
    Benjamin Tappan v. James Wilson.
    Terms of general abuse,, when printed and published, are not libelous.
    The plaintiff, in his declaration, states, in substance, that he was one of the judges of the United States court for the district of Ohio, duly appointed by the President of the United States, to hold his office until the end of the next session of Congress, which was on the 30th day of June, then last passed; and whereas, it was expected and believed that the said Benjamin would be nominated by the President of the United States, to the senate of the United States, for ^confirmation in his said office, and that the advice and consent of the senate would be asked to the making of said appointment; yet the said James, well knowing the premises, etc., and to cause it to be suspected and believed, etc., that said Tap-pan, while he was one of the judges of the United States court, as aforesaid, was the editor of a party newspaper, and was the author of filthy and abusive articles in a newspaper printed in Steuben-ville in said county, and was a purse-proud aristocrat, and was anxious to put down the Bank of the United States to promote his own pecuniary interest thereby, and to cause it to be believed, that he, the said Benjamin, was the author of violent abuse of his fellow-citizens, the real democracy of the country, and that he was desirous of increasing his income by oppressing the farmers and mechanics and lowering their prices; and to cause it to be supposed and believed that the said Benjamin did libel the characters of members of the said United States Senate, with the intent to influence and induce the said senate to withhold their advice and consent to the appointment of the said Benjamin to the office aforesaid, and thei’eby to injure the said Benjamin in his said character, office, and standing, did, theretofore, to wit: on the 19th day of March, in the year of our Lord 1834, at Steubenville, in said county, falsely, wickedly, and maliciously compose and publish, and cause and procure to be published, of and concerning the said Benjamin, a certain false, scandalous, malicious, and defamatory libel, in one part of which there was, and is, contained the false, scandalous, malicious, defamatory, and libelous matter following, of and concerning the said Benjamin, that is to say: “Mr. Editor Tappan, being a purse-proud aristocrat, and having a large amount of money in stocks, in several of the Ohio banks, is anxious to put down the United States Bank, so that his stock may become more profitable to him than it is at present. Tappan well knows that if the United States Bank notes are withdrawn from circulation, the notes of the local banks will be substituted, greatly to his profit. This is his democracy. He is not contented with ten or twelve per cent, upon his money, but wants fifteen or twenty. This is the true cause of his violent abuse inhis.mwc? machine (meaning the American Union, a newspaper printed and published in Steubenville aforesaid) of the real democracy of the country, of those who wish the farmers to get a good *price for their produce, and who wish wealthy men, like the said editor, to be confined to moderate profits upon their money.” And, in another part of said libel, the following: “ Mr. Editor Tappan is an officeholder. He gets one thousand dollars a year for about one month’s service, and yet he has the conscience to desire to make his one thousand dollars worth twelve hundred and fifty, by oppressing the farmers and mechanics, and lowering their prices. Farmers and mechanics think of this.” And in another part of the said libel the following: “Judge Tappan, having in his last mud machine (meaning as aforesaid, also meaning that the said newspaper was owned and published by the said Benjamin, while judge, as aforesaid) published the paragraph from the Globe, headed, the veterans of the revolution, he ought, we should suppose, to have availed himself of the earliest opportunity to show that the Globe had made a misstatement; but the judge has not yet done so. What makes the matter worse, on the part of Judge Tappan, is the fact, that the above explanation was made in the United States Senate, on the 25th February, and was published in the National Intelligencer of the 27th, yet the offensive article is republished in the said mud machine on the 12th March inst., without Mr. Webster’s explanation and denial;” thereby meaning that the said Benjamin had published a wicked and malicious libel on the said Webster, then being a member of the United States Senate. And, also, in another part of said libel, the following: “ What does that gentleman expect to gain by attacking the character of Mr. Webster ? It is true he may gratify his propensity for misrepresentation, and that is all” (meaning he, the said Benjamin, was in the habit of publishing falsehoods). “His abuse of Mr. Ewing, because that gentleman franked some speeches to individuals of this section of country, heretofore differing from Mr. Ewing in politics, is further evidence of the malice which he feels toward all who differ with him in opinion.” By means whereof, etc. To this declaration the defendant filed a general demurrer.
    Tarran, prose.
    Collier and Marsh, for defendant.
   ^Opinion of the court, by

Judge Wood:

But one question is raised for decision: Are the matters set forth in this declaration, as there pleaded, libelous? A libel is a censorious or ridiculing writing, picture, or sign, made with a mischievous and malicious intent toward government, magistrates, or individuals. It does not necessarily charge the plaintiff with a crime, for if its design be wanton and malicious ridicule, and the tendency of the publication to hold up the plaintiff to the scoffs and sneers of society; to degrade him and lessen his standing, an action may well be sustained. So, likewise, if its tendency will naturally excite to passion and revenge, and consequent breaches of the peace. Justice Thompson, in the People v. South-wick, 9 Johns. 214, says: “ To permit the press to become the instrument of malicious ridicule and contempt of individual character, would not only corrupt the moral taste, but speedily set society by the ears; and the common good of every people demands that, thus far, it should be restrained.” An editor may, nevertheless, comment freely on the acts of government, officers, or individuals, and indulge in occasional mirth and wit, and it is only when the character of the publication is malicious and its tendency to degrade and excite to revenge, that it is condemned by the law, and subjects the publisher to sustain a prosecution.

We have carefully perused this declaration, and are unable to perceive that it charges the defendant with having published of the plaintiff such terms of reproach or epithets, as can be seriously claimed, in their natural tendency, to excite the passions to revenge; nor can we discover anything which is calculated, in its result, to cast upon the plaintiff that contempt, which is calculated seriously to degrade him, or lessen his standing in the esteem of the world.

The declaration does not charge the publication to be made of the plaintiff, as judge; but states the fact that he was a judge of said district court, and avers the publication was of Benjamin Tappan, innuendo, that it was made of him as a judge. The office of the innuendo is to direct to its object the charge made. It can neither enlarge nor restrain the natural sense and import of the words used; if they do not convey the sense and meaning, when their application is explained, the innuendo can not aid them. On the whole, we are of the opinion the demurrer should be sustained.  