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THE LAW OF LIBEL.*
If your honors please, one of the most influential presses of this country has expressed the opinion, as appears in the present record, that if an action for libel be brought against an editor-no matter how true the publication may be-yet, "as the law is now expounded and administered by the Supreme Court, the writer has no earthly choice but to bow his neck to the yoke, pay all that may be claimed of him, and publish whatever humiliations shall be required of him, or else prepare to be immediately ruined."
I trust to be able to vindicate the law and this court from this censure, and from the censoriousness of public opinion on the same question.
Certainly it is true, notwithstanding legislative effort to introduce simplicity of pleading in Courts of Justice, that the defence of the action of libel in this state has come to be considered so technical, complicated, and difficult, that there is a general opinion that articles alleged to be libelous are defended with more difficulty now than formerly, and with more difficulty in this country than in England.
I trust to be able to show that these difficulties result from certain obiter dicta which have fallen from the bench in regard to pleadings, and to similar judicial expressions in regard to the nature and qualities of libels.
* Argument in the Supreme Court of New York in the Cause of HORACE GREELEY and THOMAS MCELRATH, ads. JAMES FENIMORE COOPER, for Libel. May 14, 1845.
The court has decided in many cases that each plea must answer the whole matter, and all the matters contained in the count to which it relates, even though the matters contained in the count are separable and separately and distinctly charged as libels.
Secondly. That the defendant cannot demur to one separate and several part of libelous matter set forth in a count, and deny or justify other several and distinct matter in the same count, but must demur to the whole count, or plead to the whole count.
Thirdly. For a long series of years the court held that when a defendant pleaded the general issue with a special plea, to which the plaintiff replied and the defendant demurred, then if the replication was held good, the defendant could not fall back upon the declaration, although it was confessedly defective; because, as was said, that would be allowing the defendant to do indirectly what he could not do directly, plead and demur to the same count. The Court has receded in part from this rule in the case of 16th Wendell.
[Here JUSTICE BEARDSLEY interposed and said, that although there were such obiter dicta, yet it has always been held that the defendant could always, in all cases, fall back and attack the declaration.]
Mr. SEWARD proceeded: I am grateful for this intimation. I have found those obiter dicta disclaimed in part, but the rule retained, nevertheless, with qualifications. But I will now consider the rule as abolished altogether.
I now beg leave to refer your honors to several cases which show that as the law of pleading in libel cases always was and yet remains in England, the two former principles, as well as the last, are erroneous, and that there, at least, the defendant may plead the general issue to the whole declaration and then in separate pleas answer any particular part of any particular count, viz: Wendell's Starkie, 1, 634; Tidd 603; Stiles vs. Nokes, 7 East, 493; Clarkson vs. Lawson, 6 Boyle, 507; 2 Dowing's P. R. 641. These cases were collected to show that the rules in question and which are maintained here, are a departure from the law of libel in England.
But a case which has been decided and published since this demurrer book was made, supplies the most conclusive and satisfactory proof of this position. In the case of Root vs. Woodruff, 6 Hill 421, the present learned Chief Justice of this court says: "Every plea in bar must contain a good answer to all it professes
to answer, or it will be bad, but as I understand the rule in England, the plea need not go to the whole count, it there be other pleas which cover the residue. In trespass without pleading, any one plea going to the whole count, defendant may by one plea justify the breaking of the close and by another the seizing of the goods. It is enough that each plea is good as far as it goes, and that all of the pleas taken together cover the whole count. I shall not go over the cases, but will refer to one by way of illustration. In Clarkson vs. Lawson in Bingham, 587, the action was for libel, and there was first a plea to the whole declaration, and then a plea of justification as to a part only of the libel. The court held that as the whole declaration was answered, and as the charge complained of was severable in its nature, the plea to a part only of the libel was good. But when a part of the declaration remains wholly unanswered, the plaintiff must have judgment by nil dicit as to that part, and if he demurs or answers over the whole, the action will be discontinued. We have departed from these rules in two particulars.
1st. Every plea in bar must not only contain a good answer so far as it professes to go, but it must answer the whole declaration or count to which it is pleaded. 2d. If the whole be not answered, the plaintiff may demur, and the action will not therefore be discontinued.
Since the departure is admitted by the court, I trust it is neither presumptuous nor disrespectful to pray the court to return to the ancient law, and I submit the following reasons for a return :
First. That the oldest law, until changed by legislative power, is not merely the better, but the right and the only law.
Secondly. That the law in England and in this state will conform, and thus the same law will be universal; while the new rules established here are neither universal here, nor at all in conformity with the law as established in a country governed by the same jurisprudence.
Thirdly. The new rule is inconvenient and impracticable. The plaintiff may combine separate causes of action in one count, and distribute the same causes in any number of counts; yet the defendant is not allowed to answer fully as to each cause separately and distinctly, and confine himself to such answer in a single plea, but he must answer in each plea at the expense of infinite amplifi
cation and repetition every cause of action contained in the same
Fourthly. Although the plaintiff may combine one good and one bad cause of action in the same count, the defendant is not allowed in that case to deny or justify the one and demur to the other, but he must demur to both or plead to both; that is, he must confess a cause of action to be good which is manifestly bad, to obtain an opportunity to deny or justify a cause which he knows is false in fact.
What is this but to deprive the defendant of the right guarantied to every man, to have the preliminary judgment of the court whether he shall be held to answer?
And what mode of defence is given in lieu of the demurrer which is denied in such a case? Why, on the trial he may object against evidence being given on a bad count. But are we not entitled to the judgment on the whole count? If we are told we may move in arrest of judgment, we answer that the verdict cures many defects which would be bad on demurrer.
Having shown these departures from the English jurisprudence in regard to pleading in actions for libel, it will be my duty to endeavor to show a like departure in regard to the nature of libel.
I humbly submit that the first count in this declaration is bad, because the words complained of do not constitute a libel.
The words are—
"At all events, having published the letter excepted to, as a matter of intelligence without any sort of feeling toward Mr. Cooper, (the said plaintiff meaning) but such as his conduct in the case seemed to excite, we have at all times stood ready to publish cheerfully any correction or contradiction he might choose to send us. He (the said plaintiff meaning) chooses to send none, but a suit for libel instead. So be it then. Walk in, Mr. Sheriff.
"There is one comfort to sustain us under this terrible dispensation. Mr. Cooper (meaning the said plaintiff) will have to bring his action (meaning said suit for libel) to trial somewhere. He will not like to bring it in New York, (meaning the city of New York) for we (meaning said defendants) are known here. Nor in Otsego, (meaning the county of Otsego) for he (meaning the said plaintiff) is known there, (thereby meaning that the said plaintiff, in consequence of being known in the county of Otsego, was in bad repute there, and would not, for that reason, like to bring a suit for libel in said county of Otsego.")
First, and generally a perusal of the declaration, shows its absurdity. The plaintiff complains of the defendants that they have maliciously conceived and contrived to injure him in his good name, fame and credit, and to bring him into general contempt and ignominy, and for this purpose have falsely, wickedly and