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 riger 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, 1841, caused to be printed in the Albany Argus, a

notice charging on the defendants the publication of false statements; that said words published by them were in reply to, and commenting on, said notice; that plaintiff, for ten years, was known to many good citizens of Otsego county, and had the reputation there of a proud, captious, censorious, arbitrary, dogmatical, malicious, illiberal, revengeful, and litigious man, wherefore he was in bad repute; that by means of plaintiff being in such bad repute there, plaintiff would not like, and did not like, to bring action against defendants for words, &c., in the county of Otsego."

I am obliged to concede that if the declaration be bad, then this plea must be also bad. My argument, therefore, is, under favor, that the plea is sufficient if the declaration be good.

First-the plea justifies the publication. But my learned adversary says that the attributes applied to the plaintiff in the plea are merely foibles. This is singular indeed, that PRIDE, alleged in this plea, is a weakness; censoriousness is a fault; dogmatism, malice, and revenge are blemishes; and even illiberality and litigiousness are only foibles. Yet, in the plaintiff's declaration, mere want of generosity, or of kindness, or of the polish of the drawing-room, is an immorality and an offence.

In truth, the plea is more severe than the libel. The libel only charges the plaintiff with being known in Otsego county, or at most, with being unpopular there. The plea affirms that he is known there unfavorably as to all the points by which the esteem of his fellow-citizens could be conciliated.

The plea answers the inuendo, which is that the plaintiff is held in bad repute. Certainly no man need to wish his enemy a worse reputation.

But it is contended that the plea is bad, because it avers no acts of misconduct showing that the plaintiff deserved to be held in such bad repute. But the accusation is not of acts, but of repute, and must be proved true, not by specific acts, nor by conduct, but by repute. Proof of specific acts, offences, or errors, would not be allowed. (Briggs vs. Denniston, 3 J. C. R.; 11 Price, 225.) Suppose we had pleaded that the plaintiff had committed a crime, and thereby had forfeited and lost his character, or had pleaded acts showing a want of kindness, gentleness, and courtesy to his neighbors, such as denying them access to his beautiful grounds on the shore of the Otsego Lake, or in the forest where Leather Stocking held his retreat should not we have been told that we had not accused the plaintiff of these acts in our libel, and should not escape from responsibility for what we had charged by bringing new accusations?

I pass over the third plea, which is defended upon the same general grounds.

The second count of the declaration sets forth and insists upon three several libels. The first of these is as follows:

"Knowing what we positively did, and do, of the severe illness of the wife of Mr. Weed, and the dangerous state of his eldest daughter, at the time of the Fonda trials in question-regarding them as we do-the jokes attempted to be cut by Fenimore over their condition-his talk of the story growing up from one girl to the mother and three or four daughters-his fun about their probably having the Asiatic Cholera among them, or some other contagious disease, &c. &c, however it may have sounded to others, did seem to us rather inhu-Hallo there!-We had like to put our foot right into it again, after all our tuition. We mean to say that, considering that just the day before Mr. Weed had been choked by his counsel into surrendering at discretion to Fenimore, being assured by said counsel that, as the law is now expounded and administered by the Supreme Court, he had no earthly choice but to bow his neck to the yoke, pay all that might be claimed of him, and publish whatever humiliation should be required, or else prepare to be immediately ruined by the suits which Fenimore and Richard had already commenced, or were getting ready for him; considering all this, and how much Mr. Weed had paid and must pay towards his subsistence-how keenly Weed has had to smart for speaking his mind of him-we did not think that Fenimore's talk at this time and place of Weed's family and of Weed himself, as a man so paltry that he would pretend to sickness in his family as an excuse to keep away from court, and resort to trick after trick to put off his case for a day or two-it seemed to us, considering the present relations of the parties, most ungen-There we go again !"

We affirm, if your honors please, that this count also is bad, and that the words are not libelous.

The plaintiff seeks to make a case by the averment that inhu was meant for inhuman, and that ungen was meant either for ungenerous or ungentlemanly.

Now the inhumanity alleged is defined, and it was not inhumanity. It was at most only a want of magnanimity. The plaintiff took a default against Thurlow Weed, certainly under very extraordinary circumstances, but still he exercised a legal right, and that exercise, though it was not to be approved, was not inhuman.

The other inuendo is even more unfortunate. The plaintiff undertakes to tell the court what the defendants meant, and avers that they meant one thing or some other thing; but his object was to conclude the defendants by defining one meaning only. Suppose the court render judgment against the defendants, for what are damages to be rendered for denying to the plaintiff the generosity of a millionaire or the graces of polished life? Ungenerous or ungentlemanly-one or the other these defendants must have meant; but the plaintiff, although at liberty to choose, cannot determine between them. Either will sustain an action, he thinks, and therefore either will do. Like Major Macheath, in

the Beggar's Opera, when his first wife appeals to him, "Am I not your lawful wife," and his newly married spouse says, "Shall I not claim mine own," the Major throws a hand to each and sings, "How happy could I be with either."

But suppose we adopt the former and understand the libel to charge the plaintiff with having acted ungenerously. Generosity is not a duty or moral obligation. We are required to be just, not to be generous. No action will lie for accusing a man of being deficient in a virtue that the law does not expect a good citizen. to possess. Try the other meaning, ungentlemanly. The law does. not expect or require men to be gentlemanly, or regard them as such; or at least before a plaintiff can receive damages for being charged with a want of gentleman-like conduct, he must aver that he is a gentleman; and this declaration contains no such averment. Now suppose a chimney-sweep had brought an action on such a charge, could it have been sustained? Certainly not; and yet there is one law and rule of justice for all classes and for all men. If this action be maintained it will be the first instance in which it has ever been adjudged in this country that it is libelous to deny to any and every man the character and qualities of a gentleman and a man of magnanimity. Then we can hereafter no more write of the living than of the dead, except to praise and magnify them. I leave it to your honors whether this would promote either good principles, good morals, or good manners.

I pass the second libel contained in this count which is a repetition of the words complained of in the third count.

The last libel complained of is as follows:

"Fenimore (meaning the said plaintiff) closed very effectively with an appeal for his character, and a picture of the sufferings of his wife and family-his grown-up daughters often suffused in tears by these attacks on their father. Some said this was mawkish, but we consider it good and think it told. We have a different theory as to what the girls were crying for, but we won't state it, lest another dose of Supreme Court law be administered to us," (thereby meaning that the said plaintiff, by some unworthy and disreputable conduct, was the cause of affliction and tears in his family.)

I admit that it was not in the most refined taste thus to bring the plaintiff's wife and children before the public. But it was not the defendants who committed this impropriety. It was the plaintiff himself who brought those respected ladies before the public, and in a speech full of bitterness and reproach paraded them in their sadness and "suffused with tears" before the jury at Ballston Spa, to swell a verdict by their agony and tears.