5 Johns. 1 | N.Y. Sup. Ct. | 1809
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.
In the case of King v. Marsack,
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,
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
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.
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
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.
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
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,
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 ;
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.
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.
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.
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 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.
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,
Rut in a recent and analogous case, that of Harwood v. Sir Jacob Astley,
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
The legislature, in the act for regulating elections,
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.
1. I admit, that on a demurrer to evidence, no objection can be made to the
The case of The King v. Drake,
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.
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
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 false
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 de
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
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
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 an
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.
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
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,
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.