After advisement, the following opinions were delivered:
The Chancellor read an opinion for affirmance of the judgment, which has not been received by the reporter.
By Senator Lee.
It appears to me there is and at all times has been, a disposition on the part of judges in our [389]*389courts of law, in actions for slander, whether written or oral, to assume the duties not only of judges, which properly belong to them, but also those which belong to the jury, in this: that the courts have from time to time assumed that it was for them, authoritatively to decide on the intent and tendency of words spoken, or papers written, charged as slanderous or libellous, and to take from the jury the right to pass in any manner thereupon; and to deny to defendants the power to justify by giving the truth in evidence, or by encumbering the exercise of the right with so many difficulties and embarrassments as in effect to amount nearly to a denial thereof. It is certain such was the course of the courts in cases of criminal prosecutions for libels, until the evil became insufferable, and the legislature, to remedy it, passed a declaratory act, securing the right of the defendant in such cases to give the truth in evidence to the jury, in his defence; and declaring that if it should appear to the jury that the matter charged as libellous was true, and that it was published with good motives and for justifiable ends, the party should be acquitted; giving to the jury the right to determine the law and the fact. So important is this right esteemed by the people of this state, as a protection to the liberty of speech and the freedom of the press, that they have incorporated it in their bill of rights; and for its still greater security and more inviolable preservation, have embodied it in the fundamental law, the constitution of the state. The solemnity of this procedure on the part of the legislature, and by the people of this state, in the exercise of their highest acts of sovereignty, shews the great importance of the right thus sought to be protected, to wit, the right to excuse themselves on charges brought against them for words spoken or written, by giving the truth in evidence to the jury, who are made the judges not only of the truth of the words spoken or written, but of the motives and effect thereof. If these principles are fairly kept in view and carried into operation by the courts, in the spirit that [390]*390led to their adoption, every citizen of this state, or other person within its jurisdiction may freely speak, write an¿ publish his sentiments on all subjects, so that he keep within the rule: that he speak or publish only the truth, and that, with good motives and for justifiable ends; and these facts he may show in his defence, and give in evidence to the jury for them to pass upon. The allowance of this right is essential to the existence of a free government; and its enjoyment should be extended by the courts in the most liberal manner. It should be guarded by courts, jurors and the people at large, with the most sedulous care, and should not be embarrassed with needless technicalities.
I cannot avoid the conclusion, from cases coming under my own observation as well as those appearing in the books, that the tendency of the decisions is, to hedge around and protect plaintiffs in actions of slander generally as if they were the particular favorites of the courts; and to embarrass defendants with difficulties, as if it were desirable to prevent their giving the truth in evidence in justification. In all cases but those of slander, the defendant may with impunity plead or give notice of any matter of defence that he is advised may be available, and that he may hope or expect to be able to prove; and if he fail to make out his defence, he sustains no injury thereby. Not so in actions of slander. If the defendant in such action fail to prove such defence, no matter how honestly he may have believed it true and that he could prove the same, such attempt is set down as conclusive evidence of malice, and is followed with a heavy increase of the sum to be awarded to the plaintiff. One would think that this consequence following such attempts at justification, courts would be disposed to let in the defence, if the party can make it, on the most simple notice that would apprise the adverse party of what he had to meet; but this is not the case. The defendant is not permitted to prove the truth of the words he is charged with having written, spoken or [391]*391published, on a simple notice thereof, but he must in addition give notice that he will prove that the act or thing done by the plaintiff was done with wicked or corrupt motives, such as the defendant never charged, imputed or dreamed of, if the plaintiff in his declaration has charged that he the defendant so intended. Technical rules have been adopted in the action of slander, the effect of which (as in the case before us,) is to deny to the defendant the right to prove that every word he has uttered or written is true; and that the same was published with good motives and for justifiable ends. An article is published of the plaintiff, charging him with having officially certified that an affidavit was sworn to before him, by the person whose name is thereto signed, when no oath was in fact administered. This may have been an inadvertence, or it may have been done corruptly. The plaintiff in his declaration charges that it was intended to impute to him that he did the act wickedly and corruptly; and then in order to prove the truth of the words spoken or written, the courts require the defendant to plead or give notice that he will prove the truth of the charge, and that the act was done wickedly and corruptly. The courts say there is no hardship in such requirement; but is there not a hardship where the defendant knew that the fact published was true, and believed that its publication would be useful to the community, although he had no knowledge of the motive or intent with which it was done, and made no charge in relation thereto. In my opinion, the decision in this case excluding the evidence offered for the defence on the trial was wrong; and the notice was amply sufficient to entitle the defendant to prove that the facts stated in the paper charged as libellous were true, and that the same were published with good motives and for justifiable ends.
The statute authorizing evidence of defence to be given under a notice accompanying the plea of the general issue, was enacted for the purpose of simplifying the practice [392]*392and rendering pleadings more easy; and the courts- have often decided in consonance therewith, that a notice was sufficient if it contain such a statement of the special matter as will prevent the plaintiff from being taken by surprise. Chamberlin v. Gorham, 20 Johns. R. 144. And again: in the same case in this court, Id. 746, it is said the notice ought to be so particular as to enable the plaintiff to come prepared to meet the facts stated therein. Try the notice in this case by these rules, and I think it will be found sufficient. But it is said a practice has been adopted establishing the rule contended for in this case, which seems confined to actions of slander, and the counsel have cited on the points two cases in support of this position, viz: Shepard v. Merrill, 13 Johns. R. 475, and Mitchell v. Borden, 8 Wendell, 570. In the first of these cases, no authority is cited, and the opinion applicable to this question was wholly unnecessary for the decision of the case; it is therefore a mere obiter dictum, and not the law of the case. In that case the plaintiff alleged that the defendant had charged him with stealing his shingles, and the notice was that the defendant would prove that the plaintiff sold the shingles, and then denied any knowledge of them. This was not anotice that he would prove the truth of the words spoken; it was nothing more, as the court in that case say, than that he would prove not theft but lyings and a wrongful conversion. In Mitchell v. Borden, the court based their decision entirely upon that in Shepard v. Merrill. I perceive no good reason for requiring a notice in actions of slander to be more specific and technical than in other actions; but on the contrary, I can imagine many that forbid it.
On the first trial of this cause the notice was held sufficient, and the defendant proved his justification under the direction of the circuit judge to the satisfaction of the jury, who found for the defendant. The judge then charged the jury, that if the paper charged as libellous, merely intended to charge the plaintiff with inadvertence, or an [393]*393omission to swear McNair to the affidavit by mistake, and inadvertence or mistake had been proved, that the defendant had justified and would be entitled to a verdict; but if the paper charged the plaintiff with official corruption, which it was their province to determine, then, in order to justify, the defendant was bound to prove the plaintiff guilty of official corruption, and the proving a mere mistake or inadvertence would be no justification. I think that charge was right, and that the intent of the defendant, and the import of the words used were properly submitted to the jury. In the opinion of Lord Chief Justice De Grey, delivered in the house of lords in The King v. Horne, cited with approbation by the supreme court in Van Vechten v, Hopkins, 5 Johns. R. 221, it is said, “ It may happen that a writing may be so expressed, and in such clear and unambiguous words, as that it may amount of itself to a libel; in such a case, the court wants no circumstance to make it clearer than it is of itself.” This is stated as an instance that may occur where the court needs not the aid of a jury; but the court does not even in such case prohibit the jury passing upon it, or intimate that it would be unsafe to leave it to them. But,” his lordship proceeds, “ if the terms of the writing are general, ironical., or spoken by way of allusion or reference, although every man who reads such writing may put the same construction upon it, it is by understanding something not expressed in direct words: and it being a matter of crime, and the party liable to be punished for it, there wants something more. It ought to receive a judicial sense, whether the application is just, and the fact, or the nature of the fact on which that depends, is to be determined by the jury.” In Tempest v. Chambers, 1 Starkie’s R. 56, Lord Ellen-borough, in his charge to the jury, told them that he thought the words did not import a charge of felony, but he left it to them, and said, if they thought the defendant intended subtantially to impute a charge of felony to the plaintiff, that then he would be entitled to their verdict, [394]*394but not otherwise. . The jury found for the plaintiff. In Delany v. Jones, 4 Esp. R. 191, the same learned judge left ft |0 ^he jury to say whether the paper charged as libellous, imputed to the plaintiff the crime of bigamy, as alleged by the plaintiff. In Dexter v. Taber, 12 Johns. R. 240, in an action of slander, the plaintiff charged that the defendant said to him: You are a thief; you are a damned thief. The proof was: You are a thief; you stole hoop-poles and saw-logs from off Delancefs and Judge Myers’ land. In this case the court say: It was correctly stated to the jury, that if the defendant intended to charge the plaintiff with taking hoop-poles and saw-logs, already cut, it was a charge of felony; but if he only meant to charge him with cutting and carrying them away, it was only charging him with a trespass; and that in what sense the words were intended to be used was for the jury to determine. The court add: this point is well settled both in our own and in the English courts, and cite 1 Johns. Cas. 279. W. Black. R. 959. Cowp. 278—9 East. 96. This case seems to me strongly in point to support the charge of the circuit judge on the first trial of this cause; and I should think it was before him when he delivered the charge. In McKinly v. Rob. 20 Johns. 356, the cqurt say the intent must be collected from the words used. Where they have a certain definite meaning, the jury cannot rightfully indulge in conjectures not warranted by the legal import of the words; but if it is doubtful whether the words impute crime, or may be satisfied by ascribing to them a meaning which renders them not actionable, then the intent is a fair subject of inquiry before the jury; and in the recent case in this court of Ryckman v. Delavan, not yet published,
[395]*395In the case before us are not the words charged as libellous, capable of more than one sense 1 or in the language of the case of McKinly v. Rob. may they not be satisfied by ascribing to them a meaning which renders them not actionable 1 Is not the paper, in this case, charged as libellous expressed, in the language of De Grey, C. J., in general terms, imputing crime only by reference to some disposition or design not expressed 1 And if so, as he says, although all men who read it put the same construction upon it, yet it is by understanding something not expressed in direct words; it wants something more, it must receive a judicial construction, whether the application is just, and the fact or the nature of the fact on which that depends is to be determined not by the court, but by the jury. This case I think shows the danger to the citizen in allowing cases of this nature, in any instance, to be taken from the jury where the action is to be sustained. It is certain that in words, the plaintiff was not charged with officially certifying that the affidavit was sworn to before him when it was not, intentionally, wickedly and corruptly, and not inadvertently and by mistake, and yet that must so be found to sustain the action. The supreme court in granting the new trial, say that in certain cases where there is some question whether there is an imputation of crime, the jury have a right to pass on the question of intent, as to the sense of the publication, and how it was understood, but that in this case, “ Nothing can be more clear than that the defendant intended to charge the plaintiff with certifying to a false fact from a bad motive. It must have been so understood by every person who read the publication.” This understanding, if arrived at, must be by inference and not from express words. The learned judge, when he expressed that opinion, had before him evidence that twelve good and lawful men under oath, had declared that they did not so understand that publication. See here the fallibility of human judgment, and the uncertainty of human opinion. The learned judge gave the construction to this [396]*396publication, such as he supposed would necessarily strike the common mind; and twelve intelligent, plain but hones^ men, inhabitants of the county where it was published, charged particularly with the construction to be given to the publication, had declared under oath, that they came to a conclusion of its meaning entirely opposed to that of the learned judge. A distinguished jurist has said, and I think correctly,££ that there is no specific and precise definition to be found, of what facts and circumstances constitute a libel; and 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 its intent and tendency, and the one and the other of which being matter of fact, must be found by the jury: per Hamilton arguendo. 3 Johns. Cas. 360.
I am persuaded that public policy, the best interests of the community, and the protection of the liberty of speech and of the press, will be best promoted by extending large and liberal power to the jury in all actions of slander, written or unwritten, in civil as well as criminal prosecutions; and I cannot believe that there is any danger in permitting a jury, under the charge of the court, to pass on the question as to the popular sense of the words used, the intent and tendency of the publication, or the words spoken, and whether they are libellous or otherwise. In the case of the New-York Ins. Co. v. Walden, 12 Johns. R. 519, Chancellor Kent, in delivering the opinion of this court, concludes a very able argument, vindicating the rights and duties of jurors, and the great importance of preserving to them their proper and legitimate power 'to pass on all matters of fact in the largest sense, by observing, í£ The case before us is of comparatively trifling importance, but the distinction I have suggested goes to the very root and essence of trial by jury, and may become of inestimable value, and perhaps of perilous struggle, when the present generation shall have ceased to exist. I am [397]*397disposed to hand to posterity the institution of juries as per-feet in all respects as we now enjoy it; for I believe that it may hereafter be found no inconsiderable security against the systematic influence and tyranny of party spirit.” These views of the Chancellor seem to me strikingly applicable to actions for libels.
I am of opinion in the case before us, that the jury should have been charged as the judge was desired to charge them, that they had the right to decide from the paper called libellous in what sense the words were used, and whether they imported a charge of inadvertence in the plaintiff in certifying that he swore the person to the truth of the affidavit, when he had not done so, or whether they imputed official corruption—and that if they found they were used in an innocent sense, that then they were not actionable. From my great respect for the supreme court I differ from them with hesitancy and regret; but being persuaded that the tendency of their decision is to encourage suits for slander, (sometimes rendered necessary for the protection of character wickedly and unjustly assailed, but much more frequently prosecuted by men of questionable character, from a wicked spirit of litigation and a sordid hope of gain,) and to shackle and embarrass the freedom of discussion, of speech, and of the press, by surrounding the defence of justification with unnecessary and oppressive technicalities and difficulties, I have felt it my duty thus to differ from them.
I think the judgment below should be reversed.
By Senator Root.
The errors in the charge and decisions of the judge at the circuit, which were noticed and insisted upon by the counsel for the plaintiff in error, are sufficient to induce me to vote for a reversal; and I should have contented myself with a silent vote, or at most with an oral exposition of my views upon the question, had it not been for the circumstance that there are two very important, and I think, controlling points in the case, which [398]*398were not made or noticed by the counsel in argument. I know it has been said that the court, in its decision, is not j-0 regar¿ any matter not raised by the counsel in the points submitted; but, in my opinion, a court in the last resort, whose constitutional power and duty it is to correct all errors, if any there be, in all cases brought up for its reexamination, ought to consider the same whenever found in the case, whether urged by counsel or not, else a precedent may be established controlling future decisions in like cases, which may materially change the law of the land, growing out of the inattention of counsel, or a too deferential submission to the opinions of an inferior court.
The two points in the case which I consider important, and which were not noticed by counsel, are: 1. The exclusion of the evidence offered, to prove the truth of the several matters specified and charged in the alleged libel, on the ground of the insufficiency of the notice of justification', and 2. The exclusion of the evidence under the plea of the general issue. First: By the statute for the amendment of the law, which has long been in force in this state, the defendant may give in evidence, under the general issue, any matter which would be a bar to the action. Under the plea in this cause, the defendant had given notice that he should give in-evidence and prove on the trial the truth of all the matters stated and charged in the publication. The notice is as full and as broad as the charge itself, and recites all the matter and I think all the words contained in it. But the supreme court has decided that the notice did not amount to a justification, as the court on a former occasion, in this cause, had held, that the publication was a libel, as the defendant intended to charge the plaintiff with corrupt misconduct in office. Thus, it appears that the court assume to decide, as a question of law, upon the intention of the defendant and the goodness of his motive, without allowing the jury, on proof of the facts, to determine whether those proofs were not as broad as the charge; and that, if the latter implied a charge of corrupt official [399]*399misconduct, the former would allow a like implication. The whole question, and indeed all the questions of intention and motive, ought to have been left to the jury.
Second. Proof of the truth of the publication ought to have been allowed under the general issue. If not before its adoption, it surely ought to be allowed under the new constitution of this state. By the 8th section of the 7th article, it is ordained, 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; and the jury shall have the right to determine the law and the fact.” I am aware it has been said and believed by gentlemen eminent at the bar, that this provision of the constitution has reference exclusively to criminal prosecutions. Let us examine the text and context, and other correlative matter, and see if their faith is well founded. The text is,<c In all prosecutions or indictments for libels, the truth may be given in evidence to the jury.” It is not <£ information or indictment,” the only modes ever known to our laws of prosecuting criminally for libels. The word ££ prosecutions ” means civil actions. The constitution secures to the defendant that trial which he might always rightfully claim. It also secures to him the same trial if prosecuted criminally by indictment. The word ££ prosecution” is defined by Mr. Webster, in his Dictionary, (after having given 1. Its general definition,) as follows: 2. ££ The institution and carrying on of a suit, in a court of law or equity, to obtain some right, or to redress and punish some wrong;” and 3. ££ The institution or commencement and continuance of a criminal suit.” The ablest lexicographer in our language has given to the word the meaning of a civil suit, in preference to that of a criminal prosecution, and he has placed them in the same order the convention had done in the constitution.
[400]*400It has also been urged, that the word “ acquitted,” in the section referred to, has reference exclusively to persons criminally prosecuted, and therefore that section refers exclusively to criminal prosecutions. Let us again recur to Mr. Webster: “ Acquitted,” set free, or judicially discharged from an accusation; released from a debt, duty, obligation, charge, or suspicion of guilt.” Thus, it appears that the word “ acquitted ” has reference to both civil and criminal prosecutions, and therefore we must all admit that the convention could not have chosen a more apt term concisely to express their meaning.
It has also been said that the convention did not intend to include civil suits in this provision of the constitution, because the defendants in such suits already possessed those rights, and had no need of further security. This construction admits that the defendant in this cause is possessed of all the rights for which I contend. The legislature have not altered the law, and if judges in their decisions have departed from it, this court is in duty bound to restore it to its former purity. But if the convention omitted to secure the rights of the citizen in his defence of a civil suit, because they were well enough secured before, why was there not the same omission in respect to his rights in criminal prosecutions 1 To say the least, these rights were as well secured. By the act of 1805, Statutes of that year, p. 232, substantially re-enacted in the two subsequent revisions, it was provided, a that on every indictment or information for libel, the jury who shall try the same, shall have a right to determine the law and the fact;” and the truth was allowed to be given in evidence as a justification, provided it should be made to appear that the publication had been made from good motives and for justifiable ends. This act appears to have been merely declaratory. Its preamble is in these words: “ Whereas, doubts exist whether on the trial of an indictment or information for a libel, the jury have a right to give their verdict on the whole matter in issue,” and then the enactment follows: " Be it [401]*401therefore declared and enacted, &c.—that on every such indictment or information the jury,” &c. The doubts alluded to in the act had arisen from the decisions of English courts, in derogation oí the common law, and prior to the passage of the celebrated bill of Mr. Fox, restoring to the jury their appropriate powers and functions. Our courts had adopted the principles laid down by Lord Mansfield in such cases, and our legislature followed suit to the British parliament, in restoring the law to the standard of common sense. But as to the intention of the framers of the constitution in reference to the 8th section of the 7th article: having had the honor of a seat in the convention, I have no hesitation in saying, that in the discussions in that body on the subject matter of that section, the several members who spoke upon the question, considered the term prosecutions as referring to civil suits; and in this it will be found I am borne out by the reports of the Debates of the Convention, at pages 90 and 91. In referring to a proposition which had been made, Mr. Young, a delegate from Saratoga, remarked: u As the law would then be constituted, the judge would decide as to the motive of the publisher before it came to a jury: thus a suit is brought, the party puts in his plea of justification, setting forth the truth and the circumstances calculated to make out his case; the prosecutor demurs to the plea, and it is then for the court to say, before the matter can be submitted at all to the jury, whether the plea be sufficient or the motives of the publication good. Thus, sir, in fact taking the matter quite out of the hands of the jury.” To which Chief Justice Spencer) a delegate from Albany, answered that it had been supposed that it was “ intended to transfer to the court the privilege which now belongs to the jury of deciding on the motives of persons making libellous publications. Sir, there was no intention of taking the committee by surprise, but to appeal to them whether under certain circumstances it might not be safe to entrust the court with the discretion of deciding on motives;” but he did not deny [402]*402that the view which had been taken by Mr. Young in applying the subject matter of debate to civil prosecutions was correct.
For these reasons as well as for those first suggested, I shall vote for a reversal of the judgment of the supreme court. ■
Senator Vebflanck observed that he fully concurred in the views presented by Senator Lee, in the opinion delivered by him, as to the right of a defendant in an ■ action for a libel to have the question passed upon by a jury, whether the publication is or is not libellous; but another ground for the reversal of the judgment had now been suggested by a venerable senator which conformed with his first impressions as to the true meaning of the clause of the constitution which had been referred to. Uncertain however whether the question might not have been otherwise settled by adjudication, he had not made up his mind as to the vote he should give in this case in reference to it; though now he understood that there had been, no decision on the question. He then adverted to the provision in the constitution, and observed that the words prosecutions and acquitted occurring in the section had caused him at first to doubt, whether the provision could have been intended to embrace civil suits; but he said the word prosecutions in its broadest acceptation, relates to all suits, though as commonly understood, it applies most appropriately to suits for torts, whether they be civil or.criminal, suits. As to the -word acquitted, it was frequently used by Lord. Ellenborough, in speaking of defendant’s. obtaining .'verdicts in actions of slander. The right of a defendant to give the truth in evidence in an action for a libel, is as much within the mischief intended to be remedied, as when he is prosecuted by indictment for a libel. The reasoning of Chancellor Kent, in the famous case of The People v. Croswell, 3 Johns. Cas. 337, applies as well to civil as to criminal cases. He hesitated, how[403]*403ever, in placing his decision upon this ground, as the point had not been argued by counsel.
The Chancellor protested against the decision of the case upon grounds not presented on the argument and upon which the plaintiff below had not been heard by counsel. He also expressed his surprise at the construction given to the provision in the constitution, and observed that he would venture to say that no lawyer had ever before supposed that the provision as to the giving the truth in evidence in prosecutions or indictments for a libel, extended to civil suits for a libel between party and party; but if it did, surely the evidence was not admissible under the r k of the general issue. To his mind it was evident t\ i the provision was not intended to embrace civil suits fór a libel, because its effect, instead of operating favorably to defendants, which was its 'manifest object, would have a direct contrary tendency. At common law, the truth of a publication alleged to be libellous may be given in evidence, be the motive ever so bad, or the end ever so unjustifiable, provided the facts be properly pleaded or notice given of them; but if the clause of the constitution in question be construed to extend to civil suits, the truth will no longer be a justification in such suits, unless the publication be made with good motives and for justifiable ends.
On the question being put, Shall this judgment be reversed? all the members of the court present who had heard the argument, (except the Chancellor and Senators Clark, Paige and Skinner,) voted in the affirmative; the Chancellor and the three senators named, voted in the negative. Whereupon the judgment of the supreme court was Reversed.
Since published in 25 Wendell, 186.