Dolloway v. Turrill , 1 Lock. Rev. Cas. 316 ( 1799 )

The Chancellor read an opinion in favor of an affirmance : (not published.) Senator Root having maintained in an opinion read by him, that the provision in the Constitution that “ In all prosecutions or indictments for libel, the truth may be given in evidence to the jury,” extended to civil actions also; and Senator Verplanck, intimating that his impressions concurred with that opinion, the Chancellor protested against the decision of the case upon grounds not presented on the argument, and upon which the plaintiff below had not been heard by counsel. He expressed his surprise that such a construction should be attempted to be given to the constitutional provision, and would “ venture to say that no lawyer had ever before supposed it extended to civil suits ;” that to extend it to them would operate unfavorably to the defendant; that at common law the truth of a libel, be the motive ever so bad or the end ever so unjustifiable, if the facts are properly pleaded or set out in a notice, may be given in evidence in civil suits for libel; but that if the provision in the Constitution should be extended to civil suits, the truth will no longer be a justification, unless published, with “ good motives and justifiable ends.”

Judgment reversed (it would seem only on the ground that the jury had a right to pass upon the sense of the words,) by a vote of all the members present for reversal except the Chancellor and three senators who voted for affirmance.

tCf The constitutional provision above referred to, is amended by the present Constitution of the state of New York, to read as follows : Const, of 1846, art. 1, sect. 8, “In all (criminal) prosecutions or indictments for libels, the truth may be given in evidence to the jury; and if it shall appear to the jury that the matter charged as libellous is true and was published with good motives and for justifiable ends, the party shall be acquitted ; and the jury shall have the right to determine the law and the fact.”