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Charles King and Johnston Verplanck, plaintiffs in error, vs. Erastus

Root, defendant in error.

This cause was originally com- tion of the report of this case; and menced in the supreme court of the the circumstances under which this destate of New York, by the plaintiff, cision was given; and the manner in now defendant in error, (Erastus which it appears reported among the Root,) against the defendants, for an decisions of the courts, furnish addi. alleged libel. The libel, the testi. tional reasons. mony produced at the trial of the Upon the adoption of the amended cause, the charge of the judge, and constitution in 1822, the government the subsequent proceedings with the of the state of New York fell into the view of obtaining a new trial, are hands of the political party to which fully detailed in the American Annual the plaintiff' belonged, and all its dif. Register for the year 1826–7, page ferent departments were organized un231.

der the auspices of that party." The Inasmuch as the publication com- court for the trial of impeachments and plained of was concerning the official correction of errors, which is the conduct of a public officer, and as the court of last resort, is composed of decision of the supreme court was the senate and the chancellor, for the upon that point; it was thought expe- revision of judgments in the common dient to subject its judgment to the law courts. The political character supervision of the highest legal tribu. of a large majority of its members, at nal in the state, in order to ascertain the time of the decision of this cause, the proper limits, within which the was the same as that of the plaintiff. press was to be restrained, when dis. Certain grounds were distinctly urged cussing the conduct of public officers. to the supreme court, and to the court That decision was finally obtained, for the correction of errors, in favour of and was adverse to the defendants. a new trial: and considering the imAn examination of the proceedings in portance of the principles involved in this case will suffice to show, how far this decision, and the nature of the the judgment of the court restrains cause; it was due to the profession, the freedom of the press. Among the and to the cause of truth and justice, questions arising in the cause, was one that the principal reasons, or at least deeply interesting to the community, the points on which the counsel for the viz., whether, in a prosecution for a defendants relied for a reversal of the publication concerning the official con- judgment, should have obtained a duct of a public officer, the belief of place in the reports. This however the publisher in the truth of the not having been done, but, contrary to charges is a question for the consi. the custom of the reporters, the deci. deration of the jury : whether the in- sions of both courts appearing, unactention is an inference of law, or a companied either by the reasons of question of fact.

counsel, or the points presented by The vital importance of these ques. them for decision,* it has been deemed tions to the freedom of a well regu- proper to insert in this volume, the arlated press in this country, would form a sufficient apology for the continua. . * Vide 7 Cowen, 61644 Wendell, 135.

gument of the opening counsel for the place, that this account was accurate. defendants. The counsel for the plain. This I am precluded from doing by the tiff were requested to furnish their ar- verdict of the jury. All that the de. guments in reply, but they declined fendants are required to show is, that doing it.

they fully believed that their account The argument upon the writ of er was correct, that they had good reasons ror was brought on in the court for the for believing it, and that they made trial of impeachments and correction. no intentional misrepresentations. of errors, on the 20th of October, If that were the case, no language 1829.

could be deemed too harsh and severe Joseph Blunt opened the argument in commenting upon acts, which defor the plaintiffs in error.

graded not only the station filled by This action, he stated, was brought the plaintiff, but reflected discredit for a publication in the New York upon the people of the state, and the American, alleged to be libellous, and body over which he presided. A citimade under the following circum- zen, attached to our institutions, and stances :

zealous for their character, and formDuring the presidential election of ing such conclusions from what actu. 1824, an extra session of the legislaally passed before his eyes, would be ture of New York was called by the filled with indignation, and his justly governor, with the view of giving to excited feelings would manifest themthe people, in their primary assem- selves in strong and appropriate exblies, the choice of the members of the pressions. . electoral college of this state.

Such was the impression made upon A powerful party in the legislature, the mind of the defendant, who wrote favouring the election of Mr. Craw. the libel in question, by the conduct of ford, was opposed to this project; and the plaintiff. Believing him to have while it was warmly urged upon the been intoxicated on that occasion, he legislature by a large portion of the did not hesitate to say so; and he community, it was as warmly resisted animadverted upon his situation in by others. Great excitement was pro- terms of pointed severity. . duced, and the attention of the whole For so doing this action was brought state was directed upon the proceed by the plaintiff, and the venue was ings of the legislature at Albany. laid in Delaware county, the place of The meeting took place at a season of his own residence. The defendants the year, when Albany was thronged sought to have the trial take place with strangers, and the capital was either in Albany, where the transacdaily filled during the session with in- tion occurred, or in New York, where telligent and distinguished men from many persons, who were present at the different states of the confede, the time alluded to, resided. racy. On this striking occasion, in This motion was resisted by the the presence of an assemblage com- plaintiff, and upon the pretence that prehending many of the most influen. he had as many witnesses in his own tial and illustrious names of our coun- county as the defendants had in New try, the plaintiff, who is the defendant York, (although he stated in his depoin error, while presiding over the ee- sition that he was unacquainted with nate of the state, conducted himself their names,) the venue was retained in a manner which induced one of the in Delaware. defendants, who was then in the se. Under such circumstances the tria) nate chamber, to make the publication came on, and the defendants acting in complained of, giving an account of good faith and under the impressions his appearance and conduct at that which influenced them in publishing time, and to animadvert upon it in lan- the libel, attempted to prove it to be guage, which such conduct fully de true. With this view they introduced served.

several witnesses who were present I do not mean to contend in this on the occasion referred to, all men of the highest character in both public are comprehended in the following and private life ;-three members of propositions : the senate,—two gentlemen who now Ist. Proper testimony was exclu. represent their country at different ded from the consideration of the courts of Europe,-and three others jury. who were also present, and who all2d. The judge ought, when required stated that the description given of so to do, to have charged the jury that the plaintiff in the alleged libel was , if they believed the publication to substantially true. Indeed the state. have been made in good faith, and ment given by them fully justified the with a full belief in its truth, these publication, and the judge who tried circumstances shouid induce them to the cause charged the jury that “there mitigate the damages. was no doubt of the entire credibility 3d. The question of malice ought of every witness upon either side. to have been submitted upon all the They were gentlemen of the first in- evidence, as a question of fact for the tegrity and intelligence, and no in- decision of the jury. ducement could be supposed in the It is to be observed, that at the trial case sufficient to lead them to miss of the cause, the defendants were represent or withhold any fact within not permitted to inquire into the genetheir knowledge:” In addition to this .ral habits of the plaintiff for tempetestimony, they proved that it was rance, not even upon cross-examinacurrently reported in Albany at the tion. time that the plaintiff was intoxica. The testimony concerning the preted in the senate on the occasion al. valance of the concurrent reports at luded to; and the character of the Albany as to the plaintiff's conduct in plaintiff as an habitual and notorious the senate on the occasion alluded to, drunkard was established beyond all was also excluded from the consideracontroversy.

tion of the jury, as well as the eviOn the other hand, the plaintiff pro. dence of the general character of the duced several witnesses, who stated plaintiff for intemperance, unless it that they were also present in the appeared to be equal in degree with senate, and that in their opinion he the offence charged. They were told was not intoxicated. They did not, that this testimony was not to be however attempt to deny that his cha- taken into consideration by them ; not racter for sobriety was bad.

even in their estimation of damages ; | After a full discussion of the testi- and this opinion concerning general mony, the Hon. judge who tried the character was reiterated, when the cause charged the jury and they retired. jury, puzzled as some were at the After being out all night they came in, charge, came into court for new and and upon his reiterating a portion of clearer directions. the charge to which exception had. The jury were also told, and this been taken, they rendered a verdict for formed one of the principal objections $1400 in favour of the plaintiff to the charge, that they were simply

The supreme court was moved for to inquire whether the plaintiff was a new trial, on exceptions to the legal intoxicated as described by the de. principles advanced in the charge of fendants. The intention and motives the judge, and also on the ground, that of the defendants in making the the verdict was contrary to evidence. charge, their belief in its truth, were This motion having been denied, a excluded from their consideration. writ of error was brought on the bill Their malice, it was stated, and em. of exceptions, and the cause is now phatically stated by the judge, was a here for a reversion.of the legal doc- legal inference; a conclusion of law trines laid down at the trial of this from the falsity of the publication ; cause. The grounds urged upon the and notwithstanding he was requested consideration of the supreme court to direct the jury to inquire into the

motives of the defendants, he refused amining the witnesses produced on so to do, but persisted in saying that the part of the plaintiff, they were their intention or malice was a legal asked what were the general habits of inference. (Here Mr. Blunt read the the plaintiff' as to temperance. This charge of the judge, vide Am. Ann. course of cross examination being obRegister for 1826–7, p. 247, and then jected to, was prohibited by the judge. proceeded):

What was the effect of this deci. When this opinion came before the sion under the circumstances in which supreme court for revision, the court the cause was then placed? The did not altogether confirm all the po. jury was inquiring into the condition sitions of the judge at circuit. . of the plaintiff at a particular time.

It assumed a new ground, and one Several respectable witnesses on the which enabled it to avoid deciding dis part of the defendants said that he rectly upon all the questions submitted was intoxicated. Others produced by for its consideration.

the plaintiff, said that in their opinion The judge at the circuit charged the he was sober. The testimony was conjury, that inasmuch as the defendants flicting, and it was the province of the had professed to state what they saw, jury to decide upon it. If then it had apno concurrent reports at Albany of the peared, that it was the general and even plaintiff's drunkenness were admissi., invariable habit of the plaintiff to comble in mitigation of damages, as show- mence the day with strong and frequent ing the belief of the defendants in potations,repeated as the day advanced, their statement. The supreme court, until the afternoon (the time concernperceiving this ground to be untena- ing which the inquiry was made) would ble, assumed a different one, and ob- always find him completely under their served that the notice of justification influence, and in a state either of riotaccompanying the plea of not guilty, ous or beastly drunkenness ;-suppose was an admission of malice, and that the proof to be produced would therefore no evidence short of prov. have established this as his invariable ing the truth of the charges was ad- habit, (and we have a right to assume missible in mitigation of damages, as this as a fact,) what then was the showing the motives of the defend effect of excluding it? It deprived ants.

the defendants of strong corroborative This was a new ground, but still it evidence, which would have fortified as completely excluded the evidence and strengthened the statements of offered in mitigation, as that assumed their witnesses. If his habit was to by the judge at circuit; and it will be get drunk every day, their opinion that incumbent on us, in reference to that he was intoxicated on the afternoon point, to overturn both positions; and alluded to, was more likely to be corafter reading the reasons advanced by rect than the opposite opinion; and the supreme court in support of its the proof would have furnished the decision, we shall proceed to inquire jury with a powerful reason to adopt into their validity, as well as into the their statement. Again, the motives correctness of those advanced by the of the defendants in making the pubjudge at the trial. (The opinion lication were to be inquired into. of the supreme court was then read, Were they actuated by malice, or not? vide page 259, Am. Ann. Register. This was one of the questions the for 1826–7.)

jury was compelled to pass upon ; first, The first question he continued, that (as we shall contend,) in reference to we shall submit for the consideration of the justification of the defendants; and this court, grows out of the rejection of secondly, in estimating the amount of proper testimony, whether by the total damages. exclusion of it by the judge, or by his Was this proof thus excluded calcharging the jury to disregard it in culated to throw any light upon their making up their verdict. In cross ex. motives? In ascertaining this, we must inquire whether they believed the The defendants stated that "they charge or not, and whether they would saw what they asserted," and therenot be more likely to believe that he fore, said the judge, no concurrent rewas intoxicated at the time alluded to, port could have produced their belief provided he was in the habit of daily in the charge. The honourable judge intoxication.

here fell into the common error of formThere were obviously some pecu- ing a general rule from particular inliarities in his appearance, from which stances, not altogether similar to the some of the spectators drew one con case under consideration. clusion and others drew an opposite If the charge had been made conconclusion. The defendants' witnesses cerning a fact, about which an eye obinferred that he was drunk, and his server could have made no mistake, own witnesses thought that he was then the defendants' mode of stating it sober. The jury, in inquiring into might have been evidence of malice. the motives of the defendants were As if the defendants had stated, that not only to ascertain which of these they saw the plaintiff sentenced to an conclusions was correct; but also infamous punishment, for a criminal whether a man might not have fairly offence. Here there could have been inferred that the plaintiff was intoxi. no mistake, and in stating that they cated, and whether the defendants saw what they stated, they evince had not formed that opinion in good malice by asserting what they must faith.

have known to be false. But when In both points of view therefore, the charge is simply an inference from the testimony was admissible, first, to appearances, and men might honestly fortify the conclusion drawn as to his in- draw different conclusions from the toxicated condition,and secondly to ex- same appearances, the fact that many culpate the defendants from all malice drew the same inference, as to the in making the charge. In the latter plaintiff's condition,affords strong proof point of view the judge erred in charg- of the sincerity of their belief, and of ing the jury, that the concurrent re- their good faith in making the stateport at Albany was not admissible in ment complained of. It is one thing mitigation of damages.

to be mistaken, and it is another to If it was generally believed, that make an intentional misstatement, and the plaintiff was in the condition in although the injury to the plaintiff may which he was described to be, it de- be the same; the motive of the demonstrates that there was good reason fendant, which in truth is the sole to believe what the defendants pub- foundation of what are called vindictive lished concerning him, and that the damages, is entirely different in the defendants believing it were not latter case, and ought materiały to actuated by malice in making the mitigate the damages. publication. That the defendants In the case of Wolcott Vs. Hall, 6 made the statement in good faith is a Mass. 514, which was relied on in the complete answer to all imputation of supreme court, to sustain the doctrine malicious falsehood; and while malice of the circuit judge, the reports offered forms a good ground for aggravating in evidence were not contemporaneous, damages, the absence of malice af- and were rejected by the court, on the fords an equally good reason for miti. ground that the reports might have gating them.

been set on foot by the very slander in These principles are so clear, that it question. They were consequently is not a little remarkable that the judge properly rejected. This case is differshould have ventured to charge in ent, inasmuch as the reports were conopposition to them, and the extraordi. temporaneous with the conduct alluded nary reason he advanced for his ex. to, and the publication was subsequenttraordinary position deserves a par- ly made in a New York journal. The ticular examination.

true rule is laid down in Leceister vs.

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