Contents

1.  People v. Croswell

2.  James Kent, Commentaries 2:12-22

People v. Croswell

The following case is from The Founders’ Constitution. Vol. 5 (Doc. 28). Edited by Philip B. Kurland and Ralph Lerner. Chicago: University of Chicago Press, 1986. Read it online at the Founders’ Constitution, or find it on Amazon.

An indictment was found against the defendant on a libel, at the general sessions of the peace in Columbia county, which was removed, by certiorari, into this court, in January term, 1803, and the issue of traverse thereon was tried, at the Columbia circuit, in July, 1803, before Mr. Chief Justice Lewis.

The indictment was as follows, to wit: “At a court of general sessions of the peace, holden, &c. It is represented that Harry Croswell, late of the city of Hudson, in the county of Columbia aforesaid, printer, being a malicious and seditious man, of a depraved mind and wicked and diabolical disposition, and also deceitfully, wickedly, and maliciously devising, contriving and intending, Thomas Jefferson, Esq., President of the United States of America, to detract from, scandalize, traduce, vilify, and to represent him, the said Thomas Jefferson, as unworthy the confidence, respect, and attachment of the people of the said United States, and to alienate and withdraw from the said Thomas Jefferson, Esq., President as aforesaid, the obedience, fidelity, and allegiance of the citizens of the state of New York, and also of the said United States; and wickedly and seditiously to disturb the peace and tranquility, as well of the people of the state of New York, as of the United States; and also to bring the said Thomas Jefferson, Esq., (as much as in him the said Harry Croswell lay) into great hatred, contempt, and disgrace, not only with the people of the state of New York, and the said people of the United States, but also with the citizens and subjects of other nations; and for that purpose the said Harry Croswell did, on the ninth day of September, in the year of our Lord one thousand eight hundred and two, with force and arms, at the said city of Hudson, in the said county of Columbia, wickedly, maliciously, and seditiously, print and publish, and cause and procure to be printed and published, a certain scandalous, malicious, and seditious libel, in a certain paper or publication, entitled ‘The Wasp;’ containing therein, among other things, certain scandalous, malicious, inflammatory, and seditious matters, of and concerning the said Thomas Jefferson, Esq., then and yet being President of the United States of America, that is to say, in one part thereof, according to the tenor and effect following, that is to say: Jefferson (the said Thomas Jefferson, Esq., meaning,) paid Callender (meaning one James Thompson Callender) for calling Washington (meaning George Washington, Esq., deceased, late President of the said United States,) a traitor, a robber, and a perjurer; for calling Adams (meaning John Adams, Esq., late President of the said United States,) a hoary-headed incendiary, and for most grossly slandering the private characters of men who he (meaning the said Thomas Jefferson) well knew to be virtuous; to the great scandal and infamy of the said Thomas Jefferson, Esq., President of the said United States, in contempt of the people of the said state of New York, in open violation of the laws of the said state, to the evil example of all others in like case offending, and against the peace of the people of the state of New York, and their dignity.”

The defendant applied to the judge, at the circuit, to put off the trial of the cause, on affidavit, which stated that James Thompson Callender, of the state of Virginia, was a material witness for the defendant, without the benefit of whose testimony the defendant could not, as he was advised, safely proceed to the trial of the cause; that the defendant expected to be able to prove, by the said witness, the truth of the charge set forth in the indictment, so far forth as this; that the said James Thompson Callender was the writer of a certain pamphlet called “The Prospect before us,” and that he caused the same to be printed, which pamphlet contains the charges against Washington and Adams, as in the publication set forth in the indictment, &c., &c., and that Mr. Jefferson, well knowing the contents of the said publication, paid, or caused to be paid, to the said J. T. Callender, two several sums of 50 dollars each, one of which was prior to the publication of the said pamphlet, and the other subsequent to the publication thereof, as a reward, thereby showing his approbation thereof, &c., &c. That it had been wholly out of the power of the defendant to procure the voluntary attendance of the said Callender, at that court, though he had, at the last general sessions of the peace, and since, until a few days past, good reason to believe, that he would attend, as a witness, at the then court; and that the defendant expected to be able to procure the voluntary attendance of the said Callender at the next circuit court, to be held in the said county, &c., unless the court would grant a commission to examine the said Callender, upon the application of the defendant, which he intended to make, at the next term of the court, for that purpose.

The Chief Justice refused to put off the trial, on this affidavit. It was proved, on the part of the public prosecutor, that the defendant was editor of a newspaper entitled “The Wasp,” a series of which were printed and published in the city of Hudson. In one of them (number 7,) was contained a piece, from which was extracted the matter charged in the indictment, as the libel, the whole of which piece was read by the prosecutor, in the following words: “Holt says, the burden of the federal song is, that Mr. Jefferson paid Callender for writing against the late administration. This is wholly false. The charge is explicitly this: Jefferson paid Callender for calling Washington a traitor, a robber and a perjurer; for calling Adams a hoary-headed incendiary; and for most grossly slandering the private characters of men whom he well knew were virtuous. These charges, not a democratic editor has yet dared, or ever will dare, to meet in an open and manly discussion.” It was further proved, on the part of the prosecutor, that a file of The Wasp, from number 1 to number 12, inclusive, was purchased at the office where they had been printed; from number 1 to number 5 had been sold by the defendant, and the residue by one of the journeymen in his office. The prosecutor then called a witness, to prove the truth of the innuendoes; to this the counsel for the defendant objected; but the Chief Justice overruled the objection. The witness was examined and testified, that he understood the epithets Jefferson, Washington and Adams, mentioned in the alleged libel, to be as stated in the innuendoes in the indictment, and that he had seen similar charges, in other papers, previous to the publication in The Wasp; which was one of the reasons which induced his opinion, that the innuendoes were correct.

The prosecutor having rested on this evidence, the defendant offered to prove, that he had no agency in devising, writing, or inditing the publication in question, and that the same was handed to be printed to a person in his employ, and in his absence, without his knowledge. To the introduction of this testimony, the prosecutor objected, and the Chief Justice refused to receive the same, unless the defendant meant also to prove, that he was not privy to the printing and publication of the alleged libel. This the defendant’s counsel did not offer to prove. The defendant’s counsel proceeded to sum up the evidence, and read a paragraph in The Bee, a newspaper printed in Hudson by Holt, the person in the alleged libellous piece mentioned, to show that he declared the burden of the federal song to be such, as mentioned in the libel. Though this had not been previously proved or read in evidence, it was not objected to. In the course of the summing up, on the part of the prosecution, the Attorney-General offered to read certain passages, from number 7 of “The Wasp,” and the prospectus contained in the first number, which had not before been shown, or pointed out to the defendant’s counsel, or read in evidence. To this, objections were made, but the Chief Justice decided that the prosecutor had a right to read such passages, from such numbers of The Wasp, as he thought fit. The Attorney-General accordingly read, in order to show the intent of the defendant in publishing the alleged libel to be such as charged in the indictment, from number 1 of The Wasp, the prospectus, and another piece from number 7, in neither of which passages was there anything alleged against Thomas Jefferson, in his private or official capacity. The Attorney-General further stated, that from an examination of every number of The Wasp, it would be manifest, that the intent of the defendant was malicious.

The judge charged the jury, among other things, that the rule of law which confined jurors to the consideration of facts alone, was strictly applicable to the case of libels, where the question of libel or no libel was an inference of law from the fact; and that it was, perhaps, the only case in which courts invariably regarded a general as a special verdict; and where they would, ex mero motu, arrest the judgment, if the law was with the defendant.

His honor then read to the jury the opinion of Lord Mansfield, in the case of The Dean of St. Asaph, (as reported in a note in 3 Term Rep. 428,) and charged them, that the law therein laid down was the law of this state; that it was no part of the province of a jury to inquire or decide on the intent of the defendant; or whether the publication in question was true, or false, or malicious; that the only questions for their consideration and decision were, first, whether the defendant was the publisher of the piece charged in the indictment; and, second, as to the truth of the innuendoes; that if they were satisfied as to these two points, it was their duty to find him guilty; that the intent of the publisher, and whether the publication in question was libellous or not, was, upon the return of the postea, to be decided exclusively by the court, and, therefore, it was not his duty to give any opinion to them, on these points; and accordingly no opinion was given.

A motion was made, in behalf of the defendant, for a new trial, on the following grounds:

1. Because the trial ought to have been put off, in order to give an opportunity to the defendant to procure the testimony in the affidavit mentioned.

2. That the piece alleged to be libellous, and which was read in evidence, from number 7 of The Wasp, is materially and substantially different from that charged in the indictment, and the piece so read is not libellous.

3. For the misdirection of the judge, in his charge to the jury, that in cases of libel, they were not the judges of law and fact; that in case of libel only, could a court set aside a general verdict of guilty; that the law laid down in the case of The Dean of St. Asaph, is the law of this state; that the intent was simply a question of law, and, therefore, not to be left to the jury, but to be decided exclusively by the court on the return of the postea; and that whether the piece in question was libellous or not, was not to be decided by the jury; and because the judge did not, as he ought to have done, give his opinion to the jury, on the point last mentioned.

. . . . .

The following is a brief summary of the argument of [Alexander] Hamilton, in reply.

He said, that the two great questions that arose in the cause were: 1. Can the truth be given in evidence? 2. Are the jury to judge of the intent and the law? The first point might be more embarrassing, but the second was clear.

The liberty of the press consisted in publishing with impunity, truth with good motives, and for justifiable ends, whether it related to men or to measures. To discuss measures without reference to men, was impracticable. Why examine measures, but to prove them bad, and to point out their pernicious authors, so that the people might correct the evil by removing the men? There was no other way to preserve liberty, and bring down a tyrannical faction. If this right was not permitted to exist in vigor and in exercise, good men would become silent; corruption and tyranny would go on, step by step, in usurpation, until at last, nothing that was worth speaking, or writing, or acting for, would be left in our country.

But he did not mean to be understood as being the advocate of a press wholly without control. He reprobated the novel, the visionary, the pestilential doctrine of an unchecked press, and ill fated would be our country, if this doctrine was to prevail. It would encourage vice, compel the virtuous to retire, destroy confidence, and confound the innocent with the guilty. Single drops of water constantly falling may wear out adamant. The best character of our country, he to whom it was most indebted, and who is now removed beyond the reach of calumny, felt its corrosive effects. No, he did not contend for this terrible liberty of the press, but he contended for the right of publishing truth, with good motives, although the censure might light upon the government, magistrates, or individuals.

The check upon the press ought to be deposited, not in a permanent body of magistrates, as the court, but in an occasional and fluctuating body, the jury, who are to be selected by lot. Judges might be tempted to enter into the views of government, and to extend, by arbitrary constructions, the law of libels. In the theory of our government, the executive and legislative departments are operated upon by one influence, and act in one course, by means of popular election. How, then, are our judges to be independent? How can they withstand the combined force and spirit of the other departments? The judicial is less independent here than in England, and, of course, we have more reason, and stronger necessity, to cling to the trial by jury, as our greatest safety.

Men are not to be implicitly trusted, in elevated stations. The experience of mankind teaches us, that persons have often arrived at power by means of flattery and hypocrisy; but instead of continuing humble lovers of the people, have changed into their most deadly persecutors.

Lord Camden said, that he had not been able to find a satisfactory definition of a libel. He would venture, however, but with much diffidence, after the embarrassment which that great man had discovered, to submit to the court the following definition. A libel is a censorious or ridiculing writing, picture or sign, made with a mischievous and malicious intent towards government, magistrates or individuals. According to Blackstone, it is a malicious defamation made public, with intent to provoke or expose to public hatred and ridicule. The malice and intent enter into the essence of the crime, and must be proved, and are, accordingly, to be left to the jury, as parcel of the fact. The definition of Lord Coke does not oppose this result. He speaks of a libel, as having a tendency to break the peace. This, also, is a fact to be proved to the jury, for the tendency depends upon time, manner, circumstance, and must of necessity be a question of fact.

Texts taken from the holy scriptures and scattered among the people, may, in certain times, and under certain circumstances, become libellous, nay, treasonable. These texts are, then, innocent, libellous, or treasonable, according to the time and intent; and surely the time, manner, and intent are matters of fact for a jury. It is the intent that constitutes the crime. This is a fundamental principle of jurisprudence. . . . Whether crime or not, will always depend upon intent, tendency, quality, manner, &c., and these must be matters of fact for the jury. The law cannot adjudge a paper to be a libel, until a jury have found the circumstances connected with the publication.

But it is not only the province of the jury, in all criminal cases, to judge of the intent with which the act was done, as being parcel of the fact; they are also authorized to judge of the law as connected with the fact. In civil cases, the court are the exclusive judges of the law, and this arose from the nature of pleadings in civil suits; for anciently, matters of law arising in the defence, were required to be spread upon the record, by a special plea, and the jury were liable to an attaint for finding a verdict contrary to law. But in criminal cases, the law and fact are necessarily blended by the general issue, and a general verdict was always final and conclusive, both upon the law and the fact. Nor were the jury ever exposed to an attaint for a verdict in a criminal case; and this is decisive to prove that they had a concurrent jurisdiction with the court on questions of law; for where the law allows an act to be valid or definitive, it presupposes a legal and rightful authority to do it. This is a sure and infallible test of a legal power.

In England trial by jury has always been cherished, as the great security of the subject against the oppression of government; but it never could have been a solid refuge and security, unless the jury had the right to judge of the intent, and the law.

The jury ought undoubtedly to pay every respectful regard to the opinion of the court; but suppose a trial in a capital case, and the jury are satisfied from the arguments of counsel, the law authorities that are read, and their own judgment, upon the application of the law to the facts, (for the criminal law consists in general of plain principles,) that the law arising in the case is different from that which the court advances, are they not bound by their oaths, by their duty to their creator and themselves, to pronounce according to their own convictions? To oblige them, in such a case, to follow implicitly the direction of the court, is to make them commit perjury, and homicide, under the forms of law.

The case of the Seven Bishops, and Fuller’s and Tuchin’s Cases, are a series of precedents in favor of the right of the jury. The opposite precedents begin with Lord Raymond, but they have not been uniform nor undisputed. It has been constantly a floating and litigious question in Westminster Hall. A series of precedents only can form law. There can be no embarrassment in the court; they are at liberty to examine the question upon principles. The English declaratory act recites that doubts had existed, and being declaratory, it is evidence of the sense of the nation. The Marquis of Lansdowne observed, in the house of lords, that the same declaratory bill had been brought in twenty years before, and was then deemed unnecessary.

The question how far the truth is to be given in evidence, depends much on the question of intent; for if the intent be a subject of inquiry for the jury, the giving the truth in evidence is requisite as a means to determine the intent. Truth is a material ingredient in the evidence of intent. In the whole system of law there is no other case in which the truth cannot be shown; and this is sufficient to prove the proposition, which denies it in the present case, to be a paradox.

The Roman law permitted the truth to justify a libel. The ancient English statutes prove also, that in the root and origin of our law, falsity was an ingredient in the crime, and those statutes were declaratory of the common law. The ancient records and precedents prove the same thing, and they are the most authoritative evidence of the ancient law. In the celebrated case of the Seven Bishops, the court permitted the defendants to prove the truth of the facts stated in the petition. That case is also very important, in various views. It establishes the necessity of inquiring into the circumstances and intent of the act. It was an instance of a firm and successful effort to recall the principles of the common law, and was an important link in the chain of events that led on to the glorious aera of their revolution.

In Fuller’s Case, Lord Holt allowed the defendant to go into proof of the truth of the charge. But while, he said, he advocated the admission of the truth, he subscribed to the doctrine of Want’s Case, in Moore, that the truth ought only to be given in evidence, to determine quo animo the act was done. It ought not to be a justification in every case, for it may be published maliciously. It may be abused, to the gratification of the worst of passions, as in the promulgation of a man’s personal defects or deformity.

The court of Star Chamber was the polluted source from whence the prosecutor’s doctrine was derived. That is not the court from which we are to expect principles and precedents friendly to freedom. It was a most arbitrary, tyrannical and hated tribunal, under the control of a permanent body of magistrates, without the wholesome restraints of a jury. The Whigs in England, after the revolution, in order to prop up their power, adopted, as in Franklin’s Case, the arbitrary maxims of that court which had been reprobated at the revolution; and this ought to serve as a monitory lesson to rulers at the present day, for such is the nature, progress and effect of the human passions.

The right of giving the truth in evidence, in cases of libels, is all-important to the liberties of the people. Truth is an ingredient in the eternal order of things, in judging of the quality of acts. He hoped to see the axiom, that truth was admissible, recognized by our legislative and judicial bodies. He always had a profound reverence for this doctrine, and he felt a proud elevation of sentiment in reflecting, that the act of congress, which had been the object of so much unmerited abuse, and had been most grossly misrepresented by designing men, established this great vital principle. It was an honorable, a worthy and glorious effort in favor of public liberty. He reflected also, with much pleasure, on the fact, that so illustrious a patriot as Mr. Jay had laid down, correctly and broadly, the power of the jury. These acts were monuments, were consoling vestiges of the wisdom and virtue of the administration and character that produced them.

He maintained that the common law applied to the United States. That the common law was principally the application of natural law to the state and condition of society.

That the constitution of the United States used terms and ideas which had a reference to the common law, and were inexplicable without its aid. That the definition of treason, of the writ of habeas corpus, of crimes and misdemeanors, &c., were all to be expounded by the rules of the common law. That the constitution would be frittered away or borne down by factions, (the evil genii, the pest of republics,) if the common law was not applicable. That without this guide, any political tenet or indiscretion might be made a crime or pretext to impeach, convict and remove from office the judges of the federal courts. That if we departed from common law principles, we would degenerate into anarchy, and become the sport of the fury of conflicting passions. The transition from anarchy was to despotism, to an armed master.

The real danger to our liberties was not from a few provisional troops. The road to tyranny will be opened by making dependent judges, by packing juries, by stifling the press, by silencing leaders and patriots. His apprehensions were not from single acts of open violence. Murder rouses to vengeance; it awakens sympathy, and spreads alarm. But the most dangerous, the most sure, the most fatal of tyrannies, was by selecting and sacrificing single individuals, under the mask and forms of law, by dependent and partial tribunals. Against such measures we ought to keep a vigilant eye, and take a manly stand. Whenever they arise, we ought to resist, and resist, till we have hurled the demagogues and tyrants from their imagined thrones. He concurred most readily with the learned counsel opposed to him, in the opinion that the English were a free, a gloriously free people. That country is free where the people have a representation in the government, so that no law can pass without their consent; and where they are secured in the administration of justice, by the trial by jury. We have gone further in this country into the popular principle, and he cordially united his prayers with the opposite counsel, that the experiment with us might be successful.

The question on the present libel ought to be again tried. It concerns the reputation of Mr. Jefferson. It concerned deeply the honor of our country. It concerned the fame of that bright and excellent character General Washington, in which he had left a national legacy of inestimable value.

He concluded, by recapitulating the substance of the doctrine for which he contended, in the following words:

“1. The liberty of the press consists in the right to publish, with impunity, truth, with good motives, for justifiable ends, though reflecting on government, magistracy, or individuals.

“2. That the allowance of this right is essential to the preservation of a free government; the disallowance of it fatal.

“3. That its abuse is to be guarded against by subjecting the exercise of it to the animadversion and control of the tribunals of justice; but that this control cannot safely be intrusted to a permanent body of magistracy, and requires the effectual co-operation of court and jury.

“4. That to confine the jury to the mere question of publication, and the application of terms, without the right of inquiry into the intent or tendency, reserving to the court the exclusive right of pronouncing upon the construction, tendency, and intent of the alleged libel, is calculated to render nugatory the function of the jury; enabling the court to make a libel of any writing whatsoever, the most innocent or commendable.

“5. That it is the general rule of criminal law, that the intent constitutes the crime; and that it is equally a general rule, that the intent, mind, or quo animo, is an inference of fact to be drawn by the jury.

“6. That if there are exceptions to this rule, they are confined to cases in which not only the principal fact, but its circumstances, can be, and are, specifically defined by statute or judicial precedent.

“7. That, in respect to libel, there is no such specific and precise definition of facts and circumstances to be found; that, consequently, it is difficult, if not impossible, to pronounce that any writing is per se, and exclusive of all circumstances, libellous; that its libellous character must depend on intent and tendency; the one and the other being matter of fact.

“8. That the definitions or descriptions of libels to be met with in the books, founded them upon some malicious or mischievous intent or tendency, to expose individuals to hatred or contempt, or to occasion a disturbance or a breach of the peace.

“9. That in determining the character of a libel, the truth or falsehood is, in the nature of things, a material ingredient, though the truth may not always be decisive; but being abused may still admit of a malicious and mischievous intent, which may constitute a libel.

“10. That, in the Roman law, one source of the doctrine of a libel, the truth, in cases interesting to the public, was given in evidence; that the ancient statutes, probably declaratory of the common law, make the falsehood an ingredient of the crime; that the ancient precedents in the courts of justice correspond, and that the precedents to this day charge a malicious intent.

“11. That the doctrine of excluding the truth, as immaterial, originated in a tyrannical and polluted source, in the court of Star Chamber; and though it prevailed a considerable length of time, yet there are leading precedents down to the revolution, and ever since, in which a contrary practice prevailed.

“12. That the doctrine being against reason and natural justice, and contrary to the original principles of the common law, enforced by statutory provisions, the precedents which support it deserve to be considered in no better light than as a malus usus, which ought to be abolished.

“13. That, in the general distribution of power, in any system of jurisprudence, the cognizance of law belongs to the court, of fact to the jury; that as often as they are not blended, the power of the court is absolute and exclusive. That, in civil cases, it is always so, and may rightfully be so exerted. That, in criminal cases, the law and fact being always blended, the jury, for reasons of a political and peculiar nature, for the security of life and liberty, are intrusted with the power of deciding both law and fact.”

. . . . .

The following are the opinions of Kent, J., and Lewis, Ch. J., as prepared, and intended to have been delivered by them.

Kent, J. The defendant was convicted, at the last circuit court in Columbia county, of printing and publishing a scandalous, malicious and seditious libel upon Thomas Jefferson, the President of the United States. . . .

1 The criminality of the charge in the indictment consisted in a malicious and seditious intention. (Hawk. tit. Libel, s. 1. 2 Wils. 403. 1 Esp. Cas. 228.) There can be no crime without an evil mind. . . . The simple act of publication, which was all that was left to the jury, in the present case, was not, in itself, criminal. It is the applications to times, persons and circumstances; it is the particular intent and tendency that constitutes the libel. Opinions and acts may be innocent under one set of circumstances, and criminal under another. This application to circumstances, and this particular intent, are as much matters of fact, as the printing and publishing. (Winne’s Eunomus, dial. 3, s. 53.) Where an act, innocent in itself, becomes criminal, when done with a particular intent, that intent is the material fact to constitute the crime. (Lord Mansfield, 3 Term Rep. 429, in the note.) And I think there cannot be a doubt, that the mere publication of a paper is not, per se, criminal; for otherwise, the copying of the indictment by the clerk, or writing a friendly and admonitory letter to a father, on the vices of his son, would be criminal. The intention of the publisher, and every circumstance attending the act, must therefore be cognizable by the jury, as questions of fact. And if they are satisfied that the publication is innocent; that it has no mischievous or evil tendency; that the mind of the writer was not in fault; that the publication was inadvertent, or from any other cause was no libel, how can they conscientiously pronounce the defendant guilty, from the mere fact of publication? A verdict of guilty,embraces the whole charge upon the record, and are the jury notpermitted to take into consideration the only thing that constitutes the crime, which is the malicious intent? According to the doctrine laid down at the trial, all that results from a verdict of guilty is, that the defendant has published a certain paper, and that it applies to certain persons, according to the innuendoes; but whether the paper be lawful or unlawful; whether it be criminal, or innocent, or meritorious; whether the intent was wicked or virtuous, are matters of law which do not belong to the jury, but are reserved for the determination of the court. . . .

To deny to the jury the right of judging of the intent and tendency of the act, is to take away the substance, and with it the value and security of this mode of trial. It is to transfer the exclusive cognizance of crimes from the jury to the court, and to give the judges the absolute control of the press. There is nothing peculiar in the law of libels, to withdraw it from the jurisdiction of the jury. The twelve judges, in their opinion to the house of lords, (April, 1792,) admitted that the general criminal law of England was the law of libel. And by the general criminal law of England, the office of the jury is judicial. “They only are the judges,” as Lord Somers observes, (Essay on the Power and Duty of Grand Juries, p. 7,) “from whose sentence the indicted are to expect life or death. Upon their integrity and understanding, the lives of all that are brought into judgment do ultimately depend. From their verdict there lies no appeal. They resolve both law and fact, and this has always been their custom and practice.”

If the criminal intent be in this case an inference of law, the right of the jury is still the same. In every criminal case, upon the plea of not guilty, the jury may, and indeed they must, unless they choose to find a special verdict, take upon themselves the decision of the law, as well as the fact, and bring in a verdict as comprehensive as the issue; because, in every such case, they are charged with the deliverance of the defendant from the crime of which he is accused. The indictment not only sets forth the particular fact committed, but it specifies the nature of the crime. Treasons are laid to be done traitorously, felonies feloniously, and public libels to be published seditiously. . . . So in the case of a public libeller, the jury are to try, not only whether he published such a writing, but whether he published it seditiously. In all these cases, from the nature of the issue, the jury are to try not only the fact, but the crime, and in doing so they must judge of the intent, in order to determine whether the charge be true, as set forth in the indictment. (Dagge on Criminal Law, b. 1, c. 11, s. 2.) The law and fact are so involved, that the jury are under an indispensable necessity to decide both, unless they separate them by a special verdict.

This right in the jury to determine the law as well as the fact has received the sanction of some of the highest authorities in the law. . . .

To meet and resist directly this stream of authority, is impossible. But while the power of the jury is admitted, it is denied that they can rightfully or lawfully exercise it, without compromitting their consciences, and that they are bound implicitly, in all cases, to receive the law from the court. The law must, however, have intended, in granting this power to a jury, to grant them a lawful and rightful power, or it would have provided a remedy against the undue exercise of it. The true criterion of a legal power is its capacity to produce a definitive effect liable neither to censure nor review. And the verdict of not guilty, in a criminal case, is, in every respect, absolutely final. . . .

The first case I have met with, in which the question arose between the jurisdiction of the court and jury, was upon the trial of Lilburne for high treason, in 1549. (2 St. Tr. 69, 81, 82.) He insisted, in coarse but intelligible language, that the jury were judges of law and fact, but the court, in language equally rude, denied it. He insisted upon the privilege of reading law to the jury, but the court refused it. The jury, however, acquitted him, and they declared that they took themselves to be judges of the law as well as of the fact, notwithstanding the court had said otherwise. Bushell’s Case followed soon after, and it is in every view important. (Vaughan, 132. Sir T. Jones, 13.) He was one of the jurors, on the trial of an indictment for a misdemeanor, before the court of oyer and terminer in London, and was fined and committed, because he and the other jurors acquitted the defendant against full proof, and against the direction of the court, in matter of law. He was brought into the court of C. B. upon habeas corpus and discharged; and Lord Ch. J. Vaughan delivered, upon that occasion, in behalf of the court, a learned and profound argument in favor of the rights of the jury. He admitted that where the law and fact were distinct, the provinces of the court and jury were exclusive of each other, so that if it be demanded what is a fact, the judge cannot answer it, and if what is the law, the jury cannot answer it. But that upon all general issues, where the jury find a general verdict, they resolve both law and fact completely, and not the fact by itself.

Upon the trial of Algernon Sidney, (3 St. Tr. 817,) the question did not distinctly arise, but Lord Ch. J. Jeffries, in his charge to the jury, told them it was the duty of the court to declare the law to the jury, and the jury were bound to receive their declaration of the law. They did, in that case, unfortunately, receive the law from the court, and convicted the prisoner, but his attainder was afterwards reversed by parliament; and the law, as laid down on that trial, was denied and reprobated, and the violence of the judge, and the severity of the jury, held up to the reproach and detestation of posterity. The case of the Seven Bishops (4 St. Tr.) is a precedent of a more consoling kind; it was an auspicious and memorable instance of the exercise of the right of the jury to determine both the law and the fact. I shall have occasion to notice this case hereafter, and shall only observe for the present, that the counsel on the trial went at large into the consideration of the law, the intent and the fact; and although the judges differed in opinion, as to what constituted a libel, they all gave their opinions in the style of advice, not of direction, and expressly referred the law and the fact to the jury. Mr. J. Holloway, in particular, observed, that whether libel or not, depended upon the ill intent, and concluded by telling the jury, it was left to them to determine.

In the case of Tuchin, (5 St. Tr. 542,) who was tried for a libel before Ch. J. Holt, in 1704, the judge, in his charge to the jury, expressly submitted to them the whole question on the libel. After reasoning on the libellous nature of the publication, he observes that now they are to consider whether the words he had read to them, did not tend to beget an ill opinion of the administration of the government.

The weight of the decisions thus far, was clearly in favor of the right of the jury to decide generally upon the law and the fact. But, since the time of Lord Holt, the question before us has been an unsettled and litigious one in Westminster Hall. Lord Mansfield was of opinion (3 Term Rep. 429) that the formal direction of every judge, since the revolution, had been agreeable to that given in the case of the Dean of St. Asaph; but the earliest case he mentions is that of Franklin, before Lord Raymond, in 1751; (9 St. Tr. 255,) and that has been considered as the formal introduction of the doctrine now under review. The charge of Sir John Holt, in Tuchin’s Case, appears to me to be decidedly to the contrary; and in another case before Holt, (11 Mod. 86, Queen v. Brown,) the attorney-general admitted that the jury were the judges quo animo the libel was made. The new doctrine, as laid down in the present case, may, therefore, be referred to the case of Franklin. But in Oneby’s Case, (2 Ld. Raym. 1485; 2 Str. 766,) who was tried a few years before, for murder, Lord Raymond and the court of K. B. advanced a general doctrine, which may perhaps be supposed to curtail the power of the jury as much as the decision in the case before us. He said, that all the judges agreed in the proposition, that the court were the judges of the malice, and not the jury; that upon the trial the judge directs the jury, as to the law arising upon the facts, and the jury may, if they think proper, give a general verdict; or if they find a special verdict, the court is to form their judgment from the facts found, whether there was malice or not; because, in special verdicts, the jury never find, in express terms, the malice, but it is left to be drawn by the court.

The case to which this opinion applied, was that of a special verdict, and taking it together, I see nothing in it inconsistent with my view of the subject. . . .

. . .To say that the jury cannot rightfully judge of the malus animus of the prisoner, in which his crime consists, is, in my opinion, a monstrous proposition, destructive of the essence and excellence of trial by jury, and inconsistent with the genius of the English judiciary, as drawn from its history and constitutional policy.

To return to the case of Franklin; the counsel for the defendant, who were very able lawyers, contended that the jury had a right to judge of the intent and tendency of the publication; but Lord Raymond, in his direction to the jury, went the whole length of the charge in the present case. He told the jury that there were two things only for their consideration; 1st. Whether the defendant was guilty of publishing; and, 2d. Whether the innuendoes were justly stated and applied, and that the third question, whether the publication was libellous, belonged exclusively to the court as matter of law. The same doctrine was laid down by Ch. J. Lee, in the case of Owen; (10 St. Tr. Appendix, 196,) by Sir Dudley Ryder, in the case of Nutt; and by Lord Mansfield, in the cases of Shebbeare, Woodfall and others. (5 Burr. 2661. 3 Term Rep. 430.) It is to be observed, however, that in none of these cases did the counsel for the defendants renounce what they conceived to be the privilege of the defendants, and the right of the jury. Lord Camden was counsel for the defendants, in the cases of Owen and Shebbeare, and he claimed and exercised the right of addressing the jury, on the whole matter of the libel. (Parliamentary Senator, vol. 5, p. 822.) In the case of Woodfall, the defendant’s counsel likewise pressed the jury to acquit him, on the ground that the intent was innocent, and the paper not libellous; and the counsel for the crown, on the other hand, urged to the jury the criminal intent and pernicious tendency of the paper. The same steps were followed by counsel, in the case of the Dean of St. Asaph. (3 Term Rep. 428.) This uniform practice of counsel of the first rank at the bar, is pretty strong evidence that the rule laid down in Franklin’s Case was never acquiesced in, nor regarded as the settled law. But it was not the counsel only who dissented from this doctrine. Lord Camden and Lord Loughborough did, as judges, uniformly resist it, and one of them declared, that it had always been his practice, in cases of libel, to state the law as it bore on the facts, and to refer the combined consideration to the jury. (Senator, vol. 3, pp. 647, 650, 651; vol. 5, pp. 686, 822.) So Lord Mansfield departed from Lord Raymond’s rule, upon the trial of John Horne. (11 St. Tr. 283.) He told the jury there were two points for them to satisfy themselves in, in order to form their verdict. 1st. Did the defendant compose and publish? 2d. Was the sense of the paper libellous, as charged? He concluded by telling them, that they would judge of the meaning of it; that it was a matter for their judgment. His lordship admits to us, in another place, (3 Term Rep. 418,) that the counsel for the crown and the judges have sometimes expatiated to the jury on the enormity of the libel, with the view to remove prejudices, and obviate captivating harangues; and this confession shows the difficulty and danger of attempting to separate the law and the fact, the publication and the intent, when the issue, the arguments of counsel, and the verdict, comprehended both.

The constant struggle of counsel and of the jury, against the rule, so emphatically laid down by Lord Raymond, the disagreement among the judges, and the dangerous tendency of the doctrine, as it affected two very conspicuous and proud monuments of English liberty, trial by jury, and the freedom of the press, at length attracted and roused the attention of the nation. The question was brought before the parliament, and debated in two successive sessions. (In 1791 and 1792, see Debates in the Senator, vols. 3, 4, 5.) There was combined, in the discussion of this dry law question, an assemblage of talents, of constitutional knowledge, of practical wisdom, and of professional erudition, rarely if ever before surpassed. It underwent a patient investigation and severe scrutiny, upon principle and precedent, and a bill declaratory of the right of the jury to give a general verdict upon the whole matter put in issue, without being required or directed to find the defendant guilty merely on the proof of publication and the truth of the innuendoes, was at length agreed to and passed with uncommon unanimity. It is entitled “An act to remove doubts respecting the functions of juries in cases of libel;” and, although I admit, that a declaratory statute is not to be received as conclusive evidence of the common law, yet it must be considered as a very respectable authority in the case; and especially, as the circumstances attending the passage of this bill, reflect the highest honor on the moderation, the good sense, and the free and independent spirit of the British parliament.

It was, no doubt, under similar impressions of the subject, that the act of congress, for punishing certain libels against the United States, (Laws U. S. vol. 4, p. 204,) enacted and declared that the jury who should try the cause, should have a right to determine the law and fact, under the direction of the court, as in other cases; and before the passing of that statute, the same doctrine was laid down in full latitude, and in explicit terms, by the supreme court of the United States. (3 Dallas, 4.)

The result, from this view, is, to my mind, a firm conviction that this court is not bound by the decisions of Lord Raymond, and his successors. By withdrawing from the jury the consideration of the essence of the charge, they render their function nugatory and contemptible. Those opinions are repugnant to the more ancient authorities which had given to the jury the power, and with it the right, to judge of the law and fact, when they were blended by the issue, and which rendered their decisions, in criminal cases, final and conclusive. The English bar steadily resisted those decisions, as usurpations on the rights of the jury. Some of the judges treated the doctrine as erroneous, and the parliament, at last, declared it an innovation, by restoring the trial by jury, in cases of libel, to that ancient vigor and independence, by which it had grown so precious to the nation as the guardian of liberty and life, against the power of the court, the vindictive persecution of the prosecutor, and the oppression of the government.

I am aware of the objection to the fitness and competency of a jury to decide upon questions of law, and especially, with a power to overrule the directions of the judge. In the first place, however, it is not likely often to happen, that the jury will resist the opinion of the court on the matter of law. That opinion will generally receive its due weight and effect; and in civil cases it can, and always ought to be, ultimately enforced by the power of setting aside the verdict. But in human institutions, the question is not, whether every evil contingency can be avoided, but what arrangement will be productive of the least inconvenience. And it appears to be most consistent with the permanent security of the subject, that in criminal cases the jury should, after receiving the advice and assistance of the judge, as to the law, take into their consideration all the circumstances of the case, and the intention with which the act was done, and to determine upon the whole, whether the act done, be, or be not, within the meaning of the law. This distribution of power, by which the court and jury mutually assist, and mutually check each other, seems to be the safest, and, consequently, the wisest, arrangement, in respect to the trial of crimes. The constructions of judges on the intention of the party may often be (with the most upright motives) too speculative and refined, and not altogether just in their application to every case. Their rules may have too technical a cast, and become, in their operation, severe and oppressive. To judge accurately of motives and intentions, does not require a master’s skill in the science of law. It depends more on a knowledge of the passions, and of the springs of human action, and may be the lot of ordinary experience and sagacity.

My conclusion on this first point then, is, that upon every indictment or information for a libel, where the defendant puts himself upon the country, by a plea of not guilty, the jury have a right to judge, not only of the fact of the publication, and the truth of the innuendoes, but of the intent and tendency of the paper, and whether it be a libel or not; and, in short, of “the whole matter put in issue upon such indictment or information.” (Stat. 32 Geo. III.) That in this, as in other criminal cases, it is the duty of the court, “according to their discretion, to give their opinion and direction to the jury on the matter in issue;” and it is the duty of the jury to receive the same with respectful deference and attention, and, unless they choose to find a special verdict, they are then to exercise their own judgments on the matter in issue, with discretion and integrity.

2. The second point in the case, although a question of evidence merely, is equally important, and still more difficult. It was made a very prominent point upon the argument, and the decision of it is essential for the direction of the judge who is to preside at the new trial that may be awarded.

As a libel is a defamatory publication, made with a malicious intent, the truth or falsehood of the charge may, in many cases, be a very material and pertinent consideration with the jury, in order to ascertain that intent. There can be no doubt that it is competent for the defendant to rebut the presumption of malice, drawn from the fact of publication; and it is consonant to the general theory of evidence, and the dictates of justice, that the defendant should be allowed to avail himself of every fact and circumstance that may serve to repel that presumption. And what can be a more important circumstance than the truth of the charge, to determine the goodness of the motive in making it, if it be a charge against the competency or purity of a character in public trust, or of a candidate for public favor, or a charge of actions in which the community have an interest, and are deeply concerned? To shut out wholly the inquiry into the truth of the accusation, is to abridge essentially the means of defence. It is to weaken the arm of the defendant, and to convict him, by means of a presumption, which he might easily destroy by proof that the charge was true, and that, considering the nature of the accusation, the circumstances and time under which it was made, and the situation of the person implicated, his motive could have been no other than a pure and disinterested regard for the public welfare. At the same time, this doctrine will not go to tolerate libels upon private character or the circulation of charges for seditious and wicked ends, or to justify exposing to the public eye one’s personal defects or misfortunes. The public have no concern with, nor are they injured by such information, and the truth of the charge would rather aggravate than lessen the baseness and evil tendency of the publication. It will, therefore, still remain, in every case, a question for the jury, what was the intent and tendency of the paper, and how far the truth, in the given case, has been used for commendable, or abused for malicious purposes.

This principle in the law of libels is considered as rational and sound, in an ethical point of view; (Paley’s Moral Philosophy, p. 188,) and to this extent, the writers on the civil law have allowed the truth to excuse a defamatory accusation. . . .

That falsehood is a material ingredient in a public libel, is a doctrine not without precedent in former times; it has always been asserted, and occasionally admitted, by the English courts. In this country it has taken firmer root, and in regard to the measures of government, and the character and qualifications of candidates for public trust, it is considered as the vital support of the liberty of the press.

The English decisions on the subject of libels have not been consistent in principle. The reason assigned for the punishment of libels, whether true or false, is because they tend to a breach of the peace, by inciting the libelled party to revenge, or the people to sedition. It is not the matter, but the manner, say the books, which is punishable. (1 Hawk. tit. Libel, s. 3, 6, 7. Hudson on the Star Chamber, p. 102.) This reason, however, according to some late decisions, is made to yield to stronger reasons of a public nature, although the instances given come equally within the rule, as they equally tend to defame and provoke. It is no libel to publish a true account of proceedings in parliament or courts of justice, notwithstanding the paper may be very injurious to the character of individuals or of magistrates; because those proceedings are open to all the world, and it is of vast importance to the public, that they should be generally known. (8 Term Rep. 297, 298; 1 Bos. & Pull. 226.) It was held no libel to treat with asperity the character of the officers of Greenwich hospital, where the publication was distributed only among the governors of the hospital, because they are the persons who, from their situation, are called upon to redress the grievance, and have the power to do it. (Rex v. Baillie, Mich. 20 Geo. III, by Lord Mansfield. Esp. Dig. 506.) It might be easily perceived, that according to the same doctrine, it ought not to be a libel to publish generally a true account of the character and conduct of public rulers, because it is of vast importance that their character and actions should be accurately understood, and especially by the public, to whom alone they are responsible. This rule of decision, in the different cases, varies, but the principle applies equally to each.

The doctrine that the truth of the matter charged was no defence to a public prosecution for a libel, came from the court of Star Chamber. William Hudson, who was an eminent practiser in that court, in the reign of James I., compiled, early under his successor, a very copious and learned treatise on its jurisdiction and practice. (See 2 Collectanea Juridica.) He says, that libels had in all ages been severely punished there, but especially when they began to grow frequent, about the reign of Elizabeth. This fact would lead to interesting reflection. The era here referred to, was the very time when the use of printing had grown familiar, when learning was disseminated, when civil and political rights became objects of inquiry, and, to use the words of Mr. Hume, when “symptoms had appeared of a more free and independent genius in the nation.” Hudson cites upwards of twenty adjudged cases, in the Star Chamber, upon libels, and says that there were two gross errors, which had crept into the world concerning libels, one of which was, that it was not a libel, if true, but this, he adds, had been long since expelled out of that court; and he mentions the case of Breverton, (Mich. 2 Jac. I.) in which that species of defence was attempted to a charge of bribery and extortion in a public trust, and was overruled. This treatise of Hudson establishes two very important facts; the one that the court of Star Chamber established the doctrine in question, and the other, that it was still the public sentiment, which he calls “a gross error in the world,” that the truth might be a defence to a libel; and this defence was attempted in that court as late as the reign of James. Mr. Barrington (Observations on the Statutes, 68,) has given us a part of a curious letter, written at that time by the Dean of St. Paul’s, from which we may infer his alarm and disgust at the new libel doctrines of the Star Chamber. “There be many cases,” he observes, “where a man may do his country good service, by libelling; for where a man is either too great, or his vices too general to be brought under a judiciary accusation, there is no way but this extraordinary method of accusation. Sealed letters in the Star Chamber have nowadays been judged libels.” Lord Coke has reported some of those Star Chamber decisions, on this very subject, and in one of which we find the same point resolved, that had been ruled the year before in the case of Breverton, (Pasch. 3 Jac. I.; 5 Co. 125.) He was, in his time, says Hudson, as well exercised in the case of libels, as all the attorneys that ever were before him; and yet it appears he was not so well disciplined in the new doctrine, but that in the case of Lake v. Hutton,(Hob. 252,) which afterwards arose in the Star Chamber, he insisted, that if the libel was true, the defendant might justify it. These cases and facts are sufficient to show that the doctrine in question was not considered then as the settled law; that it was regarded as an innovation, for it gave dissatisfaction, and met with opposition.

The proceedings in the star chamber were according to the course of those courts which follow the civil law. They proceeded by bill, without a jury, and compelled the party accused to answer upon oath. The decisions of that court upon libels, were probably borrowed, in a great degree, from Justinian’s code. The very definition of a libel, and the title of one of Coke’s cases, was taken from thence, andHalliwood’s Case, in the 43 and 44 Eliz. (5 Co. 125, 126, a.) was grounded entirely upon the severe edict of Valentinian and Valens. (Code lib. 9, tit. 36.) And yet there is good reason to believe, that in the best ages of the Roman law, it spoke a milder and more rational language; for Paulus, in the Digest, (lib. 47, tit. 10, c. 18,) holds it to be against good conscience, to condemn a man for publishing the truth; and the civilians are generally of opinion, that the truth will excuse defamation, if the charge relate to matter proper for public information. (Vinnius, ubi supra, Perezii Praelec. vol. 2, 208.)

Mr. Barrington, who is so well known to the profession as a legal antiquarian, admits (Observations on the Statutes, 68,) that the rule of refusing evidence of the truth of a libel, was adopted by the more modern determination of the common law courts, from the star chamber decisions. And if we recur back to the more ancient English statutes and records, which are the highest evidence of the common law, we shall find that the falsity of the charge was always made a material ingredient in the libel. . . .

Sir E. Coke, in his Commentary on the statute of Westm. 1, (2 Inst. 226,) uniformly describes the offence, by the epithets false and feigned; and he says, that no punishment was inflicted by this statute, upon the devisor or inventor himself of such false scandal, but he was left to the common law to be punished according to the offence which was aggravated, inasmuch as it was prohibited by statute. This passage shows conclusively, that in the opinion of Coke, this statute was in affirmance of the common law, and this was the opinion of Atkins, J., in the case of Townsend v. Hughes, (2 Mod. 151, 152.) This statute is, therefore, a very sure index of the meaning of defamation at common law; and as a further evidence on the subject, I refer to Fleta, (lib. 2, c. 1, s. 10,) which was written under Edw. I., and was a treatise upon the whole law, as it then stood. It is there stated that there are certain atrocious injuries which are punished by imprisonment, such as the inventors of evil rumors, (sicut de inventoribus malorum rumorum,) by whom the public peace is destroyed.

The form of the record of a conviction of one John Northampton in the K. B., for a libellous letter upon the court, is given by Coke, in his 3d Institute (p. 174.) The defendant confessed a libel, and was imprisoned and bound to his good behavior, and the record stated that the libel was false: quae litera continet in se nullam veritatem. The records of the courts have always been esteemed as the most authentic memorials of the law; and it is an important fact, which may now be noticed, that the indictments for libels have always charged the libel to be false, as well as malicious; and it was not until very lately that this epithet has been omitted. (7 Term Rep. 4.) I am aware that it has been said, (9 St. Tr. 302,) that the falsehood of the libel was not the ground of the judgment in this case of Northampton; but I see no reason for that assertion, for the words could have no other use or meaning upon the record; and it is absurd to suppose they were inserted by the judges, in order to acquit themselves to the king.

It appears clear, from this historical survey, that the doctrine now under review, originated in the court of Star Chamber, and was introduced and settled there about the beginning of the reign of James I. . . .

After the abolition of the Star Chamber under Charles I. we hear very little of the doctrine of libels, till we have followed the judicial precedents down to the era of the revolution. During the reign of the Stuarts, the press was stifled by the imprimaturs of government, which were first introduced by the acts of uniformity and borrowed from the inquisition. (1 Bl. Rep. 114, 115. 4 Bl. Comm. 152, note.) After the Star Chamber had ceased, the parliament subjected all publications to the arbitrary control of a license. Whoever has the curiosity to examine the licensing act of 13 and 14 Car. II. c. 33, will at once perceive that there was no longer any need, either of the jurisdiction or doctrines of the Star Chamber, to control seditious and libellous publications. The case of the seven bishops (4 St. Tr.) is the first instance in which the new doctrine of libel was brought into the court of K. B. and submitted to the test of a jury; and here we consult once more the genuine oracles of the common law, and although their responses may not be altogether consistent or unequivocal, we listen to them with delight and instruction. On this trial, the Attorney-General contended that it was not to be made a question, whether the libel was true or false, and he grounded himself entirely upon the decisions in the Star Chamber, as he cited no other. But the counsel for the defendants, under the permission of the court, went at large into argument and proof, to show the dispensing power of the crown illegal, and that the allegation in the petition was true. And when the judges came to charge the jury, which they did separately, two of them were of opinion that the petition was a libel, and that whether true or false, was immaterial. The third judge placed the question altogether upon the quo animo of the defendants, but the fourth judge (Mr. Justice Powell) told the jury, that to make a libel, it must be false, it must be malicious, and it must tend to sedition; and that if there was no dispensing power in the king, which he believed, then it was no libel to say that the king’s declaration was illegal. The jury were of his opinion, and acquitted the defendants.

The next case that meets our attention is that of Fuller, (5 St. Tr. 442, 444; 8 St. Tr. 78,) who was tried before Lord Ch. J. Holt, on an information for a libel upon the government; and when the defendant came to his defence, being without counsel, the Chief Justice asked him, in these words: “Can you make it appear that these books are true? If you take it on you to write such things as you are charged with, it lies upon you to prove them, at your peril. These persons are scandalized, if you produce no proof of what you charge them with. If you can offer any matter to prove what you have written, let us hear it. If you have any witnesses, produce them.” Nothing can be plainer or more decisive than this language of the Ch. J. To do away the force of this case, it has been urged (9 St. Tr. 303,) that Fuller was prosecuted as a cheat and impostor. But the information says no such thing. The charge is expressly laid to consist in publishing two false, scandalous and defamatory libels. The judge calls them libels, and charges the jury to convict him of publishing the scandalous books. . . .

After this we meet only with two dicta, the one of Holt himself, and the other of Ch. J. Pratt, (11 Mod. 99, Str. 498,) declaring generally, that the truth was no justification on an indictment for a libel, until we come to Franklin’s Case, in 1731. (9 St. Tr. 269.) There the defendant’s counsel (Mr. Bootle and Sir J. Strange) offered evidence to prove the libel true, but Lord Ch. J. Raymond overruled the evidence, and observed, that it was not material whether the facts charged in the libel were true or false. “Then I submit,” replies Mr. Bootle, “whether this will not tend to the utter suppression of the liberty of the press, which has been so beneficial to the nation. As the Star Chamber is now abolished, I don’t know how far that doctrinemay be adhered to. I should be glad to have one instance or authority of this, where a publisher of news is not allowed to say this piece of news is true. Is there no distinction to be made between false news and true news, and cannot we now animadvert or take notice of public affairs as well as formerly?” The attorney-general, although thus pressed for his authorities, produced no case to the point, but the case de libellis famosis, in 5 Coke; and he laid down a doctrine totally incompatible with any freedom of the press, which was, that a printer may lawfully print what belongs to his own trade, but he is not to publish anything reflecting on the character and reputation and administration of his majesty or his ministers.

It is a little remarkable, that the prohibition to the jury to judge of the criminality of the libel, and the prohibition to the defendant to give the truth in evidence, received together their first authoritative sanction in a court of common law, by this nisi prius decision of Lord Raymond. It seems, however, to have been acquiesced in, and to have been, from that time, generally taken as a law, without further inquiry or examination. And yet upon the trial of John Horne, (11 St. Tr. 283), before Lord Mansfield, upon an information, for a libel, in charging the king’s troops with murdering the Americans, at Lexington, the defendant was permitted to call witnesses to prove the truth of the libel; and the Attorney-General, (Thurlow,) in his reply, observed, that the defendant was to prove the charge, and that it was the first hour that it ever entered his imagination, that that species of proof could be allowed. Lord Mansfield, in charging the jury, observed that, if it was a criminal arraignment of the king’s troops, they would find their verdict one way; but that if they were of opinion that the contest was to reduce innocent subjects to slavery, and that they were all murdered, why then they might form a different conclusion with regard to the meaning and application of the paper.

This case, and the others I have mentioned, show that the admission of the truth in evidence, and that the jury are to judge of the intent, have been considered as very much connected together, and have shared the same fate. In this case of Horne, Lord Mansfield placed the question undoubtedly on its true ground, which is, that if the libel be false, the jury are to conclude one way, but if true, they may then form a different conclusion as to the meaning and application of the libel.

In addition to this case, there are decisive proofs that the opinions even of the highest professional characters were unsettled and at variance, so late as the year 1792, on this interesting and litigious question. It was one of the questions proposed, in that year, by the house of lords to the judges; and Lord Kenyon, (Senator, vol. 5, p. 684,) after vindicating the practice of the courts as to the control of the jury, said, that the only doubt in practice was, whether the truth should be taken as part of the defence, and that he thought a clause to determine that point would be necessary to the bill. Lord Camden (Senator, vol. 3, p. 649,) went further and made a vigorous and eloquent defence of the freedom of the press. “A paper,” he observed, “that tended to excite sedition, was libellous; but a paper that reflected upon the conduct of the ministry, that pointed out their base and mischievous proceedings, that went to open the eyes of the world, ought not to be considered as libellous. The jury must judge of the seditious tendency of the libel. Some would have every censure on the measures of government a libel. If this were the case, the voice of truth would cease to be heard amidst the notes of adulation. It ought to be left to a jury to decide, whether what was called calumny, was well or ill founded.”

I have thus shown, that the rule denying permission to give the truth in evidence, was not an original rule of the common law. The ancient statutes and precedents, which are the only memorials to which we can resort, all place the crime on its falsity. The court of Star Chamber originated the doctrine, and it was considered an innovation. When it was brought into a court of common law, it was resisted and denied; the court dared not practice upon it, and the jury gave it their negative. Lord Holt totally disregarded the rule, in the case of Fuller; and it did not become an express decision of a court of common law till Franklin’s case, in 1731; and there the counsel made a zealous struggle against it, as new, dangerous and arbitrary. In the trial of Horne, Lord Mansfield laid the rule aside, and the counsel for the crown rejoiced at an opportunity to meet the defendant upon the merits of the accusation. In 1792, it was made a questionable point, in the house of lords, and one of the highest law characters in the house seems to have borne his testimony against it. I feel myself, therefore, at full liberty to examine this question upon principle, and to lay the doctrine aside, if it shall appear unjust in itself or incompatible with public liberty, and the rights of the press.

But, whatever may be our opinion on the English law, there is another and a very important view of the subject to be taken, and that is with respect to the true standard of the freedom of the American press. In England they have never taken notice of the press in any parliamentary recognition of the principles of the government, or of the rights of the subject, whereas the people of this country have always classed the freedom of the press among their fundamental rights. This I can easily illustrate by a few examples.

The first American congress, in 1774, in one of their public addresses, (Journals, vol. 1, p. 57,) enumerated five invaluable rights, without which a people cannot be free and happy, and under the protecting and encouraging influence of which these colonies had hitherto so amazingly flourished and increased. One of these rights was the freedom of the press, and the importance of this right consisted, as they observed, “besides the advancement of truth, science, morality, and arts in general, in its diffusion of liberal sentiments on the administration of government, its ready communication of thoughts between subjects, and its consequential promotion of union among them, whereby oppressive officers are shamed or intimidated into more honorable and just modes of conducting affairs.” The next high authority I shall mention, is the Convention of the people of this state, which met in 1788. They declared unanimously, (Journals, pp. 44, 51, 52, 73, 74,) that the freedom of the press was a right which could not be abridged or violated. The same opinion is contained in theamendment to the constitution of the United States, and to which this state was a party. It is also made an article in most of the state constitutions, that the liberty of the press was essential to the security of freedom, and ought to be inviolably preserved; and in two of those constitutions, (Pennsylvania and Ohio,) this freedom of the press is specifically defined, by saying that in prosecutions for any publications, respecting the official conduct of men in a public capacity, or where the matter is proper for public information, the truth may always be given in evidence. I shall mention, lastly, the act of congress, of the 14th July, 1798, which prescribed penalties for certain specified libels upon the government of the United States, and allowed the truth to be given in evidence, on every prosecution under that act; and it is worthy of notice that the part of the act allowing the truth to be given in evidence, was declaratory, and thereby conveyed the sense of congress that such was the already existing law.

These multiplied acts and declarations are the highest, the most solemn, and commanding authorities, that the state or the nation can produce. They are generally the acts of the people themselves, when they came forward in their original character, to change the constitution of the country, and to assert their indubitable rights. And it seems impossible that they could have spoken with so much explicitness and energy, if they had intended nothing more than that restricted and slavish press, which may not publish anything, true or false, that reflects on the character and administration of public men. Such is the English doctrine of the liberty of the press, as asserted in Franklin’s Case. (See also, Hawk. tit. Libels, 7.) A treatise on hereditary right has been held a libel, although it contained no reflections on any part of the subsisting government. (Queen v. Bedford, Str. 189; Gilbert’s Rep. K. B. 297.) And if the theory of the prevailing doctrine in England, (for even there it is now scarcely anything more than theory,) had been strictly put in practice with us, where would have been all those enlightened and manly discussions which prepared and matured the great events of our revolution, or which, in a more recent period, pointed out the weakness and folly of the confederation, and roused the nation to throw it aside, and to erect a better government upon its ruins? They were, no doubt, libels upon the existing establishments, because they tended to defame them, and to expose them to the contempt and hatred of the people. They were, however, libels founded in truth, and dictated by worthy motives.

I am far from intending that these authorities mean, by the freedom of the press, a press wholly beyond the reach of the law, for that would be emphatically Pandora’s box, the source of every evil. And yet the house of delegates in Virginia, by their resolution of the 7th January, 1800, and which appears to have been intended for the benefit and instruction of the union, came forward as the advocates of a press totally unshackled, and declare, in so many words, that “the baneful tendency of the sedition act was but little diminished by the privilege of giving in evidence the truth of the matter contained in political writings.” They seem also to consider it as the exercise of a pernicious influence, and as striking at the root of free discussion, to punish, even for a false and malicious writing, published with intentto defame those who administer the government. If this doctrine was to prevail, the press would become a pest, and destroy the public morals. Against such a commentary upon the freedom of the American press, I beg leave to enter my protest. The founders of our governments were too wise and too just, ever to have intended, by the freedom of the press, a right to circulate falsehood as well as truth, or that the press should be the lawful vehicle of malicious defamation, or an engine for evil and designing men, to cherish, for mischievous purposes, sedition, irreligion, and impurity. Such an abuse of the press would be incompatible with the existence and good order of civil society. The true rule of law is, that the intent and tendency of the publication is, in every instance, to be the substantial inquiry on the trial, and that the truth is admissible in evidence, to explain that intent, and not in every instance to justify it. I adopt, in this case, as perfectly correct, the comprehensive and accurate definition of one of the counsel at the bar, (Gen. Hamilton,) that the liberty of the press consists in the right to publish, with impunity, truth, with good motives, and for justifiable ends, whether it respects government, magistracy, or individuals.

Thompson, J., concurred in the opinion of Kent. Lewis, Ch. J., reviewing the same English authorities came to the conclusion that the law required the affirmance of the conviction.

James Kent, Commentaries 2:12-22

A number of years after Croswell, Kent put together a comprehensive commentary on the Constitution, in which he brought together a number of the arguments he and Hamilton made at the trial. The following excerpt is from The Founders’ Constitution. Vol. 5 (Doc. 32). Edited by Philip B. Kurland and Ralph Lerner. Chicago: University of Chicago Press, 1986. Read it online at the Founders’ Constitution, or find it on Amazon.

As a part of the right of personal security, the preservation of every person’s good name from the vile arts of detraction is justly included. The laws of the ancients, no less than those of modern nations, made private reputation one of the objects of their protection. The Roman law took a just distinction between slander spoken and written; and the same distinction prevails in our law, which considers the slander of a private person by words, in no other light than a civil injury, for which a pecuniary compensation may be obtained. The injury consists in falsely and maliciously charging another with the commission of some public offence, or the breach of some public trust, or with any matter in relation to his particular trade or vocation, and which, if true, would render him unworthy of employment; or, lastly, with any other matter or thing, by which special injury is sustained. But if the slander be communicated by pictures, or signs, or writing, or printing, it is calculated to have a wider circulation, to make a deeper impression, and to become proportionably more injurious. Expressions which tend to render a man ridiculous, or lower him in the esteem and opinion of the world, would be libellous if printed, though they would not be actionable if spoken. A libel, as applicable to individuals, has been well defined to be a malicious publication, expressed either in printing or writing, or by signs or pictures, tending either to blacken the memory of one dead, or the reputation of one alive, and expose him to public hatred, contempt, or ridicule. A malicious intent towards government, magistrates, or individuals, and an injurious or offensive tendency, must concur to constitute the libel. It then becomes a grievance, and the law has accordingly considered it in the light of a public as well as a private injury, and has rendered the party not only liable to a private suit at the instance of the party libelled, but answerable to the state by indictment, as guilty of an offence tending directly to a breach of the public peace.

But though the law be solicitous to protect every man in his fair fame and character, it is equally careful that the liberty of speech, and of the press, should be duly preserved. The liberal communication of sentiment, and entire freedom of discussion, in respect to the character and conduct of public men, and of candidates for public favour, is deemed essential to the judicious exercise of the right of suffrage, and of that control over their rulers, which resides in the free people of these United States. It has, accordingly, become a constitutional principle in this country, that “every citizen may freely speak, write, and publish his sentiments, on all subjects, being responsible for the abuse of that right, and that no law can rightfully be passed to restrain or abridge the freedom of speech, or of the press.”

The law of England, even under the Anglo-Saxon line of princes, took severe and exemplary notice of defamation, as an offence against the public peace, and in the time of Henry III., Bracton adopted the language of the Institutes of Justinian, and held slander and libellous writings to be actionable injuries. But the first private suit for slanderous words to be met with in the English law, was in the reign of Edward III., and for the high offence of charging another with a crime which endangered his life. The mischiefs of licensed abuse were felt to be so extensive, and so incompatible with the preservation of peace, that several acts of parliament, known as the statutes de scandalis magnatum, were passed to suppress and punish the propagation of false and malicious slander. They are said to have been declaratory of the common law, and actions of slander were slowly, but gradually multiplied, between the time of Edward III., and the reign of Elizabeth, when they had become frequent. The remedy was applied to a variety of cases; and in a private action of slander for damages, and even in the action of scandalum magnatum, the defendant was allowed to justify, by showing the truth of the fact charged, for if the words were true, it was then a case of damnum absque injuria, according to the just opinion of Paulus, in the civil law. But in the case of a public prosecution for a libel, it became the established principle of the English law, as declared in the Court of Star Chamber, about the beginning of the reign of James I. that the truth of the libel could not be shown by way of justification, because, whether true or false, it was equally dangerous to the public peace. The same doctrine remains in England to this day unshaken; and in the case of The King v. Burdett, it was held, that where a libel imputes to others the commission of a triable crime, the evidence of the truth of it was inadmissible, and that the intention was to be collected from the paper itself, unless explained by the mode of publication, or other circumstances, and that if the contents were likely to produce mischief, the defendant must be presumed to intend that which his act was likely to produce. “The liberty of the press,” as one of the judges in that case observed, “cannot impute criminal conduct to others without violating the right of character, and that right can only be attacked in a court of justice, where the party attacked has a fair opportunity of defending himself. Where vituperation begins, the liberty of the press ends.” Whether the rule of the English law was founded on a just basis, and whether it was applicable to the free press and free institutions in this country, has been a question extensively and laboriously discussed in several cases which have been brought before our American tribunals.

In the case of The People v. Croswell, which came before the Supreme Court of this state in 1804, and was argued at the bar with very great ability, the court were equally divided in opinion on the point, whether, on an indictment for a libel, the defendant was entitled to give in evidence to the jury the truth of the charges contained in the libel. In the Court of Appeals in South Carolina, in 1811, the court unanimously decided, in the case of The State v. Lehre, that by the English common law it was settled, on sound principles of policy derived from the civil law, that the defendant had no right to justify the libel by giving the truth of it in evidence. The court, in the learned and able opinion which was delivered in that case, considered that the law, as then declared, was not only the law of England, but probably the law of all Europe, and of most of the free states of America. The same question has been frequently discussed in Massachusetts. In the case of The Commonwealth v. Chase, in 1808, it was decided, that the publication of a libel maliciously, and with intent to defame, was clearly a public offence, whether the libel be true or not; and the rule was held to be founded on sound principles, indispensable to restrain all tendencies to breaches of the peace, and to private animosity and revenge. The essence of the offence consisted in the malicious intent to defame the reputation of another; and a man may maliciously publish the truth against another with the intent to defame his character, and if the publication be true, the tendency of the publication to inflame the passions, and to excite revenge, is not diminished. But though a defendant, on an indictment for a libel, cannot justify himself for publishing the libel, merely by proving the truth of it, yet he may repel the criminal charge by proving that the publication was for a justifiable purpose, and not malicious; and if the purpose be justifiable, the defendant may give in evidence the truth of the words, when such evidence will tend to negative the malicious intent to defame. The same question was again agitated and discussed before the same court in 1825, in the case of The Commonwealth v. Blanding, and the court strongly enforced the doctrine of the former case, that, as a general rule, the truth of the libel was not admissible in evidence upon the trial of the indictment; and this principle of the common law was declared to be founded in common sense and common justice, and prevailed in the codes of every civilized country. It was further held, that whether in any particular case such evidence be admissible, was to be determined by the court; and, if admissible, then the jury were to determine whether the publication was made with good motives, and for justifiable ends. The same rule, that the truth cannot be admitted in evidence on indictment for a libel, though it may in a civil suit for damages, has been adjudged in Louisiana; and the weight of judicial authority undoubtedly is, that the English common law doctrine of libel is the common law doctrine in this country, in all cases in which it has not been expressly controlled by constitutional or legislative provisions. The decisions in Massachusetts and Louisiana were made notwithstanding the constitution of the one state had declared, that “the liberty of the press ought not to be restrained,” and that the other had said, that “every citizen might freely speak, write, and print, on any subject, being responsible for the abuse of that liberty.” Those decisions went only to control the malicious abuse or licentiousness of the press, and that is the most effectual way to preserve its freedom in the genuine sense of the constitutional declarations on the subject. Without such a check, the press, in the hands of evil and designing men, would become a most formidable engine, and as mighty for mischief as for good. Since the decision in 1825, the legislature of Massachusetts have interposed, and by an act passed in March, 1827, have allowed the truth to be given in evidence in all prosecutions for libels, but with a proviso that such evidence should not be a justification, unless it should be made satisfactorily to appear upon the trial, that the matter charged as libellous was published with good motives, and for justifiable ends.

The constitutions of several of the United States have made special provision in favour of giving the truth in evidence in public prosecutions for libels. In the constitutions of Pennsylvania, Delaware, Tennessee, Kentucky, Ohio, Indiana, and Illinois, it is declared, that in prosecutions for libels on men in respect to their public official conduct, the truth may be given in evidence, when the matter published was proper for public information. In the constitutions of Mississippi and Missouri, the extension of the right to give the truth in evidence is more at large, and applies to all prosecutions or indictments for libels, without any qualifications annexed in restraint of the privilege; and an act of the legislature of New-Jersey, in 1799, allowed the same unrestricted privilege. The legislature of Pennsylvania, in 1809, went far beyond their own constitution, and declared by statute, that no person should be indictable for a publication on the official conduct of men in public trust; and that in all actions or criminal prosecutions for a libel, the defendant might plead the truth in justification, or give it in evidence. The decision of the Court of Errors of this state, in Thorn v. Blanchard, carried the toleration of a libellous publication to as great an extent as the Pennsylvania law; for it appeared to be the doctrine of a majority of the court, that where a person petitioned the council of appointment to remove a public officer for corruption in office, public policy would not permit the officer libelled to have any redress by private action, whether the charge was true or false, or the motives of the petitioner innocent or malicious. The English law on the point seems to be founded in a juster policy. Petitions to the king, or to parliament, or to the secretary at war, for the redress of any grievance, are privileged communications, and not actionable libels, provided the privilege be not abused; but if it appear that the communication was made maliciously, and without probable cause, the pretence under which it is made aggravates the case, and an action lies. The constitution of this state, as amended in 1821, is a little varied in its language from those provisions which have been mentioned, and is not quite so latitudinary in its indulgence as some of them. It declares, that “in all prosecutions or indictments for libels, the truth may be given in evidence to the jury; and if it shall appear to the jury, that the matter charged as libellous, is true, and was published with good motives, and for justifiable ends, the party shall be acquitted.” These provisions in favour of giving the truth in evidence, are to be found only in those constitutions which have been promulgated long since our revolution; and the current of opinion seems to have been setting strongly, not only in favour of erecting barriers against any previous restraints upon publications, (and which was all that the earlier sages of the revolution had in view,) but in favour of the policy that would diminish or destroy altogether every obstacle or responsibility in the way of the publication of the truth. The subject is not without its difficulties, and it has been found embarrassing to preserve equally, and in just harmony and proportion, the protection which is due to character, and the protection which ought to be afforded to liberty of speech, and of the press. These rights are frequently brought into dangerous collision, and the tendency of measures in this country has been to relax too far the vigilance with which the common law surrounded and guarded character, while we are animated with a generous anxiety to maintain freedom of discussion. The constitution of this state makes the facts in every possible case a necessary subject of open investigation; and however improper or unfit those facts may be for public information, and however painful or injurious to the individuals concerned, yet it would seem, that they may, in the first instance, be laid bare before the jury. The facts are to go to them, at all events; for the jury are to determine, as it shall appear to them,whether the motives of the libeller were good, and his end justifiable.

The act of Congress of the 14th of July, 1798, made it an indictable offence to libel the government, or Congress, or the President of the United States; and it made it lawful for the defendant, upon the trial, to give in evidence in his defence, the truth of the matter contained in the publication charged as a libel. This act was, by the terms of it,declaratory, and it was intended to convey the sense of Congress, that in prosecutions of that kind it was the common right of the defendant to give the truth in evidence. So, the case of The People v. Croswell,in this state, was followed by an act of the legislature on the 6th of April, 1805, enacting and declaring, that in every prosecution, for a libel, (and which included public and private prosecutions) it should be lawful for the defendant to give in evidence in his defence the truth of the matter charged; but such evidence was not to be a justification, unless, on the trial, it should be made satisfactorily to appear, that the matter charged as libellous was published with good motives, and for justifiable ends; and this was the whole extent of the doctrine which had been claimed in favour of the press in the case of The People v. Croswell.

There appears to have been some contrariety of opinion in the English books on the point, whether a defendant in a private action upon a libel, could be permitted to justify the charge, by pleading the truth. But the prevailing, and the better opinion is, that the truth may, in all cases, be pleaded by way of justification, in a private action for damages, arising from written or printed defamation, as well as in an action for slanderous words. The ground of the private action, is the injury which the party has sustained, and his consequent right to damages as a recompense for that injury; but if the charge, in its substance and measure, be true in point of fact, the law considers the plaintiff as coming into court without any equitable title to relief. And yet it is easy to be perceived, that in the case of libels upon private character, greater strictness as to allowing the truth in evidence, by way of justification, ought to be observed, than in the case of public prosecutions; for the public have no interest in the detail of private vices and defects, when the individual charged is not a candidate for any public trust; and publications of that kind, are apt to be infected with malice, and to be very injurious to the peace and happiness of families. If the libel was made, in order to expose to the public eye personal defects, or misfortunes, or vices, the proof of the truth of the charge would rather aggravate than lessen the baseness and evil tendency of the publication; and there is much justice and sound policy in the opinion, that in private, as well as public prosecutions for libels, the inquiry should be pointed to the innocence or malice of the publisher’s intentions. The truth ought to be admissible in evidence to explain that intent, and not in every instance to justify it. The guilt and the essential ground of action for defamation, consist in the malicious intention; and when the mind is not in fault, no prosecution can be sustained. On the other hand, the truth may be printed and published maliciously, and with an evil intent, and for no good purpose, and when it would be productive only of private misery, and public scandal and disgrace.

Roper, Donald. “James Kent and the Emergence of New York’s Libel Law.” The American Journal of Legal History 17, no. 3 (1973): 223-231.

This article offers a history of New York libel law, with particular emphasis on Kent and the Croswell case.

Find it on JSTOR (free access).

Berns, Walter. 1970. “Freedom of the Press and the Alien and Sedition Laws: A Reappraisal.” The Supreme Court Review 1970: 109–59.

Berns argues that the Republican enforcement of state laws curbing opposition speech was not only much more vigorous than Federalist enforcement of the Sedition Act, but lacked the important qualifications of the Sedition Act that allowed truth as a defense and jury trials. A substantial portion of his article is devoted to Hamilton’s and Kent’s arguments from Croswell.

Find it on JSTOR (free access).