1st. Proper testimony was excluded from the consideration of the jury. 2d. The judge ought, when required so to do, to have charged the jury that if they believed the publication to have been made in good faith, and with a full belief in its truth, these circumstances shouid induce them to mitigate the damages. of the highest character in both public are comprehended in the following and private life;-three members of propositions : the senate, two gentlemen who now represent their country at different courts of Europe,-and three others who were also present, and who all stated that the description given of the plaintiff in the alleged libel was substantially true. Indeed the statement given by them fully justified the publication, and the judge who tried the cause charged the jury that "there was no doubt of the entire credibility of every witness upon either side. They were gentlemen of the first integrity and intelligence, and no inducement could be supposed in the case sufficient to lead them to misrepresent or withhold any fact within their knowledge." In addition to this testimony, they proved that it was currently reported in Albany at the time that the plaintiff was intoxicated in the senate on the occasion alluded to; and the character of the plaintiff as an habitual and notorious drunkard was established beyond all controversy. On the other hand, the plaintiff produced several witnesses, who stated that they were also present in the senate, and that in their opinion he was not intoxicated. They did not, however attempt to deny that his character for sobriety was bad. After a full discussion of the testimony, the Hon. judge who tried the cause charged the jury and they retired. After being out all night they came in, and upon his reiterating a portion of the charge to which exception had been taken, they rendered a verdict for $1400 in favour of the plaintiff. The supreme court was moved for a new trial, on exceptions to the legal principles advanced in the charge of the judge, and also on the ground, that the verdict was contrary to evidence. This motion having been denied, a writ of error was brought on the bill of exceptions, and the cause is now here for a reversion of the legal doctrines laid down at the trial of this cause. The grounds urged upon the consideration of the supreme court 3d. The question of malice ought to have been submitted upon all the evidence, as a question of fact for the decision of the jury. It is to be observed, that at the trial of the cause, the defendants were not permitted to inquire into the general habits of the plaintiff for temperance, not even upon cross-examination. The testimony concerning the prevalance of the concurrent reports at Albany as to the plaintiff's conduct in the senate on the occasion alluded to, was also excluded from the consideration of the jury, as well as the evidence of the general character of the plaintiff for intemperance, unless it appeared to be equal in degree with the offence charged. They were told that this testimony was not to be taken into consideration by them; not even in their estimation of damages; and this opinion concerning general character was reiterated, when the jury, puzzled as some were at the charge, came into court for new and clearer directions. The jury were also told, and this formed one of the principal objections to the charge, that they were simply to inquire whether the plaintiff was intoxicated as described by the defendants. The intention and motives of the defendants in making the charge, their belief in its truth, were excluded from their consideration. Their malice, it was stated, and emphatically stated by the judge, was a legal inference; a conclusion of law from the falsity of the publication; and notwithstanding he was requested to direct the jury to inquire into the motives of the defendants, he refused so to do, but persisted in saying that their intention or malice was a legal inference. (Here Mr. Blunt read the charge of the judge, vide Am. Ann. Register for 1826-7, p. 247, and then proceeded): When this opinion came before the supreme court for revision, the court did not altogether confirm all the positions of the judge at circuit. It assumed a new ground, and one which enabled it to avoid deciding directly upon all the questions submitted for its consideration.. The judge at the circuit charged the jury, that inasmuch as the defendants had professed to state what they saw, no concurrent reports at Albany of the plaintiff's drunkenness were admissible in mitigation of damages, as showing the belief of the defendants in their statement. The supreme court, perceiving this ground to be untenable, assumed a different one, and observed that the notice of justification accompanying the plea of not guilty, was an admission of malice, and therefore no evidence short of proving the truth of the charges was admissible in mitigation of damages, as showing the motives of the defend ants. This was a new ground, but still it as completely excluded the evidence offered in mitigation, as that assumed by the judge at circuit; and it will be incumbent on us, in reference to that point, to overturn both positions; and after reading the reasons advanced by the supreme court in support of its decision, we shall proceed to inquire into their validity, as well as into the correctness of those advanced by the judge at the trial. (The opinion of the supreme court was then read, vide page 259, Am. Ann. Register, for 1826-7.) The first question he continued, that we shall submit for the consideration of this court, grows out of the rejection of proper testimony, whether by the total exclusion of it by the judge, or by his charging the jury to disregard it in making up their verdict. In cross ex amining the witnesses produced on the part of the plaintiff, they were asked what were the general habits of the plaintiff as to temperance. This course of cross examination being objected to, was prohibited by the judge. What was the effect of this decision under the circumstances in which the cause was then placed? The jury was inquiring into the condition of the plaintiff at a particular time. Several respectable witnesses on the part of the defendants said that he was intoxicated. Others produced by the plaintiff, said that in their opinion he was sober. The testimony was conflicting, and it was the province of the jury to decide upon it.. If then it had appeared, that it was the general and even invariable habit of the plaintiff to commence the day with strong and frequent potations, repeated as the day advanced, until the afternoon (the time concerning which the inquiry was made) would always find him completely under their influence, and in a state either of riotous or beastly drunkenness ;-suppose that the proof to be produced would have established this as his invariable habit, (and we have a right to assume this as a fact,) what then was the effect of excluding it? It deprived the defendants of strong corroborative evidence, which would have fortified and strengthened the statements of their witnesses. If his habit was to get drunk every day, their opinion that he was intoxicated on the afternoon alluded to, was more likely to be correct than the opposite opinion; and the proof would have furnished the jury with a powerful reason to adopt their statement. Again, the motives of the defendants in making the publication were to be inquired into. Were they actuated by malice, or not? This was one of the questions the jury was compelled to pass upon; first, (as we shall contend,) in reference to the justification of the defendants; and secondly, in estimating the amount of damages. Was this proof thus excluded calculated to throw any light upon their motives? In ascertaining this, we must inquire whether they believed the charge or not, and whether they would not be more likely to believe that he was intoxicated at the time alluded to, provided he was in the habit of daily intoxication. There were obviously some peculiarities in his appearance, from which some of the spectators drew one conclusion and others drew an opposite conclusion. The defendants' witnesses inferred that he was drunk, and his own witnesses thought that he was sober. The jury, in inquiring into the motives of the defendants were not only to ascertain which of these conclusions was correct; but also whether a man might not have fairly inferred that the plaintiff was intoxicated, and whether the defendants had not formed that opinion in good faith. In both points of view therefore, the testimony was admissible, first, to fortify the conclusion drawn as to his intoxicated condition, and secondly to exculpate the defendants from all malice in making the charge. In the latter point of view the judge erred in charging the jury, that the concurrent report at Albany was not admissible in mitigation of damages. If it was generally believed, that the plaintiff was in the condition in which he was described to be, it demonstrates that there was good reason to believe what the defendants published concerning him, and that the defendants believing it were not actuated by malice in making the publication. That the defendants made the statement in good faith is a complete answer to all imputation of malicious falsehood; and while malice forms a good ground for aggravating damages, the absence of malice affords an equally good reason for mitigating them. These principles are so clear, that it is not a little remarkable that the judge should have ventured to charge in opposition to them, and the extraordinary reason he advanced for his extraordinary position deserves a particular examination. The defendants stated that "they saw what they asserted," and therefore, said the judge, no concurrent report could have produced their belief in the charge. The honourable judge here fell into the common error of forming a general rule from particular instances, not altogether similar to the case under consideration. If the charge had been made concerning a fact, about which an eye observer could have made no mistake, then the defendants' mode of stating it might have been evidence of malice. As if the defendants had stated, that they saw the plaintiff sentenced to an infamous punishment, for a criminal offence. Here there could have been no mistake, and in stating that they saw what they stated, they evince malice by asserting what they must have known to be false. But when the charge is simply an inference from appearances, and men might honestly draw different conclusions from the same appearances, the fact that many drew the same inference, as to the plaintiff's condition, affords strong proof of the sincerity of their belief, and of their good faith in making the statement complained of. It is one thing to be mistaken, and it is another to make an intentional misstatement, and although the injury to the plaintiff may be the same; the motive of the defendant, which in truth is the sole foundation of what are called vindictive damages, is entirely different in the latter case, and ought materially to mitigate the damages. In the case of Wolcott vs. Hall, 6 Mass. 514, which was relied on in the supreme court, to sustain the doctrine of the circuit judge, the reports offered in evidence were not contemporaneous, and were rejected by the court, on the ground that the reports might have been set on foot by the very slander in question. They were consequently properly rejected. This case is different, inasmuch as the reports were contemporaneous with the conduct alluded to, and the publication was subsequently made in a New York journal. The true rule is laid down in Leceister vs. Walter, 2d Campbell 251, and confirmed by this court, in the case of Paddocks vs. Salisbury, 2d Cowen 814. There, a general suspicion that plaintiff was guilty of the offence charged, was admitted in mitigation of damages, and the doctrine is reasonable, as such a suspicion or belief prepares the mind to adopt the opinion on which the charge is founded. But the judge also said, at the circuit, that the concurrent report was not admissible, unless it appeared that defendants said nothing more than was reported at Albany. This was also an erroneous view of the principle. The principle is, that all mitigating circumstances, are admissible in mitigation. The proposition is so clear, and even identical, that an apology would be necessary for stating it, had it not been contradicted by such high authority. An exaggeration of a report is not so great an offence as a fabricated falsehood. The report showed that others entertained a belief, that the plaintiff was intoxicated at the time referred to, and the different opinions of men, as to the degree of excitement under which he laboured, could not so entirely alter the applicability of the rule, as to exelude the report from the consideration of the jury, in estimating the damages. The judge was misled, by not preserving the distinction between a case, where the offence charged is different in character from that about which the report prevails, and where it only differs in degree, and not in kind. Here the offence was of the same character, and because the exact degree of intoxication was not specified in the report, it is most extraordinary, that the jury should not have been allowed to consider the concurrent opinions of other persons, as to the condition of the plaintiff, even as a circumstance in mitigation that a general belief, which, if proved before the jury, from the mouths of the multitude who were present, would have completely exculpated the defendants, shall not be regarded, even as a mitigating circumstance. This is the doctrine of the judge, and it is, in itself, a doctrine so repugnant to reason and common sense, that the simple statement of it, is a stronger proof of its absurdity, than any argument and illustration that I can offer. I now pass to the ground assumed by the supreme court, to justify the exclusion of the testimony offered in mitigation of damages. It was perceived that the reasons offered by the judge, at the circuit, were unsound, and that this exclusion could not be maintained on that ground. A new position was consequently taken, and technical doctrines were interposed, which as effectually excluded the defendants from their legitimate defence. In preparing this cause for trial, the defendants believing that they could substantiate the charges in the publication complained of, had given notice of their justification with their plea. They had also given notice that they would prove, "that the conduct and appearance of the plaintiff, at the time alluded to, were such as to induce the belief, that he was intoxicated, and to justify the obnoxious publication." This notice was given in good faith, and in a full and honest belief of their ability to prove the charge. I would have a right, if it were necessary, even without proof, to assume this to be so. But it is not necessary. The good faith of the defendants is fully established by the statements of the respectable witnesses produced by them at the trial, who completely substantiated the truth of the belief, as far as human testimony could prove it. It is true, that this evidence did not produce conviction in the minds of a Delaware jury, but it at least established one fact, that the defendants sincerely believed the truth of their statements. The judge himself, said in his charge, that, "there was no doubt of the entire credibility of every witness, upon either side." And this after the defendants' witnesses swore to every particular fact asserted in the libel. Upon a review of the whole testimony, it is impossible to doubt, that the defendants made the publication with proper motives and in good faith, and that, believing it to be true, they gave the notice annexed to their plea. In this state of facts, the supreme court refuses the application for a new trial, on account of the rejection of all this testimony, developing the real motives of the defendants, because (as it is gravely asserted in the opinion of the court,) the defendants admitted malice by undertaking to justify. "By the notice annexed to the plea, the malice is confessed upon the record." "Such," say the court, after reiterating this doctrine, in various parts of its opinion, "are the conclusions to be drawn from adjudged cases and approved principles.' Supposing, for the sake of argument, this doctrine to be correct, in what situation does it place defendants in actions of libel? If they intend to justify, they must either plead or give notice of justification. Unless they do that, they are not permitted to offer any testimony establishing the truth of the libel. These are approved principles, and they are conformable to equity and common sense. If the defendant means to establish the truth of the charge, before a jury, it is reasonable that he should give the plaintiff notice of his intention. But does it necessarily follow, that because defendants sometimes believe the charges they make to be true, they always make them maliciously? This publication was made concerning a public officer, then a candidate before the people for re-election. The statements made therein were concerning his public conduct. The subject matter was deeply interesting to the public. Now, I ask, if every accusation against a public officer necessarily proceeds from malicious motives? This is the effect of the doctrine. Whether true or false, the accusation is malicious. It proceeds from a malignant motive, because the justification must be preceded by a notice, and a notice according to the court "is an admission of malice upon the record." If the defendants in this case believed the statements they made, they were bound to make the publication in question. They were bound, as good citizens and electors, to communicate these facts to their fellow-citizens. If the plaintiff were intoxicated, or if they believed him to have been so, as citizens of a free country, as editors of a public journal, they ought to have communicated the fact. They did believe it. Their witnesses believed it. They therefore were not actuated by malice in publishing their statement, but by a motive having reference to the public welfare. At all events, their motives were the proper subjects of inquiry before the jury, and not matter of record. If their belief in the truth of their statement continued unchanged, they were compelled to give a notice of justification in order to defend themselves. They do not say by that notice, that they made the charge maliciously, but that they continue to believe it true, and mean to produce their evidence before the jury at the trial. Grant that they labour under a delusion! Is self-deception malice? Is good faith and sincere belief malignity? Or did any defendant ever dream that by giving such a notice in good faith, he gave a written admission of his malice, which he had already, in his previous plea, expressly denied? If this doctrine be true, it must be true in all cases where this admission of malice is to be found upon the record. To what conclusions would this lead us? Suppose the plaintiff, on the occasion alluded to, had feigned drunkenness-that, actuated by a holy zeal for his party, like the elder Brutus, he had concealed his sanity and sobriety under the guise of a brutish behaviour and sottish demeanour. The defendants, not penetrating his patriotic motives, believe him to be what he seems, and they say the man is drunk. They also give notice when prosecuted, that they will prove the truth of their statement. At the trial the truth appears. The plaintiff proves that on that particular day, so far from yielding to his ordinary habits of intemperance, he had wholly abstained from drink, that he might act |