Hosmer, Ch. J.
In delivering my opinion in this case, I shall attend to the objections made to the determination of the court below, as they are successively presented by the motion.
1. The plaintiff’s declaration contains the following words, being a part of the libel on which his action is founded: “Let those who have been compelled to pay their taxes to him,” (meaning the plaintiff) “as collector of the national tax, speak of his” (meaning the plaintiff’s) “fairness and impartiality in his” (meaning the plaintiff’s) “exactions, of the justness of his” (meaning the plaintiff’s) “demands, and of his” (meaning the plaintiff’s) “fees of office.” This allegation the plaintiff, at the trial, omitted to read, and openly relinquished and abandoned. The defendant, notwithstanding, offered testimony to prove the truth of the recited charge; and on the plaintiff’s objection, it was rejected as irrelevant.
The motion of the defendant is founded on a supposed deficiency of right in the plaintiff thus to withdraw from the consideration of the jury, any averment in his declaration. There exists no doubt, that a plaintiff may select from a publication comprising many injurious charges, such parts of them as he pleases, and found his action on these alone. On the same principle, he is at liberty to enter a nolle prosequi to the whole of his declaration, or to one of the counts contained in it, or to part of a count. 1 Tidd's Prac. 629. 1 Wms. Saund. 207. c. n. In Wigglesworth v. Dallison, 1 Wms. Saund. 207. c. n. which was an action of trespass for taking and carrying [28]*28away hay, grass, and corn, a nolle prosequi was entered as to the hay and grass, and the plaintiff was permitted to proceed for the corn. This, in an action for a libel, cannot be productive of any inconvenience; as the whole publication is in evidence, that the meaning and spirit of the charges pursued, may be perfectly understood. In the action before the court, it is unquestionably clear, that the plaintiff might have entered a nolle prosequi as to that part of the declaration abandoned at the trial; and in that event, the defendant could not have been permitted to prove the truth of the facts withdrawn from consideration. These observations contract the enquiry to this point, viz. Whether a nolle prosequi, in the accustomed form, must be entered, or whether an abandonment may be made, at the trial, ore tenus, as was done in this case.
The case of Genet v. Mitchell, 7 Johns. Rep. 120., determined by the supreme court of the state of New-York, contains a precise answer to the proposed questions; and is, in no material respect, distinguishable from those under discussion. It was an action for a libel, the declaration comprised three counts, the second of which was wholly abandoned at the trial. In the first and third counts, different parts of the libel were recited, and while the cause was proceeding, "The plaintiff's counsel, after some discussion, stated to the judge, that they abandoned all the libellous matter set forth in the declaration, except the second paragraph in the first count, which, it was alleged, charged the plaintiff with being a 'spy' of Buonaparte, and except the charge in the last count, which affirmed, 'that the plaintiff had traitorously betrayed the secrets of his own government.' It was then submitted, on the part of the defendant, whether such an abandonment could be made by the plaintiff; and the judge being of opinion that it might be done, the plaintiff's counsel declared, that he abandoned all the libellous matter, except as above mentioned; upon which the evidence offered by the defendant, as to the other matters, was held irrelevant." It has been insisted at the bar, that the abandonment mentioned in the preceding case, and in Brooks v. Bemis, 8 Johns. Rep. 455. where the same mode of practice was resorted to, was by the entry of a nolle prosequi; but this supposition is opposed to language the most precise and perspicuous, and has no imaginable foundation. The case of Genet v. Mitchell was brought before the supreme court for revision; and it was there ob[29]*29jected by the defendant's counsel, as it has been done here, that the plaintiff, after stating a variety of facts in his declaration as libellous, and when "the defendant comes prepared to meet the whole charge," could not be permitted to separate the facts, and rely on one distinct fact, when there might be a clear and complete justification of the whole taken together. But, the court unanimously affirmed the proceeding at nisi prius. "This cause (said Yates, J.) was tried under the qualified abandonment, as stated; to which objections have been raised in the argument. I consider the doctrine laid down in 1 Wms. Saund. 207. n. 2. as the law on the subject, and the exception is incorretly taken. The course adopted by the plaintiff was proper; and, it was competent to him to abandon part of the libellous matter, in any count, provided the part relied on contained sufficient to sustain the action; and as evidence of this, the judge correctly admitted the whole publication containing the libellous matter." Kent, Ch. J., Thompson, J., and Van Ness, J., concurred in this opinion. The adjudication of a very respectable judiciary, then, furnishes a precedent, entirely applicable to the case before us.
Independent of authority, it is very apparent, that the administration of justice, could neither require nor admit the reception of the offered testimony. To allow the justification of a charge, which the plaintiff had abandoned, and which this fact had ceased to charge, would, at best, be a useless waste of time; and not improbably, might be perverted to an unauthorized purpose. Besides, the interests of justice are never duly regarded, when evidence, which ought to make no impression, is admitted.
It has been said, that on the abandonment of a part of the plaintiff's declaration, the defendant should have been allowed the costs to which he had been subjected, by the preparation made to repel the charge relinquished; and on this point, great stress has been laid.
I reply, in the first place, that the motion is only adapted to review the question, whether, if there be an abandonment of part of the declaration, the defendant can be permitted to justify the facts relinquished. The enquiry presented to the court, is, whether the testimony should have been received, and not, whether costs should have been paid.
If, however, the question concerning costs were regularly made, to render it of any avail to the defendant, it must be [30]*30assumed as a principle, that they always must be allowed, under any circumstances in which they may occur; as the motion supplies no materials on this subject, for the exercise of judgment. But to this proposition I cannot give my assent. Where a nolle prosequi is entered to the whole declaration, the defendant in Westminster-Hall, by virtue of the 8 Eliz. c. 2. s. 2. is entitled to his costs; Cooper v. Tiffin, 3 Term Rep. 511.; and I have no doubt, that the principle of common law, on which costs are allowed in our courts, is co-extensive. But, when the abandonment is of part of a declaration, leaving sufficient matter to sustain a recovery in his favour; it is difficult to discern a reason why the costs should not depend on the ultimate determination of the cause. If the defendant obtain a verdict, the allowance of his costs is an inseparable consequence; and if he do not, on what ground is it, that he should be placed in a more eligible condition than he would have been in, had the evidence offered by him been admitted, and the verdict been rendered against him? In this event, he would not be entitled to costs; and by clear analogy, he must be equally without rights in the case of a partial abandonment, and a verdict against him on the matter pursued. In Genet v. Mitchell the same claim might have been made; but it was unthought of, both by court and counsel.
That the abandonment of a part of the declaration while the cause was on trial, was a novelty in our practice, I readily admit; and so entirely a novelty, that this is the first time, in which, so far as I know, the practice has ever been resorted to. The same, I believe, must be affirmed, of the proceeding in Genet v. Mitchell. But, the inference attempted to be deduced from the premises, is unwarrantable. As the point was made, it was necessary to decide it; and had the determination been adverse to the right of abandonment, the novelty of the decision would have been the same. After all that has been said, it obviously must occur to every lawyer, on the first suggestion of the thought, that even the sanction of precedent, however ancient and uniform, is never conclusive on a point of practice. It was truly asserted by Lord Mansfield, in Robinson v. Bland, 1 W. Bla. Rep. 256, 264. that, "Where an error is established, and has taken root, upon which any rule of property depends, it ought to he adhered to, by the judges, till the legislature think proper to alter it; lest the new determination should have a retrospect, and shake many questions already settled: but the reforming of [31]*31erroneous points of practice can have no such bad consequences; and therefore, they may be altered at pleasure, when found to be absurd or inconvenient.” Hence the suggestion of novelty is of no weight, in respect of a matter of practice, if the rule adopted is founded on substantial reasons.
2. The next evidence offered consisted of the deposition of Polly Augur, and of the testimony of other witnesses, to show that the plaintiff was an infidel; and on the objection, that the plaintiff’s infidelity was not a matter in issue, the offered testimony was repelled. On this point, the court expressed a direct opinion, when this case was before them on a former occasion. As the subject, however, is again presented, I am not unwilling to give it an attentive examination.
The sole object of testimony, is to ascertain the truth of the several disputed facts or points in issue, on the one side and on the other; and no evidence ought to be admitted to any other point. Phill. Ev. 126. The parties, the one by affirming certain facts, and the other by denying them, have marked out the field of controversy; and they both come prepared to contest those questions, and those only, which they deliberately have selected for trial. To these they must be strictly confined, or surprise, and consequent injustice, will be the infallible consequence.
Is there, then, an allegation in the libel, which charges the plaintiff with infidelity? If there is not, the parties have no controversy on this point; and to admit testimony to prove it would be to try a case not before the court. The only expression supposed to be of this description, with the innuendo explanatory of its meaning, is in the following words: “Let those of his” (meaning the plaintiff’s) “early compansons, who are yet living, and who are seduced to join an infidel club, by him” (meaning the plaintiff,) “and others, set up and supported,” (meaning that he, the plaintiff, with others, had established within this state, and continued to maintain, an infidel club, or association, in which he, the plaintiff, by writing, teaching, or advised speaking, had denied, and continued to-deny, the true God, and his government of the world, and had denied, and continued to deny, the being of a God, and his holy attributes, and that the Christian religion is true, and to teach that the Holy Scriptures of the Old and New Testament are not of divine authority; and that the plaintiff had seduced, and continued constantly to seduce, the early companions of his the plaintiff’s youth, and others, citizens of this state, to [32]*32join said club, and that he, the plaintiff, has taught and inculcated to such persons, whom he had thus seduced, and continued to teach them in said club, that the christian religion is not true, and that the Holy Scriptures aforesaid are not of divine authority,) "tell of his" (meaning the plaintiff's) "virtues." When analysed and stripped of its sarcastic form, the clause in the libel contains the following plain assertions, and nothing more: First, that the plaintiff, with others, set up and supported an infidel club; and secondly, that he seduced his early companions to join it. This is all which the declaration comprises, containing even an allusion to the subject of infidelity. As the charge exclusively imports the institution of a club for the propagation of infidelity, and the seduction of youth to become members of it, it would not at all be met or justified, by proof, that the plaintiff was an infidel. Should the defendant succeed in establishing this reproach, it would not, in the minutest degree, bear on the slander before propagated; but the sole charge, that the plaintiff had instituted an infidel club, and seduced his companions to become members of it, would remain equally false, and in force equally undiminished, as before. Proof that the plaintiff was an infidel, would justify an imptution, which the defendant had never directly made before the introduction of such testimony: and although highly reproachful, much less so, than the accusation contained in the libel. For I think it demonstrably clear, that to charge a person with infidelity, injurious as it must be, if unmerited, so long as it is understood that the poison is confined to his own bosom, is less aggravated and pernicious than the assertion, that he is actively engaged in propagating infidel principles; although to this it were not superadded, that he is the seducer of his youthful companions. And this is an additional demonstration that the matters charged in the libel, and offered in justification, are not the same; as they are not identical either in nature or degree. I will only add, that a charge of infidelity has for its object the want of religious faith; while the allegation, that a person has instituted an infidel club, and seduced his companions to become members, has for its object, the actions of an individual; and the difference is precisely this; that the former is conversant about a mental operation only, while the latter relates exclusively to conversation and action. No person of common understanding would suppose, that the accusation of having congregated a band of murderers, would be justified, by proof, [33]*33that the man of whom the words were spoken, was sufficiently unprincipled to commit murder; or that the denunciation of one as having perpetrated treason, would be evinced by testimony of his treasonable purposes. The analogy between the cases put, and the principal case, is too obvious to require illustration.
It has been correctly asserted, that proof of the substance of a slanderous charge, is a justification; and this is frequently followed, by the erroneous supposition, that every thing is substance, which justifies the matter alleged, or has a relation in the facts averred, although it does not meet them directly. In a case which demands the frequent application of the exact rule on this subject, it is of high importance, that it should be precisely understood. The term substance is used by way of contradistinction, from the letter and form of a charge; and although the latter is not required, the essence is indispensible. It can never comport with private justice or public convenience that a libeller should be protected, by any proof, which falls below the imputations he has made. The characters of men would be most inadequately guarded by a principle, that permits any thing to be a justification of libellous expressions not amounting to full proof of the essential facts charged; and a court, which, in its requirements, should sink below this standard, would deserve nothing short of public censure. And when the accusation, instead of specifying certain definite facts, which are clearly to be understood, and to confront which, the person claiming to be injured knows by what testimony to meet them, is expressed in terms so broad and general, as almost to defy preparation for this purpose, the rule cannot, with safety to the interests of justice, admit of any relaxation. Were it otherwise, the press, which now often teems with gross licentiousness, might easily be made the vehicle of the most wanton reproach and vile calumny, without the possibility of correction; and this palladium of liberty would thus become a hateful curse.
The established rule on this subject, is given, with much precision, in the case of Andrews v. Vanduzer, 11 Johns. Rep. 38. and it is this; “that the defendant, who would justify a charge, must justify as to the specific charge laid, and cannot set up a charge of the same thing, but distinct as to the subject matter."-Thus in Hilsden v. Mercer, Cro. Jac. 677. the court adjudged the words, “She is a thief in you and to me, and hath stolen twenty pounds from me, and forty pounds [34]*34from you,” were not justified, by a plea, which alleged, “that the plaintiff was a thief, and had stolen two hens.” It was said, “that inasmuch as it is a justification, in that she was a thief, which are the principal words, the other words are not material to be answered to; sed non allocatur; for the last words are as slanderous as the former; and there was not any justification of them, nor answer to them, and therefore the plea is vicious.” So in Smithies v. Dr. Harrison, 1 Ld. Raym. 727, which was an action on the case for words, that imported the committing of adultery by the plaintiff with Jane at Stile; it was determined by Lord Holt, that the defendant, in mitigation of damages, might give in evidence, that the plaintiff committed adultery with Jane at Stile, but not with any other woman. And in Andrews v. Vanduzer before mentioned, a determination to the same effect, has recently been made, by the supreme court of the state of New-York. The plaintiff brought an action of slander against the defendant for saying of him, that he had had an unnatural connexion with a mare, to which the general issue was pleaded, with notice; and at the trial, the defendant offered to prove, that the plaintiff had been guilty of the above crime with a cow. The evidence was repelled, and the court said; “The cases in Cro. Jac. 677. 1 Ld. Raym. 727. Bull. N. P. 9. show, that the defendant must justify the specific charge.” In the case before us, the specific charge is, that the plaintiff instituted a club, and not that he is in principle an infidel.
It was contended, that the innuendo has varied the popular sense of the word, and explained the charge as denoting infidelity; and on this point has rested the principal stress of the defendant’s argument. Upon this subject there has been a double misconception; that is, a misconception both of the law and of the fact.
First, as to the law. An innuendo is not an averment, but is only matter of explanation; “For,” as was said by De Grey, Ch. J. in Rex v. Horne, Cowp. 672. 684. “it means nothing more than the words “id est,” “scilicet,” or “meaning,” or “aforesaid,” as explanatory of a subject matter sufficiently expressed before; as, such a one, meaning the defendant, or such a subject, meaning the subject in question. But as an innuendo is only used as a word of explanation, it cannot extend the sense of the expressions in the libel beyond their own meaning; unless something is put on the record for it to explain.” In Roberts v. Camden, 9 East 95. Lord Ellenborough [35]*35said; "Where such new matter is not, as here, necessary to support the action, an innuendo, without any colloquium, may well be rejected as surplusage; as it can have no effect in enlarging the sense of the words used." Vide Van Vechten v. Hopkins, 5 Johns. Rep. 210. 220. 1 Chitty on Plead. 383. Pelton v. Ward, 3 Caines, 73. Although an innuendo can never enlarge the meaning of an expression, yet where words are ambiguous, and admit of different applications it may confine or direct them. This principle illustrated in the case of Smith v. Carey, 3 Campb. 460. In an action for slander of the plaintiff in his trade, the words were, "that he lived by swindling and robbing the public." To swindle, is to practice fraud; and hence the expression had a very extensive sweep, and admitted of a justification by proof of fraudulent practices to the injury of others, in almost any possible manner. The plaintiff subjoined an innuendo to the words, meaning that he was guilty of "felony and robbery." It was correctly decided by Lord Ellenborough, that the plaintiff should be held to that sense of the words, which he had ascribed to them. This case shows the restrictive or limiting effect of an innuendo in certain cases, but does not countenance the idea, that it can ever extend the intendment of an expression beyond its customary meaning. This would be, to alter the nature of an innuendo, and convert an explanation of antecedent matter, into a direct averment. Now, if the words published of the plaintiff unequivocally and exclusively mean, the supporting of an infidel club, and seducing youth to join it, concerning which there exists not a serious question; an innuendo, explaining them to charge the plaintiff with being an infidel, would be a nullity, by this attempt to enlarge the sense of definite and intelligible expressions. And what is particularly important on this subject, there is neither averment nor colloquium in the declaration, by reference to which, the words published are susceptible of a construction, different from their plain and popular signification.
Secondly, the misconception of fact is equally obvious. The innuendo does not explain the words, as having imputed infidelity to the plaintiff. It contains the following propositions, and nothing more. 1. That the plaintiff, with others, established within the state, and continued to maintain, an infidel club or association. 2. That in said club, he had denied the true God, and his government of the world, and continued to deny his being and attributes; and the truth of the Chris[36]*36tian religion; and to teach that the holy scriptures are not of divine authority. 3. That he had seduced his youthful companions and others to join the club, and taught them the above principles. It is difficult to suppose, if the innuendo is supported, that the defendant did not believe the plaintiff to be an infidel; but he has made no charge of this description, and, therefore, he has no such charge to justify. The innuendo merely amounts to the construction, which I have put on the words, and is a development of their plain meaning. The first part of it is a conversion into affirmative language, of what had been imputed in the libel, in an ironical form. It then gives an actual description of an infidel club, by denoting its doctrines and pursuits. And, lastly, it contains an explication of the expression, seduction of youth to become members. The whole of the innuendo is conversant about the school, the instruction there imparted, and the manner in which persons were induced to join it. No expression can be seized on, denoting directly that the plaintiff was an infidel; and instead of a charge to this effect, it merely comprises matter of probable presumption.
3. The next question arises, out of the following averment in the plaintiff's declaration: "Let the parish in which he" (meaning the plaintiff) "lives, speak his" (meaning the plaintiff's) "virtues, his" (meaning the plaintiff's) "attempts, and but too successful, to destroy all religious institutions in the state." These words must be taken in that sense, in which they would be understood by those, who hear or read them. Bull. N. P. 4. Roberts v. Camden, 9 East 93. What then, is their plain and popular sense? And what the imputation, meant to be conveyed? The questions are susceptible of but one answer. In the expression of the libel there is nothing equivocal or ambiguous; and reduced to a plain affirmation, it contains the following charge, that the plaintiff had successfully attempted "to destroy all religious institutions."
The defendant declares this charge to be true; and has offered testimony to substantiate his assertion. To ascertain the correctness or incorrectness of the decision below rejecting the offered evidence, it is necessary that the precise import of the charge be fixed; and then, that the effect of the testimony, be exactly determined.
The imputation on the plaintiff is, of "an attempt" to destroy religious institution; and coupled with the expression "but too successful," it plainly comprises an act, or designed [37]*37endeavour, that, at least, has been partially accomplished. By the attempt to do an act, I understand, an effort or endeavour to effect its accomplishment. This denotes something beyond the infidelity of an individual, or the declaration of his opinions, unless they are intentionally made the vehicle of effectuating some object. Between the attempt to accomplish a measure, and the tendency of conduct to produce its accomplishment, there is a broad line of discrimination, which, in the argument of this case, was not sufficiently regarded. It is the tendency of corrupt principles, often promulged, to subvert opinion, and in this way to shake institutions; and equally so, of immoral conduct. Profane swearing, drunkenness and other vicious examples tend to undermine religious principles, for the same reason, that there is this tendency in declarations of infidelity, and in licentious conversation. But, no person, acquainted with the force of language, confounds the tendency of immoral example, or corrupt discourse, with an attempt to accomplish the objects, towards which they have a manifest direction. If infidel principles, casually promulgated, without any purpose to subvert institutions, constitute an attempt to destroy them, so do drunkenness, profanity, and other vices, because this is their tendency; and the charge made on the plaintiff might as well be justified by one of these modes, as by the other. Of a person who had affirmed that the government ought to be destroyed, it would be a perversion of language to say, that he had attempted to destroy it; or of another who had declared, arms ought to be resorted to, that he had levied war; or of a third, who justified self-murder, that he had attempted to commit suicide; or of a fourth, who had resolved to beat another, that he had attempted to commit a battery upon him. These, and an infinity of illustrations, occur to show the deep line of distinction, between an opinion and an attempt, speculation and practice, words and actions.
The fair test of this enquiry will be found, in the impression made on the minds of those, who read the publication of the defendant, by which there is imputed to the plaintiff, an attempt, not unsuccessful, to destroy religious institutions. Would it be believed, that the casual avowal of infidelity, to one, two, or three individuals, in a succession of years, was all that was intended? Or that a speculation on a measure of government, or a denial of the doctrine of absolute decrees, was the foundation of so grave a charge? I may safely answer in the negative. Undoubtedly, from the generality of [38]*38the accusation, some difficulty would be experienced, and different persons, probably, would entertain different conjectures relative to the censure intended; but that some powerful and successful effort to destroy, had been made, would universally be believed; and the obscurity shed over the subject, by the omission to specificate precise facts, would give a play to the imagination, and greatly deepen the horror and contempt, which an imputation so gross and undefined, could not fail to produce.
With the meaning, I have assigned to the word “attempt,” which I am clear is the popular signification of the term, I shall proceed to enquire, whether the testimony offered and rejected, conduced to prove the specific charge made.
The evidence first offered to prove “an attempt but too successful” to destroy religious institutions, was the deposition of Alma Lyman. The only part of this testimony, which can be supposed to bear any relation to the matter in question, was to this effect; That about 16 or 18 years since, she sometimes heard the plaintiff speak against the authenticity of the scriptures, but more frequently in terms of ridicule, sarcasm, and great irreverence. The evidence offered, unquestionably conduced to prove infidelity, and this was its direct and immediate tendency; but it will not prove every thing. It had no bearing on the point, which it was offered to establish, as it was not an attempt to destroy religious institutions; nor can I conceive that any person, on hearing the grave accusation advanced, would imagine that it was to be supported by such proof.
The next proposed evidence, was the deposition of William Southmayd, for the purpose of proving, that, at his own house, a few years since, the plaintiff, at the request of his mother-in-law to pray in his family, made a profane and irreligious prayer. If such a prayer was made, it undoubtedly is proof of gross impiety and irreverence; but it was no attempt to destroy any religious institution, “and particularly, the church, society, and religious institutions of Middlefield.” No person, informed of the above facts, can, with any propriety of language, characterise them as an attempt to subvert the institutions of religion; unless the same character is applicable to profanity and wickedness of every description. The parent, who, in the presence of his children, should blaspheme the name and attributes of the Deity, would commit an offence, the enormity of which it would be difficult to express; but who would denominate such conduct, an attempt to destroy religious institutions? I confidently answer, no person, [39]*39unless he were prepared to ascribe the same denomination to every species of impiety.
To prove an attempt of the plaintiff to destroy religious institutions, the defendant offered in evidence two votes of the ecclesiastical society in Middlefield, proposed by the plaintiff, and passed by his procurement. One of them related to the act of the general assembly, making an appropriation of the debt due from the United States to this state, for the support of literature and religion; and the other amounted to a protest against the reception of clergymen, sent to Middlefield, by the Domestic Missionary Society, who inculcated the doctrine of absolute decrees; a doctrine believed by a majority of the society, to be unscriptural. I am not called on to express my opinion, respecting the solidity and correctness of the observations contained in the votes, nor concerning the propriety of directing the acts of the society to such purposes. The sole question before the court, is, whether they conduce to prove an attempt to destroy religious institutions. I am of the opinion that they furnish no evidence directed to this point. The former vote, most obviously, considered the act of the legislature, in making an appropriation to the various religious denominations, as a measure merely political; that it was unwise, impolitic, and, under the pretence of supporting the gospel, which was no part of the real object, promotive of disaffection, discord, and contention; that it was a pernicious precedent, intended to prop up (to use the expression of the vote) "a sinking administration, and a sinking establishment of religion." No objection was expressed in the vote, against religious institutions; on the contrary, it declares, that "all mankind have a natural and unalienable right to worship Almighty God, according to the dictates of their consciences; but that no power can or ought to be vested in any legislature to establish any sect of religion." The vote is full evidence, that in the opinion of the plaintiff, it was not competent for the legislature to support the government, by the aid of a religious establishment, nor to dissipate the public wealth, under false pretences, and with personal views. Whatever errors are contained in the vote, (concerning which I intimate no opinion) it had no tendency, much less was it an attempt, to subvert any of the religious institutions of our country.
As to the vote in reprobation of absolute decrees, the vexata questio of divines and others, from the reformation to this time, on which different churches have entertained, and do [40]*40entertain, different opinions, and which, like the question of liberty and necessity in the schools, has been a perpetual theme of controversy, there is no reasonable pretence for asserting, that it was an attempt to prostrate religious institutions. These subjects cannot be identified. I do not sit in the theological chair; and feel no disposition to express an opinion, on the sentiments contained in the vote. But so long as the bible is allowed to be the religion of protestants, mankind must be free honestly to form and publish their own opinions on subjects of the most interesting nature, without censure or controul. I deeply regret, that in this age of religious freedom, it should ever have occurred to any one, that an expression of belief, however erroneous, on a disputed point of doctrine, in the respectable churches of this state, was an attempt to subvert religion; and what is more extraordinary, that a court of law should be called on to prescribe bounds to theological discussion.
The last evidence offered to prove, that the plaintiff had successfully attempted to destroy religious institutions, was an assertion said to be made to a member of the church in Middlefield, that the bible was untrue. To establish infidelity, the testimony would be admissible, but on the point to evince which it was adduced, it had no bearing.
4. The defendant having introduced testimony to prove the Ethosian society, to be an infidel club, exhibited evidence to show, that this was its general character; but the jury were directed to discard it from consideration.
The correctness of this decission depends on the legal result of two enquiries; the first, as to what the defendant is bound to prove; and the second, in what manner the proof is to be made.
First, the defendant has undertaken to prove, and on this rests his justification, that his representation concerning the Ethosian society was true. He affirmed it to be an infidel club, set up and supported by the plaintiff; and the proof, to be of any avail, must be coextensive with his affirmation. Had he thought proper, he might have said, that the plaintiff instituted a society, reputed to be an infidel association; and then the issue would have been, not on what it really was, but on the reputation it bore. Not confining himself to these limits, he has directly asserted, that it was "an infidel club;" and in this, as well as in every other instance of injurious representation, he must be held to support the specific charge. [41]*41In other words, he must be confined in his proof to the issue.
Secondly, the evidence on this point, as on all others, is governed by certain general principles. Every allegation must be established in a court of justice, by the testimony of a witness or witnesses acquainted with the facts put in issue, and sworn to speak from knowledge, and not from hearsay. Phill. Ev. 173. To the above rule there are few exceptions, resting on the reason, that the nature of the case admits of the procurement of no better testimony. It has not been, and cannot be pretended, that the constitution and objects of the above named society, from their nature, are incapable of the ordinary proof; but on the contrary, the defendant has adduced the testimony of particular facts, to establish its purposes and proceedings. The question between the parties must turn on this point; whether the character of the Ethosian society is in issue; and that it is, no one will affirm, unless issue can be formed, when there has been no affirmation of a fact on the one side, or denial of it on the other, nor any thing in the nature of the proceedings to raise the proposed question.
It has been insisted, although the proof repelled would not justify the defendant, that it was admissible in mitigation of damages; but this proposition I cannot admit, and for two distinct reasons.
First, the character of the Ethosian society must be in issue, directly or collaterally, or the parties do not come prepared to try this question. It has been correctly said (Phill. Ev. 139.) "as evidence is confined to the points in issue, the character of either party cannot be inquired into, in a civil suit, unless put in issue by the nature of the proceedings itself." Although it has been questioned, whether in an action for libel, the defendant may give in evidence, under the general issue, the plaintiff's character in mitigation of damages; (Foot v. Tracy, 1 Johns. Rep. 46.) I entertain no doubt as to the admissibility of such testimony. "The character of the plaintiff," said Ch. J. Kent, 1 Johns. Rep. 52, 3. "must be considered as coming in, at least, collaterally, upon the trial," "and the injury to it is the gravamen complained of." The plaintiff's character is the principal object attacked; and for the vindication of this specific injury, his suit is instituted; and in proportion to the fairness of his reputation, are the damages sustained. Hence, he comes prepared to support [42]*42his character, in order to deepen the proof of injury; and the defendant, likewise, to protect himself from excessive damages, makes his preparation, to reduce to its proper standard that reputation, which the parties, by their pleadings, have made an interesting question between them. Evidence concerning the reputation of a specific fact, is which the defendant has published of the plaintiff, not as being its character, but as actually existing, and which is in issue as a fact, and not as character, does not fall within the preceding rule. The reputation of the fact is not in issue; but the only issue is, Whether the precise fact existed. On this point there has not been an accurate discrimination. The plaintiff's character may be proved, because it is in issue; but the character of the Ethosian society may not be proved, because it is not in issue. And at least, before I can yield my assent to the admission of the offered evidence, I must demand some well established principle, or decided case, which countenances a doctrine, apparently so unwarrantable.
Secondly, if I could admit an absurdity so gross, as that testimony to a fact not in issue might be received. I, at least, should require, that the evidence would mitigate the damages. The plaintiff is charged with having set up and supported an infidel club; and for the purposes of this inquiry, it must be admitted, either that he did not institute or support it, or that the assertion of its being infidel, was false and malicious. For, if he, in fact, supported the society, and it, in fact, was a club of infidels, the defendant would be fully justified in his publication. Now, take either part of the alternative presented; that is, that the plaintiff did not set up or support the society, or that it was a society directed, exclusively, to moral and literary purposes. In the former event, to wit, that the plaintiff had no connexion with the society, proof of its character would clearly be irrelevant. And in the latter case, namely, that, although he supported it, it was a good and praise-worthy institution, I cannot conceive, that the false character of the society, ought to diminish the damages. And let it not be forgotten, that the most accumulated proof of character, would never authorise the jury to find, as a fact, that the society was a club of infidels. The plaintiff would not sustain less damage, by reason of the character of the institution; but the proneness to believe it to be unworthy and pernicious, would deepen the injury, by stamping probability on the false and malicious publication. And I most cordially [43]*43embrace the observations of a learned judge, in Foot v. Tracy, 1 Johns. Rep. 51., as applicable to the point under considerations. "Those who sport with the feelings of others, under the professions of zeal for public good, on no other basis than that of common fame, which is not always an infallible guide, cannot complain, if courts require from them on these, as on most other occasions, some better proof of their calumnies than general opinion."
5. To repel the charge made on the plaintiff, that he had attempted to destroy all religious institutions, he offered in evidence, certain subscription papers for the support of preaching, drawn up, circulated, and subscribed by himself, and accompanied with parol testimony to show, that he paid the money subscribed. To the relevancy of this evidence the court overruled an objection, and admitted it.
Why should not the testimony have been received? The defendant had exhibited evidence to prove, that the plaintiff had attempted to destroy all religious institutions; and in opposition to this, should not the plaintiff be permitted to show, that he had habitually supported them, and in this manner, disprove the testimony?
The evidence, then, was unquestionably proper, if it tended to establish the point, for which it was adduced; and that it did, is manifest, unless he who promotes the preaching of the gospel, by his property and exertions, does not support a religious institution; a position, that no man of sound mind will advance.
On the best view I have been able to give the whole subject, no error has intervened; and a new trial ought not to be granted.
The other Judges were of the same opinion.
New trial not to be granted.