Spencer v. Southwick

that as this cause must be decided on the grounds discussed in the supreme court, when he presided in that court, he should decline giving any opinion here; nor should he give any opinion in any cause decided before him in that court.

was of opinion that the judgment of the supreme court ought to be reversed.

The allegations of the parties having terminated in a demurrer, the sufficiency of each one of the pleadings is. drawn in question. The pleadings must, therefore, be examined; and the first of them which shall be found to be insufficient, must determine the cause against the party whose allegation it is.

The action is for printing and publishing a libel, which is set forth in the declaration. The first step, in the consideration of the cause, will be to fix, as clearly as may be, the true sense and meaning of the libel.

The libel appears.to me to contain two accusations against the plaintiff. One is, that while he was a member of the senate, he, with others, deceptively effected the incorporation of the Manhattan Bank; by which he made a pecuniary profit to himself. The other is, that the plaintiff was the father, or author, of a certain public prospectus, which contained an assurance that a considerable portion of a newspaper, therein mentioned, should be devoted to the support of religion, and that this assurance was hypocritical and deceptive. In fewer words, one is a charge of corrupt conduct in the plaintiff, as a senator, and the other is a charge that he attempted to deceive the public, in respect to a certain newspaper. For the purpose of reference, I will denominate the former the first, and the latter the second charge.

How far are these charges connected, and how far are they distinct ?

It is said, that the charge that the plaintiff was the author of the deceptive prospectus, is stated merely as an inference, resulting from facts which are alleged; and hence, that the se= cond charge is absorbed, or embraced, in the first. This construction is not the sense of the libel. The obvious meaning of the writer is, to declare that the plaintiff was the author of the prospectus. It is true, that this charge is not expressed in such terms as might be used in stating the fact in an indictment; but it is clear, that by various expressions, and by the tenor of the whole paragraph, the plaintiff is charged to have been the author, writer, or father of the prospectus. It is not necessary to inquire whether this charge might be expressed in terms stronger, or more precise. If the meaning of the writer foe dear and intelligible, it is enough. It is the duty of courts eg

The conduct of the plaintiff, as a senator, is stated as a fact, which had happened long before his deceptive prospectus. The incorporation of the Manhattan Bank, and the acts of the plaintiff, in respect to that company, are facts which have no connexion with his attempt to deceive the public, on the subject of the newspaper. It is charged, indeed, that hypocrisy and deception had effected the incorporation of the Manhattan Company, and that they were again employed to effect another object. But the occasions upon which hypocrisy and deception are alleged to have been practised, and the purposes for which they are charged to have been used, are totally unconnected and distinct. The transactions alleged" to have taken place, are distinct in their own natures, and are separated by time. The two charges appear to be brought together by the writer, for the purpose of illustration, but this conjunction cannot alter the nature of the facts stated. In such a position, the two charges may give shade and colouring to each other, but each has its own body and substance. Such a connexion may aggravate, but it cannot diminish the libellous force of each separate charge.

It may be said, that the imputation against the plaintiff is" that of hypocrisy and deception, under pretence of religion. This general statement of the charge would fall far short of the libel. The libel states two particular instances in which hypocrisy and deception, under the pretence of religion, were practised

The object of the deceptive prospectus was to give currency to a newspaper; but the particular object to be attained by the newspaper is not stated, and it is stated that it was yet to be determined how far the deceptive attempt would succeed. Hence, the second charge falls far short of the first in the turpitude which it imports.

The second charge is, still, clearly a libel. Hypocrisy and deception, always odious, become so, in the extreme, when religion is made the pretence. An attempt to deceive the public, for any purpose whatever, either by matter published in a newspaper, or by a prospectus, issued from the press, is highly flagitious; and it is still more so, when the author of the attempt adds impiety to fraud, by assuming the pretence of religion. Though the two charges against the plaintiff differ in the degrees of scandal which they import, they are both scandalous, and each of them amounts to a libel, or a libellous accusation.

In every view, therefore, which I can take of this paragraph, it appears to me to contain two distinct charges against the plaintiff, each of which is scandalous and libellous.

I perceive, that what I have denominated the first charge ia the libel, embraces several topics, and may, perhaps, be considered as constituting more charges than one. The view which I take of the cause, in its present state, renders- it unnecessary to propose, or to discuss, any such discriminations. The ground upon which I shall place my opinion is, that the second charge is plainly distinct from the other matter of the libel, and equally so, whether the other matter is considered as constituting om

Such appearing to be the sense of the libel, I proceed to- the pleadings. It will be most convenient to examine them in the order in which they took place.

The plaintiff, in his declaration, complains of the whole libel. The libel is recited in the declaration at large, and without selection or discrimination of any particular part; and the plaintiff alleges, that by reason of the printing and publishing of that libel, he has sustained injury. The declaration, therefore, demands redress for every thing contained in it, which may amount to a libel.

The declaration, indeed, appears to put forward the first charge as the principal ground of complaint. It does not, however, state the first charge as the sole ground of complaint. Every thing constituting the second charge is sufficiently alleged ; and there is nothing in the declaration which relinquishes the second charge, or confines the plaintiff’s demand to the first. Indeed, there is nothing in the declaration which confines the plaintiff’s claim to redress to any particular part of the libel. On the contrary, he complains of the whole libel as it is; and, in the concluding part of the declaration, in which it is usual to state, briefly, the injury resulting from the preceding facts, he expressly alleges, that his grievance, in this case, arises from the libel, and libellous matter before stated, comprehending the whole.

The innuendoes, or averments of meaning, cannot vary this view of the declaration. The proper object of an innuendo, is to give certainty to something uncertain in the libel; but ad innuendo cannot be used to vary the meaning of the libel, or to give it a construction, where the meaning is clear upon the libel itself. In this case, averments of meaning are applied to the libellous matters, constituting the second charge, as well as to those constituting the first. These averments of the plaintiff are inserted in his declaration for the purpose of giving to the libel formal precision and legal certainty. They are not used, or intended, to restrict the cause of action; nor can they be construed to remit, or relinquish, any thing plainly actionable in the libel. The innuendoes applicable to the first charge can-sot, therefore, be considered as limiting, or remitting the right

_ No objection was made to the declaration at the hearing of the cause. It appears to be in the form usual in such cases, and I consider it sufficient.

. The declaration must be answered by a sufficient plea. As it contains two libellous charges, both must be answered.

The plea, in this case, contains no matter whatever which can be considered an answer to the second charge. The matters stated in the plea relate altogether to the Manhattan Company, and the plaintiff’s conduct and interest in that affair. There is no answer whatever to the charge that the plaintiff was the father of the deceptive prospectus concerning the newspaper, and that he practised hypocrisy, and attempted to deceive in that respect. The plea contains no answer, direct or indirect, to this charge, and does not even attempt to answer it. The libellous matter constituting the second charge, is, therefore, totally unanswered, and the plea is, for that reason, insufficient in substance.

This objection to the plea being fatal, it is unnecessary to consider the plea as an answer to the first charge, or to examine the replication. My opinion is, that the judgment of the supreme court ought to be reversed, and the cause remanded for farther proceedings.

Although the parties were at issue in the court below, upon a demurrer to the plaintiff’s replication, yet the rule in such case being that judgment must be given against him mho committed the first error, it is necessary to examine the previous pleadings, in order to determine where the first error lies.

The libel on which the action is founded, charges, (among other things,) in substance, that the plaintiff was guilty of hypocrisy and deception in the performance of his trust as a senator; and that, whilst such senator, he, in conjunction with others, his associates, by means of hypocritical cants and pretences, effected the incorporation of the Manhattan Banlc. No question is made as to the character of these charges, or

The defendant undertakes by his plea, to justify the whole; and having done so, he is bound to answer every part that is material, or the omission is fatal. In order to determine whe-. ther he has thus answered, in respect to these particular charges, ’ let us ascertain the facts and averments contained in the plea, and relied on for justification. Stripped of .such words as, for this purpose, are superfluous, they are simply these; that, at the time in question, and while the plaintiff was a member of the senate, a certain law was passed, the preamble and first section of which are set forth at length; that such law contained a clause authorizing the company thereby incorporated to establish a bank; that the plaintiff, well knowing that it contained a clause of that nature, advocated and supported it; that not more than ten members of the legislature were aware of its conferring any such authority; that the plaintiff well knew that a "large majority of the members were totally ignorant of it, and that he did not, “ in a public manner, publish and make known to the members of the senate all the powers granted by the said law, as it was his bounden duty, as a senator, to have done.”

Which of these facts or averments can be considered as justifying the charges above stated 1 The only one which has any bearing upon the question is that with which the plea concludes, and to which all the other matter it contains is merely inducement, the omission to disclose to the senate the import of the law referred to. The charges in question, it will be observed, however, are not confined to mere omission or neglect of duty. They convey the imputation of positive misconduct, and require," to satisfy them, something more than simply abstaining from the performance of duty. The neglect or omission of duty may, undoubtedly, under circumstances, be quite as culpable, and involve as much moral turpitude as the commission of crime. "But still, the offences are different. To effect an object, as is alleged to have been done in this instance, by hypocritical cants and deception, is surely a very different thing from omitting to do what duty or propriety may require. The one implies actual affirmative agency, the other supposes mere inae

It has been argued that the preamble to the bill contained the 68 hypocritical cant,” and that, in supporting it with that preamble and the banking clause, consisted the deception. The answer is, 1. That the preamble was itself a part of the bill, the whole of which (as well the preamble as the rest) the plaintiff is alleged, in the manner ascribed to him, to have aided in carrying through. This cant and deception, therefore, even if the plaintiff had an agency in forming the bill, (which is not averred,) must necessarily have been entirely dehors the bill, and have consisted in language and conduct wholly distinct from, and unconnected with, the preamble; and, 2. The plea does not put the defence on any such ground. It merely states the passing of the bill, containing, among other things, the preamble and banking clause, the plaintiff’s supporting it, with knowledge of its contents, the ignorance of other members of the legislature, and the neglect of the plaintiff to inform them ©f what he ought; putting the whole defence, so far as the charges of hypocrisy and deception are concerned, upon the neglect of duty in not informing. Neither can the defendant’s averment, at the conclusion of the plea, “ that all these actings and doings of the plaintiff were hypocritical and deceptive, and contrary to his duty as a senator,” remedy the defect; this feeing merely an inference from the facts previously stated, (of which the court must judge,) and not a substantive allegation ©f any further" fact in justification of the libel. On this ground, therefore, the omission to justify a material part of the libellous matter complained of, the plea is bad, and the plaintiff entitled to judgment.

But, passing by this ground, and admitting for the moment that concealment, or omission of duty, would, if properly pleaded, be a sufficient justification of the charges in question, there.

The plea being, for these reasons, bad in substance ; it is unnecessary to examine the replication.

The judgment must, therefore, be reversed, and the cause re-branded for further proceedings.

Root and Hubbard, Senators, concurred.

This is an action for the publication of a libel, brought against the defendant in the supreme court, The declaration is in the usual form, stating the libel, preceding it by appropriate recitals, and accompanying it with the innuendoes necessary to its application. To which the defendant pleaded specially, averring certain facts, and relying on them, when proved, as a justification of the libel. To this plea the plaintiff demurred, on the ground that it did not answer the charge in the declaration, but avoided it; and in October term, 1812, the supreme court gave a construction to the libel, and decided that the plea was a sufficient answer to it, as they then construed it; upon which the plaintiff, by the permission of that court, withdrew his demurrer, and replied to the facts set forth in the special plea, according to the construction put upon it by the court below; and, as he alleges, in the only manner which, by the decision of that court, was left to him. . To this replication the defendant demurred, relying on the ground of Its being no answer to the plea, and a departure from the de

To induce the reversal of the judgment, the plaintiff in error contends,

1st. That the replication to the defendants plea was good in substance; and, therefore, judgment ought to have been rendered for him on the general demurrer thereto.

2d. That if it v/as bad, still judgment ought to have been given for the plaintiff, on the ground of the insufficiency of the defendant’s plea.

And to induce an affirmance of the judgment of the court be* low, the defendant contends,

1st. That the facts contained in the special plea are a full answer to and justify the libel.

2d. That the replication did not answer these facts, but evaded them, and is therefore bad.

The general rules of pleading, that a plea which professes to answer the whole declaration, must be a full and substantial answer to it; that the same principle is applicable to replications ; and that judgment must be rendered against the party who commits the first error in pleading, are not denied, and the decision of the cause must depend on,

1st. The construction of the libel, and the manner it 5s charged in the declaration.

2d. The nature and operation of the facts, set forth in the plea, considered as an answer to the libel, and set forth in the declaration,

3d. If necessary, the nature and effect of the allegations its Site replication.

These questions, tested by the rules above stated, cannot fail to lead to a correct conclusion.

I have considered the whole case, with the attention which is due to its importance, and the high interest which the parties lake in it. I have examined the reasons given by the supreme court, for their respective decisions, with a predisposition to believe them sound, and with a caution and circumspection, due to the distinguished respectability of the source from whence they have proceeded. The result h®§ been, an entire conviction

The libel complained of is as follows: In commenting on a certain prospectus, issued by one Brown, to a paper about t© k® published by him, the defendant uses the following words : “ His assurance, that a considerable portion of his paper .shall be devoted to the support of religion, &c. excites in my mind strong suspicions. I beg it may be remembered, that by hypocrital cants of this description, Judge Spencer, and his associates, effected the incoporation of the Manhattan Bank, of which the judge’s share of the profits were several thousand dollars. With this knowledge of the policy of the judge, I eannot but believe, that this assurance is calculated to deceive and impose upon mankind. It is a fact of public notoriety, that when the Manhattan Bill passed the Senate, Judge Spencer claimed to be a distinguished member of that body: the preamble of the bill stated, that ‘ Whereas, by the blessing of God, the introduction of pure and wholesome water into the city of New-York,' Sec. The deception succeeded, and not more than ten members of the legislature knew that the bill contained a clause that would authorize the company to carry on banking business. It is not a little extraordinary, that a similar hypocritical pretence should be resorted to, for the purpose of giving currency to a newspaper. It is to my mind conclusive evidence, that this artfully deceptive prospectus has a cleat? right to claim Judge Spencer for its legitimate father. Whether this attempt at deception will succeed as well as that in relation to the Manhattan Bank, remains yet to be determined. Of one thing I am certain, it will not put as much money in the judge’s pocket. Thus much for the prospectus.”

The declaration sets forth the whole libel, and concluding int these words: “ Meaning to insinuate and be understood, that, by hypocritical cants and practices, the said Ambrose, and his associates, effected the incorporation of the Manhattan Company of New-York, in which his, the said Ambrose, share of the profits was several thousand dollars, while he was one of the senators of the state of New-York, contrary to his duty,” &c.

The construction put on the libel by the plaintiff, is, that it «barges him with a violation of official duty as a senator, and corruption, and great depravity as a man, in associating with

When this cause first came before the supreme court, they deemed it necessary to, and did, give a definition of the libel in She following words : “ The gist of the libel consists in charging the plaintiff with hypocrisy and want of fidelity in his trust as a senator, in effecting the incorporation of the Manhattan Company, in which he was largely and profitably interested. The plea, in justification of the charge, states, that the plaintiff was a senator at the time of the passage of the bill, that he advocated and supported it, and was, at the time, largely interested in its stock, in which he made a great profit. That he knew that the bill “ contained a clause, giving power to institute a bank, and that only a very small proportion of the legislature, not exceeding ten members, knew of that fact, and that the plaintiff had good reason to believe, that he well knew that a large majority of both houses were totally ignorant of the fact, and he did not disclose and make it known to the senate.” And in speaking of the plea in this sense, they say, “We cannot perceive any charge In the libel, to which the plea is not a substantial answer," provided the plaintiff’s knowledge that the legislature were ignorant of a banking power lurking in the bill, be sufficiently averted”

This construction is in no sense equivocal; it purports to be the deliberate opinion of the court, necessarily and appropriately expressed. They say, that, as senator, he effected the pas-sage of the bill, he advocated and supported it, and was, at the time, largely interested. No arrangement of the words, at the time, can be made; no sense put upon them, save that of it$being at the time he so effected the incorporation, he so advocated and supported it; and it is in this sense only that the idea of depravity can be attributed to his conduct, for it certainly eould not have been supposed by the court below, or believed by any one, that the single circumstance of his being a senator e.t the time of the passage of the bill, and not opposing it, could sender him culpable, provided he took no part in its passage, directly or indirectly. No, it s>, and must be, for Ms conduct

In consequence of this decision, the plaintiff replied: “ That, at the time he advocated and supported the said law, he did not hold, and was not the owner of any of the stock created by the said law, nor had he any interest whatever in the same.” To which, as I have before stated, the defendant demurred, and in deciding upon, and in favour of that demurrer, the supreme court, speaking of the construction of the libel, say, “ The libel consists in charging the plaintiff with concealing from the senate, his knowledge of the fact, that the bill contained a power to institute a bank, while he, at the time, knew that the senate was ignorant of that fact, by which means they were led to pass the bill under false impressions and under a concealment of the necessary truth. This is the charge which we consider to be actionable, and in which the substance of the libel consists, and which is justified by the plea, but neither the one nor the other do, by any necessary construction, convey the charge assumed by the replication, viz. that the plaintiff’s conduct. was induced by interested motives.

Sensible that whatever may have been the intention of that court, their decision on the question of construction, in terms, and in substance, was essentially different on the second occasion, that this cause came before them, from what it was on the first; they say, that “the few preliminary remarks with which the previous opinion was introduced, may not have been clothed in language the most precise; they were, however, never meant to convey a different opinion as to the sense or meaning of the libel.”

Which of the two constructions thus given to this libel, by the court, is correct, may be a subject of discussion ; but that there has been error in one, at least; that they cannot both be right, is self evident.

The construction of the libel which was adopted by the supreme court, in the first instance, is most obviously the true one. That the libel charges the plaintiff with aiding in effecting the- incorporation; that it charges him with practising hypocrisy

The objections which are made to this construction, by the supreme court, are, 1st. That this wouM cc be straining the libel Into the most odious sense.”

3d. That, “ whether the deception was practised by the plaintiff, by reason of any then existing interest in the bill or stock to be created by it, or from the expectation of some future interest to be procured when the bill should become a law, or without the influence of either of these motives, was left by the libel, to the inference of the reader.”

I will briefly consider the validity of the reasons thus assigned. The construction which it behoves a court of justice to put on a publication which is alleged to be libellous, is to be derived as well from the expressions used, as from the whole scope and apparent object of the writer. Now, what was that in this case ? The writer imputes the authorship of a certain publication, which professes to have for its object, among other things, the maintenance and support of religion, to the plaintiff. He calls public attention, and seeks to enlist public prejudice against him, as practising hypocrisy in that respect, for sinister purposes; a species of hypocrisy of all others the most odious and detestable; and, by way of ensuring public odium and settling public opinion, it is admitted that he charges the plaintiff with a prostitution of “ hypocrisy and deception,” in effecting the passage of an important bill through a branch of the legislature, of which he was a member, sworn to a faithful discharge of the duties attached to his station. In construing such a publication, it does not seem to me, that the purposes of justice would be best effected by testing it by the rules of grammatical accuracy, or weighing it with scrupulous precision; nor can I consider the construction I adopt, as at all “ straining the libel” to a sense in any other degree odious than the author has made it, but, on the contrary, I am well satisfied that it is consistent with the spirit and object of the publication.

Nor is the second ground more tenable. It is true that, technically speaking, there could be no bank stock until the bank was incorporated; still we all know, or at least have heard, how these things are usually managed, and we are not at liberty to shut our eyes against this knowledge, to give a technical meaning to a publication confessedly libellous. These publications are addressed as well to the understandings as the passions of mankind; and it is the manner in which they will most probably be understood, which renders them injurious or

The third objection is already answered, by showing, that the motive which actuated the plaintiff is distinctly attributed to him by the libel, and not, as the supreme court suppose, left to inference.

I cannot, however, suffer the, in my judgment, exceptionable and alarming tendency of the doctrine coatainou in this objection, to pass without observation. The libel, say the supreme court, charges the plaintiff with the deepest moral depravity in conduct; it sets forth the circumstances of that depravity, but that they are not authorized to say that it charges him. with a corrupt design. Why ? Because the libel does not expressly so charge it, but only 66 leaves it to the inference of the reader.” The least reflection must satisfy every intelligent mind that no one doctrine could be maintained, and no one legal notion indulged in, which would be productive of mor© mischief, in relation to libels, than the one contained in this dictum of the supreme court. It is saying nothing more nor less than this, you may so state your case before the public, lhat the guilt of the party accused, may follow as a matter of necessary implication ; as, for instance, A. S., in his official capacity, supported a measure flagrantly destructive of the public interest; he used the vilest hypocrisy to effect its success, he had an interest in, and made money by the act; but whether his inducements were mercenary or otherwise $ whether it was

In whatever point of view, therefore, this libel is considered, iho construction put upon it by the plaintiff is the correct one, and arriving at this conclusion, there is an end of the cause. For, whatever may have been the opinion of the supreme court in their first decision, in their second they expressly admit, that the plea answers the charge of deception and hypocrisy, and that only; that it does not, as is self evident from the slightest inspection of it, in-any respect, answer the charge of imputing to the plaintiff corrupt motives, in supporting the uni iurismg-from either an existing interest, or an expectation of individual interest, at the time he so supported it. Admitting, therefore, what may, with great propriety, be denied, that the facts set forth in the plea would justify the charge of deception and hypocrisy, as much as it confessedly does not answer that part of the charge, which is in itself the most odious; which serves to set off to the greatest disadvantage the others, and which stamps the whole transaction with guilt, it must on the conceded and irrefutable principle that a pica which professes to answer the whole declaration, and does not, is bad, be held defective. Nor do the facts set forth in the plea, in my judgment, support the charge of hypocrisy and deception. The libel charges the plaintiff with practising, himself practising, an imposition on the legislature, not with suffering others to practise one; and there is no fact set forth in the plea, which goes to support that charge, even viewed in the light it is, by the court below. But let us view the charges on the ground of be ing sins of omission, and being as well in form as in substance, if sins at all, tantamount to sins of commission. The plaintiff say they, Tenets that the bill contained a banking clause; the rest

Let me illustrate the flagrant injustice of this doctrine. A proposition is made in the senate, the success of which, I believe, will redound to the public benefit, and on that account I wish it success, and feel it my duty to give it my ardent support ; I observe that although the extent of the proposition Is •obvious to me, it is not so generally understood, and I learn that if it was so understood, it would be opposed and defeated. 'What, under such circumstances, am I to do ? If I undertake to instruct those whose duty it is to know, I defeat a measure with which I believe the public interest to be deeply connected. If I omit to do it, I am guilty of hypocrisy-, of deception. Can such a proposition be considered equitable or legal, just or politic ? No ; the true rule on this subject is as simple as it is true. If a senator suffers a bill, which, in his conscience, he thinks injurious to the public, to pass, under a mistaken impression on the part of his brother senators, his conduct is culpable, for he violates his duty, in the first instance, by not resisting the passage of the bill, and that violation taints every thing he does to promote it, and stamps suspicion on any thing lie omits to do.

If a senator promotes, in his seat, the passage of a bill, for Ids own private emolument, and obtains its passage in the manner in which the plea avers was done in this case, he is deeply culpable, for his individual interest contaminates his whole conduct. But in either case, to render such conduct criminal, it is essentially and indispensably necessary that the person accused should act against his judgment or duty, or for the unworthy purpose of personal aggrandizement, neither of which are now pretended in this case.

This view which I have taken of the subject, renders it unnecessary to examine the other points which have been raised fey the counsel. On the ground, therefore, that the defendant’s

Eimehdokf, Senator, was of the same opinion.

fore, “ordered, adjudged,' and decreed, that the judgment of the supreme court be reversed, and that the plaintiff recover against the defendant his damages by him sustained, by rea-, son of the publication of the libel in the said record contained 5 and further, that the plaintiff recover against the defendant his costs to be taxed in and about the prosecution of this writ of error, in this behalf, and that the transcript of the record be remitted to the supreme court, to the end that a writ of inquiry of damages be awarded, and that the said supreme court proceed to give final judgment therein,”

Judgment of reversal.

*** The remainder of the Cases in Error, decided in 1814, will appear in the next Vglumel