all cases be given in evidence? Whether personal defects and private misfortunes were to be dragged before the public for malicious purposes, and the truth plead in justification?

MR. DUER made a few remarks to shew that the amendment went no farther than the statute.

CHANCELLOR KENT said there were cases, in which the truth ought not to be heard in evidence; he would suppose for instance, that a publication had been made, charging a female with some personal defect, which might subject her to ridicule and wound and harass her feelings, and the feelings of her family; the injury might be so gross, as to require a resort for legal redress; and be would ask, whether it would be proper, that in such a case, a court and jury should be compelled to hear evidence, which must necessarily be very indecent and indelicate, and such as must tend to vitiate the public taste, and to corrupt the public morals. The truth in such a case, so far from being a justification, ought to be considered an aggravation. Libels of that description could not possibly be published from a good motive or for any justifiable end; the publishers could have no other object in view, than to gratify the vile passions of envy or malice; and to permit them to give the truth in evidence, would be to degrade courts of justice into vehicles, for propagating most effectually, the most detestable slanders. Mr. K. referred to a case, which had happened in England. A suit had been brought on a wager, relating to a French minister at the English court, the Chevalier D'Eon; the case was noticed for trial before Lord Mansfield, and it was proposed to enter into an examination, to prove before the jury, that the minister was a female. The judge threw the record from him with indignation, and declared that he would not permit the sanctuary of justice to be profaned with a proceeding so indecent.

To permit the truth to be given in evidence in such cases, would be affording to malice an opportunity to glut its vengeance; a defendant who had libelled a female of a family, would call as witnesses perhaps the mother and sisters; and would degrade them, by an examination, which could not be listened to, without shocking the moral sense of all decent people.

He had, he said, always been opposed to what was once considered the law of libels, to wit: that on indictments for libels, the truth could not, under any circumstances be given in evidence; and gave the history of a case which had been tried in this state in 1804. It was an indictment for a libel against Mr. H. Croswell. The trial was had before the then Chief Justice Lewis. The defendant offered to give the truth in evidence: the judge decided, that it could not be received. The question was brought up for argument before the supreme court of this state, and was argued for the defendant by the late general Hamilton, and a more able and eloquent argument was perhaps never heard in any court.

Mr. Hamilton, counsel for the defendant on that occasion, contended that the truth might be given in evidence, provided the matter charged to be libellous was published with good motives and for justifiable ends, and such was his (Mr. Kent's) opinion. There were only four judges on the bench at the time, and being equally divided, the matter rested there. It was, he said, in consequence of this trial, that the statute was passed on this subject, permitting the truth to be given in evidence under the above restriction. He wished, he said, to preserve the principles of this statute, but considered the amendment of the gentleman from New-York as going much farther.

If a way could be devised by which the jury could be enabled to judge of the motives from which the publication had sprung, without a previous examination of the witnesses, he would have no objection to leave it to them. But that, he said, could not be done. And the only way in which such indecent and indelicate examinations could be excluded, was to leave with the judge to say, whether the testimony could be received: He did not believe that this power would be abused; it was necessary for the due administration of justice, that confidence should be placed in them. If such enquiries were permitted, there would always be some unworthy members of the bar, who would press them upon courts and juries: He hoped, therefore, that the amendment wou'd not prevail.

MR. DUER was sorry to differ on a question of this kind with a gentleman for whom he entertained so high a respect as he did for the gentleman from Albany (Mr. Kent.)

Mr. D. said all that was wished, was to preserve the law as established by the statute to which the gentleman had alluded. The guilt or innocence of a party, he said, depended on his motives, and they could only be properly and correctly judged of by a jury after they had heard the evidence. If the section should be adopted as reported, it would give the whole power to the courts, to judge of the motives, and to shut out all enquiry if they thought proper-this would never do; it would be a most dangerous power, and might be exercised with great oppression and injustice. A party would never be safe, however honest and upright his intentions might be.

He admitted that there might be cases where the rule would operate injuriously; but the evil which would thereby be occasioned, would be partial,and would by no means authorize the vesting of such an arbitrary power in judges, which might be so extensively abused: when this subject was under discussion before, continued Mr. D. it was admitted by the chiefjustice, that this section as reported, varied the law, as established by the statute. The amendment under consideration was the same in principle with that statute; it was more explicit and definite and removed all doubts as to its construction.

MR. DODGE thought that the gentleman form Orange, (Mr. Duer) must have mistaken the meaning of the Chief Justice on this subject, if he supposed his object was to give to the court the power of deciding the law and the fact.This was not his intention.

Here Mr. D. related the circumstances of a case of libel, in which he had the honour of being counsel, before the present Chief Justice, at a circuit court in Montgomery; in which he urged the propriety of giving the truth in evidence as a justification, but it was rejected by the Chief Justice, upon the ground that the publication could not have been for good motives and justifiable ends. Mr. D. then contended that the jury ought to determine whether the motives were justifiable or not, to which the court would not consent, alleging that he possessed the power, and was bound to exercise it, in rejecting the testimony which should go to prove the fact, as long as the publication, in his judgment, could not have been for good motives or justifiable ends. If he possessed this arbitrary power in one respect, he must in another, and of course judgment must go against the defendant, the truth not being allowed to be given in evidence.

We have been told by the honourable Chancellor, that such a case may be brought up to the supreme court and court of errors. He would ask, whether he could make a case under such circumstances that might be brought up? This question was put to the Chief Justice in the case alluded to, which he answered in the negative, leaving no remedy whatever.

The question before the committee was, whether this power should be still exercised by the court, or whether it should be left to the jury to determine upon the motives, as well as the fact?

With respect to this question, his opinion had changed within a short time, and he was satisfied, that there were circumstances, when it was proper that the truth should not be given-when there could be no possible satisfaction, and when an exposition of the facts could only serve to injure the feelings of the person libelled. He thought this power might be safely entrusted to the court, without the fear of its being by them abused. There might be many cases enumerated, where a publication could have been for no other than malicious motives and unjustifiable ends, and when a proof of the facts might serve only to injure the plaintiff in feelings and character, without benefiting the defendant. On this account, he thought the court ought to possess the power of determining.

Some authorities were cited by Messrs. Kent and N. Sanford, when GEN. ROOT said a mistaken notion had arisen in this country, from the strong predilection which the judges and lawyers feel for the law of England. In England it was a maxim that the king can do no wrong. That maxim and law might do in a monarchical government, where the ministers are subjects of the

ridicule and recrin ination; but in a republican government, to say that your president and governor can do no wrong, would not be endured. In England, the public officers, who live upon public plunder, are to be shielded from popular animadversion through the medium of the papers, or any other medium, even that of caricature. It is for the purpose of keeping up their monarchy, and therefore the greater the truth there, the greater the libel. In this coun113, where our governor and other great men are the subjects of scrutiny, we are told that the judges must be entrusted with the exercise of this power, which the honourable gentleman from Montgomery, (Mr. Dodge) has told us was exercised in a case which he had the honour of defending; when the judge determined that the truth should not be given in evidence, and that he was exclusively authorised to seal irrevocably and irremediably, the fate of his fellowcitizens.

Give me, said Mr. R. a Turkish bashaw, who directs the head of an individual to be stricken off, and then proceeds to determine his guilt. This bashaw does not condemn without he has a strong belief that the circumstances will warrant the measure; but our judge can consign to infamy and distress the victim of his caprice, without any regard to truth or justice. If these judges are to be trusted in all cases, where is the boasted privilege of trial by jury, so much eulogised in this country? If all is to be trusted to the judges, why not abolish the form of trial by jury at once? A defendant is summoned to appear at court, he goes with the most perfect confidence in the justice of his cause, supposing that the truth given in evidence will acquit him; but when he comes into the court he is told that the truth cannot be given in evidence. Sit down, sir, is the language which I have frequently heard come from the bench. The man is thus deprived of his defence, and the jury are compelled to pass upon his guilt, after hearing a more powerful and eloquent harangue from the bench than it is in the power of counsel to offer; and they are told that they must give exemplary damages, on account of the audacity and temerity of this defendant, in publishing the truth, and bringing it to be recorded in the journals of the court. Is this the way that justice is to be administered in a free country? It is insisted that the judges must be made independent of the people, and then trust them with the disposal of our lives, liberty, and property. Why are these judges to be rendered independent of the people? It is that they may play the tyrant under the sanction of a constitutional law.

The Dey of Algiers will hesitate before he plays the tyrant, because if his conduct is not justifiable, he knows that strangling is his fate; but our judges are safe; they know that political strangulation cannot be enforced upon them. In 1805, a bill passed both branches of our legislature, declaring that the truth given in evidence was a sufficient justification. The chancellor and judges, or a majority of them, constituting the council of revision, returned it with objections to the (long roll of republicans, as the chancellor has pleased to style them) assembly, and to be sure it did not pass then, but notwithstanding their objections it afterwards passed into a law. At that time our judges were considered the wisest and best of men. Every lawyer, from the most eminent barrister down to the meanest clerk in a law office, was singing praises and ballelujahs to our immaculate judiciary. Their law was gospel, and their word was law.

As we are now called on to amend our constitution, after having seen so many usurpations by our judiciary, we ought to provide against the repetition of such unwarranted abuse.

The sage and venerable council of revision, said, at that time, that mea might be attacked for moral foibles or defects; that this was unjustifiable, and that the man who would presume to commit such a crime ought to be punished. Mr. R. would be pleased, if some gentleman who belonged to that council of revision, would define moral foibles, and let us know how far they must extend before they amount to mental vice.

If the mind was sound, and the heart pure, no dertake to publish to the contrary, as it wo and the leader of a political party, who s find the act recoiling upon himself.

man in his senses would every reader with disgust; such publication, wecht

How many libels were published for years against the sage of Monticello, and what was their effect? They recoiled on their authors, whilst the object of their slander, and the patriot of his age, became more and more endeared to his country. Whilst his venerable predecessor was surrounded by sedition laws, and sanctioned prosecutions for libels, he sunk far below the common level; but since he has retired to private life, his character has been elevated and be again stands endeared to his countrymen. When he was surrounded by all this machinery, and when his friends were enforcing the penalty of the law, by prosecuting and immuring in dungeons, from one part of the union to another how his character sunk! From a patriot, he became a despot; and instead of a republican, he was considered a tyrant!

Are gentlemen anxious for a like state of things at the present day, and in this great and patriotic state?

We are told by the honourable Chancellor, that the character of a female may be assailed. Would not the publisher of a slander against one of the fair ones receive his punishment, whether it was true or false? In either case, let it be determined by a jury: they are the most competent to determine whether his motives are good or bad.

The Chancellor has again referred us to a case which came before Lord Mansfield, in England, when the Chevalier D'Eon was publicly represented as a female, although he appeared in the character of a French ambassador to the court of St. James'. Can the provision which we are about to make affect such a case as that? No: the action could not lie, and the evidence would not be admitted to prove the fact which should so wantonly wound the feelings of this man or woman, as the case might be. He should hope that all such actions might fail; and in all actions of assumpsit, for the recovery of wages, the evidence ought to be rejected.

Mr. R. said he should vote for the amendment offered by the gentleman from New-York, although he did not think it went far enough. He would go further, and say that when a man considered himself libelled, he should not make use of a grand jury and public officers, at public expense, to vindicate his character. Let him bring his action as for verbal slander. He should not make a proposition to that effect, because he knew the attachment to the English libel system was so great that he should not succeed if he attempted it.

MR. SANFORD said, that he conceived it to be of great importance that the freedom of speech and of the press should be secured by the constitution. The freedom of the press is the best security of public liberty; and this truth, so familiar to us all, has become an acknowledged maxim, which requires no discussion. The liberty of the press in this state, now depends upon the pleasure of the legislature. The existing law of the state upon that subject may be at any time repealed, and any other regulation abridging the rights of the citizens in this respect, may be substituted. The point now under consideration, is a very precise question. The provision reported by the select committee is, that in prosecutions for libels, the truth may be given in evidence, if it shall appear that the matter charged as libellous was published with good motives and for justifiable ends. The amendment of this provision, which he, Mr. S. proposed, was, that in all prosecutions for libels, the truth may be given in evidence to the jury, and that if it shall appear to the jury that the matter charged as a libel was published with good motives and for justifiable ends, the truth shall be a complete defence. According to the first proposition, the judge is to decide upon the motive and purpose of the person charged as a libeller. According to the second proposition, the jury are to hear the evidence, and to decide upon the motive and purpose of the publisher of the alleged libel. Mr. S. would never agree that the judge should have the sole power of deciding whether the truth of the libel should be received as a defence or not. Is a citizen prosecuted for a libel, to be tried and condemned by the judge alone? And is no evidence to be given cven to that judge? According to this project, no inquiry into the truth of the case can take place, unless the judge shall first decide that the intentions of the party accused were good. How is the judge to decide upon the purpose with which the alleged libel was published? He is to bear no proof of facts, to show a purpose of good or ill; but he is to decide by

divination, or arbitrary discretion, whether the charge in question was publish ed from good or from bad motives. The true motives of the publisher are always a matter of fact; they seldom appear from the supposed libel itself; and they often form the principal question in such prosecutions. Thus the judge is to decide the most difficult question in the cause, upon the mere perusal of the supposed libel. If the judge should think the motives of the publisher unjustifiable, all evidence of the truth of the charges would be excluded, and the party accused would be condemned, even though he might be able to prove both the purity of his motives, and the truth of his charges. If our laws allow. ed an appeal from the decision of a judge in such a case, to a superior court, the objection would still remain. That objection is, that the party accused is tried upon an important fact in his cause, without evidence and without a jury. It was Mr. S's. object that the whole question of libel and every part of it, should be tried and decided by a jury, upon evidence given to that jury. But it is said that indecent disclosures of facts unimportant to the public, and painful to individuals may sometimes take place. Such disclosures are often necessary, and often occur before the courts of justice in various other cases. In questions of libel, as in other cases where facts are asserted by one party, and denied by the other, the proofs must be heard in order to arrive at the justice of the case. When the publisher of an alleged libel offers to prove the truth of his charges, and his adversary objects to that proof, the suppression of the evidence offered may be justly considered to be quite as scandalous and inju rious to the party complaining of the libel, and objecting to the proof, as any exposition of the truth of the charges. If the cause were to be tried by the judge alone, the proofs of all disputed facts should be heard. But the great question is, whether the liberty of the press shall depend upon judges or juries. Mr. S. entertained no unreasonable distrust of judges; but he wished to confide this great trust of protecting the freedom of the press, and deciding upon its abuses, to the juries of the state. In their hands it will be safe. Under their control, it will be efficacious, both in correcting mischief and effecting good. Here is at once the best security for the freedom of the press, and the best security against its licentiousness. Let the jury have the aid of the judge in these, as in other cases; but let the truth of the charges be proved in all these cases. Let the jury decide upon the motives of the publisher, as well as upon the truth of his charges; and with a full knowledge of all the facts of the case, pronounce him guilty or innocent.

CHANCELLOR KENT replied to the remarks which had fallen from the gentleman from Delaware, (Mr. Root,) and the gentleman from New-York, (Mr. Sanford.) The latter gentleman was mistaken in supposing that the effect of his amendment would be, to rescue the liberty of speech and of the press from the hands of the court, and place it in the hands of the jury. Its tendency was to sanction the publication of calumnies, and to disturb the peace of society, by draggin before the public gross indecencies, which ought not to be made the subject of investigation, whether true or false. He had uniformly been in favour of the liberty of the press; and he challenged any gentleman to point to an official act in the whole course of his public life, which contravened this declaration. But he was in favour of rational freedom, not of licentiousness.

MR. N. WILLIAMS agreed with the advocates on both sides of this question, in part; and therefore conceived himself entitled to be received by the Convention as a mediator between them. IIe admired the trial by jury as much as any man who heard him; indeed, he said, that mode of trial had called forth the admiration of mankind for many centuries, in most parts of the civilized world.

But, while he would extend the privileges and blessings to be derived from this excellent institution, in every possible manner that was judicious and salutary, yet he could not agree to the proposed amendment. He considered it as going to an alarming exten ared that it would be attended in practice with all the evils that bo ble and led gentlem sumi ls woul

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