ble, and intemperate it might be. The constitutional freedom of speech and of the press must mean a freedom as broad as existed when the constitution which guarantees it was adopted, and it would not be in the power of the legislature to restrict it, unless it might be in those cases of publications injurious to private character, or public morals or safety, which come strictly within the reasons of civil or criminal liability at the common law, but in which, nevertheless, the common law as we have adopted it failed to provide a remedy. It certainly could not be said that freedom of speech was violated by a law which should [* 430] * make imputing the want of chastity to a female actionable without proof of special damage; for the charge is one of grievous wrong, without any reason in public policy demanding protection to the communication, and the case is strictly analogous to many other cases where the common law made the party responsible for his false accusations. The constitutional provisions do not prevent the modification of the common-law rules of liability for libels and slanders, but they would not permit bringing new cases within those rules when they do not rest upon the same or similar reasons.1 1 In Respublica v. Dennie, 4 Yeates, 267, the defendant was indicted in 1805 for publishing the following in a public newspaper: "A democracy is scarcely tolerated at any period of national history. Its omens are always sinister, and its powers are unpropitious. With all the lights of experience blazing before our eyes, it is impossible not to discover the futility of this form of government. It was weak and wicked at Athens, it was bad in Sparta, and worse in Rome. It has been tried in France, and terminated in despotism. It was tried in England, and rejected with the utmost loathing and abhorrence. It is on its trial here, and its issue will be civil war, desolation, and anarchy. No wise man but discerns its imperfections, no good man but shudders at its miseries, no honest man but proclaims its fraud, and no brave man but draws his sword against its force. The institution of a scheme of polity so radically con- * Criticism upon Officers and Candidates for Office. [* 431] There are certain cases where criticism upon public officers, their actions, character, and motives, is not only recognized as shall be free to every person who undertakes to examine the proceedings of the legislature, or any branch of the government; and no law shall ever be made to restrain the right thereof. The free communication of thoughts and opinions is one of the invaluable rights of man; and every citizen may freely speak, write, and print on any subject, being responsible for the abuse of that liberty. In prosecutions for the publication of papers, investigating the official conduct of officers or men in a public capacity, or where the matter published is proper for public information, the truth thereof may be given in evidence; and in all indictments for libels, the jury shall have a right to determine the law and the facts under the direction of the court, as in other cases.' Thus it is evident that legislative acts, or of any branch of the government, are open to public discussion; and every citizen may freely speak, write, or print on any subject, but is accountable for the abuse of that privilege. There shall be no licensers of the press. Publish as you please in the first instance, without control; but you are answerable both to the community and the individual if you proceed to unwarrantable lengths. No alteration is hereby made in the law as to private men affected by injurious publications, unless the discussion be proper for public information. But if one uses the weapon of truth wantonly for disturbing the peace of families, he is guilty of a libel.' Per General Hamilton, in Croswell's Trial, p. 70. The matter published is not proper for public information. The common weal is not interested in such a communication, except to suppress it. "What is the meaning of the words being responsible for the abuse of that liberty,' if the jury are interdicted from deciding on the case? Who else can constitutionally decide on it? The expressions relate to and pervade every part of the sentence. The objection that the determinations of juries may vary at different times, arising from their different political opinions, proves too much. The same matter may be objected against them when party spirit runs high, in other criminal prosecutions. But we have no other constitutional mode of decision pointed out to us, and we are bound to use the method described. "It is no infraction of the law to publish temperate investigations of the nature and forms of government. The day is long past since Algernon Sidney's celebrated treatise on government, cited on this trial, was considered as a treasonable libel. The enlightened advocates of representative republican government pride themselves in the reflection that the more deeply their system is examined, the more fully will the judgments of honest men be satisfied that it is the most conducive to the safety and happiness of a free people. Such matters are proper for public information.' But there is a marked and evident distinction between such publications and those which are plainly accompanied with a criminal intent, deliberately designed to unloosen the social band of union, totally to unhinge the minds of the citizens, and to produce popular discontent with the exercise of power by the known con [* 432] * legitimate, but large latitude and great freedom of expression are permitted, so long as good faith inspires stituted authorities. These latter writings are subversive of all govern ment and good order. The liberty of the press consists in publishing the truth, from good motives and for justifiable ends, though it reflects on government or on magistrates.' Per General Hamilton, in Croswell's Trial, pp. 63, 64. It disseminates political knowledge, and, by adding to the common stock of freedom, gives a just confidence to every individual. But the malicious publications which I have reprobated infect insidiously the public mind with a subtle poison, and produce the most mischievous and alarming consequences by their tendency to anarchy, sedition, and civil war. We cannot, consistently with our official duty, declare such conduct dispunishable. We believe that it is not justified by the words or meaning of our constitution. true it may not be easy in every instance to draw the exact distinguishing line. To the jury it peculiarly belongs to decide on the intent and object of the writing. It is their duty to judge candidly and fairly leaning to the favorable side when the criminal intent is not clearly and evidently ascertained. It is 'It remains, therefore, under our most careful consideration of the ninth article of the Constitution, for the jury to divest themselves of all political prejudices (if any such they have), and dispassionately to examine the publication which is the ground of the present prosecution. They must decide on their oaths, as they will answer to God and their country, whether the defendant, as a factious and seditious person, with the criminal intentions imputed to him, in order to accomplish the objects stated in the indictment, did make and publish the writing in question. Should they find the charges laid against them in the indictment to be well founded, they are bound to find him guilty. They must judge for themselves on the plain import of the words, without any forced or strained construction of the meaning of the author or editor, and determine on the correctness of the innuendoes. To every word they will assign its natural sense, but will collect the true intention from the context, the whole piece. They will accurately weigh the probabilities of the charge against a literary man. Consequences they will wholly disregard, but firmly discharge their duty. Representative republican governments stand on immovable bases, which cannot be shaken by theoretical systems. Yet if the consciences of the jury shall be clearly satisfied that the publication was seditiously, maliciously, and wilfully aimed at the independence of the United States, the Constitution thereof or of this State, they should convict the defendant. If, on the other hand, the production was honestly meant to inform the public mind, and warn them against supposed dangers in society, though the subject may have been treated erroneously, or that the censures on democracy were bestowed on pure unmixed democracy, where the people en masse execute the sovereign power without the medium of their representatives (agreeably to our forms of government), as have occurred at different times in Athens, Sparta, Rome, France, and England, then, however the judgments of the jury may incline them to think individually, they should acquit the defendant. In the first instance the act would be criminal; in the last it would be innocent. If the jury should doubt of the criminal intention, then also the the communication. There are cases where it is clearly the duty of every one to speak freely what he may have to say concerning public officers, or those who may present themselves for public positions. Through the ballot-box the electors approve or condemn those who ask their suffrages; and if they condemn, though upon grounds the most unjust or frivolous, the law affords no redress. Some officers, however, are not chosen by the people directly, but designated through some other mode of appointment. But the public have a right to be heard on [* 433] the question of their selection; and they have the right, for such reasons as seem to their minds sufficient, to ask for their dismissal afterwards. They have also the right to complain of official conduct affecting themselves, and to petition for a redress of grievances. A principal purpose in perpetuating and guarding the right of petition is to insure to the public the privilege of being heard in these and the like cases. * In a case in the Court for the Correction of Errors of the State of New York, a party was prosecuted for a libel contained in a petition signed by him and a number of other citizens of his county, and presented to the council of appointment, praying for the removal of the plaintiff from the office of district attorney of the county, which, the petition charged, he was prostituting to private purposes. The defendant did not justify the truth of this allegation, and the plaintiff had judgment. On error, the sole question was, whether the communication was to be regarded as privileged, that character having been denied it by the court below. The prevailing opinion in the court of review characterized this as "a decision which violates the most sacred and unquestionable rights of free citizens; rights essential to the very existence of a free government; rights necessarily connected with the relations of constituent and representative; the right of petitioning for a redress of grievances, and the right of remonstrating to the competent authority against the abuse of official functions." And it was held that the communication was privileged, and law pronounces that he should be acquitted. 4 Burr. 2552, per Lord Mansfield." Verdict, not guilty. The fate of this prosecution was the same that would attend any of a similar character in this country, admitting its law to be sound, ex cept possibly in cases of violent excitement, and when a jury could be made to believe that the defendant contemplated and was laboring to produce a change of government, not by constitutional means, but by rebellion and civil war. could not support an action for libel, unless the plaintiff could show that the petition was malicious and groundless, and pre- sented for the purpose of injuring his character. Such a petition, it was said, although containing false and injurious aspersions, did not prima facie carry with it the presumption of malice. A similar ruling was made by the Supreme Court of Pennsylvania, where a party was prosecuted for charges against a justice of the peace, contained in a deposition made to be presented to the governor. The subsequent case of Howard v. Thompson has enlarged this rule somewhat, and has required of the plaintiff, in order to sustain his action in any such case, to prove not [* 434] only malice in the * defendant, but also a want of prob- able cause for believing the injurious charges which the petition contained. The action for libel, in such a case, it was said, was in the nature of an action for malicious prosecution; and in that action malice and want of probable cause are both necessary ingredients. And it has also been held that in such a case the court will neither compel the officer to whom it was addressed to produce the petition in evidence, nor will they suffer its contents to be proved by parol.5 The rule of protection in these cases does not appear to be disputed, and has been laid down in other cases coming within the same reasons. The rule, however, is subject to this qualifi- 1 Thorn v. Blanchard, 5 Johns. 2 Ibid. p. 526, per L'Hommedieu, 3 Gray v. Pentland, 2 S. & R. 23. A remonstrance against the employ- ment of a school teacher is privileged. Van Arsdale v. Laverty, 69 Penn. St. For similar cases of privilege see Larkin v. Noonan, 19 Wis. 82; Whitney v. Allen, 62 Ill. 472; Reid v. vestry should not return him on the list of persons qualified to serve as constables. The defendant was a parishioner, and his communication was held privileged. In O'Donaghue v. McGovern, 23 Wend. 26, a commu- nication from a member of a church to his bishop, respecting the charac- ter, moral conduct, and demeanor of a clergyman of the church, was placed upon the same footing of privilege. And see Reid v. Delorme, 2 Brev. 76; Chapman v. Calder, 14 Penn. St. 365. |