lately, (21 Jan. 1811) it was decided in the supreme court at Charleston, S. C. The State v. Thomas Lehre, that the truth of the libel could not be given in evidence on an indictment. Judge Waties, in delivering the opinion of the court, cites the present section of the institutes. Shaw v. M'Combs, 2 Bays 232. Verdict in slander on Sunday void. Sunday is not dies Juridicus. Sove quis matrem familias aut praetextatum pratextatamwe adsectatus fuerit. The same law in Rigaut v Gallisard, 7 Mod. 78. It is strange how slightly the crime of prederasty was regarded among the ancients. Virgil's Formosum, pastor Corydon ardebat Alexin, and his Misus amore pio pueri, are instances. A quarrel between two men about a youth, is also the subject of one of Lysias's orations, containing no remark in disfavour of the practice. § 2. Quiet per quos injuriam patiumtur, p. 320. So a husband may have assault and battery against one who coma.