f

for, though their own flanks were left uncovered, from this protection of the law being withdrawn, so that an indictment could not be sustained on their behalf for matters relating to official conduct; yet they could not but find it safer to be exposed to general calumny, than to be under the necessity of drawing upon themselves the attacks of the malevolent, or their friends, who were personally irritated; and, came forward to take a revenge through the medium of the public papers.

But, the libellers themselves would not seem to have found their account in this law. For prosecutions by action being now the only mode of obtaining satisfaction by the persons aggrieved, and the juries assessing damages which they began to do pretty liberally, they could not raise the cry of persecution, not for conscience sake, but for what was equally sacred, the liberty of the press; which was alleged; however unreasonaably, in their case, to be concerned.

Owing to these or other causes, I do not find that during this interregnum of the law, as it might be stiled, libelling had increased; and yet, the natural consequence would seem to be, that it would have increased. For it would seem to have been a great matter for the libellers, to have it provided for them under sec. 11. that the truth shall in all cases of indictment be given in evidence. So that where a public or private person was the subject of the libel, he must be under the necessity of proving the calumny false; which, even though false and groundless, might not be convenient, or pleasing thing to do. For all libel, usually consists in caricature or exaggeration of the picture, and it might not be easy to discriminate and shew to the conviction of the world, what was excess, and what was real.

But what is more, there are many things which may be, and often are in the hands of the malicious made the subject of slander, which though in a great degree groundless, yet may have some foundation in collateral circumstances; so that the refutation must affect those concerned, or others, not to the extent, but in some degree. They might judge it better, therefore to bear the whole, than to have the matter stirred. What might affect domestic peace, or the reputation of a

neighbour, might also be a reason for not wishing to have the matter brought into public view.

How the act might have been for the administration of justice generally salutary, and otherwise, is another question. The power which the courts had by the common law to impose fines, or imprison in the case of defamers, was not a trust for themselves, but for the people. If the people chose to take it away, it was their affair: they were principally interested. The officer for the time being, judicial or otherwise, had not more an interest in the suppression of personal abuse than the rest of the community.

It might have been one reason why libelling did not seem to prevail more during the period we speak of, that, before this time it had proceeded to the utmost excess, and the public mind had begun to revolt at the licentiousness of the press; not only the conduct of individuals, in discharge of public functions, legislative, judicial, or ministerial, was misrepresented; but matters which did, in no way concern the discharge of their duty were made the subject of animadversion, and reproach. Nor was this all; but such as had pretensions to office were attacked in order to defeat; and the effect of the defamation in this particular was felt by the community. A certain editor was known to boast that he could write down any man in six weeks. Cobbet and Callender, I do not mention resident or living persons, had done good service indirectly, though they did not mean it, in bringing into disrepute the language of what the English call Billingsgate; and that abuse which knows no restraint of decency, delicacy, or refinement. They had set such an example that all men saw the consequence of approving, and the more viperous ceased to be encouraged in their burlesque, and malicious, and often false colouring and representation.

It was thus that in Massachusettss, in the time of those fanatics the Mathers, when credulity in witch-craft prevailed, and whole families were put to death on this suspicion, it was in vain that reason and philosophy interposed. Not until the accusation became so general as to alarm the bulk, would they for a moment be brought to doubt of the credit of the testimony; or to see the absurdity of the belief.

The constitution of this commonwealth, by implication would seem to give the prosecution by indictment. For though the term may apply to the prosecution by a civil suit, yet the provision of giving the truth in evidence, which had been always allowable in civil actions, shews the term to have a reference to a proceeding as for a misdemeanor. It cannot therefore be said, not to be an abridgment of constitutional right, for men in a public capacity not to have the privilege of prosecuting by indictment; and where the matter published, is not proper for public information, to have the truth given in evidence.

In the case of a private person, the prosecuting by indictment is not taken away by this act, but the specification in the constitution of men in a public capacity, and a matter proper for public information, where the truth may be given in evidence, carries with it an implication, that in a prosecution by indictment, in the case of a private person, the truth cannot be given in evidence. So far therefore this acf was a departure from the spirit of the constitution.

But is it not reasonable that the truth in all cases should be given in evidence? The reason of the common law, which has grown up from experience, would seem to have not. And if we apply our own reason, it would not be difficult, a priore, to carry the giving the truth in evidence farther than the constitution would seem to have done. This is in the case of men in public capacity, and where the matter published, is proper for public information.

It might be said, that all men in public office are fair game, and may be hunted down by bringing into view even their foibles, extra-judicial aberrations, and exaggerating, or caricaturing them. Or more plausibly it might be said, that extra-judicial immorality, or even a deviation from the dig nity of official station; and the

-decens et decorum

might deserve to be stigmatized. But allow this to a satyrist, and where will it end? Give an inch and he will take an ell. He will not be content with a candid examination of the defect or error, but carry it far beyond the truth, like some of

G G

those minerals that eat away the fungus, and then corrode the solid flesh. Will it not be sufficient that all matters of this na ture may be brought before the legislature, who have the constitutional power of removing from office; and in which case and that of infirmity and incapacity it is alone perhaps the constitutional proceeding. For in the case of a misdemeanor in office, the redress by impeachment is provided. But, in the case of private persons who endeavour to pur sue, in humble life,

-The noiseless tenor of their way,

Or who court the shade, and have chosen the

-fallentis semita vitæ,

Why drag their frailties from their dread abode; why intre duce, though true, what does not concern the community? k is unprofitable to the public and increases the miseries of hu man life to individuals, which are enough, God knows, in all conditions, situations, and relations. That even the truth ought not to be told at all times, is a proverb as old as the experience of man. Breaches of the peace would be unavoidable in such licence were permitted for a length of time. For I lay out of the question that breaches of the peace, have · not perhaps multiplied within these three years, during which time this act has existed. For I look to the permanent effect, and this must be deduced from the nature of things, and the experience of ages, rather than the experiment of a period.

In the nature of things it is impossible, but that where matters are brought into view of no public concern, whether in the case of public men, or private persons, and where the matter is rather vexatious than infamous, wounding to the feelings, more than injurious to the estate, a breach of the peace should not ensue, and it is upon this experience that the common law is founded, in not suffering such matters to be at all broached or any thing heard about the truth of them. For being nothing to the community whether true or false, but of great consequence that the peace be preserved, it is the principle that truth or no truth is no justification of libelers in such cases. On the contrary it is the law, that the greater the appearance of truth given to the libel, it is the more provoking, which maxim misunderstood, has led to that die

tum, that "the greater the truth, the greater the libel." Or perhaps it may be explained by saying, that the greater the weakness, or aberrations which humanity would keep out of view, it is the more provoking to have it brought before the public, and the more irresistibly impels to outrage; and for which reason, the law will more guard against such provocation and consider it the greater libel. Be that as it may, the policy of the law is the preservation of the peace. And, is it reasonable that the law should extend the prosecution by indictment to assaults and batteries, and permit no excuse of words or writing to be set up as justification, or even given in evidence on the plea of not guilty, as matter of excuse; but to the court only after verdict; and yet that the truth of an indictment for words, or writing the truth should be admitted to justify the speaking, or writing, when the proving the words false, or even malicious, would not justify, or on the trial even excuse the battery? Shall the flagellum, or whip of calumny have greater privilege than the club of strength? .

Intending these strictures more for the legislature, than the profession; for I would not take it amiss if the greater part of lawyers should think themselves above my instruction, I do not enter into a consideration of the law of libels. But so far only as to take notice of the observations of Barrington on the statutes quoted by Judge Tucker in his edition of the commentaries; for I have not Barrington by me at the present, to refer to; viz. "That the general rules laid down by the court of Star-chamber in Pickering's case, 5 Coke 125, from whence the doctrines contained in the text are borrowed, are either extra-judicial, or not maintained, one of which Lord Coke himself contradicted on another occasion; and that the reason of the questionable doctrines contained in that case, arises from every one of those rules being borrowed from the civil law, that, when we consider the source from whence these doctrines have been brought to us, the reasonableness of them ought to be examined before we yield our full assent to all of them."

It is my way of thinking that the reasonableness of all doctrine ought to be examined, and this on the ground of pub-.