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Erastus Root, Defendant in Error.

JOSEPH Blunt opened the argument for the plaintiffs in error.

This action, he stated, was brought for a publication in the New-York American, alleged to be libellous, and made under the following circumstances :

During the presidential election of 1824, an extra session of the legislature of New-York was called by the governor, with the view of giving to the people, in their primary assemblies, the choice of the members of the electoral college of this state.

A powerful party in the legislature, favouring the election of Mr. Crawford, was opposed to this project; and while it was warmly urged upon the legislature by a large portion of the community, it was as warmly resisted by others. Great excitement was produced, and the attention of the whole state was directed upon the proceedings of the legislature at Albany. The meeting took place at a season of the year, when Albany was thronged with strangers, and the capital was daily filled during the session with intelligent and distinguished men from the different states of the confederacy. On this striking occasion, in the presence of an assemblage comprehending many of the most influential and illustrious names of our country, the plaintiff, who is the defendant in error, while presiding over the senate of the state, conducted himself in a manner which induced one of the defendants, who was then in the senate chamber, to make the publication complained of, giving an account of his appearance and conduct at that time, and to animadvert upon it in language, which such conduct fully deserved.

I do not mean to contend in this place, that this account was accurate. This I am precluded from doing by the verdict of the jury. All that the defendants are required to show is, that they fully believed that their account was correct, that they had good reasons for believing it, and that they made no intentional misrepresentations.

If that were the case, no language could be deemed too harsh and severe in commenting upon acts, which degraded not only the station filled by the plaintiff, but reflected discredit upon the people of the state, and the body over which he presided. A citizen, attached to our institutions, and zealous for their character, and forming such conclusions from what actually passed before his eyes, would be filled with indignation, and his justly excited feelings would manifest themselves in strong and appropriate expressions.

Such was the impression made upon the mind of the defendant, who wrote the libel in question, by the conduct of the plaintiff

. Believing him to have been intoxicated on that occasion, he did not hesitate to say so; and he animadverted upon his situation in terms of pointed severity,

For so doing this action was brought by the plaintiff, and the venue was laid in Delaware county, the place of his own residence. The defendants sought to have the trial take place either in Albany, where the transaction occurred, or in New York, where many persons, who were present at the time alluded to, resided.

This motion was resisted by the plaintiff, and upon the pretence that he had as many witnesses in his own county as the defendants had in New York, (although he stated in his deposition that he was unacquainted with their names,) the venue was retained in Delaware.

Under such circumstances the trial came on, and the defendants acting in good faith and under the impressions which influenced them in publishing the libel, attempted to prove it to be true. With this view they introduced several witnesses who were present on the occasion referred to, all men of the highest character in both public and private life ;-three members of the senate,-two gentlemen who now represent their country at different courts of Europe,—and three others who were also present, and who all stated that the description given of the plaintiff in the alleged libel was substantially true. Indeed, the statement given by them fully justified the publication, and the judge who tried the cause charged the jury, that “there was no doubt of the entire credibility of every witness upon either side. They were gentlemen of the first integrity and intelligence, and no inducement could be supposed in the case sufficient to lead them to misrepresent or withhold any fact within their knowledge." In addition to this testimony, they proved that it was currently reported in Albany at the time, that the plaintiff was intoxicated in the senate on the occasion alluded to: and the character of the plaintiff as an habitual and notorious drunkard was established beyond all controversy.

On the other hand, the plaintiff produced several witnesses, who stated that they were also present in the senate, and that in their opinion he was not intoxicated. They did not, however, attempt to deny that his character for sobriety was bad.

After a full discussion of the testimony, the honourable judge who tried the cause charged the jury, and they retired. After being out all night they came in, and upon his reiterating a portion of the charge to which exception had been taken, they rendered a verdict for $1,400 in favour of the plaintiff.

The Supreme Court was moved for a new trial, on exceptions to the legal principles advanced in the charge of the judge, and also on the ground, that the verdict was contrary to evidence. This motion having been denied, a writ of error was brought on the bill of exceptions, and the cause is now here for a reversion of the legal doctrines laid down at the trial of this cause. The grounds urged upon the consideration of the Supreme Court are comprehended in the following propositions :

1st. Proper testimony was excluded from the consideration

of the jury.

2d. The judge ought, when required so to do, to have charged the jury that if they believed the publication to have been made in good faith, and with a full belief in its truth, these circumstances should induce them to mitigate the damages.

3d. The question of malice ought to have been submitted upon all the evidence, as a question of fact for the decision of the jury.

It is to be observed, that at the trial of the cause, the defend. ants were not permitted to inquire into the general habits of the plaintiff for temperance, not even upon cross-examination.

The testimony concerning the prevalence of the concurrent reports at Albany as to the plaintiff's conduct in the senate on the occasion alluded to, was also excluded from the consideration of the jury, as well as the evidence of the general character of the plaintiff for intemperance, unless it appeared to be equal in degree with the offence charged. They were told that this testimony was not to be taken into consideration by them; not even in their estimation of damages; and this opinion concerning general character was reiterated, when the jury, puzzled as some were at the charge, came into court for new and clearer directions.

The jury were also told, and this formed one of the principal objections to the charge, that they were simply to inquire whether the plaintiff was intoxicated, as described by the defendants. The intention and motives of the defendants in making the charge, their belief in its truth, were excluded from their consideration. Their malice, it was stated, and emphatically stated by the judge, was a legal inference; a conclusion of law from the falsity of the publication; and notwithstanding he was requested to direct the jury to inquire into the motives of the defendants, he refused so to do, but persisted in saying that their intention or malice was a legal inference. (Here Mr. Blunt read the charge of the judge. Vide Am. Ann. Register, for 1826–27, p. 247, and then proceeded :)

When this opinion came before the Supreme Court for revision, the court did not altogether confirm all the positions of the judge at circuit.

It assumed a new ground, and one which enabled it to avoid deciding directly upon all the questions submitted for its consideration,

The judge at the circuit charged the jury, that inasmuch as the defendants had professed to state what they saw, no concurrent reports at Albany of the plaintiff's drunkenness were admissible in mitigation of damages, as showing the belief of the defendants in their statement. The supreme court, perceiving this ground to be untenable, assumed a different one, and observed that the notice of justification accompanying the plea of not guilty, was an admission of malice, and therefore no evidence short of proving the truth of the charges was admissible in mitigation of damages, as showing the motives of the defendants.

This was a new ground, but still it as completely excluded the evidence offered in mitigation, as that assumed by the judge at circuit; and it will be incumbent on us, in reference to that point, to overturn both positions; and after reading the reasons advanced by the Supreme Court in support of its decision, we shall proceed to inquire into their validity, as well as into the correctness of those advanced by the judge at the trial. (The opinion of the Supreme Court was then read. Vide page 259, Am. Ann. Register, for 1826-27.)

The first question, he continued, that we shall submit for the consideration of this court, grows out of the rejection of proper testimony, whether by the total exclusion of it by the judge, or by his charging the jury to disregard it in making up their verdict. In cross-examining the witnesses produced on the part of the plaintiff, they were asked, what were the general habits of the plaintiff as to temperance. This course of cross-examination being objected to, was prohibited by the judge.

What was the effect of this decision under the circumstances in which the cause was then placed? The jury was inquiring into the condition of the plaintiff at a particular time. Several respectable witnesses on the part of the defendants said that he was intoxicated. Others produced by the plaintiff said, that in their opinion he was sober. The testimony was conflicting,

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