not always necessarily render them so, even if special damage could be shown, because, if any such damage should arise from words absolutely innocent in their nature, though false (as to say of an attorney, that he was not witty) it would be damnum absque injuriâ; i. e. such a damage as the law does not notice as a wrong. And therefore it was held in the case cited, that where a private letter to a political friend, merely contained an opinion that a certain candidate for representative to congress, was so frequently affected in his mind, that he ought not to be supported for that situation, it was not actionable as a libel. The discerning reader will perceive in any such case, the necessity of attending to its peculiar circumstances, in order to determine, whether a communication is actionable or punishable as a libel, or not. In regard to all communications which are privileged, it will be most safe to give no more publicity to them, than is necessary to obtain those objects, on account of which alone, the law bestows the privilege. Any further publication will lead to the inference that there must have been some other motive for it, which if not shown to be innocent, the law will presume to have been malicious. It would be contrary to public policy, however, to punish any person as a libeller, merely for expressing in any of the public journals, a sincere belief that a certain candidate for public office, ought not to be chosen on account of certain facts, transactions, &c. &c. which the supposed libeller had probable cause to believe to be true. It has been held, however, that a publication of rumors, is not justified by the fact, that such rumors exist. See 1 Wendell, 456. A man's character ought not to be at the mercy of a mere scandalous rumor, which it is frequently impossible to trace to any responsible source. . Yet in any such case, it seems, that the existence of such rumors will go in mitigation of damages.

In the case of the People v. Croswell, Kent, Jus., concludes his opinion with the following remarks. The founders of our governments were too wise and too just, ever to have intended by the freedom of the press, a right to circulate falsehood as well as truth, or that the press should be the lawful vehicle of malicious defamation, or an engine for evil and designing men, to cherish for mischievous purposes, sedition, irreligion and im

purity. Such an abuse of the press would be incompatible with the existence and good order of civil society. The true rule of law is, that the intent and tendency of the publication, is in every instance to be the substantial inquiry on the trial, and that the truth is admissible in evidence to explain that intent, and not in every instance to justify it. I adopt, in this case, as perfectly correct, the comprehensive and accurate definition of one of the counsel at the bar, (General Hamilton,) that the liberty of the press consists in the right to publish with impunity, truth with good motives, and for justifiable ends, whether it respects government, magistracy, or individuals.' See 3 Johns. Cases, 394. This doctrine is expressly incorporated into the statute law of several of the states, particularly New York, Pennsylvania, and Massachusetts.

With regard to other publications, it may be remarked, that it is no infraction of law to publish temperate investigations of the nature and forms of government. Commonwealth v. Dennie, 4 Yeates, 267. Further than this the law does not seem to be judicially settled in this country. In the case of the Commonwealth v. Dennie, just cited, that distinguished writer was indicted for publishing the paragraph contained in the note below, and which, whether the result shall show his opinion to be well or ill founded, must be acknowledged to be equally virulent and unbecoming. Yeates, Jus., in the course of his charge to the jury, remarked, in substance, There is a marked distinction between temperate investigations of the nature and forms of government, and those which are plainly accompanied with a criminal intent, deliberately designed to unloosen the social band of union, totally to unhinge the minds of its citizens, and to produce popular discontent with the exercise of power by the known constituted authorities. These latter writings are subversive of all government and good order. "The liberty of the press consists in publishing the truth, from good motives, and for justifiable ends, though it reflects on government, or on magistrates.' (Gen. Humilton in Croswell's Trial.) It disseminates political knowledge, and, by adding to the common stock of freedom, gives a just confidence to every individual. But the malicious publications which I have reprobated, infect insidiously the public mind

with a subtle poison, and produce the most mischievous and alarming consequences, by their tendency to anarchy, sedition and civil war. We cannot, consistently with our official duty, pronounce such conduct dispunishable. The jury brought in a verdict of not guilty. See 4 Yeates, 267.*

In England it is held, that any person may discuss the proceedings of parliament, even after they have become final, and express doubts as to their wisdom and policy. See Holt on Libels, 135. The law is the same here; this freedom of speech and of the press, without doubt is the peculiar object of the protection of the provision, contained in the first amendment to the federal constitution.

* The paragraph for which Mr. Dennie was indicted, was as follows:

A democracy is scarcely tolerable at any period of national history. Its omens are always sinister, and its powers are unpropitious. With all the lights of experience blazing before our eyes, it is impossible not to discover the futility of this form of government. It was weak and wicked at Athens, it was bad in Sparta, and worse in Rome. It has been tried in France, and terminated In despotism. It was tried in England, and rejected with the utmost loathing and abhorrence. It is on trial here, and its issue will be civil war, desolation, and anarchy, No wise man but discerns its imperfections, no good man but shudders at its miseries, no honest man but proclaims its fraud, and no brave man but draws his sword against its force. The institution of a scheme of polity so radically contemptible and vicious, is a memorable example of what the villany of some men may devise, the folly of others receive, and both establish in despite of reason, reflection, and sensa tion.'

There is nothing that can be said to excuse or palliate the public avowal and dissemination in this country, of such sentiments as those contained in the concluding part of the above paragraph, in italics. To publish them in periodical publications, seems alınost as unjustifiable, as to attempt to overthrow a government with no better pretence, than that it cannot last. If the experiment is making, let it be made fairly.

Much of this writer's paragraph is sophistical. Our form of government is not the same with the democracy of Athens, or that of Sparta, or that of Rome, and has never been tried either in France or England; and all argu. ments drawn from experience must fail, when the experiment has not yet been made.

It has been found to have imperfections, it is true; some of which have been remedied by peaceable and deliberate amendments. In other countries a political reform of any kind, has seldom if ever been obtained, without a revolution, and not always, with one. Our frame of government has within itself a power to reform, without any danger to apprehend a civil war in consequence of it; which there is no reason to fear will ever take place, unless the constitution is either overstepped or violated.

So, it is lawful, with decency and candor to discuss the propriety of the verdict of a jury, or the decision of a judge. But, if the publication contains no reasoning or discussion, but only declamation and invective, and is written not with a view to elucidate the truth, but to injure the characters of individuals, and to bring into hatred and contempt the administration of justice in this country, they ought to be punished. See 1 Cowp. 359.

And generally, where any public grievance is exposed, whether by way of petition, remonstrance, &c., it seems, that any language, however strong, which is made use of to express the grievance, will be justifiable.

It is for the interests of literature, that a candid review of any literary work should not be esteemed libellous. Accordingly, in the case of Sir John Carr v. Hood, it was held to be no libel to expose a false literary taste, though by satire, burlesque, and ridicule. In that case it was held, that even a caricature of the author, as an author, and not as an individual, was not libellous; and the general doctrine was laid down, that no publication is a libel, which has for its object not to injure the reputation of any individual, but to correct misrepresentations of fact, to refute sophistical reasoning, to expose a vicious taste, or to censure what is hostile to morality. 1 Camp. 350, 354.

It may not be amiss to bear in mind, that a libel is a forfeiture of a bond for good behavior. 3 Yeates, 93.

CHAPTER V.

Of the Rights of Juries.

WHEREVER the trial by jury has been introduced, it has usually furnished a theme for unqualified admiration, on account of its wisdom, impartiality, and justice, and because it is thought to furnish the best security for the citizens, or subjects of the government, against public and private wrongs.

Its wisdom is apparent in this, that it is admirably contrived to render the people satisfied with the administration of justice. For, where a case goes to the jury by the common law, as it almost always may at the discretion of the defendant, no judgment can be given against any person either in a civil or in a criminal trial, unless after a verdict has been rendered against him, by them. Now, since all men of decent characters are qualified to serve on a jury, a few only being exempted or excluded from motives of public convenience or policy, or on account of the nature of their usual occupations, whether public or private; and as the jurors are commonly drawn by lot in each county, at regular periods, for the decision of causes arising within it, every qualified citizen has a chance of being called upon to serve in this office, and, consequently, to decide upon the law disputes of his neighbors, as well as upon all criminal charges prosecuted by the public. The people are aware of this, and are better satisfied to have their causes, or the question of their guilt or innocence of any such criminal charges, decided by men of the same rank, condition, and means of information as themselves, than they would be with the decisions of any judges, however learned and wise, the justice of which decisions they would seldom be able to perceive, because they would not readily understand or feel the weight of the reasons, which those judges would assign for their decrees.

Its impartiality is secured by the manner, in which the jurors, who are to constitute the jury for the decision of each cause,