others, it is said that it shall be a justification;1 but doubtless the effect of both expressions is the same. Again, it is provided in the Constitutions of several States, that the truth shall be admissible in evidence as a justification, in prosecutions for those publications which concern the official conduct of men in public office, or the qualifications of candidates for public office, or, more generally, where the matter is proper for public information; 2 other cases, it seems, being left at common law, except where it may be otherwise provided by statute. And other States have provided, either in constitutional or statutory enactments, that the truth shall constitute a good defence, in all cases, provided it is found to have been published from good motives and for justifiable ends. It thus appears, that in nearly all the United States,

1 See Vermont, Rev. St. 1839, ch. 25, § 68; Maryland, Stat. 1803, ch. 54, Dorsey's ed. Vol. 1, p. 482; North Carolina, Rev. Stat. 1837, ch. 35, § 13; Tennessee, Stat. 1805, ch. 6, § 2, Car. & Nich. Dig. p. 439; Arkansas, Const. Art. 2, 8; Rev. Stat. 1837, Div. 8, ch. 44, art. 2, § 3, p. 280. In Illinois, the truth is a justification in all cases, except in libels tending to blacken the memory of the dead, or to expose the natural defects of the living. Rev. St. 1845, Crim. Code, § 120.

2 See Ohio, Const. Art. 8, § 6; Indiana, Const. Art. 1, § 10; Alabama, Const. Art. 6, § 14, Stat. 1807, Toulm. Dig. tit. 17, ch. 1, § 46; Pennsylvania, Const. Art. 9, §7; Kentucky, Const. Art. 10, § 8; Delaware, Const. Art. 1, §5; Arkansas, Const. Art. 2, § 8; Maine, Const. Art. 1, § 4; Texas, Const. 1845, Art. 1, § 6; Illinois, Const. Art. 8, § 23; Tennessee, Const. Art. 11, § 19.

3 See Massachusetts, Rev. St. 1836, ch. 133, § 6; New York, Const. Art. 7, § 8; Rev. Stat. Vol. 1, p. 95, § 21; Rhode Island, Const. Art. 1, § 20; Michigan, Const. Art. 1, §7; Wisconsin, Const. Art. 1, § 3; Iowa, Rev. Code, 1851, art. 2769; Florida, Const. Art. 1, § 15, Thompson's Dig. p. 498; California, Const. Art. 1, § 9; Stat. 1850, ch. 99, § 120. In Maine, the truth will justify any publication respecting public men, or proper for public information, irrespective of the motive of publication; but to justify the publication of any other libel, it must be free from any corrupt or malicious motive. Rev. Stat. 1840, ch. 165, § 5. In New Hampshire, it is held as common law, that if there was a lawful occasion for the publication, and the matter published is true, the motive is immaterial; and that though the matter be not true, yet the publication may be excused, by showing that it was made on a lawful occasion, upon probable cause, and from good motives. The State v. Burnham, 9 N. Hamp. 34.

the right to give the truth in evidence, in criminal prosecutions for libels, is, to a greater or less extent, secured by express law; and probably would not now, in any of them, be denied. It may here be added, that by the Act of Congress of July 14, 1798, libels on the government, or Congress, or the President, were made indictable in the Courts of the United States, and the truth was permitted to be given in evidence, by the defendant, in his justification. This act, though of limited duration, has been regarded as declaratory of the sense of Congress, that in prosecutions of that kind, it was a matter of common right for the defendant to show that the matter published was true.1

§ 178. In his defence, it is competent for the defendant to show, that he did not participate in the publication; or, if it was done by his servant, that it was against his express orders, or out of the course of the servant's employment, or while the master was absent, under circumstances rendering it physically and morally impossible for him to prevent it; or that it was done by deceiving and defrauding the master. Or he may show, by other passages in the same book or newspaper, relating to the matter, or referred to in the libel itself, that the libel was not defamatory, or criminal, in the sense imputed to it. He may also show that the publication was privileged, as being made in the course of his public or social duty. But a subsequent publication of the same matter, when not required by such duty, as, for example, the printing of a speech delivered in a legislative assembly, or the like, is not privileged. Whether the printer of legislative documents, containing official reports defamatory in their nature, could protect himself under the allegation of privilege, by showing that he published them by order of the legislature,

1 See Laws U. States, Vol. 3, ch. 91, (Bioren's ed.) 2 Kent. Comm. 24. 2 Rex v. Lambert, 2 Campb. 398.

3 Supra, § 167, 176; Goodnow v. Tappan, 1 Ohio, R. 60.

4 Rex v. Creevey, 1 M. & S. 273, 278; Rex v. Ld. Abingdon, 1 Esp. R. 226; Oliver v. Ld. Bentinck, 3 Taunt. 456.

is a question which at one time greatly agitated the British public; but at length it was settled that the order of the legislature was no defence to an action at law.1

$179. The right of the Jury, in criminal cases, and particularly in trials for libel, has also been the subject of much discussion. It was formerly held, that where there were no circumstances which raised a question of justification in point of law, the Jury were bound to find the defendant guilty, if they found the fact of publication and the truth of the innuendoes; these two matters of fact being all which they were permitted to inquire into.2 In the United States, this doctrine is not known to have been received, but on the contrary has been so distasteful as to have occasioned express constitutional and statutory provisions, to the effect that, in all such cases, the Jury may render a general verdict, upon the whole matter, under the issue of not guilty. The language of the constitutions of some States is, that "the Jury shall be judges of," and in other States, "shall have the right to determine," the law and the facts. In many of the constitutions, it is provided that the Jury may do this "under the direction of the Court," or, " after having received the direction of the Court," 4 66 or, as in other cases; " 5 but in other

1 Stockdale v. Hanṣard, 9 A. & El. 1.

2 See Rex v. The Dean of St. Asaph, 3 T. R. 429-432, note, where the practice is historically stated and vindicated by Ld. Mansfield. The excitement which grew out of this and some other cases, caused the passage of the statute of 32 Geo. 3, c. 60, which declares, that in an indictment or information for a libel, upon the issue of not guilty, the jurors may return a general verdict upon the whole matter, and not upon the fact of publication and the truth of the innuendoes, alone.

3 Such are the Constitutional provisions in Ohio, Const. Art. 8, § 6; Indiana, Const. Art. 1, § 10; Alabama, Const. Art. 6, § 14; Pennsylvania, Const. Art. 9, §7; Kentucky, Const. Art. 10, § 8; Connecticut, Const. Art. 17; Missouri, Const. Art. 13, § 16; Illinois, Const. Art. 8, § 23; Tennessee, Const. Art. 11, § 19.

4 See Maine, Const. Art. 1, § 4; Iowa, Rev. Stat. 1851, § 2772. 5 See Delaware, Const. Art. 1, § 5.

constitutions the provision is unqualified.1 Upon these provisions a further question has been raised, whether the Jury were bound to follow the directions of the Court, in matters of law, or were at liberty to disregard them, and determine the law for themselves. On this point, the decisions. are not entirely uniform; and some of them are not perfectly clear, from the want of discriminating between the power possessed by the Jury to find a general verdict, contrary to the direction of the Court in a matter of law, without being accountable for so doing, and their right so to do, without a violation of their oath and duty. But the weight of opinion is vastly against the right of the Jury, in any case, to disregard the law as stated to them by the Court; and, on the contrary, is in favor of their duty to be governed by such rules as the Court may declare to be the law of the land; the meaning of the constitutional provisions being merely this, that the Jury are the sole judges of all the facts involved in the issue, and of the application of the law to the particular case.2

1 See Arkansas, Const. Art. 2, § 8; California, Const. Art. 1, § 9; New York, Const. Art. 7, § 8; Michigan, Const. Art. 1, §7; Florida, Const. Art. 1, § 15; Wisconsin, Const. Art. 1, § 3; Texas, Const. (1845,) Art. 1, § 6. In this last mentioned State, in the Constitution of 1836, Declaration of Rights, Art. 4, the words, "under the direction of the Court," were added; but in the revised Constitution of 1845, they were omitted.

2 This question was very fully and ably considered in the United States v. Battiste, 2 Sumn. 243; The Commonwealth v. Porter, 10 Met. 263; Pierce v. The State, 13 N. Hamp. 536; The United States v. Morris, 4 Am. Law Jour. 241, N. S.; in which cases the other American and the English authorities are reviewed. And see ante, Vol. 1, § 49; Townsend v. The State, 2 Blackf. 151; Warren v. The State, 4 Blackf. 150; Armstrong v. The State, Id. 247; Hardy v. The State, 7 Mis. 607; The People v. Pine, 2 Barb. S. C. R. 566.

MAINTENANCE.

§ 180. THIS crime is said to consist in the unlawful taking in hand or upholding of quarrels or sides, to the disturbance or hinderance of common right. It is of two kinds, namely, Buralis, or in the country, and Curialis, or in the Courts. The former is usually termed Champerty; and is committed where one upholds a controversy, under a contract to have part of the property or subject in dispute. The latter alone is usually termed Maintenance; and is committed where one officiously and without just cause, intermeddles in and promotes the prosecution or defence of a suit in which he has no interest, by assisting either party with money, or otherwise.2 Both species of this crime are, in some form or other, forbidden by statutes, in nearly all the United States; but the common law is still conceived to be in force, where it has not been abrogated by statute.3

§ 181. The indictment charges, in substance, that the defendant, unjustly and unlawfully maintained and upheld a certain suit, pending in such a Court, (describing them,) to the manifest hinderance and disturbance of justice. If the offence was strictly champerty, and consisted in the buying

1 1 Hawk. P. C. ch. 83, § 1; 1 Inst. 368, b. ; 2 Inst. 212.

2 Ibid; Thallhimer v. Brinckerhoff, 3 Cowen, 623; 20 Johns. 386; 1 Russ. on Crimes, p. 175; Holloway v. Lowe, 7 Post, 488.

3 Wolcott v. Knight, 6 Mass. 421; Everenden v. Beaumont, 7 Mass. 78; Swett v. Poor, 11 Mass. 553; Thurston v. Percival, 1 Pick. 416; Brinley v. Whiting, 5 Pick. 359; Key v. Vattier, 1 Ham. 132; Rust v. Larue, 4 Litt. 417; Brown v. Beuchamp, 5 Monr. 416. In Ohio, and in Illinois, it has been held, that a conveyance by one who is disseised, is not void for champerty. Hall v. Ashby, 9 Ham. 96; Willis v. Watson, 4 Scam. 64.