press, but as taking from the jury that right to cover by their verdict all the matter charged and constituting the alleged offence, as it was conceded was their right in all other cases. In no other case could the jury be required to find a criminal intent which they did not believe to exist. In the House of Lords they were assailed by Lord Chatham; and Lord Camden, the Chief Justice of the Common Pleas, in direct contradiction to Lord Mansfield, declared

[* 462] his instructions not to be the law of England.

* Never

theless, with the judges generally the view of Lord Mansfield prevailed, and it continued to be enforced for more than twenty years, so far as juries would suffer themselves to be controlled by the directions of the courts.

The act known as Mr. Fox's Libel Act was passed in 1792, against the protest of Lord Thurlow and five other lords, who predicted from it "the confusion and destruction of the law of England." It was entitled "An act to remove doubts respecting the functions of juries in cases of libel," and it declared and enacted that the jury might give a general verdict of guilty or not guilty, upon the whole matter put in issue upon the indictment or information, and should not be required or directed by the court or judge before whom it should be tried to find the defendant guilty, merely on the proof of the publication of the paper charged to be a libel, and of the sense ascribed to the same in the indictment or information: Provided, that on every such trial the court or judge before whom it should be tried should, according to their discretion, give their opinion and direction to the jury on the matter in issue, in like manner as in other criminal cases: Provided also, that nothing therein contained should prevent the jury from finding a special verdict in their discretion, as in other criminal cases: Provided also, that in case the jury should find the defendant guilty, he might move in arrest of judgment on such ground and in such manner as by law he might have done before the passing of the act.

Whether this statute made the jury the rightful judges of the law as well as of the facts in libel cases, or whether, on the other hand, it only placed these cases on the same footing as other criminal prosecutions, leaving it the duty of the jury to accept and follow the instructions of the judge upon the criminal character of the publication, are questions upon which there are still differences

of opinion. Its friends have placed the former construction upon. it, while others adopt the opposite view.1

In the United States the disposition of the early judges was to adopt the view of Lord Mansfield as a correct exposition of the respective functions of court and jury in cases of libel; and on the memorable trial of Callendar, which led to the impeachment of Judge Chase, of the United States Supreme Court, the

*

right of the jury to judge of the law was the point in [* 463] dispute upon which that judge first delivered his opinion, and afterwards invited argument. The charge there was of libel upon President Adams, and was prosecuted under the Sedition Law so called, which expressly provided that the jury should have the right to determine the law and the fact, under the direction of the court, as in other cases. The defence insisted that the Sedition Law was unconstitutional and void, and proposed to argue that question to the jury, but were stopped by the court. The question of the constitutionality of a statute, it was said by Judge Chase, was a judicial question, and could only be passed upon by the court; the jury might determine the law applicable to the case under the statute, but they could not inquire into the validity of the statute by which that right was given.2

Whatever may be the true import of Mr. Fox's Libel Act, it would seem clear that a constitutional provision which allows the jury to determine the law refers the questions of law to them for their rightful decision. Wherever such provisions exist, the jury, we think, are the judges of the law; and the argument of counsel upon it is rightfully addressed to both the court and the jury. Nor can the distinction be maintained which was taken by Judge Chase, and which forbids the jury considering questions affecting the constitutional validity of statutes. When the question before them is, what is the law of the case, the highest and paramount law of the case cannot be shut from view. Nevertheless, we conceive it to be proper, and indeed the duty of the judge, to instruct the jury upon the law in these cases, and it is to be expected that they will generally adopt and follow his opinion.

Where, however, the constitution provides that they shall be judges of the law "as in other cases," or may determine the law

1 Compare Forsyth on Trial by Jury, c. 12, with May's Constitutional History of England, c. 9.

2 Wharton's State Trials, 688.

and the fact "under the direction of the court," we must perhaps conclude that the intention has been simply to put libel cases on the same footing with any other criminal prosecutions,1 and that the jury will be expected to receive the law from the court.

1 66

By the last clause of the sixth section of the eighth article of the Constitution of this State, it is declared that, in all indictments for libel, the jury shall have the right to determine the law and the facts under the direction of the court as in other cases. It would seem from this that the framers of our Bill of Rights did not imagine that juries were rightfully judges of the law and fact in criminal cases, independently of the directions of courts. Their right to judge of the law is a right to be exercised only under the direction of the courts; and if they go aside from that direction and determine the law incorrectly, they depart from their duty, and commit a public wrong; and this in criminal as well as in civil cases." Montgomery v. State, 11 Ohio, 427. See also State v. Allen, 1 McCord, 525.

The Constitution of Pennsylvania declares that “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." In Pittock v. O'Neill, 63 Penn. St. 256; s. c. 3 Am. Rep. 544, Sharswood, J., says: "There can be no doubt that both in criminal and civil cases the court may express to the jury their opinion as to whether the publication is libellous. The difference is that in criminal cases they are not bound to do so, and if they do, their opinion is not binding on the jury, who may give a general verdict in opposition to it; and if that verdict is for the defendant, a new trial cannot be granted against his consent. As our declaration of rights succinctly expresses it, the jury have the right to determine the law and the facts in indictments for libel as in other cases. But in civil cases the judge is bound to instruct the jury as to whether the publication is libellous, supposing the innuendoes to be true; and if that instruction is disregarded, the verdict will be set aside as contrary to law. In England, the courts have recently disregarded, to some extent, this plain distinction between criminal and civil proceedings. It appears to be upon the ground that Mr. Fox's act, though limited in terms to indictments and informations, was declaratory of the law in all cases of libel; upon what principle of construction, however, it is not very easy to understand. It is there the approved practice for the judge in civil actions, after explaining to the jury the legal definition of a libel, to leave to them the question whether the publication upon which the action is founded falls within that definition. Folkard's Stark. 202; Baylis v. Lawrence, 11 A. & E. 920; Parmiter v. Coupland, 6 M. & W. 105; Campbell v. Spottiswoode, 3 B. & S. 781; Cox v. Lee, L. R. 4 Exch. 284. These cases were followed in Shattuck v. Allen, 4 Gray, 540. Yet it is clearly held that a verdict for the defendant upon that issue will be set aside, and a new trial granted. Hakewell v. Ingram, 28 Eng. Law & Eq. 413. 'Though in criminal proceedings for libel,' says Jarvis, Ch. J., there may be no review, in civil matters there are cases in which verdicts for the defendant are set aside upon the ground that the matter was a libel, though the jury have found it was not.' This must be conceded to be an anomaly; and it will be best to avoid a practice which leads to such a result. The law, indeed, may be con

[* 464]

*"Good Motives and Justifiable Ends."

In civil suits to recover damages for slander or libel, the truth is generally a complete defence, if pleaded and established.1 In criminal prosecutions it was formerly not so. The basis of the prosecution being that the libel was likely to disturb the peace and order of society, that liability was supposed to be all the greater if the injurious charges were true, as a man would be more likely to commit a breach of the peace when the matters alleged against him were true than if they were false, in which latter case he might, perhaps, afford to treat them with contempt. Hence arose the common maxim, "The greater the truth the greater the libel," which subjected the law on this subject to a great deal of ridicule and contempt. The constitutional provisions we have quoted generally make the truth a defence if published with good motives and for justifiable ends. Precisely what showing shall establish good motives and justifiable occasion must be settled by future decisions. In one case the suggestion was thrown out that proof of the truth of the charge alone might be sufficient,2 but this was not an authoritative decision, and it could not be true in any case where the matter published was not fit to be spread before the public, whether true or false. It must be held, we think, that where the defendant justifies in a criminal prosecution, the burden is upon him to prove, not only the truth of the charge, but sidered as settled in this State by long practice, never questioned, but incidentally confirmed in McConkle v. Binns, 5 Binn. 340, and Hays v. Brierly, 4 Watts, 392. It was held in the case last cited that where words of a dubious import are used, the plaintiff has a right to aver their meaning by innuendo, and the truth of such innuendo is for the jury. In New York, since the recent English cases, the question has been ably discussed and fully considered in Snyder v. Andrews, 6 Barb. 43; Green v. Telfair, 20 Ibid. 11; Hunt v. Bennett, 19 N. Y. 173; and the law established on its old foundations."

the

2

1 Foss v. Hildreth, 10 Allen, 76. See ante, 455.

Charge of Judge Betts to the jury in King v. Root, 4 Wend. 121: "Should scope of proofs and circumstances lead you to suppose the defendants had no good end in contemplation, that they were instigated to these charges solely to avenge personal and political resentments against the plaintiff, still, if they have satisfactorily shown the charges to be true, they must be acquitted of all liability to damage in a private action on account of the publication. Indeed, if good motives and justifiable ends must be shown, they might well be implied from the establishment of the truth of a charge, for the like reason that malice is inferred from its falsity."

also the "good motives and justifiable ends" of the publication. These might appear from the very character of the publication itself, if it was true; as where it exhibited the misconduct or unfitness of a candidate for public office; but where it related [* 465] to a person in private life, and who was himself taking no such action as should put his character in issue before the public, some further showing would generally be requisite after the truth had been proved.1

*

1 In Commonwealth v. Bonner, 9 Met. 410, the defendant was indicted for a libel on one Oliver Brown, in the following words: "However, there were few who, according to the old toper's dictionary, were drunk; yea, in all conscience, drunk as a drunken man; and who and which of you desperadoes of the town got them so? Was it you whose groggery was open, and the rat soup measured out at your bar to drunkards, while a daughter lay a corpse in your house, and even on the day she was laid in her cold and silent grave, a victim of God's chastening rod upon your guilty drunkard-manufacturing head? Was it you who refused to close your drunkery on the day that your aged father was laid in the narrow house appointed for all the living, and which must ere long receive your recreant carcass? We ask again, Was it you? Was it you?" On the trial the defendant introduced evidence to prove, and contended that he did prove, all the facts alleged in his publication. The court charged the jury that the burden was upon the defendant to show that the matter charged to be libellous was published with good motives and for justifiable ends; that malice is the wilful doing of an unlawful act, and does not necessarily imply personal ill-will towards the person libelled. The defendant excepted to the ruling of the court as applied to the facts proved, contending that, having proved the truth of all the facts alleged in the libel, and the publication being in reference to an illegal traffic, a public nuisance, the jury should have been instructed that it was incumbent on the government to show that defendant's motives were malicious, in the popular sense of the word, as respects said Brown. By the court, Shaw, Ch. J.: "The court are of opinion that the charge of the judge of the Common Pleas was strictly correct. If the publication be libellous, that is, be such as to bring the person libelled into hatred, contempt, and ridicule amongst the people, malice is presumed from the injurious act. But by Rev. Stat. c. 133, § 6, in every prosecution for writing or publishing a libel, the defendant may give in evidence, in his defence upon the trial, the truth of the matter contained in the publication charged as libellous: provided, that such evidence shall not be deemed a sufficient justification, unless it shall be further made to appear, on the trial, that the matter charged to be libellous was published with good motives and for justifiable ends.' Nothing can be more explicit. The judge, therefore, was right in directing the jury that, after the publication had been shown to have been made by the defendant, and to be libellous and malicious, the burden was on the defendant, not only to prove the truth of the matter charged as libellous, but likewise that it was published with good motives and for justifiable ends. We are also satisfied that the judge was right in his description or definition of legal malice, that it is not