
    Commonwealth versus William Clap.
    The truth of the words is no justification m a criminal prosecution for a libel.
    But the defendant may show the purpose of the publication to have been justifiable, after which he may give its truth m evidence, to negative the malice and intent to defame.
    Publications of the truth concerning the character of a public elective officer, and relating to his qualifications for such office, made with intent to inform the people, are not a libel. And every one holding such an office may be considered as a candidate for reelection, if he does not disclaim it.
    For the same reason, the publication of falsehood and calumny against public officers and candidates is a very high offence.
    The defendant was indicted for making and publishing the following malicious libel against one Caleb Hayward, an auctioneer, and posting it up in several public places in State Street, in Bostonp viz., “ Caleb Hayward, is a liar, a scoundrel, a cheat, and a swindler. Don’t pull this down.”
    Upon the trial at the last November term, before Parker, J., the counsel for the defendant insisted upon their right to prove the truth of the matters charged in the libel, and stated that, if permitted, they could prove that, in a course of dealing between the defendant and Hayward, the latter had defrauded the former; and particularly that, upon a reference of certain disputes between them, Hayward had, by means of misrepresentations, and suppressing evidence, recovered a much larger sum against the defendant, than he, Hayward, knew to be due; and further, that, in his dealings with other people, Hayward had in many instances acted unfairly. The motion was overruled by the judge, and the defendant, being found guilty, moved for a new trial, because evidence to the foregoing effect was rejected.
    This motion came on now to be argued by Bidwell, Attorney-General, and Davis, Solicitor-General for the commonwealth, and Otis and Selfridge for the defendant.
    * Selfridge
    
    contended that the jury were not to be [ * 164 1 confined to the mere fact of publication, but ought to inquire into the truth of the words charged, and the intent with which they were published. To publish the truth from good motives, and for justifiable ends, whether it bears on the government at large, on particular magistrates or public officers, or on private citizens, cannot be libellous. To constitute a libel at common law, the charge must be both false in itself, and maliciously published The ancient English statutes relative to this subject follow this principle. Thus the statute of Westminster, 1, c. 34, commands “ that none be so hardy to tell or publish any false news or tales,” &c To the same effect is statute 5 Ric. 2, c. 5. These two statutes were in substance reenacted in 1 and 2 Eh. and M. c. 3 And they were all in affirmance of the common law as it is laid down in the authorities cited in the margin.  In the case of The Seven Bishops, 
      
      Powell, J., said, “ To make it a libel, it must be false, it must be malicious, and it must tend to sedition.” In the case of Lake vs. Hatton, 
      
      Coke said, “that if it had been true, that the countess of Exeter had a purpose to poison, &c., Hatton might have justified the writing.”
    It will appear, upon examination of the cases which contradict this position, that the opposite doctrine originated in the Star Chamber Court; and it was there the opinion was first advanced “ that a libeller is punishable, although the matter of the libel be true.” 
    
    In the case of The King vs. Haswell and Bate, 
       it is agreed, as a general rule, that the King’s Bench never grant an information for a libel, without an affidavit specifically denying the particular charges contained in the libel, and declaring them false.
    If later decisions in the courts of Westminster Hall have a different aspect, the Court will go behind them, and draw the common law from more ancient and purer sources.
    * Otis
    
    considered that the common law, if it were opposed to the claim of the defendant in this case, was virtually repealed by the provisions of the constitution of this commonwealth ; and he went much at large into the consideration of the right of the citizens of a free elective republic to speak and publish the truth respecting the characters of men in office, and of candidates for office. Hayward, as an auctioneer, is an officer appointed by public authority. The community have an interest in his integrity, and have a right to be informed what his conduct in office is, that they may judge whether it be safe and discreet to intrust their property to his care and management. It is of m.uch greater importance that this high constitutional privilege be preserved unimpaired, than that a libeller should now and then go unpunished.
    In a civil action for a libel, the truth of the writing complained of is always received as a good and sufficient defence ; and is there any foundation in good sense for a distinction between a justification in a civil action, and an excuse in a criminal prosecution ?
    
      The Solicitor-General
    
    thought the point too well settled to call for argument on the part of the counsel for the government. He said he had never known a decision that the truth might be given in evidence, even where the libel charged was concerning a public officer, and reflected on his official conduct. He acknowledged that whenever he had had the direction of prosecutions of this kind, he had always yielded to sucha defence without opposition ; and upon the trial of the indictment in Essex against the printer of the Salem Register for a most malignant libel against Mr. Pickering, so confident was he of the purity and integrity of that gentleman’s character, that he even courted the defendant to attempt a defence of this kind.
    The constitution of the commonwealth secures to the citizens the benefit of the common law, as then known and acknowledged. What was the common law, as to the question now before the Court, cannot be better expressed than in the words of Blackstone : 
       “ It is immaterial with respect to * the essence [ * 166 ] of a libel, whether the matter of it be true or false, since the provocation, and not the falsity, is the thing to be punished criminally ; though, doubtless, the falsehood of it may aggravate its guilt, and enhance its punishment.”  In Franklin’s trial,  Lord Raymond says, “ The injury is the same to the persons scandalized, whether the letter was inserted out of malice or not; besides, there is no knowing or proving particular malice, otherwise than from the act itself.”
    
      The Attorney-General
    
    had not expected to hear the common law questioned as to this point. The very definition of libels, viz., “ malicious defamations of any person, and especially a magistrate, made public by either printing, writing, signs, or pictures, in order to provoke him to wrath, or expose him to public hatred, contempt, and ridicule,” shows that its guilt consists not in the private injury to the person scandalized, but in its tendency to promote quarrels and a breach of the peace. The decisions of the courts in England, for a long time past, have been uniform upon this point, and it is therefore useless and futile to look for more ancient authorities, which cannot have weight at the present day.
    It is a sufficient answer to the case cited from Douglas, that an information is always at the suit of an individual; and as it is considered as a means of satisfying the just resentment of the party injured, it is never granted without a previous rule to show cause, which is always founded on an affidavit; whereas an indictment is at the suit of the government, and is always intended to procure the punishment of an offender against the public peace. But in a later case than that in Douglas, it was decided that in an information for a libel, it is not necessary that the libel should be alleged to be false, and for this sufficient reason, which was given by the court, viz., because it is not necessary to prove the libel to be false. 
      
    
    No particular decision of the courts here, adopting the common law upon this point before the framing of the state [*167] * constitution, is recollected ; but it is the constant practice of the Court, in their charges to the grand juries, to mention libels as a proper subject for their inquiry; and as there is no statute animadverting on this species of offence, it must be in virtue of the common law that they are so charged. If the crime exists only by common law, it must be considered as existing with all the rules and circumstances which the common law annexes to it.
    As to public men, the measures of government, and candidates for public offices, the Attorney-General said he had always held the people to be their proper and constitutional judges ; and he never should, while he held his present office, oppose the giving of the truth in evidence to justify any publications charged as libellous in relation to those objects. But the same reason does not apply to libels on private persons; and it is a sound maxim that where the reason of the law ceases, the law itself should cease also. And he could not consider an auctioneer as a public officer to whom the exception could at all apply. The word was used in the indictment only as a name of trade or mystery, and not of office. But if the word implies a public office, yet the libel in this case had no relation to that office. The words are mere general terms of reproach and scurrility, irritating, indeed, in the highest degree, but relating only to the private dealings and character of the individual. In a civil action by the party injured, it could never be allowed to justify such language as this by showing its truth.
    
      Otis, in reply.
    The counsel for the prosecution have agreed that the doctrines of the common law cannot prevail here in their full extent. Public officers and candidates are to be excepted, while at common law a libel on these is considered as doubly heinous. But what public officers are intended ? Must they be legislative, judicial, or executive officers ? or does the expression extend to municipal and parochial officers, as selectmen, assessors, &c. ?
    
      Further, who shall be considered' as a candidate for a public office? He who is nominated by a fellow-citizen? if so, nothing more is necessary than for the party to propose a person for an office, and then his character becomes fair game. In * some sense, every citizen may be considered as a candi- [* 168 ] date for public office.
    It is submitted that the difficulty, if not total impossibility, of drawing the line, and the ease with which the law may be eluded, are such as in fact to have done away, in our republican constitution, what might have been held as good common law under a monarchical government.
    
      
       3 Inst. 174. —5 Rep. 125. — 9 Rep. 59. — 2 Inst. 226, 227.
    
    
      
       4 State Trials, 394.
    
    
      
      
        Hob. 252
    
    
      
      
        Moore 627.
    
    
      
      
        Doug. 387.
    
    
      
      
        4 Comm. 150.
    
    
      
       1 Hawk. P. C. c. 73, § 6. — 5 Rep. 125. — Hob. 253. — Moore, 627.— Strange, 498. —11 Mod. 99
    
    
      
       9 State Trials, 275.
    
    
      
      
        Rex vs. Burks, 7 Term Rep. 4.
    
   The opinion of the Court was afterwards delivered by

Parsons, C. J.

The defendant has been convicted, by the verdict of a jury, of publishing a libel. On the trial, he moved to give in evidence, in his defence, that the contents of tire publication were true. This evidence the judge rejected, and for that reason, the defendant moves for a new trial.

It is necessary to consider what publication is libellous, and the reason why a libellous publication is an offence against the commonwealth.

A libel is a malicious publication, expressed either in printing or writing, or by signs and pictures, tending either to blacken the memory of one dead, or the reputation of one who is alive, and expose him to public hatred, contempt, or ridicule.

The cause why libellous publications are offences against the state, is their direct tendency to a breach of the public peace, by provoking the parties injured, and their friends and families, to acts of revenge, which it would not be easy to restrain, were offences of this kind not severely punished. And every day’s experience will justify the law in attributing to libels that tendency which renders the publication of them an offence against the state. The essence of the offence consists in the malice of the publication, or the intent to defame the reputation of another. In the definition of a libel, as an offence against law, it is not considered whether the publication be true or false; because a man may maliciously publish the truth against another, with the intent to defame his character, and if the publication be true, the tendency of it to inflame the passions, and to excite revenge, is not diminished, but may sometimes be strengthened.

The inference is, therefore, very clear, that the defendant cannot justify himself for publishing a libel, merely by proving *the truth of the publication, and that the direction of [*169] the judge was right.

If the law admitted the truth of the words in this case to be a justification, the effect would be a greater injury to the party libelled. He is not a party to the prosecution, nor is he put on his defence ; and the evidence at the trial might more cruelly defame his character than the original libel.

Although the truth of the words is no justification in a criminal prosecution for a libel, yet the defendant may repel the charge, by proving that the publication was for a justifiable purpose, and not malicious, nor with the intent to defame any man. And there may be cases, where the defendant, having proved the purpose justifiable, may give in evidence the truth of the words, when such evidence will tend to negative the malice and intent to defame.

Upon this principle, a man may apply by complaint to the legislature to remove an unworthy officer; and if the complaint be true, and made with the honest intention of giving useful information, and not maliciously, or with intent to defame, the complaint will not be a libel.

And when any man shall consent to be a candidate for a public office conferred by the election of the people, he must be considered as putting his character in issue, so far as it may respect his fitness and qualifications for the office. And publications of the truth on this subject, with the honest intention of informing the people, are not a libel. For it would be unreasonable to conclude that the publication of truths, which it is the interest of the people to know, should be an offence against their laws.

And every man holding a public elective office may be considered as within this principle; for as a reelection is the only way his constituents can manifest their approbation of his conduct, it is to be presumed that he is consenting to a reélection, if he does not disclaim it. For every good man would wish the approbation of his constituents for meritorious conduct.

For the same reason, the publication of falsehood and calumny against public officers, or candidates for public offices, is an offence most dangerous to the people, and deserves [ * 170 ] * punishment, because the people may be deceived, and reject the best citizens, to their great injury, and it may be to the loss of their liberties.

But the publication of a libel maliciously and with intent to defame, whether it be true or not, is clearly an offence against law, on sound principles, which must be adhered to, so long as the restraint of all tendencies to the breach of the public peace, and to private animosity and revenge, is salutary to the commonwealth.

The defendant took nothing by his motion, and was afterwards sentenced to two months’ imprisonment, with costs. 
      
      
         [Can such a presumption reasonably be made, unless he be nominated, or ig lame way held forth as a candidate ? — Ed.] '
     