The State vs. Burnham, 9 N.H. 34

Parker, J. It is not disputed, that by the common law the publication of a libel is an offence punishable by fine and imprisonment; and we are of opinion that an indictment at common law, for a libel, may well be sustained in this state. The reasons for the opinion that the common law, generally, so far as it is applicable to our institutions and form of government, has been adopted here, as a part of the law of this state, are given at length in The State vs. Rollins, 8 N. H. R. 550, in which the question was first argued, and need not now be repeated.

It certainly cannot be held, that there is any thing in the nature of our institutions, or the character of our government, which should preclude a libel from being deemed an offence, or render a proceeding by indictment an improper mode for enforcing the punishment of it. The reason given by the English jurists, that libels have a tendency to promote breaches of the peace, is as true here as in that country. The spirit of our institutions equally requires the preservation of good order; and reputation is as dear, and should be quite as great an object of legal protection.

If it be true that some of the doctrines, originating in the Star chamber, relative to the mode of trial, have been founded in error, or influenced by reasons of state policy, and are not such as can be applied here, being at variance with the spirit of our institutions, and the sound principles which govern analogous cases, if not in truth corruptions of the common law, (3 Johns. Cas. 380,) this will furnish no reason to justify us in withdrawing libel from its place in the cata-logue of offences at common law, or in abrogating the proceeding by indictment for its punishment.

The common law on the subject of libels has been held to be in force in Massachusetts, Connecticut, New York, and South Carolina. 4 Mass. 163, Com'th vs. Clap ; 3 Pick. 304, Com'th vs. Blanding ; 7 Conn. Rep. 266, State vs. Avery ; 3 Johns. Cas. 337, People vs. Croswell; 2 Kent's Com. 16; 16 American Jurist 92, Com'th vs. Whitmarsh. And it is understood, that in The State vs. Turell, S. J. Court, Rockingham, Nov.

T. 1814, which was an indictment for, a libel, there was no intimation that a libel was not a crime, punishable here by indictment: although the indictment was held bad, on demurrer, for the want of an innuendo applying the slander. If it be deemed advisable that it should be expunged from the criminal code, and held to be merely the subject of a civil proceeding for damages, the legislature can readily make the necessary provision. Nor can the argument that the provincial statute of 1701, for the punishment of criminal offenders, superseded the common law upon this subject, avail the defendant.

That act, which provided that if any person of the age of fourteen years or upwards, should wittingly or willingly make or publish any lie or libel, tending to the defamation or damage of any particular person, or make or spread any false news or reports, with intent to abuse and deceive others, such person should, on conviction before one or more justices of the peace, be fined according to the degree of the offence, not exceeding twenty shillings for the first offence, and find sureties for his good behavior, &c., was intended for the punishment of minor offences, and probably verbal slander, by giving a jurisdiction to justices of the peace.

The same act authorised any justice to “ punish the breach of the peace, in any person that shall smite or strike another, by fine to the king, not exceeding twenty shillings, or require bond for their good behavior, and to pay all just costs but this could hardly have been intended to oust the jurisdiction of the common law courts, and be the only punishment in all cases of assault and battery. N. H. Prov. Laws 17. Similar remarks will apply to the provisions in the statute of 1791-2, relating to lie or libel, and which remained in force until 1829. N. H. Laws, (ed. 1815,) 329; ditto (ed. 1830,) 146.

By that statute the court, or justice, was au-thorised to fine the delinquent, not exceeding forty shillings, &c. The same statute enacted that any person guilty of assault and battery, should be fined not exceeding forty shillings ; but this has uniformly been held not to supersede the common law for the punishment of that offence. Ail statutory provisions for the punishment of libel have been repealed, and this indictment is at common law.

We come next to the direction to the jury, that the matter, if in its nature defamatory, must have been published upon a lawful occasion, or come within the class termed privileged cases : and that if it did not, the defendant washable to this prosecution, it being immaterial whether the allegations jA’eje_true_0£^lse. The authorities fully support this position. 4 Mass. 163, Com’th vs. Clap; 3 Pick. 312, Com’th vs. Blanding ; 2 Pick. 117, Clark vs. Binney ; 5 C. & P. 543, Cockayne vs. Hodgkisson; 1 Mau. & Sel. 280, The King vs. Creevey. And it rests upon sound and satisfactory principles.

One great object of the law is to preserve the peace of the community. The publication of matter which is true, may have quite as great a tendency to excite to breaches of the peace, as if false: and although this can furnish no justification for the doctrine, that the greater the truth the greater the libel, it will serve to show that no one can justify or excuse the publication of matter tending to bring another into contempt or disgrace, without any lawful occasion for making such a publication.

If crimes exist, let them be punished in the due] course of law ; but it is not expedient that the errors, or foi-l bles, or even the crimes of individuals, should be made the] subject of written publication, except for the purpose of an-J swering some good end. Public proclamations for the mere* purpose of gratifying a spirit of detraction, or circulating defamatory matter among the community, are neither necessary nor useful; and in most instances, where some grounds may exist in support of the allegations, they are greatly exaggerated.

There can, therefore, be no good reason why the law should extend its protection to publications of such a character. If the end to be attained is justifiable ; as, if the object is the removal of an incompetent officer, or to prevent the election of an unsuitable person to office, or, generally, to give useful information to the community, or to those who have a right and ought to know, in order that they may act upon such information, the occasion is lawful, and the party may then justify or excuse the publication.

Where, however, there is merely color of a lawful occasion, and the party, instead of acting in good faith, assumes to act for some justifiable end merely as a pretence to publish and circulate defamatory matter, or for other unlawful purpose, he is liable in the same manner as if such pretence had not been resorted to. 4 Wend. 114, King vs. Root ; 12 Pick. 165, Bradley vs. Heath; 6 C. & P. 245. Hunt vs. Algar ; 5 C. & P. 373, Wilson vs. Collins ; ante 9, Hill vs. Miles. The reason is too obvious to need elucidation.

There must be a lawful occasion to excuse the speaking of defamatory words. 3 Wend. 294, Sewall vs. Catlin; 8 Cowen 141, Burlingame vs. Burlingame. If it be found that the occasion was of itself a proper one in which matter of the nature set forth might be circulated, the defendant may justify the publication, by proving the truth of the matter alleged. Authorities can hardly be ne-tcessary in support of this position. Such cases have been i termed privileged cases. We think the same rule applicable, | in this respect, in criminal, as in civil cases. 2 Kent's Com. 20.

But in such case the justification must be as broad as the charge. It cannot be a sufficient justification, to show that part of the matter is true. 1 Wend. 451, Skinner ads. Powers ; 7 Cowen 634; 4 Connecticut R. 17, Stow vs. Convers ; 10 Bingham 519, Roberts vs. Brown ; 3 Johns. Cas. 198, Riggs vs. Denniston ; 11 Johns. 594, Spencer vs. Southwick ; 20 Johns. 204, Sterling vs. Sherwood. If in such case the defendant justifies by showing the truth, his motives are not in question.

If upon a lawful occasion for making a publication, he has published the truth, and no more, there is no sound principle which can make him liable, even if he was actuated by express malice. 8 D. & E. 297, The King vs. Wright ; 7 Cowen 613, Root vs. King; 5 Barn. & Ald. 642, Fairman vs. Ives ; 4 Wend. 113, King vs. Root; 8 Wend. 578, Gilman vs. Lowell. Encouragement is often held out, by law, to.common informers, to prosecute, and such persons are in many instances actuated by malice, or cupidity ; but the motive is immaterial, so long as the prosecution is well grounded.

It has been said that it is lawful to publish truth from good motives, and for justifiable ends. But this rule is too narrow. If there is a lawful occasion—a legal right to make a publication—and the matter true, the end is justifiable, and that, in such case, must be sufficient. If the defendant cannot justify, he may show matter of excuse. It is said in several of the authorities, that the defendant may justify, or excuse the publication. Upon principle, however, there is a palpable distinction between the two.

In a civil case, matter in justification should be pleaded, or notice of it given by a brief statement. 7 Wend. 175, Laine vs. Wells ; 5 C. & P. 590, Powell vs. Harper; ditto 543, Cockayne vs. Hodgkisson. But matter in excuse, merely, it is apprehended, is properly given in evidence under the general issue, although it is said it may be pleaded. 12 Pick. 163, Bradley vs. Heath ; 2 Pick. 310, Remington vs. Congdon & a.; 3 Pick. 377, Bodwell vs. Swan ; 15 Mass. R. 50, Jackson vs. Stetson ; 6 C. & P. 497, Warr vs. Jolly ; 4 Barn. & Ald. 605,. Lewis vs. Walter; 1 Saund. R. 130, note.

Matter in excuse, in a prosecution for a libel, is where the defendant, upon a lawful occasion, proceeded with good motives—upon probable grounds—upon reasons which were apparently good, but upon a supposition which turns out to be unfounded. This is very different from showing the actual truth of the allegations ; and here the charge to the jury makes the motives of the defendant material. The direction is, substantially,that probable cause is not a sufficient defence, if the defendant was actuated by bad motives. The matter .principally'Controverted in this case, arises out of this part of the charge.

It is argued, that showing probable cause ought of itself to furnish a sufficient defence, without any enquiry into the motives of the defendant. But this argument would place probable cause and the truth upon the same ground, which we think is incorrect. Probable cause is undoubtedly a circumstance, and a strong one, to rebut any presumption of malice; as the absepce of it is evidence to show malice.

But malice may exist, notwithstanding there is probable cause; and if it is proved to have existed, why should probable cause alone be a complete defence for a publication not warranted by the truth, and made from actual malice, or ill will, with a design to injure ? It ⅛ urged, that this is like an action for a malicious prosecution, in which the defendant may show that he had probable cause, and that this furnishes a sufficient defence, even if he was, actuated by express malice. But there is a plain distinction, and one of some importance.

The policy which permits a party to assert what, upon probable grounds, he believes to be his own rights, and perhaps, also, what he believes to-be the rights of the government, in the due course of justice, docs not extend to other occasions, where a similar necessity does not exist. Even there, the form of a judicial procee*ding must not be adopted to subserve improper purposes. Hill vs. Miles. In other cases, it is sufficient for the party to act upon probable grounds merely, where he has a good motive of some kind to influence him.

There should be no impunity in such case for express malice, and an actual attempt, induced by such malice, to do an injury to another. An cases which do not come within the courts of justice, no form is required, and there is no necessity for making any allegation which has actual malice and ill will for its foundation, broader than the truth will warrant. It seems to be going quite far enough for any useful purpose, to hold that an individual may, without actual necessity, publish what is false of another, if he had probable , cause for so doing, and was actuated by good motives.

The authorities, it is believed, will carry us no farther. 12 Wend. 545, Vanderzee vs. McGregor; 3 Pick. 379, Bodwell vs. Osgood; 2 Pick. 310 ; 4 Mass. 169; 6 Car. & Pay. 497; 5 ditto 543 ; 3 Wend, 291, Sewell vs. Catlin ; 8 Wend. 579 ; 8 Wend. 606, Inman vs. Foster ; 5 Johns, R. 525, 6, Thorn vs. Blanchard, Opinion of the Chancellor ; ditto 35, Lewis vs. Few; 3 Johns. Cas. 393; 12 Pick. 163; 1 Barn. & Ald. 232, Hodgdon vs. Scarlett; 4 Barn. & Ald. 605: 5 Barn. & Ald. 642 ; 4 Barn. & Cres. 247, Bromage vs. Prosser; 6 C. & P. 548, Woodward vs. Landon ; 1 Fsp. Rep. 191, Delany vs. Jones ; 1 Camp. 267, McDougall vs.

Claridge ; 2 Starkie’s Rep. 297, Brown vs. Croome; 4 Barn. & Adolph. 700, Kelley vs. Partington. If the party cannot excuse the utterance of words, where there is express malice, he cannot surely excuse the publication of a writing. In Lake vs. King, 1 Saund. 131; 1 Lev. 240, it did not appear that the defendant was actuated by malice. The statutes passed on this subject by several states do not go so far as the rule here stated, as they only authorize the defendant to show that he published the truth with good motives, and for justifiable ends.

It would be departing from all sound principle to hold, as a general rule, that one might publish falsehood from bad motives. The matter being untrue, and the motive bad, how could the end be said to be justifiable ? Proposing, from malice, to cause an injury to another by what is in fact false, can hardly be justified or excused by any code of ethics, even if there was reason to believe its truth. And neither the interests of public justice, or the authorities, require us to hold such doctrine.

It would be an idle and vain attempt, to endeavor to reconcile all the discussions in the books upon the subject of libel and slander. Many of the cases which have been cited to some of the points in this opinion, contain other principles, not in accordance with it, and which of course we cannot be understood as adopting.

But the distinctions, now attempted to be sustained, will, perhaps, in some degree reconcile the decisions themselves ; and they seem to furnish sound practical rules, which, while they give no countenance to defamation, protect all persons in publishing, upon lawful occasions, the truth from whatever motives, and what they have reason to believe the truth, if it is done with motives (which will bear examination.

And we do not think that the ; interests of the community, or the principles of our institutions, require that the truth should be either justification [or excuse, where the allegation has been made without any (necessity or any fair occasion for it—made in the spirit of detraction, and not to subserve any justifiable purpose ; or that any one should be permitted, upon any occasion, to publish falsehood from actual malice. The objections of the defendant must, therefore, be overruled.