Thorn v. Blanchard , 5 Johns. 508 ( 1809 )

The Chancellor.

This cause comes up on a writ of error from the supreme court.

It presents the question, whether a petition to the council of appointment, containing false allegations, and praying the removal of a public officer, is good cause of action, as for a libel.

This question is novel, of much interest and importance, and well merits a fuller consideration than the present occasion affords.

There is no question, as to the form of pleading. Whether a petition containing allegations true or false, (for here they are to be taken as false,) addressed and presented to the council of appointment, respecting a public officer, is merely, from the circumstances of its address and presentation, excluded from the general principles applying to libels, is the question presented.

The council of appointment forms one of the great departments of government, which has duties of a very important nature assigned to it; almost all the officers of government are appointed by, and hold their offices during its pleasure; constitutionally, the council is only responsible for the abuse, not for the liberal, uncorrupted exercise of its powers.

It is, doubtless, the interest of the public, to have the door of information as widely expanded to a of this description, as the delicate trust confided to them, and the extent of the objects committed to their management, require.

Before the general legal principles, which may be permitted to influence this question, are considered, it may be well to examine the authorities which have been relied on in argument, to discover whether any positive rule, or satisfactory analogy, can be discovered from them, to assist our determination.

There is one distinction, which, it appears to me, is a solid one, pervading all the cases which have been cited. I shall lay it down as collected from them, to enable the court to compare them with it, and apply it to them, as I proceed in the examination of those cases: it is this, that all of them, the case from 1 Term Rep. 520. excepted, are cases of a prosecution in a course of justice, or a complaint founded on private right or private injury, in which the recovery of the one, or the redress of the other, was the object of pursuit.

The first case cited is that of Buckley v. Wood.^* In that case the counsel for both parties agreed, that if the complaint was in a course of justice, no action would lie.

In that case, the slanderous matter alleged in the bill exhibited in the star chamber, was not examinable there, and so the action was sustained.

The same case is reported in Coke,^† but more at large ; and from that report, it appears, that it was resolved by the whole court, that for any matter contained in the bill, which was examinable in the said court, no ac« tion lies, although the matter is false. Not so, if not examinable there.

The case of The King v. Lake,^* arose on a petition, addressed to a committee of grievances. From the record it appears to have been presented in the course of obtaining justice against the acts of an ecclesiastical jurisdiction, which, the petitioner alleged, oppressed both him and his tenants ; and, after several debates, it was agreed, that the exhibiting the petition to a committee of parliament was lawful, and that no action lies for it, though it be false and scandalous, because it is in a course of justice.

In the case of Ashley v. Young,^† Lord Mansfield de? nies that a matter given in evidence, in a course of justice, may be prosecuted in a civil action, as a libel. He adverts to the case of The King v. Lake, and recognises its doctrine. ;

Of the case' of the deputy governor of Greenwich hospital, we have no report. It was, probably, from his situation, his duty to correct the abuses prevailing in the hospital, and he confined his communications only to the governors.

The case of The King v. Bailey^‡ arose on a writing-directed tp General Willis, and the four principal officers of the British king’s guards, to be presented to the king.

It was held to be no libel, for it was a representation of an injury.

Circumstances may justify a writing, which, destitute of them, would constitute a libel; and the mere publication of such writing, without the attendant circumstances to justify it, carries with it an evidence of malice.^§

In the present case, no private right was attempted to be asserted; no redress of private injury sought, to which the summary justice of removal could be applied. .It was not calculated to correct a public grievance, unless that grievance existed.

As it was not in the regular course of justice, it was, in my opinion, made at the peril of the petitioners. If the interest of the community is to be essentially promoted by affording the council every possible facility to collect the most authentic and correct information, it must certainly be at variance with that interest, to expose it to be practised upon and deceived by calumniators, so as to become the involuntary agents of attaching the most invidious charges to officers of irreproachable conduct, and spotless reputation.

If it were only necessary to frame an address to the council, to exempt the representations made to it front the legal consequences of composing and publishing a libel, the files of the council might be polluted with the effusions of malignity and detraction, with perfect impunity.

The council may inquire, but they possess not the power, nor are they constitutionally competent to examine and determine upon an accusation, so as to produce the effect of a trial at common law; their inquiries and determinations must necessarily be summary and prompt, and unaided by those powers which enable courts of justice to investigate thoroughly, and decide properly, on the subject matter. They cannot compel the attendance of witnesses, and even the officers accused are not legally compellable to appear before them, though they may be disposed to do so, from considerations of expediency.

The legal position deducible from these premises, and from the principles of our government, in my opinion, is, that the council may receive every information relative to the conduct of public officers, necessary to enable it fairly, impartially and discreetly, to exercise the power vested in it; but to be given at the peril of the informant. If he approaches the council with other than pure views; if, under the mask of vindicating his violated rights; seeking a redress for injuries, or removing a public grievance, he calumniates the man against whom he prefers his complaint, I can discover no legal, or even plausible ground to shield him from answering as a libeller; and the opinion of the court from 4 Co. 14. in the case of Buckley v. Wood, I consider as very apposite to this case. It is dictated by sound principles of law, and solid sense.

If such matters may be inserted in bills, exhibited “ in great slander of the parties, and they cannot answer it to clear themselves, nor have their actions, as well to clear themselves of the crimes, as to recover damages for the great injury and wrong done them, great inconveniences will ensue. But the said libel, without any remedy given to the party, will always remain on record, to his shame and infamy.”

For these reasons, I am of opinion, that the judgment of the supreme court ought to be affirmed.

L’Hommedieu, Senator.

This is the first instance, I believe, where an action has been brought for a libel, for words in a petition to a council, for removing an officer of government. It appears to me to be very different from a libel not attended with this circumstance, and does not, prima facie, carry with it the presumption of malice. I believe, on examining the petitions to the council, for the removal from office, hundreds will be found as libellous as this. I have seen a great many myself. And if all the facts they state, and which they profess to believe, and which cannot be proved before a court of justice, are to be adjudged libellous, and done by malice, there may be prosecutions without number; and an end will be put to all complaints, against persons holding offices ¿ for their removal; for what person would complain, or tell his opinion, respecting the misconduct of officers, when he would be liable to be harassed in a court of law, and be put to great expense, even if he could prove iiis opinion correct. This shows the necessity of proving that such petitions were presented through malice by the petitioner, in all cases of this kind, and not leave it to be inferred, because they are not able to prove the facts in a court of law.

The council of appointment being a court, if I may so call it, to hear all complaints against officers of government, there is an implied protection for the complainants, unless it can be proved the same was done by malice. This is the case, in other courts, in many instances, cited from the books;, on the argument, before this court.

It is common for the council of appointment, on complaint against an officer, to notify him of the complaint, and to cite the witnesses against him to attend at a certain day; if the person complained of is acquitted, and the charge not proved, shall the person complaining be charged with a libel, unless the charges can be proved to have been made through malice ?

In this case the petition was made openly, and signed by 24 persons, many of whom were respectable inhabitants of Washington, and must have been well known to Mr. Blanchard; and is it not a x'ery extraordinary thing, that all those persons should sign that petition through malice ? On the contrary, the presumption is, that they did it xvith a good intent, and for the public good, and spoke the truth xvhen they said “ in our opinion,” &c. as nothing appears that it xvas not their opinion, and there is ño proof of malice. Further, it seems strange^ when this petition was public, at the time, no prosecution was brought for a number of years. The petitioners might have been able to prove their opinions, at the time; but they may not be able to do so, after so long a lapse of time.

Besides, it does not appear that this petition xvas the cause of Mr. Blanchard's being dismissed from office < but the contrary, as neither he nor the complainants were cited before the council; but rather that the council removed him for other considerations, or were of the same opinion with the petitioners.

On the whole, I am clearly of the opinion, that the judgment of the court below ought to be reversed.

Clinton, Senator.

It is to be regretted, that the hasty decisions of the judges at the circuits, formed and pronounced, without time for deliberation, and without an opportunity of recurring to authorities, are not, in all cases, subjected to a revision in the supreme court, before they are brought to this forum. Instances then would not occur b efore us, like the present; and we should not be necessitated to review a decision which violates the most sacred and unquestionable rights of free citizens ; rights essential to the very existence of a free government; rights necessarily connected with the relations of constituent and representative ; the right of petitioning for a redress of grievances, and the right of remonstrating to the competent authority, against the abuse of official functions; and there can be np doubt, but that the candid and learned judge, who presided at the trial of this cause, would willingly have availed himself of an opportunity to retract a decision, so erroneous in itself, and so pernicious in its consequences.

It appears that the defendant in error was a district attorney, for the district of which the county of Washington is a part; that the plaintiff and twenty-three other citizens of that county represented him to the council as having been guilty of malversation in office : That, after the lapse of some years, the defendant obtained the petition from the files of the council, and instituted this suit; that the chief justice, at the circuit, charged the jury that the petition was sufficient to support the action, and the jury, accordingly, found a verdict for the plaintiff in the court below.

There can be no doubt, but that malice, as well as falsehood, is essential to sustain an action of slander. A variety of cases go to establish, that where the words are in themselves actionable, yet, if spoken without any malicious intention, in the confidence of friendship, in the performance of church discipline, in the regular course of judicial proceedings, or in the discharge of the duties of life, an action of slander will not lie, because the circumstances, under which they are spoken, destroy the presumption of malice; and without malice there can be no slander. In proof of this position, I refer generally to the cases which have been cited, where a character was given of a servant, in confidence ; where one friend advised another of the probable bankruptcy of a merchant; where false charges were exhibited against a person, to bind him to his good behaviour; where a clergyman recited a false story, out of Fox’s Martyrology, from the pulpit; where crimes were charged, in the course of ecclesiastical discipline ; where a counsel used reproachful and slanderous words in a court of justice. All these cases, and more that might be referred to, establish,' beyond a doubt, that without malice, either express or implied, an action of slander, for words spoken, or words written or printed, cannot be supported. In the case of Edmonson v. Stephenson,^* (the case where an injurious character was given of a servant,) Lord Mansfield declared, that it was not to be considered as an action in the common way of defamation, by words spoken, but the gist of it must be malice, which is not implied from the occasion of speaking, but should be directly proved.

The case before us cannot be considered as an ordinary libel, where malice is to be implied from the face of the libel. It was, at all events, incumbent on the prosecutor to prove express malice; to demonstrate that an evil intention existed; to show, in the words of Hawkins, that the petition was entirely false, malicious and groundless, and instituted, not with a design to go through with it, but only to expose the defendant’s character, under the show of a legal proceeding. And as ■ this was not done, nor attempted; and as the chief justice did not declare that it was necessary tobe done, and charge the jury to that effect, I think it, on this ground, a clear case in favour of the plaintiff in error. Indeed, I have no hesitation in going further, and saying, that the chief justice ought to have told the jury that the presumption was against malice, and that, in that state of the evidence, they ought not to have hesitated about finding against the plaintiff. It is not very material, in the decision of this cause, to determine whether malice is a deduction of law, to be decided by the court, or a question of fact, to be settled by the jury. In either hypothesis, it was not made out in the present controversy.

But there is a certain class of cases, wherein no prosecution for a libel will lie, when the matter contained in it is false and scandalous : as in a petition to a committee of parliament; in articles of the peace, exhibited to justices of the peace; a presentment of a grand jury; in a proceeding in a regular course of justice ; in assigning, on the books of a quakers’ meeting, reasons for expelling a member; in an exposition of the abuses of a public institution, as in the case of the deputy governor of Greenwich hospital, addressed to the competent authority to administer redress. The policy of the law here steps in and controls the individual right of redress. The freedom of inquiry, the right of ext ' posing malversation in public men and public institutions, to the proper authority, the importance of punishing of-fences, and the danger of silencing inquiry and of afir fording impunity to guilt, have all combined to shut the door against prosecutions for libels, in cases of that, or of an analogous nature. (2 Hawk. b. 1. c. 73.. s. 8. 4 Bac. Abr.452. Esp. Dig. 506. and 4 Com. Dig. 717. c. 2.) The case before us is an application to the council of appointment, for the removal of a district attorney, charging him with malversation in office. It is in tne nature of a memorial for the redress of grievances, addressed in the proper channel by which such redress might be had.

It is admitted by the counsel for the defendant in error, that if the paper had been addressed to the house of assembly, as a grand inquest, no action could be sustained; and their whole defence rests upon its being sent to an improper or incompetent forum.

It is, at least, doubtful, whether a want of jurisdiction in the court to which a complaint may be exhibited, will make it a libel; because the mistake of the court is not imputable to the party, but to his counsel.

The broad case of charging a man with a felony in the court of chancery is put in the books; a court obviously destitute of criminal jurisdiction. The council of appointment cannot be contemplated in this light. It has, at least, some authority over the complaint. And, therefore, even if the doctrines of the defendant’s council are admitted to be, in some degree, correct, in their application to the council of appointment; yet it would, by no means, follow, that that body was to be considered, in all respects, similarly situated as other forums without a shadow of jurisdiction.

The application to the council was to remove a public officer, for malversation in office. It will not be denied but that the council have plenary authority to remove. If so, they unquestionably have the power to redress the grievance; for with the removal of the officer, his power to injure must be determined. The competency of the forum cannot be disputed; but it is contended, that it is not armed with the necessary powers to inquire into official malversation, by compelling the attendance of witnesses ; and that to swear falsely before them would not be punishable as perjury. That our laws have not sufficiently provided in these cases, may be true ; but this defect of legal provision does not affect the constitutional powers of the council. In their investigations of complaints, they must take the best measures in their power to elicit truth and to dispense justice. And although their proceedings may be of a summary nature, and not, in all respects, conformable to the forms of judicial tribunals ; yet it is to be remarked, that the power of removal is not with a view to punish the man, but to protect the public against the misconduct of the officer; that it is exercised over the officer, not over the individual ; that impeachment is a process of a different nature, difficult in its commencement, slow in its progress, and more extensive in its punishment; that, under the most favourable view of the case for the defendant in error, we must agree, that our constitution has provided for the removal of a public officer in two ways; by the council of appointment, and by the court for the trial of impeachments; that the present complaint was addressed to the former forum; and that unless we deny its power to expel a public officer, holding during pleasure, from office, we must admit, that the grievances complained of by the plaintiff and his coadjutors, were transmitted to the competent and proper authority; and, whether true or false, whether innocent or malicious, the powerful and commanding dictates of public policy, must merge and extinguish all individual claims, and all personal considerations.

The majority of the court being of this opinion; it was, thereupon, ordered, adjudged and decreed, that the judgment given below be reversed.

Judgment of reversal.

* Cro.Eliz.230. 347

† 4 Co. 14.

* 1 Saund. 131.

† 2 Burr. 807.

‡ 4 Bac. Abr. 452.

§ 1 Term Rep. 111.

* Bull. JV. P. 8.