Cooper v. Stone

By the Court, Cowen, J. The matter as set forth in either count is denied by the defendant to be libellous. It is alleged to be 'false [ *439 ] and malicious, and to have been published *b'y him with intent to injure the plaintiff and bring him into general contempt, disgrace and ignominy. These allegations are admitted by the demurrer; and the question is whether the matter necessarily had the tendency imputed to it by the pleader. The declaration recites that the plaintiff was the author, among other and previous books, of the history of the navy of the United States, the latter containing a true and impartial narrative of the battle of Lake Erie ; and avers that the libels were published of and concerning this part of the history, and of and concerning the plaintiff. One object of both is obvious. It was to impeach the truth of the narrative as being less favorable to Commodore Perry than his conduct on that occasion called for; and more so to Capt. Elliot, who was a subordinate officer engaged in the same battle.' The libel in the first count, speaking in reference to the general subject of the history, and especially the favorable point of view in which it places the conduct of Capt. Elliot, alludes to a hope entertained by the defendant, that the plaintiff would, in his history, have risen above the personal feelings and political prejudices by which his preceding works had been disfigured. It speaks of 'a rumor that the history was to contain a more favorable view of Capt. Elliot’s conduct, than had been given by Com. Perry at the time ; but the defendant could hardly persuade himself that the plaintiff had become so utterly regardless of justice and propriety as a man, so insensible to his obligations and responsibility as a historian, &c. as to forego the chance of retrieving the reputation he must have been conscious of having lost. The [439] defendant was not prepared to find that the infatuation of vanity or the madness of passion could lead the plaintiff to pervert such an opportunity to the low and paltry purpose of bolstering up the character of a political partizan, an official sychophaut; and to degrade the name and object of history, by salving the wounded reputation of one who had been regarded as of doubtful credit in his profession; one who, after the events of the battle, owed his continuance in the service to the forbearance of Com. Perry, which he requited with ingratitude *and perfidy. The [ *440 ] defendant then says he had indeed been disappointed ; but must be consoled that the power of sympathy is sometimes irresistible. The patron is worthy of his client. Perhaps both Capt. Elliot and his defender had underrated the memory of the public. The plaintiff could not be allowed to plead ignorance as all the documents relative to the subject were to be found on the files of the navy department, to which he had access. We are thus presented with a series of remarks distinctly imputing to the plaintiff a disregard of justice and propriety, an insensibility to his obligations as a historian, the infatuation of vanity, the madness of passion, and low and paltry purposes. They present him as holding an affinity, and standing on a level with, and vindicating and bolstering up the character of an official sychdphant, an officer unworthy of his place, a man guilty of ingratitude and perfidy. With such a man the sympathy of the plaintiff is represented to be irresistible, the patron as worthy of his client; and finally, the plaintiff is accused more directly, of palming falsehood upon the world in the name of history. The slander is somewhat diluted, by being mixed up with a small portion of what may perhaps be legitimate commentary on that branch of the history in which it professes to have found aliment for its grossness. The defamatory matter is, however, easy of extraction, and, when concentrated, fully answers to the definition of a libel upon a private person. This definition may be found in any book which treats of the subject. It means a contumelious or reproachful publication against a person; any malicious "publication, tending to blacken his reputatien, or expose him to public hatred, contempt or ridicule. Vide 2 Pick. 115, per Lincoln, J. In the second count the defendant represents the plaintiff as deliberately penning an untrue account of the battle, intended for posterity, and derived from evidence which had been falsified or retracted, without the least hint or intimation of the latter. The defendant speaks of its being unfortunate for the plaintiff’s purpose that Commodore Perry had himself disclosed the truth; and declares that the *defendant adduced the [ *441 ] statements of Commodore Perry to vindicate him from the partial and deceptive representations, and the gratuitous and insidious defence in. stituted by the plaintiff, who had assumed the office and responsibility of a [441] historia». The libellous matter set forth in this count is less extended and less loaded with epithets than the first. It is, however, sufficiently obvious. It charges the plaintiff with falsehood, an imputation which, when published in a written or printed form, has been holden libellous ever since Austin v. Culpeper was decided, in 85 Car. 2, Skin. 123. The case of King v. Lake, is there mentioned wherein it was adjudged that, to say of a man in a petition printed and published, that he is an unjust man, is slanderous, and an action lies ; and the judgment in that case was affirmed on a writ of error. Skin. 124. By way of illustration, the court remarked, that merely to say of a man he is dishonest, is not actionable, yet to publish so, or put it upon the posts is actionable. Id. Assuming the articles to be libellous in themselves, the only answer given on the argument was, that the plaintiff appearing by the declaration to be an author and the defendant an editor, and the libel treating of the plaintiff as an author, it is thus on the face of the declaration shown to be a publication absolutely privileged. To maintain this position, Carr v. Hood, 1 Campb. 354, note, was relied upon. That case was tried at nisi prius. The plaintiff complained that he had been personally slandered, under the pretence of reviewing his works ; and it was put to the jury that if the criticism were fair and just, and reflected upon the plaintiff’s character no farther than it was truly presented by his works, the defendant was justifiable even though he bad ridiculed the plaintiff. It is unnecessary to pronounce whether that case may not have gone too far, because no one will pretend that the privilege of the press can warrantably be perverted to the purposes of wilfully and falsely assailing the character of any man. To say that he is an author, editor, or reviewer, is but saying that he is engaged in a profession which has been and may be made eminently useful to mankind, and which would [ *442 ]' therefore *seem to call for peculiar protection and encouragement. That the law should allow his productions to be criticised with great .freedom, is not denied. If he has made himself ridiculous by bis writings, he may be ridiculed ; if they show him to be vicious, his reviewer may say so. But the latter has no right, therefore, to violate the truth in either respect. The difficulty of sustaining this demurrer lies in its admitting that the plaintiff’s moral character has been falsely and maliciously assailed by the defendant. This being imputed in the declaration, it behoved him to show that what he said w'as true, or at least that it was no more than a fair-deduction from the plaintiff’s works. The question is one of good faith. It is always so in case of the highest and most absolutely privileged communications. .The claim of privilege can therefore be settled only by a jury. I do not speak of criticism upon the works of an author in the abstract; for this I admit no action can lie. Certainly not, unless the criticism be grossly false and work a special damage to the proprietor of the book at [442] which the strictures are levelled. The book cannot be plaintiff. I speak of attacks on the moral character of the author ; and I will not stop to weigh the argument which would disfranchise him, because he happens to be an author. This is, I believe, the first attempt to try the question of privilege by a demurrer to the declaration. Something was said on the argument, of the declaration failing to point and apply the imputed slander by proper explanations. This is never necessary where the words are plain in themselves. It is difficult to read the articles as set forth in the counts without seeing at once that they are direct and undisguised attacks upon the moral character of the plaintiff by name. Judgment for plaintiff on demurrer, leave, &c.