People v. Croswell.

the trial of issues of fact alone, where it is the invariable practice to reserve all doubtful points of law for a decision at bar. In the present instance, there was a peculiar propriety in adopting this course. For had a different one been pursued, and the defendant been acquitted, from the mistake of the judge in point of law, the error would have been irremediable, and the public justice defeated.

Had the examination I have given this subject, eventuated in a conviction that I had mistaken the law, I should, without hesitation, have renounced my error. The result being the reverse, and it being the duty of a judge to pro[*411] nounce the law as he finds it, and to leave *the alteration of it, when found inconvenient, to that body to whom the constitution has confided the power of legislation, I am constrained to declare, I think the defendant not entitled to a new trial on either of the grounds on which his motion is rested.

LIVINGSTON, J. concurred. (a)

(a) The questions involved in the principal case have been very elaborately discussed; but as they are now the subject of constitutional or statute provision in nearly every state of the Union, where the principles of Mr. Fox's bill have been adopted in one form or other, no more than a reference to a few examinations of the subject is required. Add to those cited by Mr. Justice Kent, Worthington on Juries, 131-176, and cases; Trials, per Pais, ch. 14; Hawles' pamphlet on the Powers of juries, (1680,) a sound and logical production; 1 Steph. Eng. Const. 258, 452, 2d ed. 795; 1 Russell on Crimes, 260-264, and refs. ; 3 Chitt. Crim. Law, ed. 1846, 866, n. 875, and n. 876, a and n. 2; Bro. Max. 144, et seq., 150, et seq. ; 2 Stark. Ev. 644, et seq., 571, et seq., 673, et seq.; 34 State Trials, tit. Libel; 2 Greenl. Ev. § 411, aud cases; Holt on Libel, 31-63; 2 Starkie on Slander, Wend. ed. 320, et seq.

The constitution of New York (1846, art. 1, § 8,) provides, that, "Every citizen may freely speak, write, and publish his sentiments on all subjects, being responsible for the abuse of that right; and no law shall be passed to abridge or restrain the liberty of speech, or of the press. In all criminal prosecutions or indictments for libels, the truth may be given in evidence to the jury ; and if it shall appear to the jury, that the matter charged as libellous is true, and was published with good motives, and for justifiable ends, the party shall be acquitted; and the jury shall have the right to determine the law and the fact." The same provision existed in the constitution of 1821, (Art. 7. § 8.) The constitution of Maine (1819,) provides that, " Every citizen may freely speak, write, and publish his sentiments on any subject, being responsible for

People v. Croswell.

On the last day of the session of the legislature, in April, 1804, a bill, entitled "An act relative to libels," was deliver

the abuse of this liberty. No laws shall be passed regulating or restraining the freedom of the press; and, in prosecutions for any publication respecting the official conduct of men in public capacity, or the qualifications of those who are candidates for the suffrages of the people, or where the matter published is proper for public information, the truth thereof may be given in evidence; and in all indictments for libels, the jury, after having received the direction of the court, shall have a right to determine, at their discretion, the law and the fact." (Art. 1, § 4.) The constitution of Massachusetts (1780,) provides that, "The liberty of the press is essential to security of freedom in a state; it ought not, therefore, to be restrained in this commonwealth." (Part 1, § 16.) The constitution of New Hampshire (1792,) provides that, “The liberty of the press is essential to the security of freedom in a state ; it ought, therefore, to be inviolably preserved." (Part 1, § 22.) The constitution of Vermont (1793,) provides, "That the people have a right to a freedom of speech, and of writing and publishing their sentiments, concerning the transactions of government, and therefore the freedom of the press ought not to be restrained." (Chap. 1, art. 13.) The constitution of Rhode Island (1842,) provides, "The liberty of the press being essential to the security of freedom in a state, any person may publish his sentiments on any subject, being responsible for the abuse of that liberty; and in all trials for libel, both civil and criminal, the truth, unless published from malicious motives, shall be sufficient defence to the person charged." (Art. 1, § 20.) The constitution of Connecticut (1818,) provides, "Every citizen may freely speak, write and publish his sentiments on all subjects, being responsible for the abuse of that liberty. No law shall ever be passed to curtail or restrain the liberty of speech or of the press. In all prosecutions or indictments for libels, the truth may be given in evidence, and the jury shall have a right to determine the law and the facts, under the direction of the court." (Art. 1, §§ 5, 6, 7.) The constitution of New Jersey (1844,) provides," Every person may freely speak, write, and publish his sentiments on all subjects, being responsible for the abuse of that right. No law shall be passed to restrain or abridge the liberty of speech or of the press. In all prosecutions or indictments for libel, the truth may be given in evidence to the jury; and if it shall appear to the jury that the matter charged as libellous is true, and was published with good motives and for justifiable ends, the party shall be acquitted; and the jury shall have the right to determine the law and the fact." (Art. 1, § 5.) The constitution of Pensylvania (1838,) provides, "That the printing presses shall be free to every person, who undertakes to examine the proceedings of the legislature or any branch of government; and no law shall ever be made to restrain the right thereof. The free communication of thoughts and opinions is one of the invaluable rights of man; and every citizen may freely speak, write and print on any subject, being responsible for the abuse of that liberty.

People v. Croswell.

ed to the council of revision, and at the next session of the legislature, it was sent back with the objections of the council.

In prosecutions for the publication of papers, investigating the official conduct of officers, or men in a public capacity, or where the matter published is proper for public information, the truth thereof may be given in evidence; and, in all indictments for libels, the jury shall have a right to determine the law and the facts, under the direction of the court, as in other cases." (Art. 9, 7.) The constitution of Delaware (1831,) provides, that "The press shall be free to every citizen who undertakes to examine the official conduct of men acting in a public capacity; and any citizen may print on any such subject, being responsible for the abuse of that liberty. In prosecutions for publications investigating the proceedings of officers, or where the matter published is proper for public information, the truth thereof may be given in evidence; and in all indictments for libels, the jury may determine the facts and the law, as in other cases." (Art. 1, § 5) The declaration of rights of Maryland (August 14, 1776,) provides, "That the liberty of the press ought to be inviolably preserved." (§ 38.) The declaration of rights of Virginia (June 12th, 1776, confirmed by the constitution of 1830, art. 1,) provide, “That the freedom of the press is one of the great bulwarks of liberty, and can never be restrained but by despotic governments." (§ 12.) The declaration of rights of North Carolina (December 18, 1776,) provides, "That the freedom of the press is one of the great bulwarks of liberty; and therefore ought never to be restrained." (§ 15.) The constitution of Georgia (1798,) provides," Freedom of the press, as heretofore used in this state, shall remain inviolate." (Art. 4, § 5.) The constitution of Kentucky (1799,) provies, "That printing presses shall be free to every person who undertakes to examine the proceedings of the legislature or any branch of government; and no law shall ever be made to restrain the right thereof. The free communication of thoughts and opinions is one of the invaluable rights of man, and every citizen may freely speak, write, and print, on any subject, being responsible for the abuse of that liberty. In prosecutions for the publication of papers investigating the official conduct of officers, or men in a public capacity, or where the matter published is proper for public information, the truth thereof may be given in evidence. And in all indictments for libels, the jury shall have a right to determine the law and the facts, under the direction of the court, as in other cases." (Art. 10, §§ 7, 8.) The constitution of Tennessee (1834,) provides, "That the printing presses shall be free to every person who undertakes to examine the proceedings of the legislature, or of any branch or officer of government; and no law shall ever be made to restrain the right thereof. The free communication of thoughts and opinions is one of the invaluable rights of man, and every citizen may freely speak, write, and print on any subject, being responsible for the abuse of that liberty. But in prosecutions for the publication of papers investigating the official conduct of officers or men in

People v. Croswell.

The principal objection is understood to have been, because the second section of the bill, which allowed the truth

public capacity, the truth thereof may be given in evidence; and in all indictments for libels, the jury shall have a right to determine the law and the facts, under the direction of the court, as in other criminal cases." (Art. 1, § 19.) The constitution of Ohio (1802,) provides, "That the printing presses shall be open and free to every citizen who wishes to examine the proceedings of any branch of government, or the conduct of any public officer; and no law shall ever restrain the right thereof. Every citizen has an indisputable right to speak, write, or print upon any subject, as he thinks proper, being liable for the abuse of that liberty. In prosecutions for any publication respecting the official conduct of men in a public capacity, or where the matter published is proper for public information, the truth thereof may always be given in evidence; and in all indictments for libels, the jury shall have a right to determine the law and the facts, under the direction of the court, as in other cases." (Art. 8, § 6.) The constitution of Indiana (1816,) provides, "That the printing presses shall be free to every person who undertakes to examine the proceeding of the legislature, or any branch of government; and no law shall ever be made to restrain the right thereof. The free communication of thoughts and opinions is one of the invaluable rights of man; and every citizen may freely speak, write, and print on any subject, being responsible for the abuse of that liberty. In prosecutions for the publication of papers investigating the official conduct of officers, or men in a public capacity, or where the matter published is proper for public information, the truth thereof may be given in evidence; and, in all indictments for libels, the jury shall have a right to determine the law and the facts, under the direction of the court, as in other cases." (Art. 1, §§ 9, 10.) The constitution of Louisiana (1812,) provides, "Printing presses shall be free to every person who undertakes to examine the proceedings of the legislature, or any branch of the government; and no law shall ever be made to restrain the right thereof. The free communication of thoughts and opinions is one of the invaluable rights of man, and every citizen may freely speak, write, and print on any subject, being responsible for the abuse of that liberty." (Art. 6, § 21.) And the amended constitution of the same state (1845,) provides, "The press shall be free. Every citizen may freely speak, write and publish his senti. ments on all subjects; being responsible for an abuse of this liberty." (Table VI. art. 110.) The constitution of Mississippi provides, that "Every citizen may freely speak, write and pubish his sentiments on all subjects; being responsible for the abuse of that liberty. No law shall ever be passed to curtail or restrain the liberty of speech, or of the press. In all prosecutions or indictments for libel, the truth may be given in evidence; and if it shall appear to the jury that the matter charged as libellous is true, and was published with good motives and for justifiable ends, the party shall be acquitted; and the jury shall have the right to determine the law and the facts. (Art. 1, §§ 6, VOL. III.

63

People v. Croswell.

to be given in evidence, as a defence to an indictment for a libel, upon any person holding an office of honor, profit or

7, 8.) The constitution of Illinois (1818,) provides, that "The printing presses shall be free to every person who undertakes to examine the proceed-" ings of the general assembly, or of any branch of government; and no law shall ever be made to restrain the right thereof. The free communication of thoughts and opinions is one of the invaluable rights of man; and every citi. zen may freely speak, write, or print on any subject, being responsible for the abuse of that liberty. In prosecutions for the publication of papers investigating the official conduct of officers or men acting in a political capacity, or where the matter published is proper for public information, the truth thereof may be given in evidence; and, in all indictments for libels, the jury shall have the right of determining both the law and the fact, under the direction of the court, as in other cases." (Art. 8, §§ 22, 23.) The constitution of Alabama (1819,) provides, that "Every citizen may freely speak, write, and publish his sentiments on all subjects, being responsible for the abuse of that liberty." (Art. 1, § 8.) The constitution of Missouri (1820,) provides, that "The free communication of thoughts and opinions is one of the invaluable rights of man, and that every person may freely speak, write, and print on any subject, being responsible for the abuse of that liberty; and that in all prosecutions for libels, the truth thereof may be given in evidence, aud the jury may determine the law and the facts, under the direction of the court." (Art. 13, § 16.) And the amended constitution of this state (1845,) provides that "The free communication of thoughts and opinions is one of the invaluable rights of man, and that every person may freely speak, write and print on any subject, being responsible for the abuse of that liberty; and in all prosecutions for libels, the truth thereof may be given in evidence, and the jury may determine the law and the facts, under the direction of the court." (Art 11, § 16.) The constitution of Michigan (1835,) provides, that "Every person may freely speak, write, and publish his sentiments on all subjects, being responsible for the abuse of that right; and no laws shall be passed to restrain or abridge the liberty of speech or of the press. In all prosecutions or indictmonts for libels, the truth may be given in evidence to the jury; and if it shall appear to the jury, that the matter charged as libellous is true, and was published with good motives and for justifiable ends, the party shall be acquitted; and the jury shall have the right to determine the law and the fact." (Art. 1, § 7.) The constitution of Arkansas (1836,) provides, that "Printing presses shall be free to every person; and no law shall ever be made to restrain the rights thereof. The free communications of thoughts and opinions is one of the invaluable rights of man, and every citizen may freely speak, write, and print on any subject, being responsible for the abuse of that liberty. In prosecutions for the publication of papers investigating the official conduct of officers or men in public capacity, or where the matter published is proper for public information, the truth thereof may be given in