Nash v. Benedict — 25 Wend. 644

Majority

p. 491

Nash vs. Benedict.

Headnote

Charging a person with kidnapping another and hurrying him into slavery, is equivalent to the charge of kidnapping him with intent to cause him to be held to service against his will which is declared to be a felony by statute, and is therefore actionable as a libel.

Papers referred to in a libel it seems may be read in evidence in explanation, or for the purpose, of giving a construction to it.

This was an action for a libel, tried at the Hew-York circuit in March, 1841, before the Hon. Philo Gthdley, one of the circuit judges.

p. 492

The libel is in these words: u A northern freeman enslaved by northern hands. Nov. 20, 1836, (Sunday,) Peter John Lee, a free colored man of Westchester county, N. Y., was kidnapped by Tobias Boudinot, E. R. Waddy, John Lyon and Daniel D. Nash, of New-York city, and hurried away from his wife and children into slavery. One went up to shake hands with him, while the others were ready to use the gag and chain. See Emancipator, March 16, and May 4,1837. This is not a rare case. Many northern freeman have been enslaved, in some cases under color of law.” The declaration contained three counts; the two first of which, by way of innuendo, charged the defendant with imputing to the plaintiff the crime of feloniously kidnapping Lee; and the third with aiding and . [ *646 ] *abetting in the felonious kidnapping. On thé trial of the cause, the publication of the libel by the defendant in an almanac, called The Anti-Slavery Almanac for 1839, was proved. The counsel for the defendant moved for a nonsuit, on the ground of variance between the libel as declared upon, and as produced upon the trial, inasmuch as in the declaration the defendant was charged with having imputed to the plaintiff a felonious violation of the statutes of the state, with the intent and for the purposes in the statutes specified, and the libel as proved imported no such intent with such purposes. He further insisted that the publication was not per se libellous, and that the plaintiff not having alleged or proved special damage, was not entitled to recover. The judge refused to nonsuit the plaintiff. 6

The counsel for the defendant, for the purpose of showing that the defendant had probable cause for believing the publication to be true at the time it was-made, and thus rebut the inference of actual malice and mitigate damages, offered to read in evidence certain articles in the Emancipator, of 16th March, 1837, referred to in the libel, which was objected to by the counsel for the plaintiff; but the judge ruled that if the articles were in explanation of, and necessary to give a construction to the libel, they were admissible in evidence. The counsel for the defendant then read one of the articles, when on the objection to their admissibility being renewed, the judge' sustained the objection, on the ground that the articles did not explain the libel; and after some further evidence offered and rejected, charged the jury that the publication was a libel whether it charged the plaintiff with the crime of kidnapping under the Statute or not; but that in his opinion the libel would admit of no other construction than a charge of felonious kidnapping under the statute. The jury found a verdict for the plaintiff with ¡¡>1,560 damages. The defendant' moved for a new trial.

H. Dresser, for the defendant.

p. 493

J. McKeon, for the • plaintiff.

,kBythe Court,

Does the libel impute to the [ *647 ] plaintiff the offence of kidnapping within the Be vised Statutes ?

The statutes, 2 R. S. 553, § 28, provide that every person who shall, without lawful authority, forcibly seize and confine any other, or shall inveigle or Tddnap any other with intent, either—1, to cause such other person to be secretly confined or imprisoned in this state against his will; 2, to cause such other person to be sent out of this state against his will, or—-3, to cause such person to be sold as a slave, or in any way held to service against his will, shall, upon conviction, be punished by imprisonment in the state prison not exceeding ten years; and by § 31, that every person convicted of having been an accessory after the fact to any kidnapping, &c. shall be punished by imprisonment in a state prison not exceeding six years, or in a county jail not exceeding, &c. The libel charges, that the plaintiff with others kidnapped Lee, a free colored man, and hurried him away from his wife and children > into slavery; one went up to shake hands with him, while the others were ready to use the gag and chain—that this was not a rare case, as many northern freemen have been enslaved, in some cases under color of law. Now, one of the cases of felonious kidnapping as defined in the statutes above recited, is the forcible seizing|of another with the intent to cause him to he held to service against his will; an act which appears to me to be directly and completely charged in the words of the publication. Seizing Lee, and hurrying him away from his wife and children, gagged and chained, into slavery, imports at least a seizure or kidnapping with intent to cause him to be held to service against his will. At all events, a sufficient foundation would be laid by such facts, on a trial of the defendant for the crime, if proved, to warrant the jury in finding him guilty. The learned judge was right, therefore, in this part of his charge.

Were the articles in the Emancipator, under date of the 16th March and 4th May, 1837, referred to in the libel, admissible in evidence to show that the defendant had probable cause for believing the truth of the publication, rebutting *malice ? &c. They were admitted for the pur- [ *648 ] pose of explanation, and to interpret the true meaning of the libel; but denied to be material or pertinent in the view claimed. Now, on • looking at the articles in question, in connection with the libel, it is most manifest that they tend directly to aggravate rather than mitigate its character ; as they explain the whole transaction to which it relates, and of which it purports to give an account, by shewing that the seizure of Lee, the colored man, took place in pursuance of lawful authority, to wit, the warrant of the governor, on a charge that he was a fugitive felon from Virginia. By the reference to these articles in the libel, it appears that this explanation

p. 494

• was before the defendant, at the very time when he penned, or adopted, and inserted it in the almanac; thereby negativing every pretence of misapprehension or mistake.

New trial denied.