By the Court,
Marcy, J.
The motion for a new trial in this case is placed on two grounds: First, The exclusion of the evidence offered by the defendant to shew that the plaintiff was the author of three articles reflecting on the defendant, published, two of them in March and the other in June, the last a few days previous to the publication of the libel; Second, The exclusion of the testimony of a witness called on to state how he understood the libel.
It is contended that the previous publications should have been received because they were a provocation to the act complained of by the plaintiff; and also because the supposed libel was a reply to them, or at least to the last of them.
The benignity of our laws respects, to a certain extent, the frailty of our nature. A just provocation is allowed in some cases to palliate offences, where the offence or. wrongful act is done under the immediate excitement of the provocation before time for reflection has been afforded. Ira furor brevis est; short however as it is, the policy of the law is to restrain its natural operation. A few moments is all the toleration that can be given to it. In the . present case not only hours, but days passed between the last publication attributed to the plaintiff, now set up as a provocation, and the publication of the libel. There was most abundant time for the passions to cool, and for the defendant to recollect that redress could be rightfully attained only by an appeal to the laws of the country, and not by any act of retaliation. To allow the defendant to avail himself of articles written by the plaintiff and published some of them months, and the last several days before the issuing of the libel, would be more than respecting human frailty ; it would be indulging it to a pernicious length. No man under the protection of the law is to be the avenger of his own wrongs. He is bound to appeal to it for redress ; it is on this subjugation of the natural passions to the general good that society itself depends. (2 Chit. C. L. 405.)
[356]*356We were urged on the argument to make a distinction between a provocation by words and one by a newspaper publication, because the latter, it was said, was in effect reiterated every time it fell under the defendant’s eyes. If such a distinction could be admitted in any case, of which I have great doubts, there is nothing shewn which calls upon us to allow it here. There was time enough for passion to subside and for reason to operate, and the defendant might have employed the time which was devoted to the composition of the libel in considering that it did not belong to him to redress his own wrongs in his own way.
The decisions of this court do not leave us without authority on this subject. In the case of Lee v. Woolsey, (19 Johns. R. 219,) the defendant offered to prove circumstances much more provoking, and some of them more recent, than those which were offered on the trial of this cause. There was not only a libel published a few days before the assault on the plaintiff but scandalous insinuations the very evening before. These were not only the cause of the personal violence, but they were the subject of the conversation between the parties immediately preceding it, and yet they were considered as constituting no legal provocation that the defendant could avail himself of on the trial, to extenuate his conduct or reduce the plaintiff’s claim for damages. “ It appears to me,” said Spencer, J. who gave the opinion of the court in that case, “ neither to comport with sound policy nor law to allow an inquiry into antecedent facts'in such a case as this, unless they are fairly to be considered a part of one and the same transaction.”
But it is said that the article complained of as a libel was a reply to the previous publications written by the plaintiff. If such was the fact, the judge erred in not submitting them along with the libel to the jury. When an answer, that is truly Such, in point of fact, is complained of as libellous, it is obvious to reason that the piece answered as well as the answer should be laid before the jury. In most cases the correct understanding of the latter would depend upon knowing the former. Upon this principle the case of Hotchkiss v. Lathrop, (1 Johns. R. 286,) was decided. It was supposed [357]*357that the former publication was explanatory of the subject matter, occasion and intent of the latter, and a knowledge of it was required to make the libel intelligible. The rule that was applied to that case does not apply here, because the reasons for the rule are not found in this case. The publication in which the libel is found does not profess to be, and is not, in point of fact, an answer to any of the articles imputed to the plaintiff, and by submitting them to the jury no such objects could be obtained as was proposed in the case of Hotchkiss v. Lathrop, by laying before the jury the publication to which the alleged libel was in truth an answer. In this case neither of the publications offered by the defendant was in any respect a reply to the alleged libel; neither of them related to the subject matter of it; neither of them contained any thing explanatory of its intent or requisite to a perfect understanding of it.
I cannot adopt the idea that to retort crimination is an answer. There must be some relation, some perceptible connection between the subject matter of the publications to warrant the application of the principle of the case of Hotchkiss v. Lathrop; but no such connection has been discovered by an attentive perusal of the pieces offered in evidence by the defendant in this case.
It is further urged, that if the publications had no relation whatever to the libel, they should have been received and laid before the jury to mitigate the damages. This position is sustained principally by the authority of the case of Finnerty v. Tipper, (2 Campb. 72,) and what is said in Tobart v. Tipper, (1 Campb. 350,) about Lord Kenyon’s decision in Anthony Pasquin’s case. These were decisions at nisi prius ; the principle on which they proceeded is not very fully explained, and they are now without any authority in the courts where the judges sat who pronounced them. Although they were urged upon the consideration of the king’s bench, in the case of May v. Brown, (4 Dowling & Ryland, 670, 3 Barn. & Cress. 113, S. C.) by such counsel as Copley, (now lord chancellor of England,) and Brougham, the court did not regard them, but decided in that case, after the fullest argument and the most mature deliberation, that oth[358]*358er libels published by the plaintiff of the defendant not rela|¡ng precisely to the same subject matter, could not be considered either in bar of the action or in mitigation of the damages.
Upon what principle of law should the publications offered by the defendant have been received ? it cannot be pretended that torts can be set off. It would be unjust that the defendant should be allowed what damages he has suffered by the plaintiff’s libels by way of mitigating the plaintiff’s damages claimed in this suit, and still be at liberty to prosecute the plaintiff for the same publications and recover for the whole amount of the injury he has sustained by them; yet I apprehend such would be the operation of the principle contended for on the part of the defendant.
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By the Court,
Marcy, J.
The motion for a new trial in this case is placed on two grounds: First, The exclusion of the evidence offered by the defendant to shew that the plaintiff was the author of three articles reflecting on the defendant, published, two of them in March and the other in June, the last a few days previous to the publication of the libel; Second, The exclusion of the testimony of a witness called on to state how he understood the libel.
It is contended that the previous publications should have been received because they were a provocation to the act complained of by the plaintiff; and also because the supposed libel was a reply to them, or at least to the last of them.
The benignity of our laws respects, to a certain extent, the frailty of our nature. A just provocation is allowed in some cases to palliate offences, where the offence or. wrongful act is done under the immediate excitement of the provocation before time for reflection has been afforded. Ira furor brevis est; short however as it is, the policy of the law is to restrain its natural operation. A few moments is all the toleration that can be given to it. In the . present case not only hours, but days passed between the last publication attributed to the plaintiff, now set up as a provocation, and the publication of the libel. There was most abundant time for the passions to cool, and for the defendant to recollect that redress could be rightfully attained only by an appeal to the laws of the country, and not by any act of retaliation. To allow the defendant to avail himself of articles written by the plaintiff and published some of them months, and the last several days before the issuing of the libel, would be more than respecting human frailty ; it would be indulging it to a pernicious length. No man under the protection of the law is to be the avenger of his own wrongs. He is bound to appeal to it for redress ; it is on this subjugation of the natural passions to the general good that society itself depends. (2 Chit. C. L. 405.)
[356]*356We were urged on the argument to make a distinction between a provocation by words and one by a newspaper publication, because the latter, it was said, was in effect reiterated every time it fell under the defendant’s eyes. If such a distinction could be admitted in any case, of which I have great doubts, there is nothing shewn which calls upon us to allow it here. There was time enough for passion to subside and for reason to operate, and the defendant might have employed the time which was devoted to the composition of the libel in considering that it did not belong to him to redress his own wrongs in his own way.
The decisions of this court do not leave us without authority on this subject. In the case of Lee v. Woolsey, (19 Johns. R. 219,) the defendant offered to prove circumstances much more provoking, and some of them more recent, than those which were offered on the trial of this cause. There was not only a libel published a few days before the assault on the plaintiff but scandalous insinuations the very evening before. These were not only the cause of the personal violence, but they were the subject of the conversation between the parties immediately preceding it, and yet they were considered as constituting no legal provocation that the defendant could avail himself of on the trial, to extenuate his conduct or reduce the plaintiff’s claim for damages. “ It appears to me,” said Spencer, J. who gave the opinion of the court in that case, “ neither to comport with sound policy nor law to allow an inquiry into antecedent facts'in such a case as this, unless they are fairly to be considered a part of one and the same transaction.”
But it is said that the article complained of as a libel was a reply to the previous publications written by the plaintiff. If such was the fact, the judge erred in not submitting them along with the libel to the jury. When an answer, that is truly Such, in point of fact, is complained of as libellous, it is obvious to reason that the piece answered as well as the answer should be laid before the jury. In most cases the correct understanding of the latter would depend upon knowing the former. Upon this principle the case of Hotchkiss v. Lathrop, (1 Johns. R. 286,) was decided. It was supposed [357]*357that the former publication was explanatory of the subject matter, occasion and intent of the latter, and a knowledge of it was required to make the libel intelligible. The rule that was applied to that case does not apply here, because the reasons for the rule are not found in this case. The publication in which the libel is found does not profess to be, and is not, in point of fact, an answer to any of the articles imputed to the plaintiff, and by submitting them to the jury no such objects could be obtained as was proposed in the case of Hotchkiss v. Lathrop, by laying before the jury the publication to which the alleged libel was in truth an answer. In this case neither of the publications offered by the defendant was in any respect a reply to the alleged libel; neither of them related to the subject matter of it; neither of them contained any thing explanatory of its intent or requisite to a perfect understanding of it.
I cannot adopt the idea that to retort crimination is an answer. There must be some relation, some perceptible connection between the subject matter of the publications to warrant the application of the principle of the case of Hotchkiss v. Lathrop; but no such connection has been discovered by an attentive perusal of the pieces offered in evidence by the defendant in this case.
It is further urged, that if the publications had no relation whatever to the libel, they should have been received and laid before the jury to mitigate the damages. This position is sustained principally by the authority of the case of Finnerty v. Tipper, (2 Campb. 72,) and what is said in Tobart v. Tipper, (1 Campb. 350,) about Lord Kenyon’s decision in Anthony Pasquin’s case. These were decisions at nisi prius ; the principle on which they proceeded is not very fully explained, and they are now without any authority in the courts where the judges sat who pronounced them. Although they were urged upon the consideration of the king’s bench, in the case of May v. Brown, (4 Dowling & Ryland, 670, 3 Barn. & Cress. 113, S. C.) by such counsel as Copley, (now lord chancellor of England,) and Brougham, the court did not regard them, but decided in that case, after the fullest argument and the most mature deliberation, that oth[358]*358er libels published by the plaintiff of the defendant not rela|¡ng precisely to the same subject matter, could not be considered either in bar of the action or in mitigation of the damages.
Upon what principle of law should the publications offered by the defendant have been received ? it cannot be pretended that torts can be set off. It would be unjust that the defendant should be allowed what damages he has suffered by the plaintiff’s libels by way of mitigating the plaintiff’s damages claimed in this suit, and still be at liberty to prosecute the plaintiff for the same publications and recover for the whole amount of the injury he has sustained by them; yet I apprehend such would be the operation of the principle contended for on the part of the defendant. If the defendant should prosecute for the alleged libels contained in the publications offered in evidence to reduce the amount of the recovery in this case, the fact that they had been used for that purpose could not be interposed either in bar to the suits or in mitigation of damages.
If these publications were to be used for the purpose for which they were offered by the defendant, the plaintiff ought certainly to be permitted to justify; thus the jury, instead of trying the issue sent down, might be called on to hear the excuse for, or investigate the truth of, a succession of criminatory and re-criminatory publications which the parties may have indulged in for years. This is a very supposable case ; indeed it would be very likely to happen if the parties were the conductors of opposing political journals.
In addition to the case of May v. Brown, which so directly supports the decision of the circuit judge, I find a case refered to by Saunders, in his Treatise on Pl. & Ev. 813. It is the case of Wakely v. Johnson, reported by Ryan & Moody which is said to decide that the defendant cannot give in evidence that the plaintiff was in the habit of libelling him. In the case of McAlexander v. Harris, (6 Munford’s R. 465,) .the supreme court of appeal of Virginia decided that the defendant in an action of slander is not permitted to prove, that before speaking of the slanderous Words the plaintiff [359]*359was in the habit of vilifying, insulting or provoking him and his family. I am of opinion that the correctness of the judge’s decision on this part of the case is sustained by strong reasons and the highest authority.
The other ground on which the motion for a new trial rests is the supposed error of the circuit judge in refusing to hear a witness, offered by fhe defendant testify, how he understood the libel. The argument in support of this branch of the motion seemed to assume that the judge had refused to hear the witness state what was generally understood to be the meaning of the alleged libel. The case does not present such a point. After the witness had stated that he had read the supposed libel, he was asked how he understood it. The objection was to this question, and the judge refused to hear the answer of the witness. It will be perceived that the witness was not asked how others understood the supposed libel; he was not interrogated as to any extrinsic facts which might show it had an application different from that for which the plaintiff contended. The case of Van Vechten v. Hopkins, (5 Johns. R. 211,) is an authority too clear and explict on this point to permit a doubt to be entertained. In that case, the plaintiff offered to prove by a witness that from reading the libel he applied it to the plaintiff; this proof was excluded by the judge at nisi prius, and his decision unanimously confirmed by this court. The reason assigned for excluding this testimony was, that it was the mere opinion of a witness, which the court said ought not to have any influence upon the verdict. Opinions are not proofs, and if they are ever received it is in cases involving peculiar or professional skill, and then they are usually accompanied with the facts and reasons on which they are based. It was the duty of the jury to say how the libel was to be understood, after they had heard all the extrinsic facts that the parties chose to submit to them; and in coming to this conclusion it was not proper that they should have been influenced by the mere opinion of any witness. The asking of a witness to apply the libel, as was done in the case of Van Vechten v. Hopkins, or to tell how he understood it, as was done in this case, appears to me to be much [360]*360the same thing; and if the testimony offered in the one case was properly rejected, that offered in the other could not be received. I see no reason for granting a new trial.