The Online Library of Liberty

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• Miscellaneous Papers
• Cincinnati 1
• Speeches In the New York Assembly, 1787 1
• Speech On Acceding to the Independence of Vermont
• Eulogium On Major-general Greene Delivered Before the Society of the Cincinnati
• Presidential Etiquette: Hamilton to Washington
• Public Lands: Report of a Uniform System For the Disposition of the Lands, the Property of the United States
• Heads of Topics For President’s Speech of December 8, 1790 1
• Apportionment of Representatives
• Indian Affairs
• President’s Speech 1
• Indian Affairs Cabinet Opinion.
• Convening Congress: Hamilton to Washington 1
• Objects to Be Communicated In Speech and Messages
• President’s Speech 1
• President’s Message 1
• Proclamation For a National Thanksgiving 1
• Explanation 1
• Washington’s Speech to Congress 1
• Message For Washington to Congress, In Reply to a Call For Papers Relating to the Treaty With Great Britain 1
• Farewell Address 1
• Washington’s Farewell Address 1
• Part of Washington’s Speech to Congress 3
• Address to the Electors of the State of New York
• Examination of Jefferson’s Message to Congress of December 7, 1801 1
• Lansing Or Burr 1
• Law Briefs
• Carriage Tax 1
• The Law of Libel 1
• Speech In the Case of Harry Croswell 1
• Fragment On the French Revolution 1
• Defence of the Funding System 1

THE LAW OF LIBEL1

1804.

• I.—The liberty of the press consists in the right to publish with impunity truth, with good motives, for justifiable ends, though reflecting on government, magistracy, or individuals.
• II.—That the allowance of this right is essential to the preservation of free government—the disallowance of it, fatal.
• III.—That its abuse is to be guarded against by subjecting the exercise of it to the animadversion and control of the tribunals of justice; but that this control cannot safely be intrusted to a permanent body of magistracy, and requires the effectual co-operation of court and jury.
• IV.—That to confine the jury to the mere question of publication and the application of terms, without the right of inquiry into the intent or tendency, referring to the court the exclusive right of pronouncing upon the construction, tendency, and intent of the alleged libel, is calculated to render nugatory the function of the jury; enabling the court to make a libel of any writing whatsoever, the most innocent or commendable.
• V.—That it is the general rule of criminal law, that the intent constitutes the crime, and that it is equally a general rule that the intent, mind, or quo animo, is an inference of fact to be drawn by the jury.
• VI.—That if there are exceptions to this rule, they are confined to cases in which not only the principal fact, but its circumstances can be and are specifically defined by statute or judicial precedent.
• VII—That in respect to libel there is no such specific and precise definition of facts and circumstances to be found, that consequently it is difficult, if not impossible, to pronounce that any writing is per se and exclusive of all circumstances libellous; that its libellous character must depend on intent and tendency, the one and the other being matter of fact.
• VIII.—That the definitions or descriptions of libels to be found in the books predicate them upon some malicious or mischievous intent or tendency, to expose individuals to hatred or contempt, or to occasion a disturbance or breach of the peace.
• IX—That in determining the character of a libel, the truth or falsehood is in the nature of things a material ingredient, though the truth may not always be decisive, but being abused, may still admit of a malicious and mischievous intent which may constitute a libel.
• X—That in the Roman law, one source of the doctrine of libel, the truth in cases interesting to the public, may be given in evidence. That the ancient statutes probably declaratory of the common law, make the falsehood an ingredient of the crime. That ancient precedents in the courts of justice correspond, and that these precedents to this day charge a malicious intent.
• XI.—That the doctrine of excluding the truth as immaterial originated in a tyrannical and polluted source, the court of Star Chamber, and that though it prevailed a considerable length of time, yet there are leading precedents down to the Revolution, and even since, in which a contrary practice prevailed.
• XII.—That this doctrine being against reason and natural justice, and contrary to the original principles of the common law enforced by statutory provisions, precedents which support it deserve to be considered in no better light than as malus usus which ought to be abolished.
• XIII.—That in the general distribution of powers in our system of jurisprudence, the cognizance of law belongs to the court, of fact to the jury; that as often as they are not blended, the power of the court is absolute and exclusive. That in civil cases it is always so, and may rightfully be so exerted. That in criminal cases the law and fact being always blended, the jury, for reasons of a political and peculiar nature, for the security of life and liberty, is intrusted with the power of deciding both law and fact.
• XIV.—That this distinction results: 1, from the ancient forms of pleading in civil cases, none but special pleas being allowed in matter of law; in criminal, none but the general issue; 2, from the liability of the jury to attaint in civil cases, and the general power of the court as its substitute in granting new trials, and from the exemption of the jury from attaint in criminal cases, and the defect of power to control their verdicts by new trials, the test of every legal power being its capacity to produce a definitive effect liable neither to punishment nor control.
• XV.—That in criminal cases, nevertheless, the court are the constitutional advisers of the jury in matter of law; who may compromit their conscience by lightly or rashly disregarding that advice, but may still more compromit their consciences by following it, if exercising their judgments with discretion and honesty they have a clear conviction that the charge of the court is wrong.

[1]This is the brief in the Corswell case, and the argument as reported follows.