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TRIALS AND LEGAL DECISIONS,

IN THE COURT OF IMPEACHMENTS AND FOR THE CORRECTION OF ERRORS OF THE STATE OF NEW YORK.

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

This cause was originally commenced in the supreme court of the state of New York, by the plaintiff, now defendant in error, (Erastus Root,) against the defendants, for an alleged libel. The libel, the testimony produced at the trial of the cause, the charge of the judge, and the subsequent proceedings with the view of obtaining a new trial, are fully detailed in the American Annual Register for the year 1826-7, page 231.

Inasmuch as the publication complained of was concerning the official conduct of a public officer, and as the decision of the supreme court was upon that point; it was thought expedient to subject its judgment to the supervision of the highest legal tribunal in the state, in order to ascertain the proper limits, within which the press was to be restrained, when discussing the conduct of public officers. That decision was finally obtained, and was adverse to the defendants. An examination of the proceedings in this case will suffice to show, how far the judgment of the court restrains the freedom of the press. Among the questions arising in the cause, was one deeply interesting to the community, viz., whether, in a prosecution for a publication concerning the official conduct of a public officer, the belief of the publisher in the truth of the charges is a question for the consideration of the jury: whether the intention is an inference of law, or a question of fact.

The vital importance of these questions to the freedom of a well regulated press in this country, would form a sufficient apology for the continua

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tion of the report of this case; and the circumstances under which this decision was given; and the manner in which it appears reported among the decisions of the courts, furnish additional reasons.

Upon the adoption of the amended constitution in 1822, the government of the state of New York fell into the hands of the political party to which the plaintiff belonged, and all its different departments were organized under the auspices of that party. The court for the trial of impeachments and correction of errors, which is the court of last resort, is composed of the senate and the chancellor, for the revision of judgments in the common law courts. The political character of a large majority of its members, at the time of the decision of this cause, was the same as that of the plaintiff. Certain grounds were distinctly urged to the supreme court, and to the court for the correction of errors, in favour of a new trial and considering the importance of the principles involved in this decision, and the nature of the cause; it was due to the profession, and to the cause of truth and justice, that the principal reasons, or at least the points on which the counsel for the defendants relied for a reversal of the judgment, should have obtained a place in the reports. This however not having been done, but, contrary to the custom of the reporters, the decisions of both courts appearing, unaccompanied either by the reasons of counsel, or the points presented by them for decision,* it has been deemed proper to insert in this volume, the ar

* Vide 7 Cowen, 616-4 Wendell, 135.

gument of the opening counsel for the defendants. The counsel for the plaintiff were requested to furnish their arguments in reply, but they declined doing it.

The argument upon the writ of error was brought on in the court for the trial of impeachments and correction of errors, on the 20th of October, 1829.

Joseph Blunt opened the argument for the plaintiffs in error.

This action, he stated, was brought for a publication in the New York American, alleged to be libellous, and made under the following circum

stances:

During the presidential election of 1824, an extra session of the legislature of New York was called by the governor, with the view of giving to the people, in their primary assemblies, the choice of the members of the electoral college of this state.

A powerful party in the legislature, favouring the election of Mr. Craw ford, was opposed to this project; and while it was warmly urged upon the legislature by a large portion of the community, it was as warmly resisted by others. Great excitement was produced, and the attention of the whole state was directed upon the proceed ings of the legislature at Albany. The meeting took place at a season of the year, when Albany was thronged with strangers, and the capital was daily filled during the session with intelligent and distinguished men from the different states of the confederacy. On this striking occasion, in the presence of an assemblage comprehending many of the most influential and illustrious names of our country, the plaintiff, who is the defendant in error, while presiding over the genate of the state, conducted himself in a manner which induced one of the defendants, who was then in the senate chamber, to make the publication complained of, giving an account of his appearance and conduct at that time, and to animadvert upon it in language, which such conduct fully deserved.

I do not mean to contend in this

place, that this account was accurate. This I am precluded from doing by the verdict of the jury. All that the defendants are required to show is, that they fully believed that their account was correct, that they had good reasons for believing it, and that they made no intentional misrepresentations.

If that were the case, no language could be deemed too harsh and severe in commenting upon acts, which degraded not only the station filled by the plaintiff, but reflected discredit upon the people of the state, and the body over which he presided. A citizen, attached to our institutions, and zealous for their character, and forming such conclusions from what actually passed before his eyes, would be filled with indignation, and his justly excited feelings would manifest themselves in strong and appropriate expressions.

Such was the impression made upon the mind of the defendant, who wrote the libel in question, by the conduct of the plaintiff. Believing him to have been intoxicated on that occasion, he did not hesitate to say so; and he animadverted upon his situation in terms of pointed severity.

For so doing this action was brought by the plaintiff, and the venue was laid in Delaware county, the place of his own residence. The defendants sought to have the trial take place either in Albany, where the transaction occurred, or in New York, where many persons, who were present at the time alluded to, resided.

This motion was resisted by the plaintiff, and upon the pretence that he had as many witnesses in his own county as the defendants had in New York, (although he stated in his deposition that he was unacquainted with their names,) the venue was retained in Delaware.

Under such circumstances the trial came on, and the defendants acting in good faith and under the impressions which influenced them in publishing the libel, attempted to prove it to be true. With this view they introduced several witnesses who were present on the occasion referred to, all men

of the highest character in both public and private life;-three members of the senate, two gentlemen who now represent their country at different courts of Europe,-and three others who were also present, and who all stated that the description given of the plaintiff in the alleged libel was substantially true. Indeed the statement given by them fully justified the publication, and the judge who tried the cause charged the jury that "there was no doubt of the entire credibility of every witness upon either side. They were gentlemen of the first integrity and intelligence, and no inducement could be supposed in the case sufficient to lead them to misrepresent or withhold any fact within their knowledge." In addition to this. testimony, they proved that it was currently reported in Albany at the time that the plaintiff was intoxicated in the senate on the occasion alluded to; and the character of the plaintiff as an habitual and notorious drunkard was established beyond all controversy.

On the other hand, the plaintiff produced several witnesses, who stated that they were also present in the senate, and that in their opinion he was not intoxicated. They did not, however attempt to deny that his character for sobriety was bad.

After a full discussion of the testimony, the Hon. judge who tried the cause charged the jury and they retired. After being out all night they came in, and upon his reiterating a portion of the charge to which exception had been taken, they rendered a verdict for $1400 in favour of the plaintiff.

The supreme court was moved for a new trial, on exceptions to the legal principles advanced in the charge of the judge, and also on the ground, that the verdict was contrary to evidence. This motion having been denied, a writ of error was brought on the bill of exceptions, and the cause is now here for a reversion.of the legal doctrines laid down at the trial of this cause. The grounds urged upon the consideration of the supreme court

are comprehended in the following propositions :

1st. Proper testimony was excluded from the consideration of the jury.

2d. The judge ought, when required so to do, to have charged the jury that if they believed the publication to have been made in good faith, and with a full belief in its truth, these circumstances shouid induce them to mitigate the damages.

3d. The question of malice ought to have been submitted upon all the evidence, as a question of fact for the decision of the jury.

It is to be observed, that at the trial of the cause, the defendants were not permitted to inquire into the general habits of the plaintiff for temperance, not even upon cross-examination.

The testimony concerning the prevalance of the concurrent reports at Albany as to the plaintiff's conduct in the senate on the occasion alluded to, was also excluded from the consideration of the jury, as well as the evidence of the general character of the plaintiff for intemperance, unless it appeared to be equal in degree with the offence charged. They were told that this testimony was not to be taken into consideration by them; not even in their estimation of damages; and this opinion concerning general character was reiterated, when the jury, puzzled as some were at the charge, came into court for new and clearer directions.

The jury were also told, and this formed one of the principal objections to the charge, that they were simply to inquire whether the plaintiff was intoxicated as described by the defendants. The intention and motives of the defendants in making the charge, their belief in its truth, were excluded from their consideration. Their malice, it was stated, and emphatically stated by the judge, was a legal inference; a conclusion of law from the falsity of the publication; and notwithstanding he was requested to direct the jury to inquire into the

motives of the defendants, he refused so to do, but persisted in saying that their intention or malice was a legal inference. (Here Mr. Blunt read the charge of the judge, vide Am. Ann. Register for 1826-7, p. 247, and then proceeded):

When this opinion came before the supreme court for revision, the court did not altogether confirm all the positions of the judge at circuit.

It assumed a new ground, and one which enabled it to avoid deciding directly upon all the questions submitted for its consideration.

The judge at the circuit charged the jury, that inasmuch as the defendants had professed to state what they saw, no concurrent reports at Albany of the plaintiff's drunkenness were admissi-. ble in mitigation of damages, as showing the belief of the defendants in their statement. The supreme court, perceiving this ground to be untenable, assumed a different one, and observed that the notice of justification accompanying the plea of not guilty, was an admission of malice, and therefore no evidence short of proving the truth of the charges was admissible in mitigation of damages, as showing the motives of the defend

ants.

This was a new ground, but still it as completely excluded the evidence offered in mitigation, as that assumed by the judge at circuit; and it will be incumbent on us, in reference to that point, to overturn both positions; and after reading the reasons advanced by the supreme court in support of its decision, we shall proceed to inquire into their validity, as well as into the correctness of those advanced by the judge at the trial. (The opinion of the supreme court was then read, vide page 259, Am. Ann. Register, for 1826-7.)

The first question he continued, that we shall submit for the consideration of this court, grows out of the rejection of proper testimony, whether by the total exclusion of it by the judge, or by his charging the jury to disregard it in making up their verdict. In cross ex

amining the witnesses produced on the part of the plaintiff, they were asked what were the general habits of the plaintiff as to temperance. This course of cross examination being objected to, was prohibited by the judge.

What was the effect of this decision under the circumstances in which the cause was then placed? The jury was inquiring into the condition of the plaintiff at a particular time. Several respectable witnesses on the part of the defendants said that he was intoxicated. Others produced by the plaintiff, said that in their opinion he was sober. The testimony was conflicting, and it was the province of the jury to decide upon it. If then it had appeared, that it was the general and even invariable habit of the plaintiff to commence the day with strong and frequent potations, repeated as the day advanced, until the afternoon (the time concerning which the inquiry was made) would always find him completely under their influence, and in a state either of riotous or beastly drunkenness ;-suppose that the proof to be produced would have established this as his invariable habit, (and we have a right to assume this as a fact,) what then was the effect of excluding it? It deprived the defendants of strong corroborative evidence, which would have fortified and strengthened the statements of their witnesses. If his habit was to get drunk every day, their opinion that he was intoxicated on the afternoon alluded to, was more likely to be correct than the opposite opinion; and the proof would have furnished the jury with a powerful reason to adopt the statement. Again, the motives of the defendants in making the publication were to be inquired into. Were they actuated by malice, or not? This was one of the questions the jury was compelled to pass upon; first, (as we shall contend,) in reference to the justification of the defendants; and secondly, in estimating the amount of damages.

Was this proof thus excluded calculated to throw any light upon their motives? In ascertaining this, we

must inquire whether they believed the charge or not, and whether they would not be more likely to believe that he was intoxicated at the time alluded to, provided he was in the habit of daily intoxication.

There were obviously some peculiarities in his appearance, from which some of the spectators drew one conclusion and others drew an opposite conclusion. The defendants' witnesses inferred that he was drunk, and his own witnesses thought that he was sober. The jury, in inquiring into the motives of the defendants were not only to ascertain which of these conclusions was correct; but also whether a man might not have fairly inferred that the plaintiff was intoxicated, and whether the defendants had not formed that opinion in good faith.

In both points of view therefore, the testimony was admissible, first, to fortify the conclusion drawn as to his intoxicated condition,and secondly to exculpate the defendants from all malice in making the charge. In the latter point of view the judge erred in charging the jury, that the concurrent report at Albany was not admissible in mitigation of damages.

If it was generally believed, that the plaintiff was in the condition in which he was described to be, it demonstrates that there was good reason to believe what the defendants published concerning him, and that the defendants believing it were not actuated by malice in making the publication. That the defendants made the statement in good faith is a complete answer to all imputation of malicious falsehood; and while malice forms a good ground for aggravating damages, the absence of malice affords an equally good reason for mitigating them.

These principles are so clear, that it is not a little remarkable that the judge should have ventured to charge in opposition to them, and the extraordinary reason he advanced for his extraordinary position deserves a particular examination.

The defendants stated that "they saw what they asserted," and therefore, said the judge, no concurrent report could have produced their belief in the charge. The honourable judge

here fell into the common error of forming a general rule from particular instances, not altogether similar to the case under consideration.

If the charge had been made concerning a fact, about which an eye observer could have made no mistake, then the defendants' mode of stating it might have been evidence of malice. As if the defendants had stated, that they saw the plaintiff sentenced to an infamous punishment, for a criminal offence. Here there could have been no mistake, and in stating that they saw what they stated, they evince malice by asserting what they must have known to be false. But when the charge is simply an inference from appearances, and men might honestly draw different conclusions from the same appearances, the fact that many drew the same inference, as to the plaintiff's condition, affords strong proof of the sincerity of their belief, and of their good faith in making the statement complained of. It is one thing to be mistaken, and it is another to make an intentional misstatement, and although the injury to the plaintiff may be the same; the motive of the defendant, which in truth is the sole foundation of what are called vindictive damages, is entirely different in the latter case, and ought materially to mitigate the damages.

In the case of Wolcott vs. Hall, 6 Mass. 514, which was relied on in the supreme court, to sustain the doctrine of the circuit judge, the reports offered in evidence were not contemporaneous, and were rejected by the court, on the ground that the reports might have been set on foot by the very slander in question. They were consequently properly rejected. This case is different, inasmuch as the reports were contemporaneous with the conduct alluded to, and the publication was subsequently made in a New York journal. The true rule is laid down in Leceister vs.

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