Stow v. Converse

3 Conn. 325

• Court: Supreme Court of Connecticut
• Decided: July 15, 1820
• Status: Published

Opinion

Hosm3R, Ch. J.

In the opinion, which I am now to express, on this case, I shall waive considering the objections made to that part of the charge, which, after mentioning what is understood by being an infidel, declares, that the acts specified “ are crimes punishable by statute.” Whether there is such a repugnance between the constitution and the law referred to, as necessarily to imply a negative of it, and amount to an implied repeal, 1 have not had leisure to examine. The result to which I shall come, renders it unnecessary to determine the question ; and for this reason, I shall pass it by, without the expression of an opinion.

In the suggestions, which, at this time, I intend to make, I shall pursue an order different from that which was adopted by the counsel. Those objections to the proceedings below, which 1 consider as untenable, I shall first attend to, and then recur to others, which, in my judgment, are of a different description.

By way of preliminary, I will state what it is, that constitutes a libel. It is defined by Hawkins in his Pleas of the Crown, book 1. ch. 73.p. 193. to be “a malicious defamation, expressed either in printing or writing, and tending either to blacken the memory of the dead, or the reputation of one who is alive, and to expose him to public hatred, contempt or ridicule.” On this principle, it has been adjudged, that a writing, which declared, that a person stunk of brimstone, and had the itch, was libellous ; (Villers v. Monsley, 2 Wils. 403.) because it might be the means of excluding him from society. A letter calling a man a villain, js libellous ; and has so beenjdeter-mined. Bellv. Stone, 1 Bos. & Pul. Rep. 331. In Steele v. Southwick, 9 Johns. Rep. 214., which was an action founded on a libel for saying of the plaintiff, “ he is no slouch at swearing to an old story,” the words were deemed actionable, and for this reason ; that although they did not import perjury, in the legal sense, they held the plaintiff up to contempt and ridicule, as being so thoughtless or immoral as to be regardless of the obligations becoming a witness. And a written representation, imputing improper motives to a district attorney, in the performance of his official duty, has been considered a libel. It is because the imputations are written, and may circu* late extensively, and never be forgotten, that the law respecting libels is so different as it is from the rules relative to verbal slander.

After reflecting on these principles, I am prepared to give an opinion on the omission of the judge to charge t he jury, that the words spoken in the convention were not actionable. When that body was devising and framing a constitution for the state, it was said of the plaintiff, and after verdict it must be considered as having been said falsely and maliciously, that ⅜ “ he openly avowed the opinion, that government had no more right to provide by law for the support of the worship of the Supreme Being, than for the support of the worship of the ; devil.” A sentiment so irreverent towards the Creator and Governor of the world, and so analogous to the modes of thinking, habitual to unbelievers and profligate men, would dis- • grace any person who was not a professed infidel. Taking it¡ for granted, as we are bound to do, on the falsification of this ⅛ charge, by the jury, that the plaintiff in his tenets is a Christian, the injury accruing to him from the preceding imputation must necessarily be great. If believed, it can scarcely fail to deprive him of the esteem of mankind, exclude him from intercourse with men of piety and virtue, and render him odious and detestable. The evidence of this need not be labour-ed ; it is intuitive ; and every man, who has a common share of intellect and reputation, knows, that a charge against him of this description, would awaken all his resentment, and deprive him of peace until he had successfully repelled it.

I shall next consider the objection to the account of the debates in convention, reported by the defendant, and admitted, to show, that the publication of the preceding words was false and malicious.

To the competency of the testimony, proceeding from the pen of the defendant, no objection has been or can be made. It is equally clear, that it was relevant. It stands on the same ground as a verbal representation, made by the defendant, of what occurred in the convention, or of a letter written by him to a friend. In either of these cases, it would conduce to prove the malice and falsity of the publication on this subject, if the defendant was silent relative to the obnoxious expression, which he afterwards thought fit to impute to ffie plaintiff. I cannot but think, that the deliberate report of tiff, the debates in the convention, by a person, who, it must be presumed, meant to publish them faithfully and completely, is higher evidence that he omitted nothing material, than a mere verbal conversation would be. And when it is considered, that the sentiment said to be expressed by the plaintiff, was, by the defendant, deemed so derogatory to his character, as to be published to the world among other weighty imputations, it is not to be believed, that he would have omitted it in the publication of the debates, had the fact existed. It is true, that the opinion might have been expressed by the plain- ’, when the defendant was not present; but of this, if there, was proof, he might have taken benefit before the jury. In the absence of testimony, it is a fair and reasonable presumption, that the reporter of the conventional debates was present, without intermission, as he ought to have been, to perform the duty he assumed ; and it is no hardship to place on him the burden of showing, that he was absent, at the time when the words published were supposed to have been spoken, and of pointing out the source from whence he derived his information.

The letter of the commissioner of the revenue, to repel the charge of unfairness and partiality in refusing to receive the payment of a tax in Middletown bank bills, was duly admitted in evidence. Acting pursuant to instructions derived from the superintendent of the department for the collection of taxes, desicively rebutted the charge made against the plaintiff; and the objection rests on no higher ground than this; that when a person is calumniated and rendered odious, he may not adduce the most apposite evidence to show the impartiality and integrity of his conduct.

The uniform profession, conduct and conversation of the plaintiff, from his youth up, was proper testimony to repel the charge of infidelity. The precise point was decided, by the supreme court, in Curtiss v. Strong, as will appear to any one, who consults the treatise on Evidence, by the late Ch. J. Swift, p. 48. The propriety of the evidence is too obvious to be questioned. It is the best proof the nature of the case admits of. From the life and conversation of a man, viewed conjointly, men in private life form an opinion of his character; and courts and jurors must form their opinion in the same manner. True it is, a man may display the hypocrite; and he may, and often does it, more successfully, by bis actions, than by his words. But it is not thence to be inferred, that his ac-f . ’. tions are no evidence in his favour, when the enquiry is as to the regularity and piety of his life. The conversation of a man, for successive years, on the enquiries concerning his faith, and the operations of his heart, is fact; it is part of the res gesta; and by the fire-side every man has recurrence to it, to ascertain the integrity of his fellow men, whether the conversation is for him or against him. The same recurrence, and for the same reason, must be had in a court of justice, or we must reject both actions and words, when we are in search after character. If the words and actions harmonise, they form a united whole; and every man who exhibits a good conversation out of his lips, as well as a fair example in his life, is entitled to the benefit of both, at all times, and in all places.

But if the observations made, are unfounded, the testimony was admitted merely to rebut evidence of the plaintiff’s infidelity, which was never a point in issue betweén the parties. If this is correct, the defendant has no cause of complaint, as the plaintiff’s evidence alone destroyed testimony on his, the defendant’s, part, which should never have been heard.

To decide what matters were in issue, we must first ascertain what were the false and calumnious charges of which the plaintiff complained.

The defendant charged on the plaintiff the following misconduct ; that “ he seduced his early companions to join an infidel club, by him and others set up and supported that “ he had attempted to destroy all the religious institutions of the state and that “ he had insulted the clergy, who had offered their services in the parish where he resided.” Now, suppose the defendant had pleaded a special justification, and it cannot be denied, that in his proof he is held to the same rules as if the plea had been made, what would have been his plea ? That the plaintiff was an infidel ? No; it would not have met a single assertion the defendant had made. Every person will perceive, that the plaintiff must have been an infidel, if the facts stated were true; but infidelity was not directly charged on him. It was something worse than infidelity itself. It was the charge, not of want of faith, but of bad prac* tice; not of opinion, but of conduct. A man may, in his opinions, be an infidel, and, for the ifiost part, may keep them to himself, or, he may converse freely, in all companies, and avow his tenets ; or, with a zeal worthy of a better cause, he may establish infidel clubs, and seduce the young and unwary to become members of them. To be called an infidel, is highly reproachful; but it is worse to be charged with free and open conversation, in support of infidel principles ; and worst of all, to be represented as making efforts, by schools, and other institutions, to propagate irreligious tenets. Now, he who makes the latter charge, can only justify, by proof co. extensive with it ; and it is of no avail, when he has imputed to a person bad conduct, to offer proof of incorrect principles. I am clear, then, that the infidelity of the plaintiff ought never to have been a question at the trial of this cause ; and that no complaint can legally arise from having, in any manner, defeated the evidence of the defendant on this point. Hilsden v. Mercer, Cro. Jac. 677. Smithies v. Harrison, 1 Ld. Raym. 727. Bull. N. P. 9. Andrews v. Vanduzer, 11 Johns. Rep. 38.

There remains to be considered two objections, the order of which I shall invert. To rebut the proof introduced on the part of the defendant, adduced to establish the truth of his charges against the plaintiff’s conduct as collector of the revenue, and bank director, evidence was admitted on the part of the plaintiff, to show that he had ever sustained the character of an honest man. The matter in issue here was conduct, not character. The charge on the plaintiff was that of having exacted money in violation of his official duty ; and to this point alone should the testimony have been received. There is no pretext for the assertion, that such evidence was ever before admitted. The decisions in Westminster-Hall, in the neighbouring states, and in our own state, all harmonize on this subject. “ In ordinary cases, where the defendant’s character is not called in question, otherwise than by charging him with fraud, or misconduct, it is not admissible to produce any proof to support or impeach his character.” Swifts Ev. 140. And as the plaintiff derives no support from adjudged cases, as little is derivable from principle. It is not only in contravention of the fundamental rule, that evidence shall be confined to the issue, to admit such testimony ; but it would be infinitely dangerous to the administration of justice. Instead of meeting a charge of misconduct, by testimony evin-cive of not having misconducted, general character would become the principal evidence in most cases ; and he wfeo could throng the court with witnesses to establish his reputation in general, would shelter himself from the wrongs he had perpetrated. In criminal cases, by way of exception, the prisoner is permitted to adduce his general character, in opposition to a specific charge. But the rule has not been, and ought not to be, extended further.

Had the plaintiff offered general character in evidence, on the points on which the charges were made against him, the long practice of our courts would have sanctioned the admission of such testimony to enhance damages ; but it would not have been received for any other purpose.

The plaintiff received five per cent, commissions, in instances where there had been no actual distress and sale; and that he had legal authority for this, the counsel have contended. I have critically examined the 26th section of the act referred to, on which this question depends, and am satisfied, that the law did not authorize the commissions collected. After having designated the mode of proceeding against the property of a person, who has omitted to pay his tax, the act provides, that in case of distress, the goods distrained shall be restored to the owner, prior to the sale, on payment or tender of the full amount demanded, with the levying fee, and reasonable expenses for the custody. Even at this period, after distress, no commissions are payable. But if the property is sold, then five per cent, is allowed to the officer, charged with the collection of the tax, for his own use. The assertion of the judge was correct, when he declared, “ that the collector was entitled to a commission on those taxes, only in case of an actual distress and sale.”

It only remains to consider, whether the residue of the charge on this point, viz. that “ if the plaintiff had honestly taken the commission by mistake, he could not be said to be unfair, partial, or unjust,” is legally correct.

The mistake alluded to, was a supposed misconstruction o the law. The charge made against the plaintiff was that of unfairness and partiality in exacting a greater sum than the law authorized. On this subject, in my judgment, the opinion of the judge was incorrect. Had there been a common usage, sanctioned by courts of justice, allowing the commissions in the case alluded to, the decision by Sewall, J. in Commonwealth v. Shed, 1 Mass. Rep. 229. would have given it countenance. For, in that case, although the officer took fees beyond those allowed by statute, it was agreed, by the counsel, on both sides, that the usage in the county had been uniform in taxing the sum complained of, in favour of officers. Here nothing of that nature is pretended; and the jury have been permitted to enquire, whether the law had not been misconceived, without any testimony before them directed to that object.

The general principle, that ignorance of law is no excuse, for aught that I can discern, applies to this case, with its full force. It is a maxim founded in sound policy and general convenience ; and seems to be essentially necessary to be adhered to. If the prisoner prosecuted for a crime might allege his ignorance of law, it would strike at the foundation of the criminal code, and render the community unsafe. The same may be said as to wrongs done towards an individual, and to contracts made with him. If, in either case, he could allege his ignorance of the law, he might evade his contracts, and commit wrongs, with impunity. Gomery v. Bond, 3 Mau. & Selw. 378. Bilbie v. Lumley, 2 East, 469. Brisbane v. Dacres, 5 Taun. 143. Lowry v. Bourdieu, Doug. 468. It may sometimes happen, that this maxim of law, like other general principles, will produce disadvantage, unjustly, to an individual. But this is the condition on which all general rules are adopted. Partial inconvenience is the invariable consequence ; but the predominance of general good, notwithstanding, authorizes their being established. An officer may very honestly take illegal fees, through ignorance of law; but if this were to be an admitted enquiry, it would be endless, and dangerous in the extreme. If the rule were to be mitigated or varied, one would think it ought to be, when a person is prosecuted criminally, for something which involves the severest consequences. But in that case, it could not be done ; nor in my judgment, can it in this. I am of opinion, that the plaintiff was estopped from resorting to the permitted enquiry; and if, through ignorance of law, he took illegal fees, that he cannot justify himself in the manner which the judge permitted.

The other Judges were of the same opinion.

New trial to be granted.