*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

ual 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.

66

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 constituted authorities. These latter writings are subversive of all government 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. It is 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.

[432] as legitimate, but large latitude and great freedom of expression are permitted, so long as good faith inspires 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 appoint

"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 him 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 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, except 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.

ment. 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 nécessarily 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 could not support an action for libel, unless the plaintiff could show that the petition was malicious and groundless and presented 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.2 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.3 The subsequent case of Howard v. Thompson has enlarged this

1 Thorn v. Blanchard, 5 Johns. 528, per Clinton, Senator.

2 Ibid. p. 526, per L'Hommedieu, Senator.

3 Gray v. Pentland, 2 S. & R. 23.

421 Wend. 319.

Osgood, 3 Pick. 379.

See Harris v. Harrington, 2 Tyler, 129; Bodwell v.

rule somewhat, and has required of the plaintiff, in order to sustain his action in any such case, to prove not only malice [* 434] in the * defendant, but also a want of probable 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.1

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.2 The rule, however, is subject to this qualification, that the petition or remonstrance must be addressed to the body or officer having the power of appointment or removal, or the authority to give the redress or grant the relief which is sought; or at least that the petitioner should really and in good faith believe he is addressing himself to an authority possessing power in the premises.3

Gray v. Pentland, 2 S. & R. 23. See Hare v. Mellor, 3 Lev. 138.

2 In Kershaw v. Bailey, 1 Exch. 743, the defendant was prosecuted for slander in a communication made by him to the vestry, imputing perjury to the plaintiff as a reason why the 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 communication from a member of a church to his bishop, respecting the character, 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. A remonstrance to the board of excise, against the granting of a license to the plaintiff, comes under the same rule of protection. Vanderzee v. McGregor, 12 Wend. 545. See also Kendillon v. Maltby, 1 Car. & Marsh. 402; Woodward v. Landor, 6 C. & P. 548; Streety v. Wood, 15 Barb. 105; Bradley v. Heath, 12 Pick. 163.

3 This principle is recognized in all the cases referred to. See also Fairman v. Ives, 5 B. & Ald. 642. In that case a petition addressed by a creditor of an officer in the army to the Secretary of War, bona fide and with a view of obtaining through his interference the payment of a debt due, and containing a statement of facts which, though derogatory to the officer's character, the creditor believed to be true, was held not to support an action. A letter to the Postmaster-General complaining of the conduct of a postmaster, with a view to the redress of grievances, is privileged. Woodward v. Lander, 6 C. & P. 548; Cook v. Hill, 3 Sandf. 341. And a complaint to a master, charging a servant with a dishonest act which

*Such being the rule of privilege when one interested [* 435] in the discharge of powers of a public nature is addressing himself to the body having the authority of appointment, supervision, or removal, the question arises whether the same reasons do not require the like privilege when the citizen addresses himself to his fellow-citizens in regard to the conduct of persons elevated to office by their suffrages, or in regard to the character, capacity, or fitness of those who may present themselves, or be presented by their friends. which always assumes their assent- as candidates

for public positions.

When Morgan Lewis was Governor of the State of New York, and was a candidate for re-election, a public meeting of his opponents was called, at which an address was adopted condemning his conduct in various particulars. Among other things, he was charged with want of fidelity to his party, pursuing a system of family aggrandizement in his appointments, signing the charter of a bank with notice that it had been procured by fraudulent practices, publishing doctrines unworthy of a chief magistrate and subversive of the dearest interests of society, attempting to destroy the liberty of the press by vexatious prosecutions, and calling out the militia without occasion, thereby putting them to unnecessary trouble and expense. These seem to have been the more serious charges. The chairman of the meeting signed the address, and he was prosecuted by the governor for the libel contained therein. No justification was attempted upon the facts, and the Supreme Court held the circumstances to constitute no protection in the law. We quote from the opinion delivered by Mr. Justice Thompson:

"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. If a libel contains an imputation of a crime, or is actionable without showing special damage, malice is, prima

had been imputed to the complaining party, has also been held privileged. Coward v. Wellington, 7 C. & P. 531. And see further, Hosmer v. Loveland, 19 Barb. 111. A petition is privileged while being circulated. Venderzee v. McGregor, 12 Wend. 545; Streety v. Wood, 15 Barb. 105. If, however, a petition is circulated and exhibited, but never presented, the fact that the libellous charge has assumed the form of a petition will not give it protection. State v. Burnham, 9 N. H. 34. And see Hunt v. Bennett, 19 N. Y. 173; Van Wyck v. Aspinwall, 17 N. Y. 190

15 Burr. 2667; 4 T. R. 127