Lewis v. Few

5 Johns. 1 | N.Y. Sup. Ct. | 1809

Kent, Ch. J.

We cannot compel the party to make an election, in this case. If it was a motion for a new trial, it might be otherwise. We must give our opinion on the demurrer to the evidence, if the defendant demands it, and chooses to bring on the argument.

You cannot declare according to the tenor and effect j but the precise words must be set forth.^* In Boyce v. Whitaker,^† Lord Mansfield said, that if the defendant had set out the statute unnecessarily in his pica, 'that ££ he would hold him to half a letter.”

In the case of King v. Marsack,^‡ where in reciting a statute, or was put for and, the court held the variance fatal. The strict principle which prevails in regard to indictments, or declarations on statutes, is equally applicable to declarations for libels.

2. There was not sufficient proof of the publication. The affidavit of the defendant became necessary, in the course of judicial proceedings. It would be unreasonable and oppressive, that an affidavit, so taken, should be used to prove the publication of a libel. The affidavit was made to defend the party against an attachment for a contempt, and as a justification of his conduct. u What,” says Lord Mansfield,^§ “ when taken abstractedly, would be a publication, may, from the occasion, prove to be none, as if it was read in a judicial proceeding.”

[Kent, Ch. J.

Must not a witness answer to a question, though his answer may subject him to a civil suit?]

But here the party is not only subjected to a civil suit, but he may also be indicted for the libel.

3. There was no evidence of malice in the defendant, express or implied. Where words are spoken, or a letter written, bona fide, by a master, concerning the character of a servant, though the specific acts- or crimes are charged, and which turn out to be false, yet no action lies. The words must be proved to be malicious, as w'ell as false.^* The present case may be considered as analogous. The people must be regarded as the sovereign or niaster, and the persons elected as their agents or servants. It is essential, in an elective government, that the people should be at liberty, bona fide, to express their opinions of any public officer, or candidate for office. And the question of bona fides, or malice, should be decided by the court; for it would not be safe, in cases of this kind, to leave it to a jury, to infer malice.^† The court always decide on the construction of writings ; and in the case of a libel, or written slander, the court ought to decide whether it be malicious. Such a rule would guard against prejudice and abuse, and not be liable to the fluctuating opinions of different juries.

4. The publication was justified by the occasion, and therefore not a libel. Courts have been liberal in allowing a freedom of speech, for the furtherance of justice. For words spoken by an advocate, in defence of his client, which would be actionable, if spoken on any other occasion, no action lies.^‡ No action lies for words spoken or published in a court of justice; nor where the words are spoken in a course of religious discipline, nor where they relate to grievances, and are addressed to those who have the power to redress them.^§ In the present case, the publication was addressed to the people, who alone have the power to remove a bad magistrate, and thereby redress a public grievance. There is no mode of addressing the people, but through the. press. The exposure of the grievance, therefore, necessarily, becomes general.

5. There is no evidence whatever, that the defendant wrote, or caused to be written, the-libel in question.

The demurrer to evidence cannot vary the case. It has been supposed, that a. demurrer to evidence admits every fact which the jury might possibly have inferred. This rule was correctly laid down, in the case of Stephens v. White, by the court of appeals of Virginia:^* That on a demurrer to evidence, “ the conclusion of fact must be such as the jury might, from, a just and reasonable construction, have made, and not arbitrary inferences, or such as might be drawn from a part only of the whole evidence.” The inference must necessarily arise from the fact; not such as a jury might, in their caprice, infer. The court are, then, to decide, whether malice is a necessary and fair inference from the facts in this case; and whether the jury would have been justified in making such an inference.

Slosson and Griffin, contra.

On a demurrer to evidence, the only question is, whether the point in issue between the parties has been proved. No objections can be made to the pleadings.^† If a party will, by a demurrer to evidence, take the cause from the decision of the jury, the proper tribunal to ascertain facts, every inference which the jury could have drawn, may be drawn by the court.^‡ Again, on a demurrer to evidence, the court will not decide on the admissibility of the evidence. Where improper evidence is admitted, the objection must be made at the trial, and a bill of exceptions tendered. Having stated the principles as to a demurrer to evidence, we shall proceed to discuss the points in the cause.

1. The defendant, in his affidavit, admits, that he was chairman of the meeting; and Van Wyck, in his affidavit, the truth of which is admitted by the defendant, states that the address was passed unanimously. A jury might, then, fairly infer a publication by the defendant. The evidence is, that a publication had been made, and a copy was produced. The affidavits were not offered as evidence of a publication, per se, but of a previous publication admitted by the defendant. The address was unanimously ordered to be published, and the defendant subscribed his name to it, and sent it forth to the world. By subscribing his name, as chairman, the defendant deliberately sanctioned and approved of the publication. If the resolutions had been contrary to his opinion, would he not have expressed his dissent ?

It has been said, that the libel produced varied from the one stated in the declaration. On a demurrer to the evidence, no advantage can be taken of defects in the declaration. But in truth, the variance is wholly immaterial. The declaration does not set forth the libel according to the tenor, or words, but according to the substance and sense. In the case of The Queen v. Drake,^* Lord Holt says, there are two ways of describing a libel in pleading; one by the words, the other by the sense. If you declare according to the tenor, or words, the least variance is fatal. If by the sense, the exactness of the words is not material. In the case of Rex v. Beach,^† Lord Mansfield adverts to this distinction taken by Lord Holt, as the true one ; and he observes, that the jury had a right to read the word underfood as understood t and that where the omission or addition of a letter did not make another word, it was not material. So, in the present case, the jury might have read U. States as if it were United States. In the case of The King v. May,^‡ the same distinction was recognised. It was an indictment for perjury, and in describing the original indictment the word “ despaired” was omitted, yet the variance was not held fatal. So, in King v. Tippet ^§ the word if, in setting forth a precept, was omitted, but it was held not to be a fatal variance.

All writing consists of certain characters, which have certain powers; and many contractions, by common consent, have the same force and meaning as the words contracted. Abbreviations are not held to be variances ; as, reicevd, in an indictment, was held by the twelve judges in England, an abbreviation, and that the jury might read it received.^* The jury might consider U. States as an abbreviation of United States, especially if there was usage to warrant it. In a late proclamation of the President of the United States, and in various public documents, we find the words U. States used for United States.

2. Then is this action sustainable, or was the defendant justified in the publication ? Precedents of declarations for similar libels may be found in Modern Entries.^† To support an action for a libel, there must be malice, express or implied. In most cases, the malice must be implied. Malice is a settled and deliberate design to injure another. What excuse or justification does the defendant offer to repel the presumption of malice? That the writing w,as published by him, as a chairman of a public meeting of electors, convened for the purpose of deciding on a proper candidate for the office of governor. Where a party means to rely on his character or situation, as an excuse or justification, he ought to plead it.^‡ So, where the defendant relies on the publication having been made in the course of judicial proceedings, he must plead the matter specially.^§ If no such excuse or justification exists, there can be no doubt that the action is maintainable. If the defendant relies on matter extrinsic, he ought to plead it.^¶

But has the defendant, in fact, given in evidence sufficient matter of excuse or justification i He has offered no evidence of the truth of the charges against the plaintiff. He does not even pretend that he was misinformed, or that he believed them to be true. The address is not entirely of a political nature, nor does it express mere opinion. It contains distinct and positive charges of a criminal nature. The falsehood of these accusations must be presumed, until the truth of them is proved. But the falsehood of the charge is admitted by the pleadings; and it stands on the record, that the defendant has published false and injurious charges against the plaintiff. How then is he justified by the occasion ?

Let Us examine the cases in which it has been held, that the occasion may justify words, for which an action could otherwise be maintained. Where words are spoken from pity and concern for the object of them, no action lies, because there is no malice.^* Another class of cases is, where words are spoken by way of advice, or in answer to an inquiry as to the character of a servant. ^† In those cases, the words were not published to the world at large, hut spoken only to the person making the inquiry.

There are other cases relating to words spoken, or writings, in the course of judicial proceedings, in courts, or before persons acting quasi courts. There the defendant is justified from the necessity of the case. As if words be spoken by an advocate, in the legal and necessary exercise of his profession, no action lies; but if counsel will unnecessarily and wantonly go out of the path of ihtxr professional duty, to asperse the character of another, an action lies.^‡ The ground on which courts in similar cases have proceeded is, that the words were spoken before a tribunal competent to correct the matter of complaint, or to redress the grievance. But the address in the present case was to the world, not to the court for the trial of impeachments.

The proposition attempted to be maintained by the other side, is, that electors may meet together for the purpose of canvassing the qualifications of candidates for public offices, .and publish to the world what they think of them, provided there is no express malice. There is no evidence that the defendant, or any other person present at the meeting, except Van Wyck, was an. elector. But admitting that all the persons present at held up to public scorn and derision l the meeting were electors, does it follow that a man who offers himself, or is held up by his friends, as a candidate for a public office, is to lose that protection which the law affords to the meanest citizen ? that he is to be considered as an outlaw ? as a mark to be shot at, or to be

On this point, the court must decide according to the common law. If we look into the cases decided by the English courts, no authority is to be found to support the proposition contended for by the other side. In How v. Prinn,^* the words were spoken of a plaintiff who intended to stand candidate as a knight of the shire to serve in parliament, yet that was not suggested as a matter of excuse, and the action was held maintainable. The case of Clayes v. Rowe,^† was also that of a candidate for member of parliament; yet that circumstance was not mentioned by way of justification, but seemed to be considered rather as an aggravation. In the case of Onslow v. Horne,^‡ the slanderous words were spoken by the defendant at a meeting of the electors of the county, qualified to vote for the election of members of parliament, for the purpose of instructing the plaintiff and another, who were representatives of the county in parliament. The defendant was a man of talents, possessed of great political information, a conspicuous and zealous advocate for liberty, and well instructed in all the rights and privileges of British freedom ; yet we do not find a hint of any such privilege of an elector, as that now claimed by the present defendant. It is well known that the members of the British parliament are elected by the people. If, then, these actions for slander have been brought there for a long series of years, in regard to members of the house of commons, and no such excuse has been set up, the court may well conclude, that the common law knows of no such iustification.

Rut in a recent and analogous case, that of Harwood v. Sir Jacob Astley,^* in the court of C. B. in England,, we find the counsel for the defendant taking almost the Same ground of defence, as that assumed by the defendant’s counsel in the case now before the court. But Sir James Mansfield, without hearing the plaintiff’s counsel, decided, that “ if the words be actionable in themselves, it is quite immaterial whether they were spoken of the plaintiff, as a candidate or not.’’ “ It seems,” he observes, “ to be supposed, that the situation of á candidate for parliament is such as to make it lawful for any man to say any thing of him. To that proposition I cannot assent; nor is it to be collected from any of the cases which have been cited. It would be a strange doctrine indeed, that when a man stands for the most honourable situation in the country, any person may accuse him of any imaginable crime, with impunity.” This unanimous opinion of the court of C. B. was afterwards affirmed in the house of lords.

In the case of The People v. Croswell, argued in this court) in February term, 1804, by very learned and able counsel, the defence now set up was never thought of. Croswell was an elector, and made his publication, no doubt, with the patriotic intention of enlightening the body of electors, as to the character of the President of the United States. It seems to have been reserved for the ingenuity of the counsel of Harwood, in England, and the defendant’s counsel here, to suggest this new doctrine for the first time.

It is the undoubted right of the people to assemble together to discuss public measures, and the qualifications of candidates for public office. They may freely speak, and publish the truth, and the whole truth: but this cannot authorize them to publish falsehoods, and atrocious libels, concerning public candidates. Political meetings are not to be sanctuaries for libellers and slanderers, from whence they may issue their calumnies with impunity. The counsel for the defendant, aware of the odious nature of their proposition, qualify it by saying, that the publishers are liable to an action, in case of express malice. But what stronger evidence of malice can there be than the deliberate publication of a falsehood? a settled design to injure and destroy the character of another ? It is admitted in one of the affidavits. read in evidence, that the object of the publication was to influence \ the election; and how was the election to be influenced, but by depreciating or destroying the character of the opposing candidate ? The constitution, which secures the freedom of elections, does not warrant the publication of falsehoods. Information to the electors, implies truth and certainty; honest and correct information. Malice, in all cases, like the present, must necessarily be proved by overt acts. No man will have the frontless assurance to avow his malicious intent. Patriotic pretences will never be wanting, at all political meetings, to disguise the design to destroy such public men as are obnoxious to them. The history of republics, ancient and modern, affords us dreadful examples and most instructive lessons on this subject.

The legislature, in the act for regulating elections,^* evince a disposition to guard them from undue influence, by prohibiting bribery, menace, or any other corrupt means or device, directly or indirectly, to influence an elector. They intended that the suffrages of the people should be, as far as possible, free and unbiassed.

Again ; the meeting at Mar fling’s was not a constitutional meeting of the people. Our political constitution acknowledges no political meetings of the people, except at the polls, where the electors meet for the purpose of giving their votes.

T. A. Emmet, in reply.

1. I admit, that on a demurrer to evidence, no objection can be made to the pleadings. But a libel must always be set forth according to the tenor, and not according to the purport or sense ; and the declaration in the present case is according to the tenor.

It is said, that the people are the masters, and the governors, or representatives, are their servants ; and the case of Weatherston v. Hauukinshas,^* been cited on the ground of a supposed analogy. The people, it is true, in their political capacity, constitute the supreme and sovereign power of the state; and may, in that view, be justly considered as the sovereign or master. But when do the people appear and act in this sovereign capacity ? only when they meet to elect their representatives. Who are the people ? The great body of electors. But any assemblage of citizens, whether electors or not, for the purpose of promoting the election of a particular candidate, and of influencing the electors to vote for their favourite, is not the people, or sovereign in this constitutional sense. It would be a most dangerous doctrine, and productive of the greatest licentiousness, if such meetings were to be considered as the people, and possessing the attributes and immunities of sovereignty. The defendant and his friends are respectable men ; and all those who assembled at Martling’s may have been respectable men ; but other men, less respectable, may assemble, (for bad men throng to such meetings,) and call themselves the people. But the situation of public magistrates, and public candidates, would be deplorable, indeed, if the law afforded them no protection against the slanders Uttered by such meetings. Individuals may be restrained by shame, fear, or personal considerations ; but an assembly will not be influenced by such motives. A multitude never blush. While, therefore, the right of the people to assemble and discuss public measures, and the merits of candidates for public offices, is held sacred, the law should be careful to guard against the abuse of this privilege.

In the case of the King v. Powel^* it was held that the words, “ as follows, to wit,” was an averment of the tenor. Now, tenor imports the same words, or an exact transcript of the libel.^† Identity of sense is not sufficient ; there must be an identity of words. As the libel or subject matter of the suit, is to be construed by the court, it is essential that it should be set forth verbatim*

The case of The King v. Drake,^‡ is a mere obiter dictum of Lord Holt; and it was a criminal case. I have searched all the Latin entries for precedents, and I find only two, in Robinson's entries. Wentzvorth,^§ in his collection of pleadings, directs that the libel, should be set out verbatim, as the smallest variance would be fatal. In Zenobio v. Axtell,^¶ which was an action for a libel in the French language,, it was held that a translation was not sufficient, but 'the original words must be set forth. In the case of The King v. Wilkes,^** on the application of the attorney-general, Lord Mansfield ordered the record to be amended by striking out the word “ purport” and inserting the word tenor. The libel, in this case, having been set forth according to the tenor, the paper produced must be according to the tenor. Any verbal mistake or variance is fatal. The mistake of a letter will not be fatal, unless it makes another word. Abbreviations are allowed, where the word intended cannot be mistaken.^†† The case of Rex v. Beach was an indictment for perjury, in which it was not necessary to set out the matter according to tenor. In that case Lord Mansfield said, that the jury might read underiood as understood ; but with submission to his lordship, I cannot conceive how the jury were to read the record at all, or what they had to do with it. Sed nonunquam bonus dormitat Homerus, The case of the King v. Hart, was that of an indictment, and the paper was set forth according to its tenor ; the abbreviation could not well be mistaken. But the letter U. may stand for many other words, besides United, as, for example, unhinged, unfortunate or unhappy.

2. There is no evidence of a publication by the defendant. It is said, that the court, on a demurrer to evidence, are to infer every thing which the jury might possibly have inferred. This is an extravagant extension of what I conceive to be the true rule; which is, that every inference which the jury could reasonably have drawn from the evidence, may be deduced by the court. If the court will set aside a verdict as against evidence, because the jury have made an inference not warranted by the evidence, why will they not exercise the same power as to inference, on a demurrer to evidence ?

Again; the evidence does not support the second count in the declaration. The allegation that the defendant wrote the libel, is a- material averment, and ought to have been proved. The defendant’s affidavit admits nothing, except his being a chairman of the meeting. He does not state that he assented to the resolutions. His situation precluded him from expressing any opinion or voting on the question; he was silent and passive. A libel, as Lord Coie observes, is published traditione, cantilenis aut verbis.^* Suppose the address had been read, and had then been negatived by the meeting, would this have been a publication of the libel ? Suppose the defendant had laughed at it and approved it, but the meeting had rejected it, would the defendant have been liable for publishing the libel ? But there is no evidence that he either read or assented to it. He had no control over the meeting ; and he ought not be made liable for the acts of others. The defendant, by his reference to the affidavit of Mr. Van Wyck, adopts it only in regard to what passed at the meeting. There is nothing in that affidavit which brings the fact of publication home to the defendant. There is no evidence of any act done after the meeting. It is said merely, that the address was ordered to be published j not that it was in fact published ; and for aught that appears on the record, that order may have been revoked. The doctrine contended for by the counsel for the plaintiff, is new and dangerous j its tendency is to prevent all public meetings ; for no ni an will dare to be a chairman, or preside at such meetings, if he is to be answerable, civilly, for all their acts. There is no proof of any publication by the defendant, at the meeting, nor of any act done by him after the meeting ; and his affidavit being in the course of judicial proceeding, is admitted not to amount to a publication.

3. There can be no inference of malice in this case; for the jury had no right to make the inference. In an action for a libel, if the plaintiff proves the publication only, he must have a verdict; because the law infers malice. In the case of The King v. Oneby ^* in the court of King’s Bench, all the judges agreed to the proposition, that the court are judges of the malice, not the jury. Malice and maliciously are terms of law 5 and in the legal sense, always exclude a just cause.^†

To make out malice in the defendant, the court must decide that the meeting and the publication were, in the language of Chief Justice Parker, without just cause.

But it is said, that,falsehood evinces malice. I deny that the falsehood of the charges is admitted on the record. It is not a demurrer to the declaration, but merely to the evidence. The falsehood wag at issue between the parties. The demurrer to the evidence neither admits, nor denies the falsehood. Falsehood or not, is a question of fact; and the court cannot infer falsehood. In England, it does not seem to be clearly settled, whether, in an action for a libel, the defendant can give in evidence, the truth of the defamatory paper:, in justification.^* But the better opinion seems to be, that the truth may be pleaded in justification. If the word falsely be left out of a declaration for a libel, it will be good.^† Then the falsehood could not be a matter in issue. It cannot be said, therefore, that a demurrer to evidence admits the falsehood. But it is contended that the circumstances on which the defendant relies for justification ought to have been specially pleaded; and the case 0f Lake v. King,^‡ has been cited in support of that position. But the note of Serjeant Williams, is expressly the contrary. He says, “ when the defendant admits the publishing or speaking of the libel or words as stated, but justifies so doing, because they are true, he must plead this matter specially.” “ But where the defence is, that the libel or words, were published or spoken, not in the malicious sense imputed by the declaration, but in an innocent sense, or upon an occasion which warranted the publication, this matter may be given in evidence under the general issue.” Where there is no evidence of express malice, nor of any circumstances from which malice can be inferred, the mode and manner of publication or speaking cannot afford the legal inference of malice.

Every case in England, in which this question has been raised, has been either on a motion in arrest of judgment, or in error. On a motion in arrest of judgment, there is a verdict of the jury ; and I do not deny, that if express malice is proved, this action is maintained ; and after a verdict, the court will be bound to infer proof of express malice.

If the doctrine for which I contend is pregnant with all the mischiefs which have been described, it is remarkable that the judges in England should have avoided detiding so important and interesting a question, when presented to their consideration. In the case of Onslow v. Horne, as reported by Sir William Black stone.¿ the third proposition laid down by the defendant’s counsel, was, that “ if the words were actionable in themselves, the occasion of speaking them, would excuse them, being at a public county-meeting, where freedom of debate was necessary.” And Chief Justice De Grey, on delivering the opinion of the court, says, we shall give no opinion, how far such an occasion, as the meeting stated in the declaration, would or would not, justify speaking such words, as would be otherwise clearly actionable.” The case of Harwood v. Astley came up on a writ of error from a judgment of the king’s bench, to the exchequer chamber ; and it is to be inferred, that the malice was proved. The accusation was of a most atrocious crime. The case of Blanchard v. Thorne, decided at the last session of the court of errors, came up on a bill of exceptions, and the opinion of the court was, that it was incumbent on the plaintiff to prove express malice, to demonstrate that an evil intention existed, to show that the writing complained of, was entirely false, and malicious ; though no positive opinion was given, whether malice was a question of law for the decision of the court only, or a question of fact to be determined by the jury.

I contend, then, that the circumstances in the present case do not afford any legal inference of malice. The meeting was lawful. At an unlawful assembly, every person is answerable for what is done ; but at a lawful meeting each person present, is answerable only for his own acts. To make outmalice, the court must decide that the meeting was, in itself, unlawful. But is it illegal for a person, at such a meeting, to express his opinion ? It is said, that public assemblies may speak the truth; and so may the meanest man in the street. The conces? si on grants nothing. May not citizens, assembled for the purpose of discussing the merits of public candidates for office, speak their opinion of the acts of a particular candidate, alleged to have been done at a distance, but under the responsibility of proving the truth of the facts in a court of justice ? It is admitted, that where a person speaks without cause, he must be responsible for the truth. But truth or falsehood, is not the distinction as to what may be said at a public meeting. It is the malice, or evil intention, which can alone render a person liable to an action for what is said on such occasions. There being a just cause or necessity for speaking, the falsehood of what is said, lays no foundation for an action, unless malice also be shown : And this malice must be brought home to the defendant. If one man should maliciously say or propose any thing at a public meeting, another who may be present, with very innocent intentions, ought not to be answerable for the malice of his neighbour.

Thompson, J.

delivered the opinion of the court. This case comes before the court, on a demurrer to the evidence. The first question raised, relates to a variance between the libel set out in the declaration, and the one given in evidence upon the trial. In the former, the letter U. connected with States, is used; and in the latter, it is United States, It is to be observed, in the first place, that upon a demurrer to evidence, no question can arise as to the admissibility of the evidence. That objection must come up, either upon a bill of exceptions, or on a motion for a new trial. The evidence having been admitted, and as we are now to presume, without objection, the question how far it conduced to the proof of the charge contained in the declaration, belonged properly to the jury. But the defendant having chosen, by demurring to the evidence, to substitute the court in the place of the jury, every thing which the jury might reasonably infer from the evidence demurred to, is to be considered as admitted. The language of adjudged cases on this subject, both in our own and the English courts, is very strong, to show the court will be extremely liberal in their inferences, where the party, by demurring, will take the cause from the jury. (2 Caines, 134. 1 Johns. Rep. 243. Doug. 119. 2 H. Bl. 208.) Would the jury then have been warranted in reading U. States, United States, by considering U. as an abbreviation of United, or might not the U. be rejected, as surplusage, and the sense and meaning of the sentence remain the same ? That part of the libel in which these words occur reads thus : “ In refusing to afford a tribute of just approbation to the President of these United States, at an important crisis of our national affairs.”

Was this question to be determined by the rules of plain common sense, abstracted from any technical nicety, a doubt would not be entertained on the subject. I am far, however, from wishing-to overleap the boundaries prescribed by adjudged cases, or relaxing what may once have been considered as the rule on this subject, any farther than is consistent with perfect safety, and a due regard to'the advancement of justice. Nor do I apprehend that it is requisite to go farther than has already been done in England, in order to overrule this objection. A recurrence to the cases in the books becomes necessary for the purpose of seeing the progress of the rule now under consideration. And I think I am warranted in this preliminary remark, that courts have lately been less strict and scrupulous on this subject than formerly. In Parker's case, ()Hutton, 56.) the word indicari was written for indictari, and held fatal. In Turvill v. Aynsworth, (2 Lord Raym. 1515. Stra. 787.) the word Austrialia was written instead of Australia, in the description of a corporation, and it was held a, fatal variance ; and the court said it would not answer to reject the word as surplusage, as it would make a different corporation. In the case of The Queen v. Drake, (2 Salk. 660.) in reciting the libel, the word nor was written for not; and this was deemed bad on a special verdict; because nor was different from not, both in grammar and sense. And Powys, J. said, literal omissions would be fatal, where a letter omitted or changed, made another word ; otherwise, where the word remained the same. The case of The King v. Beach, (Cowp. 229.) was a motion in arrest of judgment, in a case of perjury, for a variance between the indictment and affidavit; the word understood being written undertood; and Lord Mansfield, in giving the judgment of the court, said, “we have looked into all the cases upon the subject, some of which go to a great degree of nicety indeed; particularly in the case in Hutton, where indicari was written for indician ; but that case, he observes, is shaken by the doctrine laid down in Hawkins ; the true distinction was that taken in the case of The Queen v. Drake, that where the o mission or addition of a letter does not change the word, so as to make it another word, the variance is not material.” He adds, that “ a greater strictness is required in criminal prosecutions than in civil cases ; but this is a case where the matter has been fairly tried; and the jury were right in reading the word understood.’’'’ Upon what principle could the court or jury read the word undertood for understood. Upon no other, certainly, than because by looking at the context, the obvious sense and meaning of the sentence required it. Supposing this combination of letters, undertood, (making no word known in the English language,) should be presented to a person, and he asked what the writer must have meant by it; would it be obvious that the letter s was omitted, and that understood was the word intended; or would it not be rather more reasonable to suppose that the final ¿/had been substituted for k, and that the word intended was undertook. This case, ( The Kins v. Beach,) then, must be considered as overruling the cases of Parker, and of Turvill v. Aynsworth, before referred to j and as adopting these positions, that the variance is a proper subject for the jury to determine ; and that the sense and meaning of the &?r»z used, is to be ascertained by a reference to the context. The case of The King v. Hart, (1 Leach, 172.) was for forging an order ; and in setting it out in the indictment, the word received was written at full length, received ; in the order produced in evidence, it appeared to be releer? d, both abbreviated, and the letters transposed. It was left to the jury to consider, whether they thought the two words imported one and the same thing. The prisoner was convicted ; but judgment respited for the opinion of all the judges, who determined it to be a proper question for the jury ; and that considering it an abbreviation, if it meant only the same word as that used in the indictment, it would not vitiate, for it could then only mean the same thing. This case authorises the conclusion, that where the variance consists in an abbreviation, and the jury consider it as meaning the same thing as the word in the indictment, it is immaterial. The case of The King v. May, (1 Leach, 227.) was an indictment for perjury, which in reciting that part of an indictment for an assault and battery, where it is alleged, that his life was greatly despaired of, the word despaired was entirely omitted ; and Butter, J. overruled the objection of a variance. A rule was obtained in the court of king’s bench, to show cause why the verdict should not be set aside, and a judgment of acquittal entered; but, it was afterwards abandoned without experiment. The King v. Lookup, (cited 1 Term Rep. 240.) was an indictment for perjury. The objection was, that the in- . dictment stated the bill in chancery to be directed “ to Robert Lord Henley,” &c. whereas it was directed to “ Sir Robert Henley, knight,” &c. and the objection was overruled. The inference that I have drawn from the case, of The King' v. Beach, that you may look at the context, in order to judge of the materiality of the variance, is warranted by a variety of other cases to "be found in the books. (Doug. 194. note. 2 Hawk. P. C. 340. 616. notes. 2 M'Nall Ev. 519. and cases there cited.) I have thus briefly referred to some of the leading cases on this subject, which show, as I conceive, a progressive relaxation of what Lord Mansfield called the great degree of nicety to which this rule was once carried. If the principles contained in the more modern decisions, are applied to the case before us, I think they are amply sufficient to warrant us in saying, that the variance is immaterial ; and that the letter ZJ. when taken with the context, means precisely the same thing as the word United. It is a common and well understood abbreviation. Whether an abbreviation consists of one letter or of several, cannot, in principle, make any difference ; the true question is, whether the abbreviation in the declaration, means the same word as that used in the libel; if so, it falls within the rule adopted in the case of The King v. Hart. If the letter U. standing as it does, is senseless, without some other letter added, whether one or more letters be added, cannot be material, if they are such as the sense and context necessarily imply ; and then it falls within the case of The King v. Beach. If the letter U. should be considered as altogether rejected, it would not be taking-greater liberty, to supply, by intendment, the word Uni~ ted,, than was done in the case of The King v. May„ where the word despaired was supplied by intendment. The Z7. may be rejected altogether, and the sense and meaning of the libel remain the same. The President of these States, when read with the context means precisely the same thing as the President of these United States.. (1 Term Rep. 235. and cases there cited.) Suppose the variance was in using the word and, instead of the character (&?) frequently used for it, can it be pretended that this would be fatal ? I presume not. And why ? Because it is a representation of the same thing. The objection therefore, in my opinion, ought not to prevail.

2. It is objected, in the second place, that there is not sufficient evidence of a publication. This appears to me also untenable. The reading of the libel in court, on the occasion referred to in the affidavits set forth, is not the publication complained of. These affidavits, and the copy of the address annexed, were only introduced to show that the defendant admitted a previous publication ; and if they do not afford evidence of that fact, no publication was shown. The defendant, in his affidavit, admits he was chairman of the meeting where the address was adopted | and, after detailing some facts, he says, that as to the other matters in relation to the said meeting, he believes they are truly stated, in the affidavit of Van Wyck. The defendant thereby adopts Van Wyck’s affidavit as his own j and we are to judge of the evidence therein contained, precisely as if the defendant had sworn to it. This affidavit admits, that the address was unanimously agreed to, and ordered to be published. The defendant being chairman, was of course one of the meeting: he therefore ordered it to be published. The address produced in court was a copy; there must, of necessity, have been at least one other in existence. It appears, upon the face of the address, to have been printed by James Cheetham, and to be an address to the republican citizens, throughout the stain of New-York¡ and that it was unanimously agreed to, and ordered to be published, and the defendant’s name, as chairman, was annexed. It is admitted, the address was intended to have an influence on the election, which object could not be answered, unless it was published. The defendant declares, that in agreeing to and in publishing the address, (not the copy produced in court,)he considered himself as exercising the right of an elector, to consider of and communicate information respecting the qualifications of a candidate for an elective office, and not with a view to interfere with the administration of justice. Here appears to me to be an unqualified admission of the publication. He speaks of its having been already done, and assigns his reasons for so doing. It is nothing- more nor less than a confession of, and an attempt to justify the publication. Can it be doubted, that these facts and circumstances tended to show an admission of a publication ?

If the defendant had expressly acknowledged, that he had published a libel, of the tenor of the one set forth in the declaration, it would unquestionably have been sufficient ; and if the evidence offered would have warranted the jury in drawing- the inference of such an acknowledgment, the same conclusion must follow; and whatever the jury might infer, the court are bound to infer. The communication of a libel to any one person is a publication, in the eye of the law. Thus we find it laid down in Lamb's case, (9 Co. 59.) and repeatedly recognised, in subsequent cases, that if he who hath either read a libel himself, or heard it read by another, do afterwards maliciously read or repeat any part of it in the presence of others, or lend or show it to another, he is guilty of an. unlawful publication of it. (Moore, 813. 4 Bac.Abr. 458.1 Hawk. P.C. b. 1. c. 73. s. 8.) To apply this rule, then, to the facts appearing on the record. The defendant, as one of the meeting, adopted the address, and ordered it to be published. It was afterwards printed by James Cheetham. Here was a publication to him at least. Again, in the case of The King v. Bear, (2 Salk. 419. 1 Ld. Raym. 416.) it is laid down, that when a libel appears under a man’s own hand-writing, it is, prima facie, evidence of Ms being the author. The defendant’s name appears to the copy of the libel, the original of which he admits he ordered to be published. His name must be presumed to have been put to the original, by him or by his direction. The sale of a libel by a servant in a shop, has been held, prima facie, evidence of a publication by the master. (5 Burr. 2688.) And the giving of a bond to the stamp-office, for the duties on the advertisements in a newspaper, and occasionally applying at the stamp-office respecting the duties, was held sufficient to charge such person with being the publisher. (4 Term Rep. 126.) If such circumstances are sufficient evidence of publication, how can it be pretended, that where the defendant’s name appears to the libel, and he admits that he had ordered it to be published, and that it had actually been printed, yet still there was no publication. It appears to me, that the facts spread upon this record afford irresistible evidence that the defendant had acknowledged the publication of the libel. (2 M'Nally, 642.)

3. The third question raised is, that there is no evidence of express or implied malice.

Where the act is in itself unlawful, the proof of justification or excuse lies on the defendant; and on failure thereof, the law implies a criminal intent. (5 Burr. 2667. 4 Term Rep. 127.) If a libel contains an imputation of a crime, or is actionable, without showing special damage, malice is, prima facie, implied; and if the defendant claims to be exonerated, on the ground of want of malice, it lies with him to show it was published under such circumstances, as to rebut this presumption of law. (1 Term Rep. 110.) The manner and occasion of the publication have been relied on for this purpose, and in justification of the libel. It has not been pretended but that the address in question would be libellous, if considered as the act of an individual; but its being the act of a public meeting, of which the defendant was a member, and the publication being against a candidate for a public office, have been strenuously urged as affording a complete justification. The doctrine contended for by the defendant’s counsel, results in the position, that every publication, ushered forth under the sanction of a public political meeting, against a candidate for an elective office, is beyond the reach of legal inquiry. To such a proposition I can never yield my assent. Although it was urged by the defendant’s counsel, I cannot discover any analogy whatever between the proceedings of such meetings, and those of courts of justice, or any other organized tribunals known in our law, for the redress of grievances. That electors should have a right to assemble, and freely and openly to examine the fitness and qualifications of candidates for public offices, and communicate their opinions to others, is a position to which I most cordially accede. But there is a wide difference between this privilege, and a right irresponsibly to charge a candidate with direct, specific and unfounded crimes. It would, in my judgment, be a monstrous doctrine to establish, that when a man becomes a candidate for an elective office, he thereby gives to others a right to accuse him of‘any imaginable crimes, with impunity. Candidates have rights, as well as electors; and those rignts and privileges must be so guarded and protected, as to harmonize one with the other. If one hundred otoñe thousand men, when assembled together, undertake to charge a man with specific crimes, I see no reason why it should be less criminal than if each one should do it individually, at different times and places.' All that is required, in the one case or the other, is, not to transcend the bounds of truth. If a man has committed a crime, any one has a right to charge him with it, and is not responsible for the accusation; and can any one wish for more latitude than this ? Can it be claimed as a privilege to accuse,' ad libitum, a candidate with the most base and detestable crimes ? There is nothing upon the record showing the least foundation or pretence for the charges. The accusations, then, being false, the prima facie presumption of law is, that the publication was malicious; and the circumstance of the defendant being associated with others, does not, per se, rebut this presumption. How far this circumstance ought to affect the measure of damages, is a question not arising on the record. It may, in some cases, mitigate, in others enhance them. Every case must necessarily, from the nature of the action, depend on its own circumstances, which are to be submitted to the sound discretion of the jury. It is difficult, and perhaps impracticable, to prescribe any general rule on the subject. We mean, therefore, to confine ourselves to the questions before us; and upon the last point only say, that the facts appearing upon the record do not amount to a justification of the libel.

The plaintiff must accordingly have judgment.

Judgment for the plaintiff.

* 2 Salk. 417. 3 Salk. 226. 6 Term Rep. 162. Holl's Rep. 425. Ld. Raym. 414. Cowp. 229. 8 Wentw. Plead. 322.

† Doug. 94. 97.

‡ 6 Term Rep. 77 s.

§ 1 Term Rep 111. 5Co. 125. b 9 Co. 59. b.

* 1 Term Rep. 110.

† 2 Ld. Raym. 1493. Gilb. Rep. 193. 1 Wils. 132. Bull. N. P. 14. 1 Term Rep. 520.

‡ Cro. .Jac. 90, 91. Hob. 328. 4 Co. 14. Styles, 462.

§ 1 Bl. Rep. 386. 3 Johns. Rep. 130. 3 Esp. Cases, 32. 5 Esp. Cases, 109, Esp. Dig. 506. 1 Saund. 132. 2 Inst. 228. Dyer, 285. 1 Roll. Abr. 87. (M.)

* 2 Wash. ReP 203. 210.

* 2 Salk. 660.

† Cowp. 229.

‡ Doug. 193.

§ 1 Term Rep. 235.

* King v. Hart, 1 Leach, 172.

† Mod. Ent. 203. 208.

‡ Saund. 131. 1 Roll. Abr. 87. (M.)

§ 2 Burr. 807.

¶ 2 Str. 1200. 1 Johns. Rep. 46.

* 1 Lev. 82.

† 1 Term Rep. 110.

‡ C.'c Jac. 90.

* 2 Salk. 694.

† 3 Lev. so.

‡ 3 Wils. 177. 2 W. Bl. 750. S. C.

* 4 Bos. & Pull 47. or 1 N. S.

* 24 Sess. c. 6, s. 17.

* 1 Term Rep. 110.

* 2 W. Black 787.

† 3 Salk. 227.

‡ 11 Mod. 69 S. C. 2 Salk. 660.

§ Vol. 8. 302.

¶ 6 Term Rep 162.

** 4 Burr. 2527. 2 Leach, 753.

†† 2 Leach, 933, Dougherty's Crown Circ. Comp. 565. 572, notes.

* 5 Co. 125.

* 2 Ld. Raym 1485. S. C. Sira 766. 9 St. Tr. 14 See also Ld. Raym. 1584.

† Gilb. Cas. 185. Jones v. Given.

* Selwyn’s N. P. 4. 4 Bac. Abr. 456 Libel, (A.4)

† 7 Term Rep. 4.

‡ l Saund. 131.

Case Details

Case Name: Lewis v. Few

Court Name: New York Supreme Court

Date Published: Nov 15, 1809

Citation: 5 Johns. 1

Court Abbreviation: N.Y. Sup. Ct.