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maliciously published a false, scandalous and malicious libel, cong taining false, malicious and defamatory matter. And what is this matter that is thus wicked and malicious ? Here it is : “ Mr. Cooper will not like to bring an action for libel to trial in Otsego County, because he is known there.” Oh most lame and impotent conclusion to such a swelling prologue !
The libel reiterates and applies to the plaintiff a truislu stamped with even divine truth, and if the sentiment complained of be libelous, then the Methodist Book Concern, and the Society for Propagating the Gospel, are dangerous engines. “A prophet is not without honor but in his own country and among his own kin, and in his own house.”—Mark 6: 4. “ For Jesus himself testified that a prophet had no honor in his own country.”—John 4: 44.
The sting of the libel in this case, if there be any, is in intimating that a party bringing an action would prefer a trial where the piques, the rivalries and prejudices which assail every man at home could not reach him.
If this harmless language shall be considered libelous, it must be only on the ground of its falling within some modern definitions of libel which have extended the action of libel far beyond its ancient, just and narrow limits.
In the case of the People vs. Croswell, 3 J. C. 354, Hamilton arguendo said, quoting Lord Camden, “I have been unable to find a satisfactory definition of a libel, and I want to submit one: A libel is a censorious or ridiculing writing, picture or sign, made with a mischievous and malicious intent toward government, magistrates, or individuals.” The Supeme Court, in Steel vs. Southwick, 9 J. R. 215, approved and adopted this definition, and said it was drawn with the utmost precision.
[Mr. Justice BEARDSLEY bere inquired whether the counsel intended to question that definition which had been so long and universally approved of. Mr. SEWARD replied, that he confessed the temerity of thinking that the definition, at least as it is generally understood, enlarged the scope of actions beyond what was the settled Common Law in England and now in America.]
But adopting even Hamilton's “definition," it would not embrace the present libel. It is not a censorious or a ridiculing writing. It reflects upon the plaintiff, certainly, but not severely or censoriously, while it neither affects nor betrays any sentiment of ridicule.
Aware of this, the plaintiff seeks to insert a sting in the pubication, which without that aid is harmless. And this is done by an inuendo. The inuendo is that the defendants meant that the plaintiff was in bad repute in Otsego County But an inuendo cannot extend the sense of the words, unless by reference to some other matters which are also spread upon the record by a colloquium. But here is no colloquium, and of course the inuendo falls, unless the true, legitimate, and only meaning of the libel is what is charged by the inuendo. (1 Starkie, 375, Barbour's Com. Co. 20.) Now no inuendo is necessary or proper, because the words are neither ambiguous nor are they alleged to be so. They mean just what they say, that the plaintiff is known in Otsego County, and therefore would not like to bring an action there. “Their offending natn this extent, no more.'
Their meaning cannot be well expressed by any equivalent or parallel words and certainly least of all by the phrase that the plaintiff is held in bad repute in Otsego County. They may perhaps imply the idea that the plaintiff is not popular, not favored among the citizens of Otsego County. And is it libelous to allege, at least of #private citizen who neither holds nor seeks office, that he is not popular, or is unpopular in Otsego County?
Again: the pleader, after adopting the word repute, extends it to mean reputation, and so this inoffensive passage is tortured into a charge of such bad reputation against the plaintiff as ought to disqualify him for the society of his fellow-citizens. Common sense revolts from such a construction. The inuendo then falls, and we find the words in their original form and connection. Does the law of this land declare it libelous to write of a party litigant that he would not like to bring an action in a certain county because he is known there? I humbly contend for the contrary. Every libel is a misdemeanor so well as a private wrong. When this court shall decide that this action can be maintained for these words, the law is pronounced that the defendants are guilty of a misdemeanor, which cannot be expiated without fine or imprisonment, or both. And who will believe for a moment that such a principle is law, or who believing it could respect such a system of criminal jurisprudence.
Thus far I have considered the libel in the light of Hamilton's definition, but I beg leave now to submit, first, that this definition is not a part of the law of this state, and, secondly,
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 wbole 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 livel, 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 alto gether 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 tirst 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 ipveterate to be cast off.”
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 low long a period.
But if I may not ask so much, my argument will hold at least against carrying any further the confessedly unreasonable and oppressive distinction between verbal slander and libel.