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Walter, 2d Campbell 251, and con. repugnant to reason and common sense, firmed by this court, in the case of that the simple statement of it, is a Paddocks vs. Salisbury, 21 Cowen 814. stronger proof of its absurdity, than There, a general suspicion that plaintiff any argument and illustration that I was guilty of the offence charged, was can offer. admitted in mitigation of damages, and I now pass to the ground assumed the doctrine is reasonable, as such a by the supreme court, to justify the suspicion or belief prepares the mind exclusion of the testimony offered in to adopt the opinion on which the mitigation of damages.

It was percharge is founded.

ceived that the reasons offered by the But the judge also said, at the cir- judge, at the circuit, were unsound, and cuit, that the concurrent report was that this exclusion could not be mainnot admissible, unless it appeared that tained on that ground. A new posi. defendants said nothing more than was tion was consequently taken, and tech. reported at Albany. This was also an nical doctrines were interposed, which erroneous view of the principle. The as effectually excluded the defendants principle is, that all mitigating circum- from their legitimate defence. In prestances, are admissible in mitigation. paring this cause for trial, the defendThe proposition is so clear, and even ants believing that they could substan. identical, that an apology would be tiate the charges in the publication necessary for stating it, had it not been complained of, had given notice of their contradicted by such high authority. justification with their plea. They had An exaggeration of a report is not so also given notice that they would prove, great an offence as a fabricated false. “that the conduct and appearance of hood. The report showed that others the plaintiff, at the time alluded to, entertained a belief, that the plaintiff were such as to induce the belief, that was intoxicated at the time referred to, he was intoxicated, and to justify the and the different opinions of men, as obnoxious publication." to the degree of excitement under which This notice was given in good faith, he laboured, could not so entirely alter and in a full and honest belief of their the applicability of the rule, as to ex- ability to prove the eharge. I would clude the report from the consideration have a right, if it were necessary, even of the jury, in estimating the damages. without proof, to assume this to be so.

The judge was misled, by not pre. But it is not necessary. The good serving the distinction between a case, faith of the defendants is fully establishwhere the offence charged is different ed by the statements of the respectain character from that about which the ble witnesses produced by them at the report prevails, and where it only trial, who completely substantiated the differs in degree, and not in kind. truth of the belief, as far as human tesHere the offence was of the same cha timony could prove it. It is true, that racter, and because the exact degree this evidence did not produce convicof intoxication was not specified in the tion in the minds of a Delaware jury, report, it is most extraordinary, that but it at least established one fact, that the jury should not have been allowed the defendants sincerely believed the to consider the concurrent opinions of truth of their statements. The judge other persons, as to the condition of himself, said in his charge, that, “ there the plaintiff, even as a circumstance in was no doubt of the entire credibility mitigation ;—that a general belief, of every witness, upon either side.” which, if proved before the jury, from And this after the defendants' witnesses the mouths of the multitude who were swore to every particular fact asserted present, would have completely ex in the libel. culpated the defendants, shall not be Upon a review of the whole testiregarded, even as a mitigating circum- mony, it is impossible to doubt, that the stance. This is the doctrine of the defendants made the publication with judge, and it is, in itself, a doctrine so proper motives and in good faith, and

that, believing it to be true, they gave question. They were bound, as good the notice annexed to their plea. citizens and electors, to communicate

In this state of facts, the supreme these facts to their fellow-citizens. court refuses the application for a If the plaintiff were intoxicated, or new trial, on account of the rejection if they believed him to have been so, of all this testimony, developing the real as citizens of a free country, as editors motives of the defendants, because (as of a public journal, they ought to have it is gravely asserted in the opinion of communicated the fact. They did be. the court,) the defendants admitted ma- lieve it. Their witnesses believed it. lice by undertaking to justify.

They therefore were not actuated by “By the notice annexed to the plea, malice in publishing their statement, the malice is confessed upon the re. but by a motive having reference to the cord.” “Such," say the court, after public welfare, At all events, their reiterating this doctrine, in various parts motives were the proper subjects of of its opinion, “are the conclusions inquiry before the jury, and not matto be drawn from adjudged cases and ter of record. If their belief in the approved principles."

truth of their statement continued unSupposing, for the sake of argument, changed, they were compelled to give this doctrine to be correct, in what a notice of justification in order to desituation does it place defendants in fend themselves. They do not say by actions of libel? If they intend to justi. that notice, that they made the charge fy, they must either plead or give maliciously, but that they continue to notice of justification. Unless they do believe it true, and mean to produce that, they are not permitted to offer their evidence before the jury at the any testimony establishing the truth trial. Grant that they labour under a of the libel. These are approved prin- delusion! Is self-deception malice? ciples, and they are conformable to Is good faith and sincere belief maequity and common sense. If the lignity? Or did any defendant ever defendant means to establish the truth dream that by giving such a notice in of the charge, before a jury, it is reason. good faith, he gave a written admisable that he should give the plaintiffsion of his malice, which he had alnotice of his intention.

ready, in his previous plea, expressly But does it necessarily follow, that denied ? because defendants sometimes believe If this doctrine be true, it must be the charges they make to be true, they true in all cases where this admission always make them maliciously? This of malice is to be found upon the record. publication was made concerning a To what conclusions would this public officer, then a candidate before lead us? Suppose the plaintiff, on the people for re-election. The state- the occasion alluded to, had feigned ments made therein were concerning drunkenness—that, actuated by a holy his public conduct. The subject mat. zeal for his party, like the elder Bru. ter was deeply interesting to the pub- tus, he had concealed his sanity and lic. Now, I ask, if every accusation sobriety under the guise of a brutish against a public officer necessarily pro- behaviour and sottish demeanour. The ceeds from malicious motives? This defendants, not penetrating his patriis the effect of the doctrine. Whe- otic motives, believe him to be what ther true or false, the accusation is he seems, and they say the man is malicious. It proceeds from a malig- drunk. They also give notice when nant motive, because the justification prosecuted, that they will prove the must be preceded by a notice, and a truth of their statement. At the trial notice according to the court “is an

the truth appears.

The plaintiff admission of malice upon the record.” proves tbat on that particular day, so

If the defendants in this case be- far from yielding to his ordinary habits lieved the statements they made, they of intemperance, he had wholly abwere bound to make the publication in stained from drink, that he might act

more to the life the part of a drunken gation is admissible. Such was the patriot. Are the defendants to be pu- law as declared. by the supreme court nished because they have been thus of Massachusetts, (the same court, entrapped ? and is their notice to be whose decision in Wolcott and Hall considered, as the court call it, an met with such approbation from the admission of malice on the record ? supreme court of this state,) in the Again, suppose the defendants to be in

cause of Larned vs. Buffington, 3 Mass. formed of the peculation of a public . 546. In that case, the general issue officer, by credible persons, whose was pleaded with a plea of justificastatements are fortified by documen- tion, and the court there admitted evitary evidence. Upon this authority a dence in mitigation, and said that statement is made, which is followed where, through the fault of the plainby a prosecution. A notice of justifi- tiff, defendant had good cause to becation of course is given. At the lieve the charge, it was a ground of trial the men, upon whose authority mitigation. He may also prove that the statement was made, do not ap- he made the publication with honest pear: the documents are produced, intentions. and they are shown to be fabrications. The same rule was laid down in the The incorrectness of the charge is cases of Leceister vs. Walker, 2 manifest—the character of a public Camp. 251, Moor, 1 Maule and Selservant has been injured, and his wyn, 811, and was recognised by the counsel call for high and vindictive supreme court of New York in Paddamages for this malicious libel. The dock vs. Salisbury, 2 Cowen, 811. defendants now show that they were The courts of our sister states have deceived; nay more, that this decep- adopted the same rule. The supreme tion was set on foot by the plaintiff court of Connecticut, in Bailey vs. himself, who employed the informers, Hyde, 3 Conn. R. 463; that of and fabricated the documents,

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 Marshal} “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 ave:ments in the declaration, (of in alone, that evidence is not admissiwhich tae malicious publication is a ble. And yet the supreme court reprincipai one,) was not pleaded. No- fuse to grant a new trial, because thing but the truth of the charge was “the malice is admitted on the repleaded ; and under the rule that no- cord," and therefore this evidence in thing comes in issue, but what is put mitigation is inadmissible. Nay more, in issue by the pleadings, the jury in all these cases, the question of the were confined to that simple inquiry: admissibility of the evidence in mitiThe case of Matson vs. Buck, 5 gation arose under a plea of justificaCowen, 499, is placed upon the case tion. Here it was a notice, and that of Wolcott vs. Hall. Here the gene- of a qualified character. Now, in the ral issue was pleaded with a notice, case of Vaughan vs. Havens, 8 John. and in such cases all evidence in mitis R. 110, the supreme court of this

cause.

state expressly decided that “the no- of loathing and disgust at a specific tice forms no part of the record, (I time, and then to diminish the damages cite the words of the court,) and can- by proving him to be generally reputed not therefore be considered as a spe- to be addicted to the free use of spicial plea.” “ The notice is intended rituous liquors and often exhilarafor the ease and benefit of the defend. ted by them." The doctrine of the ant. He may or he may not rely upon judge therefore is, that if a man be it. It has been uniformly held that it charged with being dead drunk; a geis not an admission of the matters neral habit of staggering drunkenness charged in the declaration. The shall not be deemed a reason for miti. plaintiff is bound, notwithstanding the gating the damages. In all the difnotice, to prove the facts alleged in ferent degrees of intemperance,—that the declaration." The notice here of booziness-half seas over-stagspoken of, like the one in this cause, gering drunk_beastly drunk, and was a notice of justification in an ac

dead drunk :-In speaking of a person tion of slander; and yet, notwith- in that situation, you must be careful standing the strong and emphatic lan- to graduate your expressions precisely guage of the court in that case, the to his general habit. A slight exaggerasame court now holds that a notice is tion of the degree will expose you to a part of the record, and an admission as fearful a retaliation as if, like Shyof malice-one of the material aver- lock in exacting the penalty of your ments in the declaration.

bond, you had cut deeper than your I forbear all further comment upon pound of flesh. Is this reconcileable the decision on this point in the either with law or reason? For what

are the jury called upon to give daIt formed another objection on the mages ? For the injury done to the part of the defendants to the judge's plaintiff's character for temperance and charge to the jury, that the jury was sobriety. If this be bad, no matter in told that “the evidence of tlie plain- what degree, it is a subject of consitiff's character for intemperance was deration with the jury in estimating not admissible in mitigation of da- the damages; not only because the mages unless of the same quality and character of the plaintiff was injured degree charged in the libel,” and this by his own misconduct, but because was reiterated to them in the morning if the plaintiff was at all addicted when they came into court for further to the use of ardent spirits in excess, and more explicit directions.

the defendants would naturally ascribe The character of the plaintiff for his extraordinary appearance and betemperance had been attacked-for haviour at the time alluded to, to inthe injury sustained or likely to be temperance. Their motives, therefore, sustained from that attack he had would be shown to be free from mabrought his action. His character, lice, which, where it does exist, is unitherefore for temperance became the versally admitted to be a good ground subject of consideration in estimating for aggravated damages. the damages, unless it is contended, It is not a little remarkable, and it that a man of infamous character is adds to the force of this exception, that entitled to the same damages for any notwithstanding this direction of the imputation upon his name as a person judge to the jury, he had previously of unimpeachable reputation. prevented the defendants from asking

What the judge at the circuit meant à witness (E. J. Roberts) on cross-exby “general character of the same amination “ How often he had seen quality and degree” is explained in the plaintiffintoxicated, and to what dethe next sentence of his charge. gree.” Thus preventing the defendant For instance, he says

6 the defend- on one hand from inquiring into the deants cannot be permitted to say that gree of intemperance in which the the plaintiff was drunk and an object plaintiffhabitually indulged, and then on

B

the other hand charging the jury, that fore this court for supervision. The unless his general character for intem- defendants complain, that great injus. perance was of the same degree with tice has been done them in the charge that charged in the libel, it was not ad- to the jury, and that several novel and missible in mitigation of damages. extraordinary principles have been adThe striking injustice done to the de- vanced in this cause, and all militating fendants by these decisions was so ma- against their defence. On that acnifest that the supreme court did not count we ask a new trial, but not on attempt to sustain the judge's charge that account alone. These reasons at the circuit, but assumed a technical all refer to an injury affecting the deground for the exclusion of this tes- fendants personally, but there were timony. Whether this new ground be other principles advanced at this trial more tenable, we shall now examine. touching the freedom of political disThe supreme court in its decision ad- cussion, compared with which the docmits, that the character of the plaintiff trines I have already commented upis a proper subject of inquiry, but on, sink into insignificance. These denies that any examination ought principles strike directly at the freeto take place into his character for dom of the press, and practically place temperance. Inquiry, says the court, it at the mercy of the judges, and I may be made into his general moral know I speak the sentiments of my character, but not into his character clients when I say, that more on acfor any particular quality. This ex count of what they deem a violence traordinary proposition, advanced I perpetrated upon the cause of freedom venture to say for the first time in a and upon our liberal institutions, than court of justice, is not only contrary because of the injustice done to them. to the ordinary practices, but also to selves (though that is not trivial) they the plainest principles. The very in- have deemed it their duty to resist this quiry of the jury is concerning the judgment to the last, and not to submit character of the plaintiff for tempe to it, until it is declared to be the law rance and for nothing else. lst, be- of the land by the court of final resort. cause his character in that particular At the trial of this cause, the jury had been attacked, and it was the duty were told that the question of malice of the jury to ascertain how much it was a legal inference, and it forms the had been injured.

3d point in the case presented to this 2dly, because the evidence would court, that the question of malice was tend to rebut the presumption of not submitted upon all the evidence as malice.

a question of fact for the decision of The court however, carried away by the jury. some idea concerning general charac To prevent any misapprehension, as ter which I must confess I cannot to the principles for which we concomprehend, determined that all in- tend, I shall submit them to the court quiry into his character for temperance in the shape of distinct propositions. was inadmissible—as if in an action 1st. Where the subject matter of the by a female for a libel stigmatizing her publication is such that no good motive as a prostitute, the defendant should

can be assigned, malice is necessarily be prohibited from any inquiry into her inferred. character for chastity, but confined to 2d. Where public motives are assignan investigation of her general charac- able for the publication, malice then ter excluding that particular. Such becomes a doubtful question, and wheare the reasons, which induce the de. ther it is to be inferred or not, is a fendants to ask a new trial on that question of fact for the decision of the branch of the case touching the mea- jury. sure of damages, and it is but seldom 3d. When a publication is made conthat a case presenting a greater viola- cerning the official conduct of a public tion of principle has been brought be- officer, good motives, and probable

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