3, ch. 60, was passed by which the jury are authorized to give a general verdict upon the whole matter in issue; and shall not be required to find the defendant guilty upon proof of publication and of the innuendos only. I believe it was denied by no one, either in court or in parliament, that the publication of a paper libellous and unlawful upon its face was, prima facie, evidence of malice, nor was it contended that express malice should be shewn by matter aliunde. It was, in deed very properly contended, that the criminality consisted in the malicious intention; and that the establishment of the fact of publication was merely evidence of the crime; but not to the crime itself. That every general verdict involves a question of law; and that the judge should have instructed the jury how to form the general conclusion of guilty, which is compounded of both law and

fact. That if the term guilty was essential, then a conclusion of criminal intent had been obtained from the jury, without permitting them to exercise their judgment upon the defendant's evidence. That in all cases, where the mischievous intention, which is the essence of the crime, cannot be collected by simple inference from the fact charged, because the defendant goes into evidence to rebut such inference, the intention becomes a pure unmixed question of fact for the consideration of the jury. (Starkie on Slander, 362, 3, 4, 5, 6.)

The act of parliament did not undertake to declare what should be evidence of publication, or of the malicious intent; and that the

law on that point was not questioned by parliament, or by any one else, appears from the case of The King v. Lord Abingdon (1 Esp. N. P. Cases, 226.) That was an indictment for a libel upon an attorney, by a member of the house of lords, in a speech made in that house, and published by him in the newspapers. The trial was about three years after the passing of the act on the subject of libel. Lord Kenyon declared the law to be as follows: "In order to constitute a libel, the mind must be in fault, and shew a malicious intention to defame; for if published inadvertently, it would not be a libel. But when a libellous publication is unexplained by any evidence, the jury should judge from the overt act; and when the publication contains a charge slanderous in its nature, should from thence infer the publication was malicious."

Such has always, I apprehend, been the law in England; and such is the law there now. The case of The King v. Creevey, (1 M. & S. 273,) was for a libel; and, like the last case, against a member of parliament, for publishing his speech containing a libellous charge in relation to an individual. It appeared, in this case, that the defendant had not been entirely a volunteer in publishing his speech; but that an incorrect report of it having appeared, he furnished a correct one, which was also published, and contained the libel complained of. The counsel for the defendant, at the trial before Le Blanc, justice, in 1813, contended there was nothing to submit to the jury; for, 1. there was no proof of malice;

and, 2. the defendant was privileged as a member of parliament. The judge decided that it was not necessary to prove malice; but it might be inferred from the publication itself; and, upon the authority of the last case, he held that the defendant was accountable for publishing his speech in parliament; though for speaking the same matter in parliament, he was not answerable. The court of king's bench refused, on a motion for a new trial, even to grant a rule to shew cause; because, as lord Ellenborough said, the granting it would be to create doubts, not to settle them. On the point of malice, he said, the only question was, whether the occasion of that publication rebuts the inference of malice arising from the matter of it. Le Blanc, justice, said he stated to the jury that when the publication is defamatory, the law infers malice, unless something can be drawn from the circumstances attending the publication, to rebut that inference; and he left it to them to say, whether the circumstances did so rebut it. Mr. Phillips, in his treatise on evidence, says, "malice may be inferred from the publication, or proved by evidence. It must often be extremely difficult to produce direct evidence of a malicious design, extrinsic and independent of the publication in question; but the publication itself will often afford the most convincing proof of malice. If the words are directly calculated to slander and degrade the character, the obvious inference is, that they were designed to have this effect, unless something can be drawn from the circumstances attending the publica

tion to repel such an inference.— All the circumstances, therefore, the manner, the occasion, and the matter of the publication, are most material and important considerations." (2 Phil. Ev. 106.)

An unsuccessful attempt to justify the words or libel, is evidence of malice. (15 Mass. Rep. 48.) So, in this court, the plea or notice of justification, if unfounded, is always considered an aggravation of the offence; and good ground for enhancing damages.

In Gray v. Pentland, (2 Serg. & Rawlee, 27,) Brackenridge, justice, makes use of this language: "The idea that a person libelled, or maliciously prosecuted, must prove the quo animo, or express malice, is of all things the most absurd."

It was, perhaps, unnecessary to cite cases from the English books, or from our sister states, on this point; for the cases in our own reports abundantly establish the proposition, that the malicious intent will be inferred from the falsity and the libellous character of the publication.

In The People v. Croswell. (3 John. Cas. 337,) tried before chief justice Lewis in 1803, he gave the jury the same direction which was given by lord Mansfield in The King v. Woodfall, and by Mr. justice Buller in The King v. The Dean of St. Asaph; that it was no part of the province of a jury, to inquire into, or decide on the intent of the defendant; or whether the publication in question was true, or false, or malicious; but that the intent and the character of the publication, whether libellous or not, would be decided by the court. On a mo

tion for a new trial, the two great questions were, whether the truth could be given in evidence, and whether the jury were to judge of the intent and the law. Mr. Jus tice Kent delivered an able and eloquent argument in the affirmative of both points; but he did not insist that the intent is not to be collected from the publication itself and the concomitant circumstances. His language was, "If the criminal intent be, in this case, an inference of law, the right of the jury is still the same." The question was not how the intent was to be proved; but who should determine that intent, the court or the jury. Both the questions agitated in that cause, were put at rest by the act of April 6th, 1805, (sess. 28, ch. 90,) which declared that the jury shall have a right to determine the law and the fact, under the direction of the court; and that it shall be lawful to give the truth in evidence, provided the publication was made with good motives and for justifiable

ends.

It is the settled law of this state, that, to support an action of this nature, malice is essential; and whether there is malice in the publication, belongs to the jury to decide as a matter of fact, under the direction and advice of the court. (Jarvis v. Hatheway, 3 John, 180.) But how is malice to be proved? In few cases will it be declared. It must be inferred from the libellous nature of the publication, and (unless in certain excepted cases) falsehood, added to the character of the publication, must be considered prima facie, evidence of malice.

In the case of Lewis v. Few,

(5 John. 35,) Thompson, justice, in delivering the opinion of the court, says, "Where the act is in itself unlawful, the proof of justification or excuse lies on the defendant; and on failure thereof, the law implies a criminal intent. If a libel contains an imputation of a crime, or is actionable without shewing special damage, malice is, prima facie, implied and if the defendant claims to be exonerated on the ground of want of malice, it lies with him to shew it was published under such circumstances, as to rebut this presumption of law." Again he says, " the accusations being false, the prima facie presumption of law is, that the publication was malicious." Judge Bells, at the trial of this cause, said, " malice in making the publication need not be proved; it will be implied, if the charge is false."

Other cases might be cited where the same principle is recognized; but they are not necessary; as every case of an exception to the general rule admits and proves the rule itself. Those cases are exceptions, because, from the relation of the parties, the legal presumption of malice is rebutted."

The case of Weatherston v. Hawkins, (1 T. R. 110,) has been cited, to shew that malice must be proved. That was an action by a servant against his former master, for charging him with fraud in giving a character of him. A verdict was taken subject to the opinion of the court. Wood, for the plaintiff, stated that it is not necessary in an action for a libel to prove express malice; if it be slanderous, malice is im

plied. Ld. Mansfield said, "I have held more than once that an action will not lie by a servant against his former master, for words spoken by him in giving a character of the servant. The general rules are laid down as Mr. Wood has stated; but to every libel there may be a necessary and implied justification from the occasion." Buller, justice, said, "This is an exception to the general rule, on account of the occasion of writing the letter. Then it is Then it is incumbent on the plaintiff to prove the falsehood of it; and in actions of this kind, unless he can prove the words to be malicious as well as false, they are not actionable." The case of Rogers v. Clifton, (3 B. & P. 587,) contains the same principle.

There are other relations between parties in which malice is not implied from the falsity of the charge; as when it is made in the exercise of church discipline, (3 John. 183;) or in the course of legal or judicial proceedings; (3 Esp. Rep. 32 ;) or where an application is made to the proper authority for redress of grievances, or for the removal of an officer, to the person or persons possessing the power of removal. (4 Serg. & Rawle, 420. Thorn v. Blanchard, 5 John. 508.) In these cases express malice must be proved, or no action lies.

Is the case now before us an exception from the general rule? It is contended on behalf of the defendants, that, as the plaintiff was a public officer, and a candidate for a re-election, this case comes within the principle of Thorn v. Blanchard, (5 John. 508.) I fully subscribe to the doc

trine of Ch. J. Parsons (4 Mass. Rep. 169,) that when any man shall become a candidate for an elective office, he puts his character in issue in respect to his fitness and qualifications for the office; that publications of the truth on that subject, are not li bellous; and that the publication of falsehood against public officers or candidates deserves punishment.

I know of no decision which goes the length of justifying unbounded slander on such occasions. The case is not new in this court; and we are, therefore, not without precedent to guide us. Lewis v. Few, (5 John. 1,) is analogous. The plaintiff was a candidate for the office of governor ; and the defendant was chairman of a political meeting, whose proceedings were published, and contained libellous charges. It was there contended that the truth or falsehood was not the criterion of liability; but malice; and that should be proved. Thompson, justice, says, "It has not been pretended but that the address in question would be libellous, if considered as the act of an individual; but its being the act of a public meeting of which the defendant was a member, and the publication being against a candidate for a public office, have been strenuously urged as affording a complete justification. The doctrine contended for by the defendants' counsel results in the position, that every publication ushered forth under the sanction of a public political meeting, against a canditate for an elective office, is beyond the reach of legal inquiry.

To such a proposition I

It

can never yield my assent. would, in my judgment, be a monstrous doctrine, to establish, that when a man becomes a candidate for an elective office, he thereby gives to others a right to accuse him of any imaginable crimes with impunity. If a man has committed a crime, any one has a right to charge him with it, and is not responsible for the accusation: and can any one wish for more latitude than this?"

In Harwood v. Astley, (4 B. & P. 47,) Ch. J. Mansfield says, "It would be a strange doctrine indeed, that when a man stands for the most honourable situation in the country, any person may accuse him of any imaginable crime with impunity."

The case of Lewis v. Few was decided after that of Thorn v. Blanchard, which was cited on the argument. The two cases were, of course, supposed not to depend on the same principle, or the decision in Lewis v. Few would have been different.

It has been contended that indulgence should be shewn to the defendants as conductors of a press, whose duty it is to communicate to their readers what passes in the legislature; that their relation to the public is one which takes their case out of the general rule; and imposes proof of express malice on the plaintiff. Their right to publish the truth is not questioned; but it is denied that, in the capacity of editors of a newspaper, they have any other rights than such as are common to all. The liberty of the press will not be invaded by requiring the conductors of our presses to stand responsible for the truth of what

they publish. "The liberty of the press," said lord Mansfield, "consists in printing without any previous license, subject to the consequence of law. The licentiousness of the press is Pandora's box, the source of every evil."

The language of Van Beuren, senator, (11 John. 594,) in reference to what should constitute a libel, seems to me emphatically appropriate to the doctrine of the defendants' counsel: "Such a doctrine, added to the acknowledged licentiousness of the press, would form a rampart, from behind which the blackest scurrility and the most odious criminations might be hurled on private character with impunity; and would, indeed, render the press both a public and private curse instead of a public blessing."

It seems to me, therefore, that the judge rightly instructed the jury, when he said that malice was implied and inferrible from the libellous character of the publication, and from its falsity.

He informed the jury that if the charge was true, that was a complete justification. The question as to its truth upon the evidence, was fairly submitted to their consideration. The jury have, by their verdict, disallowed the justification. On that topic something will be said hereafter. At present it is proper to inquire,

2. Whether the law was correctly stated to the jury on the question of mitigating the damages.

And first, as to the reports at Albany. It would be sufficient answer to the defendants, to say that they did not rely upon reports.

They did not pretend to give to their readers the substanee of re