23. 4 id. 420, S. C. Burton v. Worley, 4 Bibb, 38. Law v. Scott, 5 Harris & Johns. 438.)

In Duncan v. Thwaites, (5 Dow. Ry. 462,) Bayley, J. says, "if an action is brought against a man for calling another a thief, would it be a good defence to such action for the defendant to say, I really believed him to be a thief at the time I said so; and though I admit that what I said was calculated to injure his character, yet I really acted most conscientiously, under a full belief that what I said was true? Does the negative of malice destroy the right of action where an injury results? The mischievous effect to the party complaining may be just as great as if it was intentional. It must not be assumed that the absence of a malicious intention would be an answer to the action." And Ch. J. Abbott, in delivering the opinion of the court in the same case, lays it down as a general rule, that every act unlawful in itself and injurious to another, is to be considered, in law, to be done malo animo, towards the person injured; and that this is all that is meant by a charge of malice in a declaration of this sort; which is introduced rather to exclude the supposition that the publication was made on some innocent occasion, than for any other purpose.

In Bromage & Snead v. Prosser, (6 Dow. & Ry. 296,) the court set aside a verdict because the judge had submitted the question of malice to the jury, in a case where the communication was not privileged, and the truth of the charge was not proved. My own opinion of the law on this subject, and the distinction between ordinary slander and privileged communications, is there so fully and correctly stated, that it would be but a waste of time to state that opinion at length. In ordinary slander, the question of malice is never submitted to the jury, except in relation to the amount of damage. In privileged communications the defendant is entitled to a verdict, unless there is evidence of actual malice.

The difficulty which existed in England, previous to Mr. Fox's libel act, was, that in criminal prosecutions the defendant was not permitted to give the truth in evidence; and yet the jury were required to imply malice. But in civil cases the defendant was permitted to give the truth in evidence as a full justification. Such was declared to be the law by the judges at the time that bill was under discussion in parliament; and there has never been any alteration of the law in England on this subject, in civil suits. The truth is there, a full justification.

It is, however, insisted, that this libel was a privileged communication. If so, the defendants were under no obligation to prove the truth of the charge; and the party libelled had no right to recover unless he established malice in fact, or showed that the editors knew the charge to be false. The effect of such a doctrine would be deplorable. Instead of protecting, it would destroy the freedom of the press, if it were understood that an editor could publish what he pleased against candidates for office, without being answerable for the truth of such publications. No honest man could afford to be an editor; and no man, who had any character to lose, would be a candidate for office under such a construction of the law of libel. only safe rule to adopt in such cases is, to permit editors to publish what they please in relation to the character and qualifications of candidates for office, but holding them responsible for the truth of what they publish.

The

If the plaintiff has been injured in his character or his feelings by an unauthorized publication, it is the duty of the jury to award him a full compensation in damages, without reference to any particular ill will which might have been entertained against him by the defendant. For the purpose of ascertaining what injury the plaintiff has probably sustained by the false accusation, the defendant may in all cases go into evidence of the general character of the plaintiff. In ordinary cases, a man whose character

was previously bad would not be entitled to the same compensation in damages, as one who had always sustained a fair and unimpeachable reputation. But if the plaintiff's character had already been tarnished, and the jury were satisfied he was, at the time of the slander, endeavouring by a course of good conduct to retrieve his former character, that might be a reason for giving heavier damages against those, whose slanderous reports might defeat such a laudable attempt on his part.

There is another view of this subject, in which the question of actual malice becomes important with regard to the amount of damages. The jury may not only give such damages as they think necessary to compensate the plaintiff for his actual injury, but they may also give damages by way of punishment to the defendants. This is usually denominated exemplary damages, or smart money. The plaintiff is therefore at liberty to give evidence of actual malice and vindictive motives on the part of the defendants, to increase the damages. On the other hand, the defendant may rebut all presumption of actual malice, by showing facts and circumstances which induced him to suppose the charge was true at the time he made it, although it afterwards turns out to be false. The object of this kind of testimony is not to create a suspicion in the mind of the jury that the charge is true, but to show them that the defendant was not actuated by malicious motives. Hence no evidence of this kind can be given, except such as actually was, or may fairly be presumed to have been known to the defendant at the time he made the charge.

If the charge is true, the defendant has another remedy by pleading the truth in bar of the action, which will be a complete defence; but if he sets up such defence, which turns out to be untrue, it is a deliberate repetition of the slander on the records of the court, and it is then too late for him to allege that the original charge was made under a mistake. The jury are then to

pass on the truth of the charge, and it would be destructive to the rights of the plaintiff to permit such evidence to go to them in connection with the justification. When the defendant goes to trial on the general issue only, such testimony may safely be admitted, as it only goes to reduce the damages by rebutting all presumption of actual malice. The ex parte statements of others, and circumstances of suspicion which had been communicated to the defendant, would not be legal evidence to establish a justification; and if they were given in evidence, in connection with other testimony which was legal, they would influence the opinions of the jurors, and might induce them to give a verdict in favour of the defendant, when they would not have given such verdict on the legal evidence of guilt alone. For this reason it was long a question of doubt whether evidence of general bad character could be given in connection with a justification. Some of the most recent decisions, both in this country and in England, seem to be in favour of allowing evidence of general bad character, although there is a justification. I am disposed to defer to those decisions, but am satisfied the rights of plaintiffs, and the safety of those who are accused of crime, will not allow the principle to be extended.

The testimony rejected by the judge was neither admissible as evidence of general character, nor of particular facts, which had induced the defendants to make the charge in this case. They state the facts as within their own personal knowledge, without reference to the previous character of the plaintiff, or the opinions of any person; and the judge correctly stated to the jury that the opinions of others were of no consequence, if they did not influence the conduct of the defendants.

The statement of the judge, that the defendants may not give evidence of general character as to temperance, unless of the same quality or degree charged in the libel, was fully explained by him, so that his meaning

could not be misunderstood by the jury. The charge was certainly much more favourable to the defendants than the decision of the supreme court would have authorized, though I do not mean to say it was more so than the facts of the case required.

In aggravated cases of slander, it is not only the right but the duty of the judge to present to the jury, in plain and intelligible language, the necessity and propriety of protecting private character against unwarranted calumny and abuse. Judges have at times been permitted to use very strong language in describing the character of a libellous production. In a case before the late chief justice, in speaking of the libel, he held this language to the jury: "The declarations contained in this pamphlet evince extreme depravity of heart in the defendant, and an utter disregard of every rule of propriety, and every principle of honour; and altogether forming a tissue of expressions the most indecent, the most immoral, the most blasphemous, that ever were conceived in the heart, or uttered by the tongue of man."(Trumbull v. Gibbons, Judicial Repos. 1.) And although $15,000 damages were given in that case, I believe the counsel did not think of asking for a new trial.

If I do not mistake the meaning of the circuit judge in the case before us, some of the passages complained of in his charge were intended to protect the defendants against any improper effects which had been made upon the minds of the jury by an appeal to their prejudices. I infer from the charge that the plaintiff's counsel had alluded to the case of Judge Van Ness, or of some other individual; and it was in reference to that the judge told the jury, that the defendants were called upon to answer for a specific injury; and if they had cleared themselves of that, no consideration of general expediency should induce the jury to punish them for offences not charged against them in that action. If such was the case, it was perfectly right and

proper, and the defendants certainly have no right to complain.

I cannot bring myself to the conclusion that any rule of law has been violated on the trial of this cause; and I think the judgment of the supreme court should be affirmed as of the term of this court immediately preceding the death of Verplanck.

By Mr. Senator Mather. In charging the jury on the trial of this cause at the circuit, the learned judge observed that it was not incumbent on the plaintiff to prove malice on the part of the defendants in making the publication; that malice would be implied if the charge was false. This, as a general proposition, is undoubtedly correct; but it ought to be observed, lest we suffer ourselves to be misled by the broad and general terms in which it is expressed, that the malice in such case is presumed or implied only, as the rule itself purports. Every person is presumed innocent of any crime which may be charged against him, until he is proved guilty. Whoever charges another therefore with any thing criminal, is presumed to have made a false charge, and therefore to have acted maliciously, unless he shall be able to prove the truth of the charge, the burden of which proof he has assumed by making the charge. It is to be observed further, that the presumption of malice referred to is the presumption of law only. As soon as proofs are offered to enable a jury to judge of the truth of the charge, it becomes the province of the jury to inquire and adjudge in point of fact, not only whether malice existed, but to what extent, and in what degree.

To satisfy the first part of the inquiry, whether malice existed or not, so far as regards the legal presumption of malice, the jury have only to look at the proofs offered in justification. The inquiry involves only presumptions of facts. If the proofs are sufficient, the legal presumption of malice is rebutted by the facts proved. For it is to be remembered that legal presumptions are not proof, but, (as ex

allowed, upon this point of damages, to prove that they had probable cause for making these charges against the plaintiff. To do this, they have offered evidence to satisfy you that it was commonly reported and believed in Albany at the time that the plaintiff was in the condition represented in the libel. This kind of proof must also go as far as is required in regard to general character. It must plainly appear that the defendants have asserted nothing more than was then matter of common report in Albany respecting the plaintiff's condition and conduct in the senate chamber." The judge then proceeds to observe, that "the jury should not only inquire whether such common opinion prevailed, but also whether it influenced the defendants to make the publication; and that, if it should appear that the defendants rested the charges on their own assertion, without any reference to or knowledge of such general belief, then the existence of such common belief, would afford no mitigation in their behalf."

This is all that is contained in the charge on the subject of probable cause shown on mitigation of damages. I observed that in this part of the charge there was a material and fatal defect. The defect I allude to is this: The judge in the first place admits the correct doctrine that probable cause may be relied upon in mitigation of damages; he then proceeds to call the attention of the jury to the evidence supposed to be relied upon by the defendants as showing probable cause, and, in so doing, selects the weakest point in the defendants' testimony on that subject, (the reports current in Albany,) and wholly overlooks the strongest, substantially as I consider, charging the jury that the evidence thus selected, and by him commented upon, was all they had a right to consider in mitigation of damages.

To show that I am not mistaken in giving this construction to the judge's language, I refer to the statements in the bill of exceptions immediately preceding the charge, where it is found

"that the evidence being closed, the counsel for the defendants did then and there insist," among other things, "that if a verdict should be found for the plaintiff, the malice of the publication was taken away, and only nominal damages could be awarded; that the belief of the defendants in the truth of the charge was proved by the evidence, and did away the presumption of malice." This shows what the defendants claimed, the judge should charge the jury on this part of the case. I might well predicate my construction of this part of the charge, on the fact, that the judge utterly neglected and refused to state to the jury this claim of the defendants, which I consider their strongest point on the subject of probable cause, and limits the inquiry of the jury to the single consideration of the reports current in Albany. But that such is the true construction of the charge is further evident, and I think conclusively settled, by the fact, that his honour the chief justice, in delivering the opinion of the supreme court on this branch of the case, not only dissents from the circuit judge on the admissibility of common report as evidence of probable cause in mitigation of damages, but enters into an elaborate argument to show that the proofs offered unsuccessfully in justification could not be relied upon in mitigation as evidence of probable cause. If it had not been considered that the silence of the circuit judge, and his neglect to charge on the last point, as requested by the defendants' counsel, was equivalent to an express dissent from the doctrine asserted by the defendants' counsel, then surely there was no necessity that the supreme court should enter at all into the discussion of the subject. His honour certainly did not intend in this respect to controvert the opinion of the circuit judge. The latter had not advanced any opinion in this respect in collision with that entertained by the supreme court. He was requested to do so, but refused, the very thing which is complained of on the part of the defendants.