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MVB, Decision in Spencer v. Southwick, March 1814

This is an action for the publication of a libel, brought against the defendant in the Supreme Court. The declaration is in the usual form, stating the libel, preceding It by appropriate recitals, and accompanying it with the innuendoes necessary to its application; to which the defendant pleaded specially, averring certain facts, and relying on them, when proved, as a justification of the libel. To this plea the plaintiff demurred, on the ground that it did not answer the charge in the declaration, but avoided it; and in October term, 1812, the Supreme Court gave a construction to the libel, and decided that the plea was a sufficient answer to it, as they then construed it; upon which the plaintiff, by the permission of that court, withdrew his demurrer, and replied to the facts set forth in the special plea, according to the construction put upon it by the court below; and, as he alleges, in the only manner which, by the decision of that court, was left to him. To this replication the defendant demurred, relying on the ground of its being no answer to the plea, and a departure from the declaration. The Supreme Court, in August term, 1813, gave a second construction to the libel, and gave judgment for the defendant. Upon which judgment, a writ of error has been brought, and the cause removed into this court.

To induce the reversal of the judgment, the plaintiff in error contends,

1st. That the replication to the defendant’s plea was good in substance; and, therefore, judgment ought to have been rendered for him on the general demurrer thereto.

2. That if it was bad, still judgment ought to have been given for the plaintiff, on the ground of the insufficiency of the defendant’s plea.

And to induce an affirmance of the judgment of the court below, the defendant contends,

1st. That the facts contained in the special plea are a full answer to and justify the libel.

2d. That the replication did not answer these facts, but evaded them, and is, therefore, bad,

The general rules of pleading, that a plea which professes to answer the whole declaration must be a full and substantial answer to it; that the same principle is applicable to replications; and that judgment must be rendered against the party who commits the first error in pleading, are not denied, and the decision of the cause must depend on,

1st. The construction of the libel, and the manner it is charged in the declaration.

2d. The nature and operation of the facts set forth in the plea, considered as an answer to the libel, and set forth in the declaration.

3d. If necessary, the nature and effect of the allegations in the replication.

These questions, tested by the rules above stated, cannot fail to lead to a correct conclusion.

I have considered the whole case, with the attention which is due to its importance, and the high interest which the parties take in it. I have examined the reasons given by the Supreme Court, for their respective decisions, with a predisposition to believe them sound, and with a caution and circumspection, due to the distinguished respectability of the source from whence they have proceeded. The result has been, an entire conviction that the two decisions of the Supreme Court, in this cause were erroneous.

The libel complained of is as follows: In commenting on a certain prospectus, issued by one Brown, to a paper about to be published by him, the defendant uses the following words: “His assurance, that a considerable portion of his paper shall be devoted to the support of religion, &c. excites in my mind strong suspicions. I beg it may be remembered that, by hypocritical cants of this description, Judge Spencer, and his associates, effected the incorporation of the Manhattan Bank, of which the judge’s share of the profits were several thousand dollars. With this knowledge of the policy of the judge, I cannot but believe, that this assurance is calculated to deceive and impose upon mankind. It is a fact of public notoriety, that when the Manhattan Bill passed the Senate, Judge Spencer claimed to be a distinguished member of that body: the preamble of the bill stated, that 'Whereas, by the blessing of God, the introduction of pure and wholesome water into the city of New-York,' &c. The deception succeeded, and not more than ten members of the legislature knew that the bill contained a clause that would authorize the company to carry on banking business. It is not a little extraordinary, that a similar hypocritical pretence should be resorted to, for the purpose of giving currency to a newspaper. It is to my mind conclusive evidence, that this artfully deceptive prospectus has a clear right to claim Judge Spencer for its legitimate father. Whether this attempt at deception will succeed as well as that in relation to the Manhattan Bank, remains yet to be determined. Of one thing I am certain, it will not put as much money in the judge‘s pocket. Thus much for the prospectus.”

The declaration sets forth the whole libel, and concluding in these words: “Meaning to insinuate and be understood, that, by hypocritical cants and practices, the said Ambrose, and his associates, effected the incorporation of the Manhattan Company of New-York, in which his, the said Ambrose, share of the profits was several thousand dollars, while he was one of the senators of the state of New-York, contrary to his duty,” &c.

The construction put on the libel by the plaintiff is, that it charges him with a violation of official duty as a senator, and corruption, and great depravity as a man, in associating with others to effect, and in availing himself of his official situation in effecting, the incorporation of a bank, by hypocritical cants and base deception, and that he not only effected the incorporation of the bank, by those unworthy means, but that he was induced to do so by mercenary considerations, and did it with a view to his immediate personal aggrandizement.

When this cause first came before the Supreme Court, they deemed it necessary to, and did, give a definition of the libel in the following words: “The gist of the libel consists in charging the plaintiff with hypocrisy and want of fidelity in his trust as a senator, in effecting the incorporation of the Manhattan Company, in which he was largely and profitably interested. The plea, in justification of the charge, states, that the plaintiff was a Senator at the time of the passage of the bill, that he advocated and supported it, and was, at the time, largely interested in its stock, in which he made a great profit. That he knew that the bill contained a clause, giving power to institute a bank, and that only a very small proportion of the legislature, not exceeding ten members, knew of that fact, and that the plaintiff had good reason to believe, that he well knew that a large majority of both houses were totally ignorant of the fact, and he did not disclose and make it known to the senate.” And in speaking of the plea in this sense, they say, “ We cannot perceive any charge in the libel, to which the plea is not a substantial answer, provided the plaintiff's knowledge that the legislature were ignorant of a banking power lurking in the bill, be sufficiently averred.”

This construction is in no sense equivocal; it purports to be the deliberate opinion of the court, necessarily and appropriately expressed. They say, that, as senator, he effected the passage of the bill, he advocated and supported it, and was, at the time, largely interested. No arrangement of the words, at the time, can be made; no sense put upon them, save that of its being at the time he so effected the incorporation, he so advocated and supported it; and it is in this sense only that the idea of depravity can be attributed to his conduct, for it certainly could not have been supposed by the court below, or believed by any one, that the single circumstance of his being a senator at the time of the passage of the bill, and not opposing it, could render him culpable, provided he took no part in its passage, directly or indirectly. No, it is, and must be, for his conduct while acting, and he is charged with acting, that he is to be held responsible; when he so effected the incorporation; when he so advocated and supported the bill, and it is that time, that his conduct and views are impugned by the libel, and the Supreme Court say, that implication is justified by the facts set forth in the plea.

In consequence of this decision, the plaintiff replied: "That, at the time he advocated and supported the said law, he did not hold, and was not the owner of any of the stock created by the said law, nor had he any interest whatever in the same.” To which, as I have before stated, the defendant demurred, and in deciding upon, and in favor of that demurrer, the Supreme Court, speaking of the construction of the libel, say, “The libel consists in charging the plaintiff with concealing from the senate his knowledge of the fact, that the bill contained a power to institute a bank, while he, at the time, knew that the senate was ignorant of that fact; by which means they were led to pass the bill under false impressions and under a concealment of the necessary truth. This is the charge which we consider to be actionable, and in which the substance of the libel consists, and which is justified by the plea; but neither the one nor the other do, by any necessary construction, convey the charge assumed by the replication, viz. that the plaintiff's conduct was induced by interested motives.”

Sensible that whatever may have been the intention of the court, their decision on the question of construction, in terms, and in substance, was essentially different on the second occasion, that this cause came before them, from what it was on the first; they say, that “the few preliminary remarks with which the previous opinion was introduced, may not have been clothed in language the most precise; they were, however, never meant to convey a different opinion as to the sense or meaning of the libel."

Which of the two constructions thus given to this libel, by the court, is correct, may be a subject of discussion; but that there has been error in one, at least, that they cannot both be right, is self evident.

The construction of the libel which was adopted by the Supreme Court, in the first instance, is most obviously the true one. That the libel charges the plaintiff with aiding in effecting the incorporation; that it charges him with practising hypocrisy to obtain the passage of the act, and that it charges him with doing so, in pursuance of an association previously formed for that purpose, are all admitted. But whether the plaintiff did all this from a sense of duty, from interested motives, from an expectation of interest, or from mere wantonness, say the Supreme Court, was left by the libel to the inference of the reader. What are the words? "I beg it may be remembered, that by hypocritical cants of' this description, Judge Spencer and his associates effected the incorporation of the Manhattan Bank, of which the judge’s share of the profits was several thousand dollars.” Now, what is the plain, obvious meaning of these words? and it is that plain, obvious meaning that a court of justice should adopt; why, that the plaintiff had practised a deception to effect the passage of a bill for profit; that he had succeeded, and that he had made several thousand dollars by it. That his share of the profits was several thousand dollars—his share of the profits of what? of a contract he made for this stock, after the bank went into operation? Of stock that was either given or sold to him after the bill passed beyond his power? Not so. If, by either of these means, he had made a profit, it would have been a profit, resulting not from the success of the deception which he practised, but from such subsequent gift or purchase. But that is the very inference the writer of the libel wishes to avoid; he sets out with a determination to impeach the conduct of the plaintiff, and that construction would not effect his object. To leave no doubt of the charge intended, he concludes the libel in these emphatic words: “Whether the attempt at deception will succeed as well as that in relation to the Manhattan Bank, remains yet to be determined; of one thing l am certain, it will not put as much money in the judge's pocket.” What put money in the judge’s pocket? A contract or arrangement which he made, after he practised the deception, which was neither settled, nor in contemplation at the time he so practised the deception, and which might or might not exist? No. It was the success of the deception, which, it is alleged, put the money in his pocket, by giving him either a present right or a valid future claim to a share of the profits.

The objections which are made to this construction, by the Supreme Court, are, 1st. That this would “be straining the libel into the most odious sense.”

2d. That it would be alleging a fact which could not exist as there could be no stock before the bill passed; and

3d. That, “whether the deception was practised by the plaintiff, by reason of any then existing interest in the bill or stock to be created by it, or from the expectation of some future interest to be procured when the bill should become a law, or without the influence of either of these motives, was left by the libel, to the inference of the reader.”

I will briefly consider the validity of the reasons thus assigned. The construction which it behoves a court of justice to put on a publication which is alleged to be libellous, is to be derived as well from the expressions used, as from the whole scope and apparent object of the writer. Now, what was that in this case? The writer imputes the authorship of a certain publication, which professes to have for its object, among other things, the maintenance and support of religion, to the plaintiff. He calls public attention, and seeks to enlist public prejudice against him, as practising hypocrisy in that respect, for sinister purposes; a species of hypocrisy of all others the most odious and detestable; and, by way of ensuring public odium and settling public opinion, it is admitted that he charges the plaintiff with a prostitution of “hypocrisy and deception,” in effecting the passage of an important bill through a branch of the legislature, of which he was a member, sworn to a faithful discharge of the duties attached to his station. In construing such a publication, it does not seem to me, that the purposes of justice would be best effected by testing it by the rules of grammatical accuracy, or weighing it with scrupulous precision; nor can I consider the construction I adopt, as at all “straining the libel” to a sense in any other degree odious than the author has made it; but, on the contrary, I am well satisfied that it is consistent with the spirit and object of the publication.

Nor is the second ground more tenable. It is true that, technically speaking, there could be no bank stock until the bank was incorporated; still we all know, or at least have heard, how these things are usually managed, and we are not at liberty to shut our eyes against this knowledge, to give a technical meaning to a publication confessedly libellous. These publications are addressed as well to the understandings as the passions of mankind; and it is the manner in which they will most probably be understood, which renders them injurious or otherwise. That applications to the legislature, of that description, are always made by persons whose interests are well defined and properly secured, either by the provisions of the bill, or arrangements beside it, is well understood; and that an association had been formed, and a subscription made, of which the plaintiff was both a subscriber and associate, is alleged in the preamble set forth in the defendant‘s plea, and which he charges to be the plaintiff's act. Whether that interest was a legal vested interest in the stock to be created by the law, or whether it was a benefit or interest dependent on the passage of the bill, and in expectancy at the time the plaintiff advocated it, was immaterial. Suffice it to say, it might be an interest which it would be corrupt in the plaintiff to promote, by the violation of his official duty, and for the promotion of which, his conduct might, as I have shown it has been, be impeached by the publication in question.

The third objection is already answered, by showing, that the motive which actuated the plaintiff is distinctly attributed to him by the libel, and not, as the Supreme Court suppose, left to inference.

I cannot, however, suffer the, in my judgment, exceptionable and alarming tendency of the doctrine contained in this objection, to pass without observation. The libel, say the Supreme Court, charges the plaintiff with the deepest moral depravity in conduct; it sets forth the circumstances of that depravity, but that they are not authorized to say that it charges him with a corrupt design. Why? Because the libel does not expressly so charge it, but only “leaves it to the inference of the reader.” The least reflection must satisfy every intelligent mind that no one doctrine could be maintained, and no one legal notion indulged in, which would be productive of more mischief, in relation to libels, than the one contained in this dictum of the Supreme Court. It is saying nothing more nor less than this, you may so state your case before the public, that the guilt of the party accused, may follow as a matter of necessary implication; as, for instance, A. B., in his official capacity, supported a measure flagrantly destructive of the public interest; he used the vilest hypocrisy to affect its success; he had an interest in, and made money by the act; but whether his inducements were mercenary or otherwise; whether it was owing to a defect of understanding, or depravity of heart, I do not undertake to say, and, for such a publication, so seriously and necessarily implicating the conduct of the party accused, he would, according to this doctrine, be without adequate remedy, because, forsooth, he did not expressly charge him with the corruption, but left it to the inference of the reader. Such a doctrine, added to the acknowledged licentiousness of the press, would form a rampart, from behind which the blackest scurrility and the most odious criminations might be hurled on private character with impunity, and would, indeed, render the press both a public and private curse, instead of a public blessing.

In whatever point of view, therefore, this libel is considered, the construction put upon it by the plaintiff the correct one, and, arriving at this conclusion, there is an end of the cause. For, whatever may have been the opinion of the Supreme Court in their first decision, in their second they expressly admit, that the plea answers the charge of deception and hypocrisy, and that only; that it does not, as is self-evident from the slightest inspection of it, in any respect, answer the charge of imputing to the plaintiff corrupt motives, in supporting the bill arising from either an existing interest, or‘ an expectation of individual interest, at the time he so supported it. Admitting, therefore, what may, with great propriety, be denied, that the facts set forth in the plea would justify the charge of deception and hypocrisy, as much as it confessedly does not answer that part of the charge, which is in itself the most odious; which serves to set off the greatest disadvantage the others, and which stamps the whole transaction with guilt, it must, on the conceded and irrefutable principle that a plea which professes to answer the whole declaration, and does not, is bad, be held defective. Nor do the facts set forth in the plea, in my judgment, support the charge of hypocrisy and deception. The libel charges the plaintiff with practising, himself practising, an imposition on the legislature, not with suffering others to practise one; and there is no fact set forth in the plea, which goes to support that charge, even viewed in the light it is, by the court below. But let us view the charges on the ground of being sins of omission, and being as well in form as in substance, if sins at all, tantamount to sins of commission. The plaintiff, say they, knew that the bill contained a banking clause; the rest of his fellow senators had the same means of knowing it that he had; he suffered them to pass the bill without informing them of it, and, by doing so, he is guilty of base deception, of an act so reproachful, that, to charge him with it publicly, is libellous. Was his conduct ever so disinterested, ever so free from selfish consideration, the duties of his station imposed upon him the obligation of not only seeing, thinking and speaking for himself, but of observing, reflecting and acting for his fellow senators; and if he failed in his discharge of this duty, he was guilty of deception and hypocrisy.

Let me illustrate the flagrant injustice of this doctrine. A proposition is made in the senate, the success of which, I believe, will redound to the public benefit, and on that account I wish it success, and feel it my duty to give it my ardent support; I observe that, although the extent of the proposition is obvious to me, it is not so generally understood, and I learn that if it was so understood, it would be opposed and defeated. What, under such circumstances, am I to do? If I undertake to instruct those whose duty it is to know, I defeat a measure with which I believe the public interest to be deeply connected. If I omit to do it, I am guilty of hypocrisy, of deception. Can such a proposition be considered equitable or legal, just or politic? No; the true rule on this subject is as simple as it is true. If a senator suffers a bill which, in his conscience, he thinks injurious to the public, to pass, under a mistaken impression on the part of his brother senators, his conduct is culpable, for he violates his duty, in the first instance, by not resisting the passage of the bill, and that violation taints everything he does to promote it, and stamps suspicion on any thing he omits to do.

If a senator promotes, in his seat, the passage of a bill, for his own private emolument, and obtains its passage in the manner in which the plea avers was done in this case, he is deeply culpable, for his individual interest contaminates his whole conduct. But in either case, to render such conduct criminal, it is essentially and indispensably necessary that the person accused should act against his judgment or duty, or for the unworthy purpose of personal aggrandizement, neither of which are now pretended in this case.

This view which I have taken of the subject renders it unnecessary to examine the other points which have been raised by the counsel. On the ground, therefore, that the defendant's plea was bad, I am of opinion that the judgment below ought to be reversed.

Elmendorf, Senator, was of the same opinion.

This being the unanimous opinion of the court, it was, therefore, “ordered, adjudged and decreed, that the judgment of the Supreme Court be reversed, and that the plaintiff recover against the defendant his damages by him sustained, by reason of the publication of the libel in the said record contained; and further, that the plaintiff recover against the defendant his costs to be taxed in and about the prosecution of this writ of error, in this behalf, and that the transcript of the record be remitted to the Supreme Court, to the end that a writ of inquiry of damages be awarded, and that the said Supreme Court proceed to give final judgment therein.”

Judgment of reversal.

end of cases in error.

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Source: William Johnson, Reports of Cases Argued and Determined in the Supreme Court of Judicature: And in the Court for the Trial of Impeachments and the Correction of Errors in the State of New-York, 20 vols. (Albany: I. Riley, 1811-1823)
Collection: N/A
Series: Series 2 (1 January 1812-16 February 1815)