They accomplished the purpose for which the husband and father brought them upon the stage so unfit for their action. The ver dict rose in consideration of their grief and sorrow to the required amount-it was paid by the defendants, and they gave their report of the trial as they lawfully might. Look at that report, and say whether it is not expressed with manly courtesy and delicacy that had not been deserved by the plaintiff. Never was man so injured, more tolerant, more forbearing in the exercise of a just retaliation. And what is complained of? Why, that the defendants said they had a different theory to account for the alleged grief of the young ladies. Could any more trivial complaint engage the attention of this grave tribunal?

Well, if this be calumny, who is calumniated? If the calumny be injury, who suffers ? Certainly not the plaintiff, but the ladies. But my adversary insists that the words are libelous because the defendants decline to give their theory through fear of a libel suit. True, but the defendants say at the same time, that, as the law is administered, the truth, however harmless, is equally libelous with false and malicious accusations, so they did not mean to confess that their theory would have justly involved the consequences of a libel suit.

And what is the sting found in this harmless jeu d'esprit. That the defendant meant to impute to the plaintiff some unworthy action or misconduct whereby his wife and children were afflicted. This inuendo must be rejected unless it be the clear and only legal meaning of the words published. Now the words would bear equally well an entirely different explanation. May it not have been some unkindness of the father, neither unworthy nor disreputable, that grieved his children-might it not have been some domestic misfortune or calamity? Suppose it were disappointment in love? Certainly the publication of such a theory would not have been libelous, and if the publication would not, declining to publish it would have been innocent: and if it afforded any cause of action the action would have accrued to the ladies and not to their father. I dismiss here the consideration of this libel, and revert to the pleas interposed in answer to this count. The plea to the first of the libels in this count is in substance as follows:

"Defendants by leave, &c., say that plaintiff ought not to maintain action, &c., because they say defendants were editors, &c., and the words constituted part of an article giving an account of plaintiff's suit against defendants, tried at Ballston Spa, on the 9th Decem

ber, 1842, and aver that on such trial plaintiff, in presence of Judge Willard, &c., spoke words [substantially same as alleged.]

"Defendants aver that at the time of such trial, Weed's wife and children were sick, not of cholera, &c., and that Weed was in consequence detained, these things being known to plaintiff.

Defendants aver that previous to said speaking, plaintiff had brought three actions against Weed, one against Hoffman & White, and two against all-in one of which (Weed, defendant,) plaintiff recovered $55 on 13th April, 1842; in another against all, $87 on 14th September, 1842; another noticed for trial as above; that plaintiff had on 1st December, 1842, sued out three writs against Weed, White, &c., all prosecuted by R. Cooper, Attorney, &c., who had them in his possession, and shewed them by plaintiff's direction to H. Hammond, Counsel for Weed, who insisted that Weed should compromise, &c.; who did submit matters between himself and plaintiff to D. Cady, and agreed to sign and publish what he should direct; all which was known to plaintiff when he addressed jury, &c.; wherefore defendants published. "Defendants ready to verify, and pray judgment.

This plea is good and sufficient because it justifies all the matter contained in the libel. The counsel complains that the sums paid by Thurlow Weed are small and inadequate to justify the allegation that Weed contributed essentially to the plaintiff's subsistence. They may seem trifling sums to him, but this is a natural difference of estimate between the party who paid and the recipient. Again, the plaintiff's counsel says that it is not shown that his remarks on the trial at Ballston were impertinent. But it is shown they were wilfully false. And falsehood is impertinent in every action, in every court, in every relation, and in every place. The plea to the last libel is in substance as follows:

"6th Plea. Fo. 80-89.-Defendants by leave, &c., say that plaintiff ought not to maintain action, &c., because they say that defendants were editors, &c., and aver that at a circuit court on 9th December, 1842, at Ballston Spa, in a suit between them, plaintiff addressed the jury, and did say words [to same effect as charged], and defendants published a true account. Defendants aver that it is not true that the family were suffused in tears for reasons stated by plaintiff, but say that before that time plaintiff had commenced various actions on frivolous grounds: on 1st July, 1840, procured indictment against J. W. Webb-on 1st November, 1842, commenced three actions against T. Weed -on 1st December, 1842, two against Weed. White & Hoffman, and one against Hoffman & White; and bad, on 1st December, 1842, sued out five capiases against Weed.— And these things being known, &c., plaintiff fell into disesteem, &c.; and these proceedings and disesteem were, to wit, on the day plaintiff addressed jury, known to his wife and family-and his wife and daughters and family were for this cause grieved, as well they might; wherefore defendants published."

This plea is a sufficient answer. It shows a theory why the plaintiff's wife and daughters were grieved and afflicted, and wept. The counsel complains that we have not adopted his explanation. It is enough that we set forth our own and are obliged to prove it, and must stand or fall by the plea at the trial. The learned counsel says that the facts we have assigned are not adequate for such deep domestic affliction. We reply that the question is not whether these respected ladies rationally

wept for such a cause, but whether they did in fact weep from that cause. I may not speak for them, but I confess that, in far distant lands, I heard and knew the fame of the author of "The Spy," and of "The Pioneers." I rejoiced as his countryman, and as his countryman I have sorrowed and been afflicted by the undignified attitude the distinguished author has held in the litigation described in this plea. And if I and others of his fellow citizens have thus deplored his infatuation, it is not unnatural to suppose that the same cause has brought regret, sorrow, and even tears into that domestic circle where his great fame is so greatly and so fondly cherished.

I will not detain the court with further reply to the criticisms on the pleas. They will be found fully answered in the points submitted to the court.

In conclusion. I have shown in the first place that certain departures as to the law of pleading, which took place long ago in this court before any of its present members had seats on the bench, have rendered the defence in actions of libel complicated, dangerous and difficult. Secondly, that obiter dicta which have fallen from the bench have extended still wider the broad and dangerous definitions of libel which in an unfortunate age were adopted in England, and have rendered it next to impossible to justify any libel, however true.

I beg leave with all deference and respect to implore a review of the law in all these respects. Actions of libel are now at least comparatively unnecessary. A virtuous and humble life carries with it its own vindication. And if this be not enough, the press has the antidote to its own poisons. If it sometimes wounds, it can effectually heal. An eminent citizen who once presided in this court commenced public life with actions in defence of his character. Assailed as he thought in the evening of his life, he appealed to the press, and his vindication was complete and successful. The licentiousness of the press has impaired its power to defame and the worst libel ever published would be effectually counteracted by a publication in the simple words, "I am not guilty," if it bore the signature of James Milnor, or of one who like him walked among his countrymen in the ways of a pure and blameless Hfe.

The undesigned encroachments on personal rights in the law of libel have at length brought about a conflict between the judiciary and the press. The press is a necessary, a potential institution in

our democratic system. It is the agent by which the people acquire the information they need in regard to the conduct of every department of the government-the judiciary as well as the legislative and executive authorities. All these departments, as well as the public conduct of all citizens, are subjected to the scrutiny of an all-powerful and all-controlling public opinion, ascertained, collected, and pronounced by the public press. That public opinion is higher than courts, and will, when it is necessary, correct even judicial errors. The conductors of the press have legitimate functions to perform, and if they perform them honestly, fairly, and faithfully, they ought to be upheld, favored and protected, rather than discouraged, embarrassed and oppressed. Under such circumstances it is neither wise, nor will it be successful, to enforce on an honest, enlightened and patriotic journal, the rules of libel established in the worst of times in England-that if a publication reflect upon any man or magistrate it shall be presumed, without proof and against all rational presumption of candor and fairness, that the error was intentional, malicious and malignant, and that vindictive damages shall be awarded where an honest but unsuccessful effort to justify is made. Far wiser and better would it be to open the doors wider to defence in such cases, and to restore the ancient English law which distinguished harmless invective, or that temperate and discreet censure or ridicule which promoted public morals, from vicious and licentious defamation. If this course is not taken, and we shall still adhere to the dictum that any censorious or ridiculing writing shall be deemed malicious and therefore libelous, the law cannot be executed, because not sustained by a sound public opinion. The action of libel will more and more be relinquished by good men, for whom it was designed, and be left to fall more completely into the hands of litigious and corrupt men as an engine of extortion and oppression. The judgments of a court will be but brutum fulmen if they be not sustained by the candid judgment of society, and will have no power to arrest the evil of licentiousness. Whatever may be the course of courts of justice, the press will go on to perform its high and imperative duties, sustained by the free people, whose liberties it maintains and defends. To fetter it with the star chamber rescripts of libel will be an effort as vain as would be an attempt to graduate and control by the ancient laws of the highway the velocity of the newly discovered and all-revolutionizing magnetic telegraph.

DEFENCE OF WILLIAM FREEMAN.*

INTRODUCTORY NOTE.-In 1845, Henry Wyatt, a convict in the State Prison at Auburn, murdered another convict. Wyatt was indicted, and eminent counsel were applied to, to defend him. But they declined, on the eve of the trial, on the ground that no provision was made for their compensation.

Wyatt appealed to Mr. Seward's humanity, and he at once consented. When the circumstances were investigated, reason was found for the belief that the prisoner was insane. The trial came on in February, 1846, and after an impartial hearing, the jury disagreed. On the 12th of March, succeeding, a fearful tragedy occurred near Auburn. William Freeman, a negro, and a native of that place, who had recently been discharged from five years' confinement in the State Prison, having provided himself with weapons, proceeded to the house of John G. Van Nest, in the suburbs of Auburn, and there, without notice and without any apparent motive, slew Mr. Van Nest, a wealthy and worthy citizen, Mrs. Van Nest, her sleeping infant, and her aged mother, and wounded mortally, as was then thought, the laboring man who dwelt with them, leaving only the maid-servant of the family, and she only had been spared because he had been disabled in the affray. He took an old horse from the stable, and, finding the animal unfit to travel, stabbed and left it by the road-side. He proceeded to the house of a relative, forty miles from Auburn, expressing a desire to remain there until he should recover from his wounds. He was arrested and conveyed back to Auburn, and then, surrounded by the people of Auburn and the adjacent country, was taken to the scene of his crimes, to be identified by the survivors, in the presence of the dead bodies of his victims.

So far from manifesting any compunction, he avowed the deed, and described its details, and laughed continually during the recital. The incensed people saw in this and other strange conduct of the prisoner, and in the absence of any motive of the crime, reason to apprehend that he might escape punishment, by a plea of insanity. They were easily made to believe that the partial success which had attended that plea in Wyatt's case, had emboldened the negro to commit acts so atrocious and so horrible. They resolved, therefore, and prepared to take him from the hands of the police, and to inflict summary justice upon him.

This design, however, was baffled by stratagem, and the multitude reluctantly dispersed, after being assured by a judge that Freeman should be tried, and "no Seward should defend him."

Meantime the victims were buried, amid sincere exhibitions of popular sympathy, mingled with execrations against the homicide, and unsparing denunciations of the lawyer whose defence of Wyatt was supposed in some way to have brought about these

Argument in defence of William Freeman.-Auburn, July 21 and 22, 1846.