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pressed by Ch. Baron Gilbert, in his report which cannot be substantiated Law of Evidence, vol. 1, page 142,) by sufficient evidence; and if the charge only stand instead of facts until the in a giver case may be supposed to be contrary be proved. If the proofs on true, and yet the proof of it not within the other hand fail to establish the the reach of the party, although he justification, then the presumption of may believe it with more or less aslaw that malice is implied if the surance, according to the apparent charges are false stands good, and a force of the evidence before his mind, verdict must, in such case, be rendered still an honest regard to the peace of for the plaintiff. This is the whole society, his own interest and self-re. scope and end of the rule of law with spect, should induce him to be silent. which the judge opens his charge to Before giving publicity to any charges the jury. For, when the second in- injurious to the character of another, quiry arises, what is the extent and de. the same considerations should induce gree of the malice ? an inquiry most every person to weigh well, not only materially bearing upon the amount of the evidence of their truth, but the un. damages to be awarded to the injured certainty and imperfections of all huparty, the rule that malice is implied man tribunals in eliciting it. It is well if the charges are false, no longer af. for the repose of community; it is well fords the least assistance. It then for the peace of individuals, that the becomes material to look to the nature law imposes upon the accusing party of the charges themselves, the relative the full responsibility of substantiating situation of the parties, the circum- his accusations, or, in default thereof, stances attending the publication, and to stand himself convicted of falsehood the probable causes existing, if any, and of malice. Still, on the question which might be supposed to have in. of damages, we see that the considerduced the defendant to believe the ation of probable cause is a most macharges true prior to publication. terial inquiry. The existence of such

If such probable causes are found cause shows that the accusing party to exist, it is manifest that they do had some reason to believe what he more or less repel the presumption of spoke or wrote was true ; and, as we malice with respect to the extent and are under the necessity of forming degree in which it exists. It is most of our opinions as to facts not self-evident that it is an exhibition of certainly known on that species of a greater degree of malice for a per. evidence, it follows that in proportion son to publish a false charge, knowing to the strength of the probability it to be so, than to publish the same shown, in the same degree is the legal charge, supposing by mistake that it presumption of malice diminished. In is true. I admit it would be wrong in that part of the charge of the learned any case to allow to the probable causes judge which relates to this branch of such force as to do away entirely the subject, it appears to me there is a the legal presumption of malice, found- material and fatal deficiency. In pured on the falsity of the charges; for suing the subject further, I propose in a person has no more right to prefer the first place to show the defectiveany charge against the character or ness of the charge in this respect; and conduct of another, unless he can sub- in the second place to show that the stantiate it by legal proof, than a jury charge was erroneous on the subject would have, to pronounce an accused of evidence relative to the plaintiff's person guilty without such proof. If general character, in mitigation of da. it should be asked, has not a person a mages. right to speak or write whatever he 1. On the subject of probable cause honestly believes ? the answer is obvi. shown in mitigation of damages, the ous. No person is justified as a mat- doctrine of the judge is stated as fol. ter of course, in believing : it is not lows: always honest to believe an injurious “ The defendants have also been allowed, upon this point of damages, “that the evidence being closed, the to prove that they had probable cause counsel for the defendants did then for making these charges against the and there insist,” among other things, plaintiff. To do this, they have offered “that if a verdict should be found for evidence to satisfy you that it was the plaintiff, the malice of the publicacommonly reported and believed in tion was taken away, and only nomi. Albany at the time that the plaintiffnal damages could be awarded; that was in the condition represented in the belief of the defendants in the the libel. This kind of proof must also truth of the charge was proved by the go as far as is required in regard to evidence, and did away the presumpgeneral character. It must plainly tion of malice." This shows what the appear that the defendants have as- defendants claimed, the judge should serted nothing more than was then charge the jury on this part of the matter of common report in Albany case. I might well predicate my conrespecting the plaintiff's condition and struction of this part of the charge, on conduct in the senate chamber." The the fact, that the judge utterly nejudge then proceeds to observe, that glected and refused to state to the “the jury should not only inquire jury this claim of the defendants, which whether such common opinion pre. I consider their strongest point on the vailed, but also whether it influenced subject of probable cause, and limits the defendants to make the publica- the inquiry of the jury to the single tion; and that, if it should appear that consideration of the reports current in the defendants rested the charges on Albany. But that such is the true their own assertion, without any refer- construction of the charge is further ence to or knowledge of such general evident, and I think conclusively setbelief, then the existence of such com- tled, by the fact, that his honour the mon belief, would afford no mitigation chief justice, in delivering the opinion in their behalf.”

of the supreme court on this branch of This is all that is contained in the the case, not only dissents from the charge on the subject of probable cause circuit judge on the admissibility of shown on mitigation of damages. I common report as evidence of proba. observed that in this part of the charge ble cause in mitigation of damages, there was a material and fatal defect. but enters into an elaborate argument The defect I allude to is this : The to show that the proofs offered unsucjudge in the first place admits the cor. cessfully in justification could not be rect doctrine that probable cause may relied upon in mitigation as evidence be relied upon in mitigation of damages; of probable cause. If it had not been he then proceeds to call the attention considered that the silence of the cir. of the jury to the evidence supposed cuit judge, and his neglect to charge to be relied upon by the defendants as on the last point, as requested by the showing probable cause, and, in so do. defendants' counsel, was equivalent to ing, selects the weakest point in the an express dissent from the doctrine defendants' testimony on that subject, asserted by the defendants' counsel, (the reports current in Albany,) and then surely there was no necessity that wholly overlooks the strongest, sub- the supreme court should enter at all stantially as I consider, charging the into the discussion of the subject. His jury that the evidence thus selected, honour certainly did not intend in this and by him commented upon, was all respect to controvert the opinion of they had a right to consider in mitiga. the circuit judge. The latter had not tion of damages.

advanced any opinion in this respect To show that I am not mistaken in in collision with that entertained by giving this construction to the judge's the supreme court. He was requested language, I refer to the statements in to do so, but refused, the very thing the bill of exceptions immediately pre- which is complained of on the part of ceding the charge, where it is found the defendants.

By referring to the testimony set present, and testify from personal obforth in the bill of exceptions, it will servation, with equal positiveness, that te seen that eight witnesses on the the facts were true. There was no trial of the cause at the circuit, on the attempt to impeach the defendants' part of the defendants, concurred in witnesses. One of the plaintiff's wittestifying that the facts stated in the nesses, however, does impeach the libel was substantially if not literally character for veracity of another wit. true. It cannot be necessary to repeat · ness on the same side. : He states that their testimony here. It is somewhat the general character of that witness remarkable, that by comparing the se. for truth and veracity was not good, veral facts given in evidence by those though there was great difference of witnesses, it will appear, that as far as opinion as to it; but that he would an opinion can be formed from their believe him under oath when his intertestimony, viewed by itself, every harsh est was not concerned, or his feelings epithet contained in the libel, every strongly enlisted, in which case he unfavourable representation of the would not, for he believed he would plaintiff's condition and conduct on then square his oath according to cirthe occasion specified, is sustained and cumstances. After making due allowverified, not by doubtful opinions, but ance for this circumstance, I am bound by direct statements of facts occurring to believe with his honour the judge, . under the personal observation of the who charged the jury, that “there is witnesses. From duly weighing this no doubt of the entire credibility of fact, a consideration arises on the sub- every witness upon either side, and ject of probable cause shown in mitiga- that they are gentlemen of the first tion of damages, which appears to me integrity and intelligence.” How, then, to be of paramouut importance on this do they stand on the question of justi. part of the case, and a leading point in fication? I desire it to be kept in the cause on the part of the defend. mind that I am not here attempting to ants.

show that the justification was made If I mistake not, I have already out, but solely that the preponderance shown, that in proportion to the weight in favour of the plaintiff's side was exof probable causes tending to show the ceedingly slight, a circumstance which, truth of the charges in any case, in I trust, has been already, and will be that proportion the legal presumption yet more clearly shown, to be importof malice arising from the fact that ant on the question of mitigating dathose causes do not prove the truth of mages. Ten for the plaintiff depose the charges is diminished.

that the charges were not true; eight A slight comparison of the testimo. for the defendants that they were true. ny on the part of the plaintiff and de- Numerically, there is a preponderance fendants in this cause will, I think, sa. of two. But one of the two is strongly tisfy any person, that, on the question impeached as to character for veracity of justification, the preponderance in by another on the same side. The favour of the plaintiff, which was even preponderance is therefore seen to be admitted by the defendants' counsel extremely slight. on the argument, was at the best very The question then recurs with new inconsiderable. The plaintiff intro. force, how are we to determine what duced ten witnesses, the defendants allowance to make in mitigation of eleven. All the plaintiff's witnesses damages? I answer, by reference to were present on the occasion alluded a principle already established. So far to in the libel, and concur in acquitting as the object of giving a verdict for the the plaintiff, according to their judg- plaintiff in such case is to punish the ment, of the facts charged, and they defendants for malice in publishing the speak from personal observation. Eight falschood, the allowance in mitigation of the defendants' witnesses were also of damages is to be determined by es. timating the weight of the probable It certainly cannot be considered as causes given in evidence, and tending very remarkable that the defendants to show that in making the charges should believe, on the testimony of the defendants had reasonable ground their own observation, a fact which, for believing that they were publishing under exactly similar circumstances, the truth. In this cause it has been eight “gentlemen of entire credibility, shown that the preponderance of tes of the first integrity and intelligence," timony in favour of the plaintiff below also believed. Nor in my opinion does on the question of justification was it require any tax upon credulity to very slight. That was done by show. allow that, believing that fact on such ing that the evidence on the part of evidence, their motives in publishing the defendants to establish the justifi. it to the world, if at any, might have cation was very nearly of equal force been only at a slight remove from hoto that by which it was rebutted on the nesty, good faith, and a desire to propart of the plaintiff. The circum. mote the public interest. In the judg. stances thus given in evidence on the ment of charity, which ought to guide part of the defendants, all existed prior all men in dealing out reprehension, to the publication complained of, and under such circumstances, the most they transpired under the observation that could be safely affirmed against of the defendants, or of one of them, the defendants for making the injuri. as well as of the witnesses; and hence ous charges in this case is, that they we see that they fall under the de- acted unadvisedly ; that they did not, scription of probable causes leading in deciding to publish their opinions, defendants to believe and publish the sufficiently consider, that, even if true, charges. Their weight or tendency it would not be certain that they would to produce conviction is measured and be able to prove them when called determined by the fact, that but for a upon in a court of justice; and that, slight preponderance in the number in penning their remarks, they had of witnesses opposed, the defence infused into them a spirit of asperity would have been fully established. As at once calculated to arouse the resentthe presumption of malice rests on the ment of the accused and his friends, falsity of the charges, and as in this and to create and nourish a vitiated case that falsity was only proved, or taste in the public at large for that rather presumed from, or by a slight style of newspaper discussion. preponderance of testimony, it follows But I am called upon to vindicate that the presumption of malice in this this view of the case, not only ageinst cause has a very slight and narrow the charge of the circuit judge, but foundation to rest upon

against the more direct arguments Hence, I cannot doubt, that under and opinion of the supreme court. the guidance of these principles, the That part of their decision which rejudge should have charged the jury, lates to the question now under con. that in case they should be of opinion sideration is as follows: that the evidence failed to establish the “ When the defendant undertakes justification, they were still bound to to justify because the publication is consider whether it afforded the de- true, the plea, or which is the same fendants probable ground to believe thing, a notice of justification, is a rethe truth of their publication; that if, publication of the libel. It is an ad. in their estimation, it did afford such mission of the malicious intent with probable cause, they were bound to which the publication was first made. consider it in mitigation of damages, And upon the trial the jury are in. and to give it force in that respect so structed, that if the plea is false, it is far as the object of their verdict was to an aggravation of the offence, and calls punish malice, just to the extent in for enhanced damages. Such a state which they should think it repelled the of the case, and such an instruction, is legal presumption of malice.

totally inconsistent with the idea of

mitigation resting upon the absence solution of a prior question with what of malice. That is confessed upon the intent did the party interpose such a record. When, however, the defend. plea or notice. If he did it, knowing ant does not by the pleadings admit it to be false, or from a reckless disre. the malice, then he may excuse his gard to consequences, without having conduct by showing such circum- reasonable cause to suppose he could stances as disprove a malicious in substantiate it, then I agree it may and tent.”

ought to be considered as new evidence In applying these principles to the of malice, or an admission of malice; for case in hand, the court go on to say, it is a republication of that which, by its “When prosecuted, defendants do utter falsity, is legaliy presumed to be not disavow the malice, and claim ex. malicious; and I agree it may and ought, emption from damages, by bringing in such case, to enhance the damages. themselves within some of the excep. But no man is bound to be infallible tions to the general rule, as to the im. in pleading. If he pleads, or gives plication of malice. They come into notice of justificaiion, sincerely sup. court, and when they may be supposed posing he can sustain such plea or no. to have ascertained whether they tice by proof; if he has before pleadwere mistaken in the first publication, ing used all reasonable diligence to in. deliberately assert upon the record that form his judgment on that point, then the publication is true. So far, then, the plea is very far from affording new from disclaiming malice, they virtually evidence, or being an admission of ma. admit it in the face of the court. They lice, and this too whether in fact it are clearly excluded then from the shall turn out that the plea is true, or benefit of any defence based upon the the pleader mistaken as to its truth, absence of malice.” I have thus ex. or unable to prove it true; for the pre. tracted the substantial parts of the nises which I state in such case, the reasoning of the supreme court in or- reasonable inquiry, the bona fides, der to give it its full force. Dissent. show both in a moral and legal point ing as I do from almost every idea of view, the absence of that “badness contained in the extract, I shall be of design or disposition to injure withunder the necessity of considering out cause, from mere personal gratifi. them separately.

cation or spirit of revenge,” in which The court say, “ When the defend. malice consists. ant undertakes to justify, &c., the plea, But the court lay it down as a rule, or notice of justification, is a republic that on a failure to sustain the justifi. cation of the libel. It is an admission cation, the plea, or notice of course, of the malicious intent with which the and in all cases is an admission of malibel was first made. The malice is lice and of new malice. If a failure confessed upon the record.” What, I to sustain a justification does, neces. would inquire, is malice ? It is defined sarily, prove a libel to be false ; if it to be “badness of design, extreme en also proves it impossible that the de. mity of heart, or malevolence, a dispo. fendant might have only erred in judg. sition to injure others without cause, ment, in supposing that he could prove from mere personal gratification, or that which he could not; if, in short, from a spirit of revenge.” The ques. it proves that there is no such thing in tion then arises, does the failure of an this imperfect world, as a man's being attempt to justify show that the malice mistaken in judgment, and still honest is in such case admitted ? I appeal to at heart, and that the guilt of one who the first principles of moral rectitude errs in judgment, is equal to that of and enlightened judgment to decide, if another who errs wilfully, then, and I do not answer correctly when I say, then only, could I subscribe to the docsuch a state of things may or may not trine of the supreme court under conbe construed as an admission or evi- sideration. We see, therefore, that dence of malice: all depends on the in order to ascertain, on a failure of

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