Defences to Crime: Special defences to crimes against the public

"But for the last clause of this instruction, it would not be, in the abstract, subject to criticism, but it is, we think, erroneous in holding all killing needless, in the sense of the statute, done for an unlawful purpose. For unlawful trespasses other remedies are provided. There are other statutes for their prohibition. All acts of killing are not needless,' in the meaning of the statute, which are unlawful. A man, for instance, might kill his neighbor's sheep for food, which would be unlawful, and either a trespass or felony, according to the circumstances; but such killing could not, within any show of reason, come within the intention of the act in question. The lawfulness or unlawfulness of the act, has really no bearing upon its character as charged.

"Had the last clause been omitted, in this instruction, it would not, however, been sufficiently instructive, in all points, to have caused the refusal to give the defendant's first five instructions, in substance as asked. He was entitled to have them particularly impressed upon the jury, in a matter which, being new, they might misapprehend.

"The first of the English statutes directed to the enforcement of benevolence and kindness to inferior animals, was passed to 1822. It was to prevent 'cruel and improper treatment of cattle.' It contained a provision that 'if the complaint should appear to the magistrate, on the hearing, to be frivolous, or vexatious, then the complainant was to be ordered to pay to defendant any sum of money, not exceeding the sum of twenty shillings, as compensation for the trouble and expense to which said party may have been put by such complaint.' This was a wise precaution. The case now before us is strongly suggestive of the necessity of some such safeguard in the administration of a statute of much wider scope, embracing all living creatures. This is a matter, however, for the legislative department. The power of the judiciary only extends to see that a statute, so well intended, shall not be extended to absurd consequences, and brought into contempt by too literal a construction of language. For error in overruling the motion for a new trial, reverse the judgment, and remand the cause for further proceedings, consistent with law, and this opinion."

204. No Distinction Between Owner of Animal and Stranger. — In Commonwealth v. Lufkin,1 the court says: "The attention of the jury was pointedly directed to the defendant's want of authority to do anything whatever to the horse. They were told that under some circumstances a person might lawfully inflict force upon a horse, as where he had the ownership or control of the animal and did it for the purpose of discipline or government; or where he did it for the purpose of driving the horse from his premises, if trespassing; but that in such cases, the law required that the force used should not be immoderate or inflicted in such a manner as to cause unnecessary pain; and that it was not pretended that the defendant had any right to use any force upon Martin or his horse.

"We think these instructions may have led the jury to lose sight of the true character of the offense with which the defendant was charged, and thus that injustice may have been done. The cruel treatment which the statute contemplates is the same, whether inflicted by the owner of the animal or by another. The jury should have been made to understand that if the defendant struck the horse for the purpose of driving him away, and without any intent to torture or injure him, and the blows given, if they had been given by his owner for the

1 7 Allen, 582 (1863).

therewith, they must yield and give way. Judicial decisions can not weigh against it, when repugnant thereto. It runs thus:

"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 thing. The free communication of thought and opinions is one of the invaluable rights of man; and every citizen 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 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.'

"Thus it is evident that legislative acts, or of any branch of the government, are open to public discussion; and every citizen may freely speak, write or print on any subject, but is accountable for the abuse of that privilege. There shall be no licenses of the press. Publish as you please, in the first instance without control; but you are answerable both to the community and the individual if you proceed to unwarrantable lengths. No alteration is hereby made in the law as to private men, affected by injurious publications, unless the discussion be proper for public information. But if one uses the weapon of truth wantonly, for disturbing the peace of families, he is guilty of a libel.'1 "The matter published is not proper for public information. The common weal is not interested in such a communication except to suppress it.

"What is the meaning of the words 'being responsible for the abuse of that liberty,' if the jury are interdicted from deciding on the case? Who else can constitutionally decide on it? The expressions relate to and pervade every part of the sentence. The objection, that the determinations of jurors may vary at different times, arising from their different political opinions, proves too much. The same matter may be objected against them, when party spirit runs high, in other criminal prosecutions. But we have no other constitutional mode of decision pointed out to us, and we are bound to use the method prescribed.

"It is no infraction of the law to publish the temperate investigations of the nature and forms of government. The day is long past since Algernon Sidney's celebrated treatise on government, cited on this trial, was considered as a treasonable libel. The enlightened advocates of representative republican government pride themselves in the reflection, that the more deeply the system is examined, the more fully will the judgments of honest men be satisfied, that it is the most conducible to the safety and happiness of a free people. Such matters are proper for public information.' But there is a marked and evident distinction between such publications, and those which are plainly accompanied with a criminal intent, deliberately designed to unloosen the social band of union, totally to unhinge the minds of the citizens, and to produce popular discontent with the exercise of power, by the known constituted authorities. These latter writings are subversive of all government and good order. “The liberty of the press consists in publishing the truth, from good motives and for justifiable ends, though it reflects on government or on magistrates.' It dis

1 Per Gen. Hamilton in Crosswell's trial,

p. 70.

2 Per Gen. Hamilton in Crosswell's Trial, pp. 63, 64.

214. Libel

Truth may be Published Though it Reflect on the Government and Magistrates.-In R. v. Dennie,1 YEATES, J., charged the jury as follows: "The defendant stands indicted as a factious and seditious person, of a wicked mind, and inquiet and turbulent disposition and conversation, seditiously, maliciously and willfully intending, as much as in him lay, to bring into contempt and hatred, the independence of the United States, the Constitution of this Commonwealth of the United States, to excite popular discontent and dissatisfaction against the scheme of polity instituted and upon trial in the United States, and in the said Commonwealth, to molest, disturb and destroy the peace and public tranquillity of the said United States, and of the said Commonwealth, to condemn the principles of the revolution, and revile, depreciate and scandalize the characters of the revolutionary patriots and statesmen, to endanger, subvert and totally destroy the Republican constitutions of free government of the said United States and this Commonwealth in civil war, desolation and anarchy, and to procure by art and force, a radical change and alteration in the principles and forms of the said constitutions and governments, without the free will, wish and concurrence of the people of the said United States, and this Commonwealth respectively, and to fulfill, perfect and bring to effect his wicked, seditious and detestable intentions aforesaid, he the said Joseph Dennie, on the 23d of April, 1803, at the city of Philadelphia, falsely, maliciously, factiously and seditiously did make, compose, write and publish the following libel to wit: 'A democracy is scarcely tolerable at any period of national history. Its omens are always sinister, and its powers are unpropitious. With all the lights of experience blazing before our eyes, it is impossible not to discover the futility of this form of government. It was weak and wicked at Athens, it was bad in Sparta and worse in Rome. It has been tried in France, and terminated in despotism. It was tried in England and rejected with the utmost loathing and abhorrence. It is on its trial here, and its issue will be civil war, desolation and anarchy. No wise man but discerns its imperfections, no good man but shudders at its miseries, no honest man but proclaims its fraud, and no brave man but draws his sword against its force. The institution of a scheme of polity so radically contemptible and vicious, is a miserable example of what the villainy of some men can devise, the folly of others receive, and both establish in despite of reason, reflection and sensation.'

"This publication is stated to have been made in a certain weekly paper called the Port Folio; and the act is charged in the indictment to have been committed in manifest contempt of the Constitution and laws of the said United States and this Commonwealth, in derogation of the national independence, reputation and honor, to the evil example of all others in the like case offending, and against the peace and dignity of the Commonwealth of Pennsylvania."

"Is the defendant guilty or not of the facts and intentions charged, is the question to be tried. The case is admitted to be of high moment.

"The seventh sectionof the ninth article of the Constitution of the State, must be our guide upon this occasion; it forms the solemn compact between the people and the three branches of the government, the legislative, executive, and judicial powers. Neither of them can exceed the limits prescribed to them respectively. To this exposition of the public will, every branch of the common law, and of our municipal acts of assembly must conform; and if incompatible

therewith, they must yield and give way. Judicial decisions can not weigh against it, when repugnant thereto. It runs thus:

"It is no infraction of the law to publish the temperate investigations of the nature and forms of government. The day is long past since Algernon Sidney's celebrated treatise on government, cited on this trial, was considered as a treasonable libel. The enlightened advocates of representative republican government pride themselves in the reflection, that the more deeply the system is examined, the more fully will the judgments of honest men be satisfied, that it is the most conducible to the safety and happiness of a free people. Such matters are proper for public information.' But there is a marked and evident distinction between such publications, and those which are plainly accompanied with a criminal intent, deliberately designed to unloosen the social band of union, totally to unhinge the minds of the citizens, and to produce popular discontent with the exercise of power, by the known constituted authorities. These latter writings are subversive of all government and good order. "The liberty of the press consists in publishing the truth, from good motives and for justifiable ends, though it reflects on government or on magistrates.' It dis

1 Per Gen. Hamilton in Crosswell's trial,

p. 70.

2 Per Gen. Hamilton in Crosswell's Trial, pp. 63, 64.

seminates political knowledge, and by adding to the common stock of freedom, gives a just confidence to every individual. But the malicious publications which I have reprobated, infect insiduously the public mind with a subtle poison, and produce the most mischievous and alarming consequences, by their tendency to anarchy, sedition and civil war. We can not, consistently, with our official duty, pronounce such conduct dispunishable. We believe that it is not justified by the words or meaning of our Constitution. It is true, it may not be easy in every circumstance, to draw the exact distinguishing line. To the jury, it peculiarly belongs to decide on the intent and object of the writing. It is their duty to judge candidly and fairly, leaning to the favorable side, when the criminal intent is not clearly and evidently ascertained.

"It remains therefore, under our most careful consideration of the ninth article of the Constitution, for the jury to divest themselves of all political prejudices (if any such they have) and dispassionately to examine the publication in the Port Folio, which is the ground of the present prosecution. They must decide on their oaths, as they will answer to God and their country, whether the defendant, as a factious and seditious person, with the criminal intentions imputed to him, in order to accomplish the objects stated in the indictment, did make and publish the writing in question. Should they find the charges laid against him in the indictment to be well founded, they are bound to find him guilty. They must judge for themselves on the plain import of the words, without any forced or strained construction of the meaning of the author or editor, and determine on the correctness of the innuendos. To every word they will assign its natural sense, but will collect the true intention from the context, the whole piece. They will accurately weigh the probabilities of the charge against a literary man. Consequences they will wholly disregard, but firmly discharge their duty. Representative republican governments stand on immovable bases which can not be shaken by theoretical systems. Yet if the consciences of the jury shall be clearly satisfied that the publication was seditiously, maliciously, and willfully aimed at the independence of the United States, the Constitution thereof, or of this State, they should convict the defendant. If, on the other hand, the production was honestly meant to imform the public mind, and warn them against supposed dangers in society, though the subject may have been treated erroneously, or that the censures on democracy were bestowed on pure unmixed democracy, where the people en masse, execute the sovereign power without the medium of their representatives (agreeably to our forms of government) as have occurred at different times in Athens, Sparta, Rome, France and England, then, however the judgments of the jury may incline them to think individually, they should acquit the defendant. In the first instance, the act would be criminal; in the last it would be innocent. If the jury should doubt of the criminal intention, then also the law pronounces that he should be acquitted.1

"Thus we have endeavored to discharge our official duty to the jury with impartiality. It rests with them to discharge their duties, virtuously and conscientiously, agreeably to the true spirit of our Constitution and laws. "Verdict, not guilty."

§ 215. Libel-Newspaper Comments - Criticism.-In Commonwealth v. Batchelder, it was held that where the editor of a sectarian newspaper pub

1 4 Burr. 2552 per Ld. Mansfield.

2 Thatch. Cr. Cas. 191 (1829).

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