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constitution of New-York, as amended in 1821, is a little varied in its language from those provisions which have been mentioned, and is not quite so latitudinary in its indulgence as some of them. It declares, that "in all prosecutions or indictments for libels, the truth may be given in evidence to the jury; and if it shall appear to the jury, that the matter charged as libellous is true, and was published with good motives, and for justifiable ends, the party shall be acquitted." These provisions in favour of giving the truth in evidence, are to be found only in those constitutions which have been promulgated long since our revolution; and the current of opinion seems to have been setting strongly, not only in favour of erecting barriers against any previous restraints upon publications, (and which was all

made honestly and without malice, protected; as for instance in speaking or writing respecting candidates for office, or giving answers to confidential inquiries, or fair criticism on the productions of an author. Duncombe v. Daniel, 8 Carr. & Payne, 213. Warr v. Jolly, 6 Id. 497. Harwood v. Astley, 4 B. & Puller, 47. Starkie on Slander, vol. 1, Prel. Discourse. 83, 84. Vol. 1, 262-267. Sir John Carr v. Hood, 1 Camp. N. P. 354, Soane v. Knight, 1 Moody & Malkin, 74. Starkie, ut sup. p. 269---280. 290. Amer. edit. Privileged communications are those made by counsel and others in the regular course of justice but to be protected they must be pertinent and material to the matter in controversy. Gilbert v. The People, 1 Denio, 41. There have been contradictory decisions in America on the subject of privileged communications. But the cases of Mayrant v. Richardson, 1 Nott & M'Cord, 327. Commonwealth v. Clapp, 4 Mass. Rep. 163, and O'Donaghue v. M'Govern, 23 Wendell, 23. The State v. Burnham, 9 N. H. Rep. 34, are in conformity with the English rule, and this is the better and the more authoritative American doctrine. See Starkie on Slander and Libel, vol. 1, 172 and 219. Am. edit. 1843, note by Mr. Wendell. As to the question of probable cause on indictments for a malicious prosecution, it was settled in the Exchequer Chamber in England on error from the Q. B. that it was the province of the jury, to decide on the existence of facts, and for the court to determine whether the facts if proved constituted probable cause. Panton v. Williams, 2 Adolp. & Ellis, N. S.

169.

that the earlier sages of the revolution had in view,) but in favour of the policy that would diminish or destroy altogether every obstacle or responsibility in the way of the publication of the truth. The subject is not without its difficulties, and it has been found embarrassing to preserve equally, and in just harmony and proportion, the protection which is due to character, and the protection which ought to be afforded to liberty of speech and of the press. These rights are frequently brought into dangerous collision, and the tendency of measures in this country has been to relax too far the vigilance with which the common law surrounded and guarded character, while we are animated with a generous anxiety to maintain freedom of discussion. The constitution of NewYork makes the facts in every possible case a necessary subject of open investigation; and however improper or unfit those facts may be for public information, and however painful or injurious to the individuals concerned, yet it would seem that they may, in the first instance, be laid bare before the jury. The facts are to go to them, at all events; for the jury are to determine as it shall appear to them, whether the motives of the libeller were good, and his end justifiable.

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The act of congress of the 14th of July, 1798, made it an *indictable offence to libel the government, or congress, or the president of the United States; and made it lawful for the defendant, upon the trial, to give in evidence in his defence, the truth of the matter contained in the publication charged as a libel. This act was, by the terms of it, declaratory, and was intended to convey the sense of congress, that in prosecutions of that kind it was the common right of the defendant to give the truth in evidence. So, the case of The People v. Croswell, in New York, was followed by an act of the legislature, on the 6th of April, 1805, enacting and declaring, that in every prosecution for a libel, (and

which included public and private prosecutions,) it should be lawful for the defendant to give in evidence in his defence the truth of the matter charged; but such evidence was not to be a justification, unless, on the trial, it should be made satisfactorily to appear, that the matter charged as libellous was published with good motives, and for justifiable ends, and this was the whole extent of the doctrine which had been claimed in favor of the press in the case of The People v. Croswell.

There appears to have been some contrariety of opinion in the English books on the point, whether a defendant in a private action upon a libel could be permitted to justify the charge by pleading the truth. But the prevailing, and the better opinion is, that the truth may, in all cases, be pleaded by way of justification, in a private action for damages, arising from written or printed defamation, as well as in an action for slanderous words. The

a Holt, Ch. J., 11 Mod. Rep. 99. 3 Blacks. Com. 125. Buller's N. P. 8. J'Anson v. Stewart, Term. Rep. 748. 1 Starkie on Slander and Libel, Wendell's edit. 1842, p. 210, note. In Massachusetts a statute passed in March, 1827, not only allows the truth to be pleaded by way of justification in all actions for libels, as well as for oral slander, but every inference to be drawn from such a plea in admission of the fact of publication, or of malice, if the plea be not proved, is destroyed. The statute affords facility and encouragement to the plea. This statute is said to have been passed in consequence of a decision of the Supreme Court of Massachusetts, in the case of Jackson v. Stetson and wife, 15 Mass. R. 48, that a plea of justification accompanying the general issue, was proof of the speaking of the words, and that if the defendant failed to establish it by proof, the plea was evidence of malice. The statute has been said to be only declaratory of the common law rule, and it is undoubtedly just and true, that a failure to prove the plea of justification will not deprive the defendant of the right of adducing such evidence in mitigation of damages under the general issue, as would have been admissible if a plea of justification had not accompanied it. Starkie on Slander and Libel, vol. 1, Amer. edit. 1843. Int. by Wendell, p. 49-55. Putting a plea in justification of a charge, and failing, is evidence of malice and aggravation of damages.

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ground of the private action is the injury which the party has sustained, and his consequent right to damages as a recompense for that injury; but if the charge, in its substance and measure, be true in point of fact, the law considers the plaintiff as coming into court without any equitable title to relief. And yet it is easy to be perceived, that in the case of libels upon private character, greater strictness as to allowing the truth in evidence, by way of justification, ought to be observed, than in the case of public prosecutions; for the public have no interest in the detail of private vices and defects, when the individual charged is not a candidate for any public trust; and publications of that kind are apt to be infected with malice, and to be very injurious to the peace and happiness of families. If the libel was made in order to expose to the public eye personal defects, or misfortunes, or vices, the proof of the truth of the charge would rather aggravate than lessen the baseness and evil tendency of the publication; and there is much justice and sound policy in the opinion, that in private as well as public prosecutions for libels, the inquiry should be pointed to the innocence or malice of the publisher's intentions. The truth ought to be admissible in evidence to explain that intent, and not in every instance to justify it. The guilt and the essential ground of action for defamation, consists in the malicious intention; and when the mind is not in fault, no prosecution can be sustained. On the other hand, the truth may

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Warwick v. Foulkes, 12 Meeson and Welby, 507. Watson v. Buck, 5 Cowen, 499.

a Vinnius in Inst. 4, 4, 1. Edin. Review, vol. xxvii. p. 102, 142, vol. xxxvii. p. 207.

b We have a remarkable illustration of this principle, in a decision cited by Lord Coke, when at the bar, and arguing the cause of Brook v. Montague, (Cro. Jac. 91.) A preacher, in his sermon, recited a story out of

be printed and published maliciously, and with an evil intent, and for no good purpose, and when it would be productive only of private misery, and public scandal and disgrace.a

Fox's Martyrology, of one Greenwood, as being a very wicked man, and a persecutor, who died under signal visitations of God's displeasure. The preacher intended to show, by that example, the judgment of Providence upon great sinners; but he was totally mistaken as to the fact, for Greenwood was not dead nor diseased, but present at the preaching of the sermon. He brought his action for the defamation; and the court instructed the jury, that the defendant, having read and delivered the words as matter of history, and without any evil intention, was not liable in damages.

Though the plaintiff, in an action for a libel, makes the usual but unnecessary averment in the declaration, of his general good credit and character, the defendant cannot go into proof of his general bad character, by way of mitigation of damages, or in support of averments in his plea to that effect. Nor can the plaintiff, in order to rebut the defence, go into evidence of his general good character, when the same is not impeached. Cornwall v. Richardson, Ryan & Moody, 305. Stow v. Converse, 3 Conn. Rep. 326. Mathews v. Huntley, 9 N. H. Rep. 146. A plaintiff cannot be expected, and ought not to be required, to go into proof of so general a nature, and his good character is always presumed in law, unless by evidence of particular facts, fairly and specifically put in issue, that presumption be negatived. Baron Wood vindicated this rule with great energy and effect, in Jones v. Stevens, 11 Price's Rep. 235; and the case of the Earl of Leicester v. Walter, 2 Campb. N. P. Rep. 251, was overruled by the court of exchequer.

In England the defendant, in an action of slander, may give in evidence under the general issue any defence except that which amounts to a justification of the charge, as for instance the truth of it, and the statute of limitations. Introduction, p. 26, 27, to 1 Starkie on Slander and Libel, and the notes to vol. 1, p. 402 to 406, by Mr. Wendell, the learned editor of the American edition. The defence of privileged communications may be given in evidence, and need not be specially pleaded when it goes to show no malice, and the question of malice is a question of fact for a jury. Lillie v. Prin, 5 Adolp. & Ellis, 645. The facts ought not to be specially pleaded in bar as a justification, when they do not amount to it on the face of the plea; for whether the libel was with or without malice, cannot appear in the pleadings, and is matter for a jury. Turrill v. Dolloway, 17 Wendell, 426. S. C. 26 Id. 383. See 1 Starkie Int. p. 27-35, 38-49. The cases of Cooper v. Barber, 24 Wendell, 105, and Cooper v. Weed and