Forbes, J.
The first objection is, that the indictment on which the defendant is convicted, does not contain any libellous, or indictable matter.
We think that this objection cannot be sustained. The matter contained in this publication is, clearly, libellous. The tendency of the publication was to degrade the prosecutor in the esteem and opinion of the world ; it impeached his integrity as a juror, and must, if the charge which it contains were true, make him an object of distrust and contempt among men. It was open to the defendant, in justification, to prove the truth of the charge, and that it was published with good motives, and for justifiable ends. But assuming, as we must do, at this stage of the case, that the publication was false and malicious, the record discloses, not merely an indictable offence, but an offence which the peace and well-being of society require to be repressed by exem plary punishment.
It was, however, contended in the argument for the de Cendant, that as the transaction set forth in the publication took place after the jury had agreed to return a verdict for the plaintiff, and as it related merely to the manner of assessing the damages, the publication ought not to be held to be libellous. The counsel for the defendant seemed to concede that to charge a juror with having returned a verdict in the manner stated in the publication would be libellous, but he insisted upon a distinction between a charge which related to the finding of a verdict, and a charge which related to the manner of assessing the damages. We do not perceive that any such distinction can exist. There was but one issue, it is true, and perhaps the amount of damages is not technically a part of the issue, but an agreement to return a verdict for the plaintiff was not a discharge of their whole duty by the jury. Their duty was twofold; they were first to find the issue, and then to assess the damages. The oath of a juror is designed to protect all those interests upon which it is competent for a jury to decide The obligation of the oath is not divisible ; it cannot be restricted to a particular subject of inquiry, in the manner supposed by this objection.
[63] Another objection to the indictment is, that it does not profess to set forth the very words or tenor of the alleged libel, but only the purport, effect, and substance thereof.
It is a general rule of pleading, in civil as well as in criminal cases, that when a charge is brought against a defendant arising out of the publication of a written instrument, the instrument itself must be set out in the writ or indictment. Wright v. Clements, 3 Barn. & Ald. 508. The court are of opinion that this rule is applicable to the present case, and that it is essential to the validity of the indictment, that it should set forth the words of the libel. The correctness and applicability of the rule were not denied on the part of the government, but it was insisted that in drawing this indictment, the rule had been substantially complied with. Upon this part of the case, two questions were discussed at the bar; first, whether it is necessary that the indictment should profess to set out the very words of the publication; secondly, whether the word purport and the marks of quotation used in the indictment do import that the very words of the publication are set forth therein.
The objection was said to be merely technical, and the court were invited to disregard it, especially as it was admitted that the words of the publication are recited correctly in this indictment. But whatever the character of the rule may be, if well established, it is clearly the duty of the court to enforce it, and the defendant may as effectually avail himself of this, as of a more meritorious defence.
The strictness required in criminal pleading has beén occasionally the subject of criticism and complaint; with this the court have nothing to do : they are bound to administer the law as they find it. If this strictness has a tendency to impede or to thwart the course of justice in criminal proceedings, it is the province of the legislature, and not of the court, to amend the law.
Upon a comparison of the authorities cited at the argument, the court are satisfied, that (with one or two exceptions having no relation to the present case) the indictment [64] must not only contain, but it must also profess to set out, a transcript of that part of the libel upon which the pleader relies. The authorities' upon this point are somewhat numerous : the English and some of the American cases are referred to 1 Chitty C. L. 238, and note.
The counsel for the government contended, that for a series of years the practice in this commonwealth had been different, and that this practice is warranted by the authority of the late solicitor-general Davis (Precedents of Indictments, 125, n. 1,) and the case of Commonwealth v. Parmenter, 5 Pick. 279.
The note in Davis’s Precedents does not appear to be supported by the authority to which he refers; and the case of Commonwealth v. Parmenter was evidently decided without much consideration; the correctness of the practice, it is true, seems to have been taken for granted, but the precise question here raised does not appear to have been suggested to the court, and the verdict in that case could not have been sustained for other reasons, which were assigned and relied upon by the court, in setting the verdict aside.
Under these circumstances, we think that that case ought not to control the uniform current of the English decisions, supported by respectable American authorities.
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Forbes, J.
The first objection is, that the indictment on which the defendant is convicted, does not contain any libellous, or indictable matter.
We think that this objection cannot be sustained. The matter contained in this publication is, clearly, libellous. The tendency of the publication was to degrade the prosecutor in the esteem and opinion of the world ; it impeached his integrity as a juror, and must, if the charge which it contains were true, make him an object of distrust and contempt among men. It was open to the defendant, in justification, to prove the truth of the charge, and that it was published with good motives, and for justifiable ends. But assuming, as we must do, at this stage of the case, that the publication was false and malicious, the record discloses, not merely an indictable offence, but an offence which the peace and well-being of society require to be repressed by exem plary punishment.
It was, however, contended in the argument for the de Cendant, that as the transaction set forth in the publication took place after the jury had agreed to return a verdict for the plaintiff, and as it related merely to the manner of assessing the damages, the publication ought not to be held to be libellous. The counsel for the defendant seemed to concede that to charge a juror with having returned a verdict in the manner stated in the publication would be libellous, but he insisted upon a distinction between a charge which related to the finding of a verdict, and a charge which related to the manner of assessing the damages. We do not perceive that any such distinction can exist. There was but one issue, it is true, and perhaps the amount of damages is not technically a part of the issue, but an agreement to return a verdict for the plaintiff was not a discharge of their whole duty by the jury. Their duty was twofold; they were first to find the issue, and then to assess the damages. The oath of a juror is designed to protect all those interests upon which it is competent for a jury to decide The obligation of the oath is not divisible ; it cannot be restricted to a particular subject of inquiry, in the manner supposed by this objection.
[63] Another objection to the indictment is, that it does not profess to set forth the very words or tenor of the alleged libel, but only the purport, effect, and substance thereof.
It is a general rule of pleading, in civil as well as in criminal cases, that when a charge is brought against a defendant arising out of the publication of a written instrument, the instrument itself must be set out in the writ or indictment. Wright v. Clements, 3 Barn. & Ald. 508. The court are of opinion that this rule is applicable to the present case, and that it is essential to the validity of the indictment, that it should set forth the words of the libel. The correctness and applicability of the rule were not denied on the part of the government, but it was insisted that in drawing this indictment, the rule had been substantially complied with. Upon this part of the case, two questions were discussed at the bar; first, whether it is necessary that the indictment should profess to set out the very words of the publication; secondly, whether the word purport and the marks of quotation used in the indictment do import that the very words of the publication are set forth therein.
The objection was said to be merely technical, and the court were invited to disregard it, especially as it was admitted that the words of the publication are recited correctly in this indictment. But whatever the character of the rule may be, if well established, it is clearly the duty of the court to enforce it, and the defendant may as effectually avail himself of this, as of a more meritorious defence.
The strictness required in criminal pleading has beén occasionally the subject of criticism and complaint; with this the court have nothing to do : they are bound to administer the law as they find it. If this strictness has a tendency to impede or to thwart the course of justice in criminal proceedings, it is the province of the legislature, and not of the court, to amend the law.
Upon a comparison of the authorities cited at the argument, the court are satisfied, that (with one or two exceptions having no relation to the present case) the indictment [64] must not only contain, but it must also profess to set out, a transcript of that part of the libel upon which the pleader relies. The authorities' upon this point are somewhat numerous : the English and some of the American cases are referred to 1 Chitty C. L. 238, and note.
The counsel for the government contended, that for a series of years the practice in this commonwealth had been different, and that this practice is warranted by the authority of the late solicitor-general Davis (Precedents of Indictments, 125, n. 1,) and the case of Commonwealth v. Parmenter, 5 Pick. 279.
The note in Davis’s Precedents does not appear to be supported by the authority to which he refers; and the case of Commonwealth v. Parmenter was evidently decided without much consideration; the correctness of the practice, it is true, seems to have been taken for granted, but the precise question here raised does not appear to have been suggested to the court, and the verdict in that case could not have been sustained for other reasons, which were assigned and relied upon by the court, in setting the verdict aside.
Under these circumstances, we think that that case ought not to control the uniform current of the English decisions, supported by respectable American authorities.
It was further contended, that it did sufficiently appear on the face of this indictment, that the words of the libel were set forth, inasmuch as they were included between marks of quotation. We have not thought it material to ascertain whether or not this is so in the original indictment; in the copy which has been furnished to the court, the marks of quotation include both the wrords of the innuendoes and the words of the publication. In manuscripts as well as in printed books, it is undoubtedly a * common practice to indicate the language borrowed from another,- by the use of inverted commas; but we are far from being certain, that these marks are generally understood to import a perfect accuracy of quotation. A writer, anxious to escape the charge of plagiarism, would be likely to use these marks, although he appropriated nothing more than the sentiment. [65] and substantially the language of his author, without aiming at verbal accuracy. Besides, if these marks should be held sufficient to sustain an indictment, they must also be held sufficient to defeat it, whenever a slight mistake is made in the use of them ; and the accidental omission to include a single word of the libel in inverted commas, or the including within them of a word which was not in the libel, would be a fatal variance. It sometimes happens that the change of a single comma will give an entirely different meaning to a sentence: suppose a pleader to have occasion to set out a sentence of this description, would the misplacing or the omission of a comma, thereby leaving the meaning equivocal, be fatal to the indictment ? Had we the power to do it, we should doubt the expediency of introducing a new rule in pleading, the probable effect of which would be, • to throw additional embarrassments in the way of the pleader, and to increase the chance of escape, by means of merely clerical mistakes or technical errors.
The practice in arraignments is to read the indictment to the prisoner, and then to receive his plea. His knowledge of the charge against him is derived, ordinarily, from hearing the indictment read, and not from the inspection of it. But these indications of the meaning of the pleader are addressed to the eye : they are not perceptible by the ear; and if the rule of construction contended for be correct, this well established practice is clearly wrong.
It was also contended that the word “ purport,” used in the indictment, is equivalent to tenor, and imports a strict recital of the words of the libel. But in our view this is not. necessarily, the import of the term. The purport of a message or communication may be, and indeed generally is, stated, without the use of the identical words in which it is conceived. It is equivalent to substance, and such was its construction, by the court, in the case of the Commonwealth v. Parmenter, before cited.
“ The word tenor imports an exact copy, — that it is set forth in the words and figures, — whereas the word purport [66] means only the substance or general import of the instrument.” 2 Gabbett Cr. Law, 201.
The court are of opinion that this indictment is defective, and that judgment must be arrested.
Note. Mr. Davis's Precedents being a book of practice in very general use, it seems desirable to point out those forms in it, which are affected by the decision in this case. The following contain the objectionable words: Nos. 99, and 100, under the head of Challenging to Fight, (which are adopted with modifications from 3 Chitty C. L. 848, 852); Nos. 152, 153, 154, 155, 156, 157, 158, 159, 160, 170, 171, 172, 173, under the head of Forgery and Counterfeiting, all of which were drawn by Mr. Davis, and No. 169, under the same head, which was taken bom the Crown C. C. (6th Ed.) 360; Nos. 209, (3 Chitty C. L. 889,) 212, (3 Chitty, 887,) 214, (3 Chitty, 911,) 215, (3 Chitty, 914,) 217, (Crown Cir. Ass. 73,) 218, (3 Chitty, 889,) 219, (Archbold, C. P. 501; 2 Chitty 14,) 220, under the head of Libel. In several of the many forms, which appear to have been adopted by the author from English precedents, the usual and apt words, such as “ tenor,” &c., are struck out, and the words “purport,” “effect,” “substance,” inserted. This is the case in Nos. 169, 209, 212, 214, 215, 217, 218, 219, 220, which have been examined. It is remarkable, however, that the forms of indictment, for challenging, Nos. 104 and 107, and for libel, Nos. 210 and 211, in which the alteration seems equally proper, retain the apt and technical words of recital.