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that it conflicts with the long and well established law of libel. Its supposed precision consists in such an enlargement of terms as will embrace almost every form of written censure, without raising any distinction between merely harmless vituperation which the law spares and those written calumnies which the law condemns and punishes. This will appear by comparing this celebrated modern definition with the more elaborated ancient definitions which may be found in elementary writers and acknowledged text-books. Starkie says: "Every man has a legal right to be protected against false and wilful communications, whether oral or written, made to his prejudice or damage. But the law which recognizes this right also limits its extent. This is done by defining what communications shall be regarded as substantially injurious and therefore actionable, though no special damage or loss can be shown, and by leaving all other cases to the operation of the general principles of law. And because the libel tends immediately to the injury of the party, presumption stands in the place of proof.” 1 Starkie, 14.
I insist, then, that to render a publication actionable, it must be Defamatory.” This is an ancient and strong word contained in the definition of libel given in Hawkins' Pleas of the Crown: “So also to render words actionable per se, they must be not only defamatory, but calculated to vilify a man, and to bring him, as the books say, into hatred, contempt, and ridicule.” Thorly vs. Kerry.
Similar to this is the definition of libel given by Bacon: “A malicious defamation of another in writing or by signs or printing, tending either to blacken the memory of one who is dead, or the reputation of one who is living, and thereby exposing him to PUBLIC HATRED, CONTEMPT or RIDICULE.” So also a libel is defined in 1 Bulstrode, 40, to consist of slanderous words tending to the infamy, discredit, or disgrace of a party.
From these definitions it is justly inferred by Starkie, that an imaginary or causeless fear of damage is not a ground of action. (1 Starkie, 25.)
A review of the cases will show that these old definitions have been practically retained and adhered to; notwithstanding, judges have in delivering their opinions approved the less severe and rigid definitions of Blackstone and Hamilton. Thus, although this Court declared its approval of General
Hamilton's definition in the case of Steele vs. Southwick, 9, J. R, 214, yet the libel in that case was clearly so gross and severe as to fall within the older descriptions of that offence. The libel was in these words: “Our army swore terribly in Flanders, said Uncle Toby, and if Uncle Toby were here now, he might say the same of modern swearers. The plaintiff is no slouch at swearing to an old story.” Here was a colloquium, and the Court justly said that the libel imported that the defendant swore with levity and rashly and inconsiderately, without due regard to the solemnity of the oath, or to the truth or accuracy of what he said. Surely, there was no need here for a new definition. So also in the important case of Riggs vs. Denniston, 3, J. C., 205. This court decided that charges “ that the plaintiff was a misanthrope, a violent partisan, stripping unfortunate debtors of every cent; then depriving them of the benefit of the act made for their relief under the most trifling pretences, wilfully and knowingly perverting the law, (he being a magistrate,) for illegal and oppressive purposes,” were libelous. Certainly, this is very different from adjudging that any paper that is censorious or ridiculous, being written for mischievous purposes, is a libel. But I confess my amazement that Chancellor Kent, after pronouncing these words libelous, expressed a doubt whether the law would allow them to be justified—as if the truth was not always a justification, at least in civil actions. Such and for so long has been the judicial severity of this state in regard to the law of libel. But the Supreme Court, when adopting Hamilton's definition, refers to the case of Villars vs. Mosely, C. B. 2 Wilson, 403, decided in 1769. The libel there was :
" Old Villars ! so strong of brimstone you smell,
"J. P." This libel exhibits neither good taste nor good poetry; but the action was not brought on that ground. Now it is worthy of especial remark, that the only part of all this vile and offensive vituperation, censorious and ridiculing, and contemptuous as it all was, that was complained of, was the imputation that the plaintiff had a contagious disease, which, in the language of Justice Goold, tended to exclude him from all society.
Having thus ascertained what the law of libel was in 1769, I beg leave now to remind your Honors that, in the early stages of that law, there was no distinction between verbal and written slander. No written words were actionable that would not have been actionable if spoken. I will not go about by a tedious way to prove this; it is fully established in the case of Thorly vs. Kerry, 4 Taunton, 355, decided in 1812. The libel charged the plaintiff with having written a scurrilous address, &c. The following points were made by Sir James Mansfield, in delivering the opinion of the court :
“ 1st. That there being no offence charged in the publication, an action could not have been maintained for such words spoken.
“ 2d. That upon due consideration of the whole subject, there was no difference in reason or principle between oral and written slander.
" 3d. That the rights of the citizen would be sufficiently guarded by applying to libels the rules established in cases of verbal slander..
* 4th. That originally no difference was known, and now it was always discussed, in actions for libel, whether the words would bear an action if spoken.
“ 5th. That the argument that a libel tends to promote a breach of the peace is altogether irrelevant.
" 6th. That the other argument that written slander evinces more malignity of purposes than that which is verbal, is also irrelevant, because the action is sustained on the ground not of malignity, but of injury to the party.
“ 7th. That the other argument that a libel is more diffusely published is also without weight, because in the change of times and manners the reason has failed.
" 8th. That the difference now made in the law in regard to written and verbal slander was first established in the time of Charles the Second. That if it were a new question, this difference ought not to be made, yet that it must now be maintained, because it is enforced by authorities too inveterate to be cast oft."
Justice BEARDSLEY. “Can we go back and subvert these authorities? Does the counsel maintain that we ought to do so ?”
Mr. SEWARD. I have not the presumption to ask so much. Although I humbly insist that what was the common law at first, is, and ought to be the common law now, until changed by legislative power. And I think it not above the power nor unworthy the wisdom of this high tribunal to restore the ancient law. Such restorations have been made in other instances. Sixty years elapsed after the King's Bench sustained trover for a negro slave before the same high judiciary, solemnly declared that a slave could not breathe the air of England. The House of Lords, in the case of Daniel O'Connell, have restored the right of challenge in jury trials, after it had been judicially abolished for I know not how long a period.
But if I may not ask so much, my argument will hold at least gainst carrying any further the confessedly unreasonable and oppressive distinction between verbal slander and libel.
The spirit of the law of libel, as I contend it should be, is maintained in the courts of South Carolina. The Supreme Court of that state decided in the case of the State against Farly, 4 McCord, 317, that the following letter was not libelous : “As Mrs. Raynal says she has been most cruelly censured without a cause, which is absolutely false, I would advise her to beware, lest facts, which are stubborn things, be brought to light, and you will then see who you keep under your roof. She need not go among her female friends and say she has been cruelly censured without a cause, as, from her general character, which is perfectly and universally known, we are sure to hear all she
says. The court decided that the letter contained in itself no specific charge of any thing immoral or criminal, which was calculated to render the prosecutrix ridiculous, or to exclude her from society, and therefore was not libelous.
Such, too, is the spirit of adjudications in Massachusetts, for I find the learned opinion of Sir James Mansfield before cited, reviewed and approved in the case of Clark vs. Birney, 2d Pickering, 116.
Mr. Seward here cited the case of Robinson vs. Jermyn, in Exchequer in England, 1 Price 11, where an association, who kept a Cassino room, published a notice that the Rev. Mr. Robinson, a clergyman, was not deemed a proper person to be associated with, and therefore he was excluded from the room. Graham, Baron, declared that he agreed with Sir James Mansfield, and could not consent to extend to libels severity which was not applied to verbal slander. This severe discrimination began to be enforced in the Court of Star Chamber, during the time of Elizabeth, who sustained prerogative with a high hand, and it was perfectly established during the odious reign of the second Stuart.
Justice BEARDSLEY : “ Can we receive a proposition to restore the old law of libel, any more than we can to open the question whether an action of assumpsit lies on a promissory note? Has not this whole question been settled since Lord Coke's time? I put the question to the counsel.”
Mr. SEWARD: I will reply to your honor in the language of Lord Coke. Coke, as Attorney-General, was an advocate of the utmost rigor and severity in the law of libel. When he became a judge, and one day out of every fourteen the court was engaged in slander suits, the case of Crofts vs. Burr came before the court. The words were, “Sir Herbert Crofts keepeth men to rob me.” Lord Coke said: “We will not give more favor unto actions on the case for words than of necessity we ought to do when the words are not apparently scandalous.” These actions being now too frequent.
I was contending, if your honors please, for the distinction between words of mere censure or vituperation and those which necessarily tend to degrade a party. Such a distinction was recognized in the case of Forbes vs. King, (1 Dowling, P. C. 672.) The defendant, writing of the plaintiff, called him his “Man Friday.” This was held not libelous, without an inuendo that the defendant thereby meant to degrade the plaintiff.
Having thus stated what rules I think ought to be applied in determining whether words are actionable, I return to examine the libel complained of here. This libel charges no act criminal or immoral, or tending to degrade the plaintiff, or to exclude him from society. Let me illustrate the absurdity of the law of libel, if this publication be adjudged libelous. If Horace Greeley should say of a woman—a bereaved and lone woman—that she is an adulteress, she has no action; but if he write of James Fenimore Cooper, a man whose fame pervades perhaps the civilized world, that he is known in Otsego county, and therefore would not prefer to lay the venue of this cause there, then he is guilty of a libel, and liable to be punished civilly and criminally for each and every several copy of the Tribune which contains the atrocious publication. Such absurdities may be declared and adjudged to be law, but who will credit, or crediting them, who can respect the jurisprudence of the country that adopts them?
But again; what if we do write of the plaintiff that he is held in bad repute in Otsego county, how or why does it follow that he is injured? Does he live there? That is not averred. Has he wife, children, family, or friends there? No such thing is averred. If held in disesteem or disrepute in Otsego county, how can that impair the fame of a man who, for aught that appears on the record, is a cosmopolite, and has a home as comprehensive as his fame?
The next point in our case is that the plea to the first count is good. The substance of the plea is
** The defendants put in several pleas, and, in relation to the first alleged libel, aver that plaintiff, on 26th November, 1811, caused to be printed in the Albany Argus, a