justifying, whether a plea or notice is an admission or new evidence of malice, so as to enhance the damages, it is necessary to inquire into the motives with which the plea was interposed. Whose province is it to make that inquiry? The doctrine of the supreme court assumes it to be the province of the judge on the bench. It goes further: it assumes it not only to be the province of the judge to make the inquiry, but, having made it, always to decide one way, to wit, that the motives were malicious. This rule of the court, besides invading, in my opinion, the province of the jury, is like a two-edged sword. If the libel is false, and the defendants' motives in setting up a justification actually malicious, it cuts as it ought; if the libel is false, but the defendant in pleading a justification only mistaken in judgment as to his ability to sustain it; or if it be true, and the party only unable fully to prove it, being guilty in those cases of too great a degree of frankness, and a want of infallibility in pleading, the sword again cuts to an equal depth. Whether it ought, or ought not, in the last cases, and whether the judge's or jurors' hands should wield it, I submit to enlightened judgment, to common sense, and to those feelings of kindness and benevolence which ought ever to be consulted in forming opinions upon the conduct of

men.

The court proceed to say, "Such a a state of the case, (alluding to the failure of an attempt to justify,) and such an instruction to the jury (to give enhanced damages because the plea or notice admitted and republished the malice) is totally inconsistent with the idea of mitigation_resting on the absence of malice." Let us view the two circumstances here joined, separately. "Such an instruction to the jury, (i. e. to give enhanced damages because the plea or notice admitted and republished the malice,) is inconsistent with the idea of mitigation resting on the absence of malice." The court, it is to be noted by way of explanation, had, in the sentence immediately preceding this,

stated that it was the usual practice to instruct jurors on trials, that if the plea was false, it was an aggravation of the offence, and called for enhanced damages. I flatter myself it has been already made somewhat manifest, that if there is any such practice at the circuits, or in any other courts in this state, it is erroneous in this respect; that as appealed to by the supreme court, it purports to be a general rule for all cases; whereas, it cannot be a correct rule, except in cases in which the jury are not only satisfied that the libel is false and malicious, but that the defendant also knew, or had reason to know, that the plea was false when it was pleaded, or had omitted to use reasonable diligence to inform himself as to the propriety or expediency of setting it up; in which last case we observed that the party might be justly charged with a reckless disregard to consequences, and want of seriousness and good faith in pleading, which, if not direct evidence of malice, are certainly nearly as inexcusable. The court then say, "Such an instruction to the jury, to enhance the damages on account of the repetition of the falsehood and malice in the plea, is inconsistent with the idea of mitigation resting on the absence of malice." I grant it; there is an entire inconsistency between them. But what right has the court to appeal to an incorrect rule, said to be adopted in practice at the circuit, and from the inconsistency of that rule with a principle under discussion, argue that the latter is also incorrect. I have shown that the supposed rule of the circuits needs a most important qualification. It is proper in a specified class of cases, and equally improper in another class. I grant it; but, in so doing, I only grant a truism, that where a case is so clear that there is no doubt, not only of the malice of the original publication, but that the plea was interposed for the sole purpose of indulging anew a malicious disposition, it would be extremely inconsistent to ask a mitigation of damages on an allegation that there was no malice. A man

would stultify himself by making such a request.

I now proceed to consider the second circumstance, in reference to which the charge of inconsistency is brought against the doctrine which I have endeavoured to show to be salutary. "Such a state of the case (meaning after the justification has failed) is inconsistent with the idea of mitigation resting upon the absence of malice." I have necessarily anticipated much that need be said in answer to this allegation, in attempting to show that the supposed rule adopted at the circuit is wrong in being stated by the court in such general terms as to include the class of cases in which a justification, being set up, the preponder ance of testimony which determines it to have failed is slight, and where, from that consideration and other circumstances, judgment of charity might be supposed to allow that the accusing party not only believed the charges to be true, but that he could also prove them. Here, again, it is alleged by the court, that it is inconsistent to ask a mitigation of damages on an alleged absence of malice, because it is said the failure to justify shows malice.

It is necessary to observe in this place, that the views which I have advanced do not render it necessary for me to assert, that the mitigation of damages in any such case is to rest on an absence of malice, strictly speaking; and, in this respect, the language made use of by the court appears to me to imply a misconstruction of the views which are advanced on the adverse side. It is admitted, that if the justification fails, no attending circumstances are sufficient to show an entire absence of malice. The legal presumption of malice resulting from the falsity of the charges, is a good ground for a verdict for the plaintiff; but no person will contend that that presumption is in any sense directory to the jury in regard to the amount of damages. The degree of malice is an important consideration in settling that point. All that I contend for then is, that if the proofs offered in justification are sufficient to show that the defend

ant had reasonable and probable cause to believe the truth of the charges at the time of publishing them, then the jury may consider such probable cause as showing a less degree of malice to be punished, than if no such cause had been made to appear.

One ground on which the court reject the evidence of probable cause in the cases adverted to is, that it was originally introduced to support a justification, and inasmuch as it was deemed insufficient for that purpose, it must also be held insufficient for any inferior purpose: e. g. as proof of probable cause. If the probable cause were a higher end, or a more desirable object to the defendant, than proof in justification, I admit there would be force in the argument; for it may well be said, that proof which is insufficient to show the defendant had a probable cause for publishing a libel, is much more insufficient to prove he had a just cause. This is arguing from the less to the greater. But when the court say, on the contrary, "If the proofs are insufficient to support a justification, they are therefore to be held insufficient to show probable cause," it appears to me they argue from the greater to the less, which is illogical.

But the court say further, that the justification, being unsupported by legal evidence, shows malice, and new malice; and they thence also argue, that it is inconsistent to suppose that the circumstances offered in justification can be evidence of probable cause in mitigation of damages. The error of this reasoning will appear conclusively, from the following considerations: In order to determine whether circumstances offered unsuccessfully in justification show malice, it is indispensable, as a condition precedent, to inquire and determine whether they show a probable cause, (it being conceded that they are insufficient to establish a justification.) Malice is a

disposition to injure another without cause, from a spirit of revenge merely, or for personal gratification." To affirm, then, of any act that it is malicious, presupposes or implies that the

actor was uninfluenced by any reasonable or probable cause. The supreme court, therefore, in affirming that a plea or notice of justification unsustained, is evidence of malice, are plainly guilty of what logicians term a petitio principii or begging of the question.

To determine whether a plea or justification was interposed maliciously, must depend upon a due consideration of the circumstances or facts given in evidence in support of it. If those facts and circumstances, viewed separately from the testimony on the opposite side, were sufficient, as in the case in hand they certainly were to prove the truth of the plea; if, as in this case, the failure of those circumstances to produce such a result is to be attributed to the production of a greater number of witnesses on the adverse side, (all the witnesses being admitted to be of equal respectability,) it appears to me it would be in the highest degree irrational, as well as unjust, to infer from such evidence that the plea was interposed maliciously. On the contrary, it would be just, in such a case, to infer that the pleader had in view, and was actuated in pleading, by a consideration of probable cause of the most serious import; or, in other words, that he was not actuated by malicious motives in pleading the justification. In regard also to the original publication, the same considerations would show that the charge of malice was for the most part removed; and in giving a verdict for the plaintiff under such circumstances, the jury would proceed, not upon actual proof of malice, but upon the legal presumption only of its existence. The slightness of such presumption, the unsatisfactory nature of the conviction it produces as to the existence of malicious intentions, the cautious fear so justly entertained lest the punishment of the law should fall upon the head of the innocent, and a spirit of judicious discrimination between wilful falsehood on the one hand, and a mistaken judgment proceeding on probable grounds on the other, are all and every

of them considerations which should induce a jury to mitigate the damages. 2. I now proceed to the second point stated in the commencement of this opinion, to show that the judge at the circuit charged the jury erroneously on the subject of proof of general reputation in mitigation of damages.

The exceptionable part of the judge's charge in this respect is found expressed in the following sentences: "Defendants, in mitigation, are entitled to show that the plaintiff had a general reputation equivalent to what they have charged upon him. Unless their proof amounts to that, it can be of no avail. They cannot give evidence of general reputation in respect to temperance in mitigation, unless such general reputation is of the same quality and degree charged in the libel. You will accordingly, before you give any weight to this sort of evidence, see clearly that it bears out the specific charge; for it cannot be resorted to in diminution of the injury, unless it comes up to the offence imputed. It is not enough that the ge neral character appears to be of the like description with that alleged in the libel, without it also is so to the same extent and degree." It is to be observed, that the extract which I have given is the judge's summary of all the law supposed to bear on that branch of the subject.

The first observation which I deem it proper to make respecting the rule here stated by Judge Betts is this: the words used do not convey any definite idea to the understanding, and therefore it is impossible to apply such a rule to the facts in any given case. "Defendants in mitigation," says the judge, "are entitled to show the plaintiff had a general reputation equivalent to what they have charged upon him, and unless their proof amounts to that, it can be of no avail." What was the libellous charge in this case? It affirmed nothing relative to the plaintiff's general character, but charged him with a particular course of conduct on a particular occasion. The

question then fairly arises, in consider ing the rule as stated by the judge, what course of general conduct in life is equivalent to the commission of one separate offence, or a series of particular offences, all done on the same occasion? I confess, if such a question were put to me, I could only say, I know not how to answer it. I do not know any scales for the weighing of a man's course of life on one side, and a detached portion of it on the other, so as to say that one is equivalent to the other, or that one falls short of the other.

In another part of the charge, the judge stated to the jury, "that it was abundantly manifest, from the whole course of the proofs, the plaintiff had for many years indulged in a free and constant use of spirituous liquors ;" and he characterizes the degree of that indulgence by these words: "a course of ruinous or degrading dissipation." It is manifest, therefore, that before any person could apply the judge's rule to the facts proved in this case, he would be under the necessity of first settling in his mind what indulgence for years, in the free and constant use of spirituous liquors, in a course of ruinous or degrading dissipation out of doors, is equivalent to being intoxicated, and behaving under that excitement in a particular manner in the senate chamber-an inquiry which I think the human mind unfurnished with powers to make. The word equivalent applied to such a subject, cannot convey a definite idea to the understanding.

The next and subsequent sentences contained in the above extract, seem to contain the expression of a similar idea with slight variations. "They cannot," says the judge, "give evidence of general reputation in respect to temperence in mitigation, unless such general reputation is of the same quality and degree charged in the libel."

To understand this, presents the same difficulty. How can the quality and degree of a particular act, or of a number of particular acts, all done on one occasion, be so compared

with the general course of a man's life, and the general reputation growing therefrom, that it shall be said one is of the same quality and degree with the other? He adds, "You will accordingly, before you give any weight to this sort of evidence, see clearly that it bears out the specific charge, for it cannot be resorted to in diminution of the injury, unless it comes up to the offence imputed." I would here inquire, if there is not a manifest impropriety in affirming of any evidence as to a man's general character for temperance, that it can be supposed to bear out a specific charge of intemperance on a particular occasion, and a like impropriety in speaking of that proof, as resorted to in diminution of an injury, which the judge says must come up to the offence imputed in order to have any weight. Certainly, if the proof as to general reputation is capable of "bearing out the specific charge, and of coming up to the offence imputed," it would no longer need to be considered in diminution of the injury, or in mitigation of damages; for, in such case, what the judge has affirmed of it, would make it equivalent to a justification.

The judge closes this part of the charge by saying, "It is not enough that the general character appears to be of the like description with that charged in the libel without it also is so to the same extent and degree." I understand by this, that the judge means that the proof offered as to general character, is not entitled to any weight unless it goes the whole length or extent and degree of the libel, which verifies my former observation, that every sentence in the extract is substantially a repetition of the same thing. I do not however object to the repetition. The error of the judge in this part of the charge appears to consist in this: He endeavours to establish a rule which, by its operation, shall destroy the effect of proof relied upon relative to general reputation, on grounds strictly analogous to those on which, as I have attempted to show, the evidence of probable cause in mi

tigation was erroneously rejected. Proofs of probable cause were rejected wholly, because they failed to support a justification. Here, proofs establishing fully an impeachment of character for temperance to a certain extent are to be rejected wholly, provided the jury shall think they do not show a character as flagitious as the the libel would, if true. The rule appears to me to proceed on another wrong principle. It seems to assume that a course of intemperance characterized by the judge, as being "ruinous" and 66 degrading," extending through "many years" of a man's life, and proved by the common consent of nearly all the witnesses on both sides, is not so great an impeachment of a man's character for temperance, as to prove him intoxicated on one public occasion only; an assumption which I consider the very reverse of the truth. No single immoral act, though it may be attended with circumstances greatly enhancing its turpitude, can be supposed, after all, to involve so great an amount of guilt; neither would it so seriously impair a person's general reputation with his acquaintances, as a frequent repetition of the same immoral action through a series of years, though accompanied in the latter cases in the overt acts separately considered, with fewer circumstances to mark their criminality. The judge's position, as far as I can understand its supposed force, proeeeds upon another unfounded assumption, i. e., it seems to assume, that, after a particular charge, affecting a man's conduct for intemperance on a specified occasion, his general character for temperance is not to be considered as impeached at all, unless the several acts in common life on which the general character arises, are, separately considered, equally outrageous with the particular acts charged in the libel. This assumption is also at war with the judge's own reasoning; for, from the manner in which he characterizes the plaintiff's intemperance as "ruinous," "degrading," &c., I am constrained to consider that he admits it to be

"abundantly proved on both sides," that the character of the plaintiff in respect to temperance was at least bad. Still, the purport of the charge seems to be that the jury should not give any weight to that acknowledged evidence, unless they should be of opinion clearly, that such impeachment set the plaintiff's general character, in respect to temperance, in as bad a light as it would be if the several acts or courses of conduct on which the general reputation was founded, were separately of the same quality, "extent, and degree," of intemperance, with the particular act charged in the libel, so as to "bear out and come up to the specific charge," as the judge also expresses it.

I am well aware that it is not proper in the impeachment of general character, to go into proof and particular acts of misconduct; still, it is to be borne in mind, that general reputation is founded wholly on particular actions, and cannot be disparaged to any extent or degree beyond the character or description of the particular actions which, viewed conjointly, go to form the general character of the individual. If the charge of the judge in this respect is correct, the following consequences will inevitably follow: Although the general character of a party may be proved to be bad, and be of greatly disparaged fame in respect to a quality in dispute, still, if the libel overrates the badness of it, even in the least degree, the jury must give just the same damages as they would for a character the most unsullied. The rule of judgment which is thus given to the jury, and the consequences directly flowing from it, are, in my opinion, subversive of the first principles of morality and common sense. The supreme court, in giving their opinion in this cause, very justly remark, that a person of disparaged fame is not entitled to the same measure of damages, as another whose character is unblemished. This single remark certainly shows the entire fallacy of Judge Betts' reasoning: I conclude, therefore, that inasmuch as the judge