
    CONSTITUTIONAL COURT, CHARLESTON,
    MAY, 1806.
    George Reid v. Francis Delorme.
    Where an action was brought for maliciously defaming the plaintiff in a petition to the Legislature for redress, complaining of the Attorney General, it was held not to lie. But in this case, it appeared the defendant had reasonable and probable cause of complaint, though the charge was not well founded in fact.
    Motion for a new trial, and in arrest of judgment. Action on the case for defamation. The declaration stated that the defendant, to defame the plaintiff, maliciously wrote and published a malicious and defamatory libel, and did prefer a complaint against the Attorney General, by way of petition to the Legislature, setting forth that the Attorney General had neglected and refused to do his duty, in failing to prosecute said Reid at the instance of the petitioner for harboring or feloniously stealing his negroes.
    
      Bay, J., before whom the cause was tried in Charleston, admitted the petition, or a copy of it, to be given in evidence, and was of opinion the action lay.
    Verdict for the plaintiff.
    ' It appeared upon the trial, that defendant had several small negro children, the mother of whom belonged to the plaintiff. That he refused to sell these children to the plaintiff, who was desirous to get them on account of their mother. That these children would frequently come to see their mother, contrary to the consent or knowledge of defendant. That the plaintiff .forbade the mother to countenance their visits, but she still received them, unknown to her master. That defendant, finding them absent, went to the plaintiff and asked him about them, and informed him that the mother harbored them in his kitchen. That plaintiff was vexed, denied that the little negroes were in his kitchen, and refused to let the defendant search for them there. In consequence of this, the defendant applied for a search warrant, and had the kitchen of the plaintiff searched, where the children were found concealed beneath their mother’s bed. The defendant then applied to the Attorney General to prosecute the plaintiff for harboring his negroes, which the Attorney General refused, saying he knew Major Reid to be an honest man. The defendant then petitioned the legislature, setting forth that the Attorney General, had failed to do his duty in not prosecuting Reid, and prayed that he might be directed to do his duty.
    Gaillard and Desatjssure, in support of the motion,
    contended, that every public officer is amenable to the legislature for misconduct ; and that every citizen has a right to petition the legislature against any public officer, and ought not to be liable to an action for exercising this right. This is a right of the highest civil importance. This avenue to redress ought to be kept open, and it would be bad policy to close it up, by discouraging proper and orderly applications to the legislature, against the public servants of the community, .who may be chargeable with misconduct in office. In the exercise of this great right, however, the petitioner must respect the characters and feelings of others ; he ought to avoid all unnecessary representations or remarks, calculated to blast or injure the character of another. He must take care that he does not turn this privilege into a cloak to cover malice, and make use of it as the mere instrument of malignity and slander. But it must be a very flagrant case, and one wherein the object and design of the petitioner must be solely to give vent to his malice, without any proba-Sroun<^ of complaint, that will subject the party to an action ; else it might infringe the great constitutional right of petitioning. This is not a novel doctrine; it is congenial with the nature of §>00^ govel'nment- It is a right highly respected in England, and the doctrine of the following cases apply to the present: Esp. Dig. 503, 516 ; ib. 226, 505. 1 Saund. 133. 6 Bac. Ab. 226, new ed. The case in Saund, is in point expressly, and is cited and recog. nized by Lord Mansfield in 2 Burr. 810. See 1 Haw. 194. See also 4 Rep. 14.
    The evidence reported shews clearly that the defendant had probable ground of complaint, both against Reid and the Attorney General. There is no room to suppose that the defendant was actúa-ted by mere malice. He undoubtedly conceived himself aggrieved. The conduct of Reid, however pure may have been his heart, was at least suspicious. It was suspicious in the eyes of Delorme. The Attorney General, being intimate with Reid, was convinced he was incapable of the charge alleged against him. But his private reasons did not satisfy Delorme, who had a right to proceed in the prosecution, if he was under a real persuasion of the guilt of the accused. If he was under a serious impression that Reid had harbored his negroes, or had concealed them with a felonious intent, what other course could he have taken than that which he did take? If he had a right to petition against the Attorney General, how was it possible to set forth the cause of his complaint without implicating Reid ? it was necessary to state in what respect the Attorney General had failed in the performance of his duty. It was not therefore an unnecessary and officious.blow aimed at the reputation of another.
    If the facts proved at the trial would have been sufficient to have put Reid on his trial for harboring, the Attorney General ought to have prosecuted, provided harboring be an indictable offence ; and Delorme was right in petitioning. If harboring negroes, without any felonious object in view, be not indictable, then the accusation against Reid by Delmore for harboring, is not actionable. No special damage has been proved ; and the words are not actionable in themselves.
    J. Ward, on the other side.
    The petition contains a direct charge against Mr. Reid of an infamous nature, calculated to injure his good name. The slander was wide spread by this mode , of publication. All the circumstances of the case show that the > defendant was actuated by malice and personal ill will. His peti. tiofi was treated with contempt by the legislature. The grounds of his complaint against the Attorney General, if he had any, might have been stated without reflecting with so much asperity against Reid, without alleging directly, as was done, that he harbored the petitioner’s negroes. Though the negroes were found at Reid’s, after he had refused to permit Delorme to search for them there, yet Delorme must have been well satisfied, from explanation which took place afterwards, that the negroes were there without his, Reid’s, knowledge, and against his consent." See 5 Johns. Rep. 1 to 37. Lewis v. Tew.
    
      Note. No false or scandalous matter, contained in articles of the peace, exhibited to justices of the peace, or in any other proceeding, in a regular course of justice, will make a writing libellous. 4 Rep. 14. 2 Just. 228. Dig. 285. lRoU.Abr.87. Sir W. Jones; 431. 2Bulst.269. 2 Burr. 808. 3Bac. Abr. 494. See 5 Johns, 508.
   10th May, 1800.

Trezevant, J.,

declared the opinion of all the judges. Though the conduct of Delorme may have been unreasonable and malicious, yet, in petitioning the legislature against a public officer of the State, he was in the exercise of a constitutional right, and his motives cannot easily be ascertained, or appreciated. We believe he had no just ground of complaint; but we. cannot say that he, himself, knew he had not. He unquestionably had probable ground to suppose he had not been well treated by the Attorney General; and he had also probable ground to suspect Reid did know his negroes were harbored at his house. There is no ground upon which this action can be legally supported. Every citizen has a right to petition the legislature for a redress of grievances, and even on account of grievances which do not exist, if they are supposed to exist, although in doing so, the feelings of individuals, or their reputations, should be wounded. In the present case, the words which have given offence to the plaintiff were necessary to be inserted, in order to shew the nature of the complaint against the Attorney General.

J udgment arrested.  