tion must be modelled according to the change. The neces sity of alleging the falsehood of the libel in an action for a libel must be the same on an indictment, where the same proof is made to constitute a defence. There is no distinguishing or getting over it on principle of individual safety or public policy; or the analogy of precedent. Nor ought we to use astutia or strain a construction to get over it; but rather in the spirit of the constitution, amplify and give a liberal construction to a remedial provision; and which, the nature of our republican institutions seems to demand, for nothing can be so conservative of a free government as perpetual vigilance, and free discussion of the integrity, or wisdom of the administration of affairs, or of the qualifications for official duty in such as are called upon, or offer themselves for office or delegation. The manner in which this is done may be exceptionable; but the thing is necessary, and without which the spirit of liberty could not be preserved. I incline therefore, even in a doubtful construction, to lean to that most favorable to the freedom of the press; and the privilege of citizens to be heard on the official conduct of officers, or men in a public capacity, or where the matter published is proper for public information.

That this is a remedial provision of the constitution, will be known from a consideration of what had been understood to be the rule before the constitution, viz. " that on an indictment for a libel the truth could not be given in evidence, it being immaterial with respect to the essence of a libel, whether the matter of it were true or false, since the provocation and not the falsity was the thing to be punished criminally; though the falsehood of it might aggravate its guilt, and enhance its punishment." 4 Black. 150. For which, so far as respected private persons and matters not proper for public information, there might be reason; but for which, in the cases specified, the public interest, in the opinion of the framers of the constitution, required a different rule. Now if the truth is to be given in evidence in the cases specified, why shall not the falsehood be alleged? Will not the truth amount to a justification? It could not be the meaning that

the truth might be given in evidence in extenuation of the offence; for that would go to the court, and not to the jury; for though it might affect the punishment, it would not change the nature of the verdict, there being no such thing as a verdict of less or more guilty, but simply guilty or not guilty. The truth therefore must justify; and is admissi ble in evidence with a view to that effect. Shall not the falsehood then be charged in the indictment? in the case of an information, it is charged; and no information unless where, in the nature of it, an exception lies, will be allowed to be filed but on affidavit of the falsehood of the libel. Doug. 372. The grand jury can have the oath of the prosecutor who claims the interference of the commonwealth, and in the specified cases, may be sent up by the officer for the commonwealth; and there is the same reason as in the case of an information, why he should first lay a ground by an averment of his innocence, in regard to the allegations of the libel, before the indictment is sustained, so far as to be found; and with a view to this, falsehood must be charged. "The charge must contain such a description of the crime, that the defendant may know what crime he is called upon to answer, that the jury may be warranted in their conclusion of guilty or not guilty upon the premises delivered to them; and that the court may see such a definite crime, that they may apply the punishment the law prescribes." Cowp. 682. An affirmative verdict couples the probate with the allegata; and we cannot legally apply the verdict to more than the allegata, or charge of the indictment, which of itself containing no offence, no culpability can exist; and the technical finding culpabilis or guilty, can refer only to the act alleged, which is not criminal. It will not be seen from an inspection of the record that the court had before them a conviction whereon to ground a judgment. For it stands indifferent whether the publication is an offence or justifiable. But maliciously publishing, as laid in an indictment, will not that constitute a crime? Taking it in the popular acceptation of the word it will not. For meaning personal enmity, it can affect only the political, or moral nature of the act. For even malice

expressly proved, in doing what is justifiable, will not make it blameable, though it may take away from the merit of the act so far as respects the doer; and where what is done is wrong, the best intention cannot justify the act; for evidence of the quo animo can absolve from guilt only, where it goes i to shew that the actor did not mean to do the act, or a criminal act of which it was the consequence. It cannot alter the nature of the act, though it may reduce the degree of the malignity; and be considered by the judge in affixing the punishment, where the law gives him a discretion. Evidence of express malice in the case of a malicious prosecution will not support an action, provided there was probable cause for the prosecution. This proves that malice in the popular acceptation of the term, can go but in aggravation of a wrong committed, and is not of the essence of the wrong. The malice which the law knows, is quite a different thing; it is the bad mind which is inferred from the bad act, and the act must be established before badness of mind can be inferred. Ex malitia, publishing, is the characteristic of the act of falsely publishing; and I do not find that in the case of any other offence, the allegation of an ex malitia will supply all the allegation of a crime in the act done. It will not in felony; nor will it supply the defect of force and arms in a trespass, so as to render it indictable. It may not be necessary to constitute a seditious writing that it be false; for it is not the truth of the words that is in question, but the tendency and object of words to unsettle the government, or obstruct the laws.

The truth of speculative opinions cannot be traversable; or the policy of a law; and therefore in seditious attempts, by publications, to unsettle the government,, and excite opposition to the laws, the falsity of opinions need not be averred; but in an indictment, though the court on which a verdict has been for the commonwealth, charges the "combining and intending by the publication seditiously to disturb the peace, tranquillity, and happiness, of the people of the state," yet it is as a consequence of the libel on the person of the officer; and it would seem that it could not be considered an indicament for sedition, and out of the provi

sion of the constitution for a personal libel; for an indictment might be so framed in every case as to give it the appearance of an indictment for the sedition, and so defeat the provision.

But if falsity must be alleged in every bill sent up to a grand jury, in the case of a publication personally libellous, how shall the jury ascertain the falsity where in the nature of the case the prosecutor cannot be sworn to the falsity; as where the defamation consists of general abuse, as depravity of heart, disaffection to institutions, intentions hostile to li berty, &c. I answer that if an indictment can ly at all, in our republican government, for such freedom of opinion with regard to public officers, the grand jury who must presume in favour of the officer will be justifiable in making the accusation of falsity, and the finding is but an accusation. But if maliciously will supply the term falsity, how will the grand jury be justifiable in finding the maliciously, which is but an implication from the falsity, and yet it will not be said that without the term maliciously, the publication barely set out in the indictment could support an indictment. The truth might have been given in evidence and the words proved false; but not appearing on the record, it must stand as if judgment had gone on the barely publishing the words.

When the truth may reasonably be expected to be given in evidence, in all cases where it exists, the leading the way for it, by charging falsity, may seem to be unnecessary; but I must feel myself absolved from the rules of strict construction, which the law applies to criminal proceedings, before I could think otherwise.

Bad precedents are set in good cases, is a principle which will apply in all cases, and which though it may regard form, yet will protect substance, and fortify the provision of the constitution, by shewing from the form of charging the offence, what defence may be set up; and more especially, as a distinction might creep in between admitting the truth in extenuation, and in justification; and it might be, grow into a construction, that though admitted to the jury, it was in order to reach the court, and direct their discretion in modi

fying the sentence.

On this last consideration which per

haps outweighs all, I think the alleging the publication to be false, ought to be held essential.

IV Black. Com. 150.

By an act of Assembly, 1809, it was provided "that no person shall be subject to prosecution by indictment for the publication of papers examining the proceedings of the legislature, or any branch of government, or for investigating the official conduct of officers, or men in public capacity." And sec. 11." That, in all actions or criminal prosecutions of a libel, the defendant may plead the truth thereof in justification, or give the same in evidence." This act was subject to a limitation of three years, " and from thence to the end of the next session of the legislature." I have not seen in the title of acts of the last session, a continuance of this act: It would seem therefore to have expired.

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It was a great safety to the judiciary to be relieved from the necessity of imposing fines in case of prosecutions under the law as it before stood. For the imposing fines in the case of men in public capacity prosecuting, never failed to draw with it much obloquy from the libellers, and the people not discriminating the liberty of the press, from the abuses of it, most usually ranged themselves in their sympathies on the side of those prosecuted. Hence it was that fines were remitted; or where imprisonment made a part of the sentence, in the case of editors of Gazettes especially, their subscriptions werè increased; and where the authori ties of the publications were given up, or where they avowed their writing, it was a passport to public favour, and oftentimes to the suffrages of the community for a public trust. This proved that such prosecutions by indictment in the case of libel were far from being popular.

The judiciary found a safety in being relieved from the necessity of imposing fines, or sentencing to imprisonment;