Lorenzo Dow.

The dealings of God, man, and the devil : as exemplified in the life, experience, and travels of Lorenzo Dow, in a period of over half a century: together with his polemic and miscellaneous writings, complete online

. (page 100 of 126)
Online LibraryLorenzo DowThe dealings of God, man, and the devil : as exemplified in the life, experience, and travels of Lorenzo Dow, in a period of over half a century: together with his polemic and miscellaneous writings, complete → online text (page 100 of 126)
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adjudications supported by such solid and
rational grounds, that we may now say of the
Common Law, with a very few exc«
that nothing is law which is not reason. I > ' 1 1
there is good cause to believe that this rule
did not originate in the Star Chamber, and
was not the creature of that Court. The rule



was not peculiar to England. It existed long
before : it made a part of the Roman law.
We read in the Pandects of Justinian, that "a
defamer is not to be exempt from the punish-
ment due to the injury, although the libel
contain nothing but what is true. It is not
permitted to make proof of facts, which are
secret and which have been the foundation of
the Libel. 1 ' The same rule was adopted by a
special edict of France in 1561. And it is
also to be found in the Constitution of the
Emperor Charles the 5th, in these words :
"Though the defamation were grounded on
truth, yet the defamer ought to be punished
according to the power of the Judge." (.See Just.
Justin, lib. 2, tit. 4, 2. Domat. B. 3, tit. 12.)
And also Bayle's Dissertation on Defamatory
Libels.) It is most probable, then, that this rule
was derived from the civil law. We know
that for many centuries this was the law of
all Europe ; and England was governed by it
for near four hundred years. Although the
Barbarians who successively invaded and
pos.-es.Ned that country, introduced into it
many of their own laws and customs, yet the
maxims and principles of the Roman law
were too deeply founded in reason and justice,
to have been ever disused ; and there is no
doubt that they compose now a large part of
the common law of England. The celebrated
Sir William Jones has said " the Pandects of
Justinian are a most valuable mine of judicial
knowledge. They give law at this hour to
the greatest part of Europe ;. and though few
English lawyers dare make such an acknow-
ledgment, the civil law is the true source of
nearly all our English laws that are not
founded on a feudal origin." (Letter to the
Governor General of India in 1788.) "I have
so far considered the case, on the ground of
authority, and it would be sufficient for us to
decide it on that ground only ; for we are
bound to declare the law, and to give it opera-
tion, whether it be founded on good or bad
reasons. But as there does not exist in the
whole system of our laws a rule better sup-
ported by reasons than the one under conside-
ration, and as the counsel for the defendant
have contended that those reasons are not ap-
plicable to the state of our society — it is proper
that I should take some notice of the objec-
tions made on this ground. I think, indeed,
that the multiplied instances of the general
adoption of the rule in every state of society
and under every form of government, afford a
sufficient proof of its being a rule both of
general policy and morality. A libel is an
offence, not because it is false, but because it
tends to provoke quarrels and bloodshed, and
because it is an act of private revenge, which
is an usurpation of public authority, that the
objects therefore of punishing a libel are to

preserve the public peace and to enforce a due
obedience of the laws. Can it be seriously
contended that these objects are not applicable
to our state of society'? It appears to me
that every reflecting mind must allow that
they are peculiarly necessary to a free govern-
ment. The preservation of the public peace,
and the prevention of private vengeance, in
any form, are the very foundation of civil
liberty, which could not be said to be fully
enjoyed, unless these great ends were fully
secured. It is for this reason that the sending
a challenge is a high offence ; this too is pun-
ishable only because it is provocation to a
breach of the public peace. It is also a public
offence, to seize by force on one's own proper-
ty, because it is not lawful for any man to
redress his own wrongs. If therefore a man
forcibly takes possession of his own land, he
is punishable for a forcible entry. However
manifest his right may be, yet he is not al-
lowed to regain it by force, but must apply to
the law for its aid and sanction. It would be
in vain for him to urge the hardship of being
punished for taking his own property. The
law would reply that he had done an act
wffich affected the public peace ; that it was
his duty to refer his claim to an au'.horizeu
tribunal, and to seek redress from the law.
This reply may be fairly made to the reason-
ing of the counsel for the defendant in the
present case. It was zealously contended
that the publication of truth could not be a
crime. But the truth makes no part of the
essence of a libel : though the defendant had
proved his charges against the prosecutor, yet
this proof could not have availed him ; he
would notwithstanding be guilty of having
provoked a breach of the public peace, and
of having usurped the public right, by redress-
ing his grievance in his own way, and inflict-
ing punishment by his own measure. These
reasons for not allowing the truth of a libel to
be given in evidence, in a criminal proceeding,
are fully sufficient to justify the rule. But
there is another reason for it, which will be
thought by many to give more value to it
than any other. It serves to protect from
public exposure secret infirmities of mind and
body, and even crimes which have been re-
pented of and forgiven. Who will say that
the truth of these should be given in evidence,
to satisfy or excuse the exposure of them I
A man may have been overcome by some
strong temptation, and been induced to commit
a crime which he has since abhorred; for
which, by a long perseverance in virtue and
honesty, he made nis peace with all who could
be injured by it, and has thus a well grounded
hope of being pardoned by his God. A wo-
man, too, who may have yielded to some se-
ducer, or even have been the willing servant



of vice, may have since become the faithful
partner of some worthy man, and the mother
of a virtuous offspring : her frailties have been
long forgiven, and she is in the enjoyment of
the esteem and respect of all her neighbors.
Will any one say that these expiated sins
may be dragged from the privacy in which
they have been sheltered, that they may be
presented to the view of an unfeeling world ;
be punished afresh by disgrace and odium, in
which innocent connexions must participate,
and that the author of all this misery must
justify the act by showing the truth of the
charges'? Shall he be allowed to disturb the
sacred work of reformatian, and rob the poor-
penitent of the blessed fruits of her repent-
ance? Justice, charity and morality all forbid
it, and. thank God ! the law forbids it also."

Having now, I trust, clearly shown the
rules of law which apply to libels in general,
I proceed next to consider the rules particu-
larly applicable to libels on the dead. On the
first blush of this question it would appear
that the same principles ought to govern in
both cases. But some of our writers, adher-
ing too closely to the letter of the law, have
forgotten its spirit. They argue, that as the
object of punishing for a libel is to prevent a
breach of the peace, a libel on the dead can
only be punished on account of its tendency
to excite the family of the deceased to revenge,
and one writer has gone so far as to say that
it is necessary "to aver and prove" that the
libel was " published with this intention." —
But if we look into the reason of the law, we
find that in the libels on the living, the ten-
dency to a breach of the peace, is principally
relied on, because the private injury can be
redressed by a civil action. — But in cases of
libels on the dead no civil action can be sus-
tained by any one. and if their tendency to a
breach of the peace is to be regarded exclu-
sively, it would seem that the law does not
regard the preservation of reputation for its
own sake, and that a man dying without a
family, it would be no offence to libel his
memory in the grossest and most unwarranta-
ble terms. When such a case shall occur, I
am inclined to think it will be held that a vir-
tuous fame, acquired by a well spent life, is
within the protection of the law. The love
of posthumous fame is certainly strongly felt
by every virtuous man ; it is a greal incentive
to noble deeds, and such fame would be val-
ueless, if the fruits of a life of pood conduct
could be blasted by the corrupted breath of the
slanderer of the dead. It is unnecessary
for the occasion, however, to enter into this
controversy, and I shall content myself with
proving that in a libel on the dead, J the
words be defamatory, the malicious motive is
a legal inference — and that if it be necessary

to charge in the indictment the tendency to ex-
cite the family of the deceased, and to bring
them into contempt, or even to allege such an
intention on the part of the publisher, that
still the law does not require that such inten-
tion should in any case be proved. — Cbitty, in
his Criminal Law. 1st Vol. p. 868, says, that
it is necessary to "averand prove at the trial, "
that the publication was intended to excite the
family to a breach of the peace. But in this
assertion, I shall demonstrate that he is un-
supported by any writer who has gone before
him, and is contradicted by the ver} case from
which he deduces the rule. If the inti
be not a legal inference from the act, how is it
possible, let me ask, to prove that which from
its very nature, is secret, unknown, and per-
haps carefully concealed from human view.

All the reasoning applicable to the infer-
ence of motives from acts in cases of murder,
and in libels on the living, apply in full force
to libels on the dead. The rule is, in general,
laid down precisely in the same terms as to both
species of libel. — Thus, in Shaw's Practical
Justice, p. 639 and 642, we find the following
words — "A libel (in this place) signifies a
scandalous report raised and spread abroad of
another, or otherwise unlawfully published,
and this may be either in writing or without
it ; if in writing, the making a copy thereof,
and delivering that copy to another, is a pub-
lication. And it is not material whether the
libel be true or false, the party scandalised,
living or dead, of good or ill name."

In 3d Burn's Justice, 99, 100. he lavs down
the rule thus : "A libel is a malicious defa-
mation of any person, expressed either in
printing or writing, signs or pictures, to as-
perse the reputation of one that is alive, or the
memory of one that is dead, for the offence is
the same, whether the person libelled be alive
or dead.''

In 1st Hawkins' Pleas of the Crown, p. 352,
this excellent and approved writer says : •• A
libel, in a strict sense, is taken for a malicious
defamation — tending either to blacken the
memory of one who is dead, or the reputation
of one who is alive."

In 5th Coke, 125, the rule is laid down in
a similar manner, and indeed almost all the
approved writers on criminal law use on this
subject the same language.

Now, is it possible for any rational man to
infer from these authorities that the law is
different in cases of libel on the living and the
dead — and that what is a legal inference (to
act the quo animo or intention) in the former
case, must in the latter be •• averred and
proved?" It may indeed be necessary to ver
in the indictment the motive, or, perhaps the
intention or tendency, but it cannot be neces-
sary to furnish any other proof of that inten-

tion, than what the law must infer from the
words themselves. Chitly, however, deduces
the rule as laid down by him, from the case in
4 Term Rep. 125. A superficial examination
of this case may lead us to the conclusion
adopted by Chitty, and it is so loosely re-
ported, that detached sentences may be found
in support of the doctrine. But a careful ex-
amination of the whole case must lead us to a
different conclusion. And here let it be ob-
served, that the point now in contest is,
whether it be necessary to offer at the trial
any positive proof of the intention — or wheth-
er in a libel on the dead, the intention be not
inferred in like manner, as in cases of libel on
the living. As to the necessity cf making an
averment of the tendency or intention, I shall
say nothing, because in t he Indictment now
before you, I have prepared two counts — the
1st charging the intention, in the manner re-
commended by Chitty, and 2d, stating the ten-
dency of the libel, which latter I am inclined
to think, is the most proper form. As far as
the decision goes, therefore, to the necessity
of averring any thing — my Indictment is, be-
yond exception, but should the law require
actual proof of the intention, I admit, this
proof has not been given in the present case,
and perhaps can seldom or ever be furnished
in any case.

But to return to the decision in 4 T. Rep.
The question before the Court then, was not
as to the proof to be given at the trial, but it
related to the form of the Indictment only. It
was no where charged that the libel was pub-
lished with an intention to bring the family
of the deceased into contempt, and to excite
them to revenge, nor was it stated that the
words had such a tendency. The exception
was, that something of this kind ought to have
been stated. It seems to have been conceded
by the Bar and the Bench, that if it had been
stated, the case was made out, and the defend-
ant must have been found guilty. Now, no
legal decision is binding as an authority, ex-
cept on the very point on which that decision
rests, and the only point here decided was the
necessity of giving a certain form to the In-
dictment. In page 126, it is objected to the
Indictment, that it did not aver the tendency,
and from the last page it might be inferred
that it is necessary to aver the intention. But
not a word is said in the whole case of prov-
ing either the tendency or the intention. Like
the cases of murder, therefore, and libels on the
living, it is necessary to charge certain mo-
tives, but no proof is to be furnished except
the legal inference. There is another part of
this decision which demonstrates that this is
the true construction to be put upon it. The
Judge, in that case, had charged the Jury that
no proof of the motive was necessary, and that

they were only to judge of the fact of publi-
cation, and the truth of the innuendoes. And
on the motion for a new trial, the Court ex-
pressly recognise and maintain the rule, that
the intention must always be inferred from the
act. Now, how are these apparently contra-
dictory rules to be reconciled ] — I answer, by
putting this construction on the decision: —
that it decided, 1st, the necessity of alleging
the motive in the Indictment, and 2d, that the
intention being alleged, the general rule of
law applies, of inferring the motive from the
act itself. This is the construction put on the
decision by the only two writers except Chitty,
who have commented upon it. Holt on Li-
bels, 236, 7, 8, states the rule as laid down in
4th T. R. to be that you must charge or aver
the design or intention; hut he no where in-
sists on the necessity of proving it specially.
So M'George, in a treatise on the law of libel,
published in 1812, p. 94, to 97, reasons, I
think conclusively, in support of the views I
have taken on this subject. He sums up his
argument by declaring in substance, that when-
ever the question shall arise as to the true
construction of the decision, in 4 Term. Rep.
125, it will be held to declare, that though it
be necessary to charge the motive or intent in
the Indictment, yet that it is not necessary to
prove it, as the law always infers the intent
from the act.

Having thus, Gentlemen of the Jury, stated
all the general rules of law applicable to this
case, I shall proceed to consider the case itself.
and to enquire whether the defendant, Loren-
zo Dow, is guilty of publishing a libel on the
dead, according to the principles of our law.
The offence charged in the Indictment, con-
sists in the sale of a book by the defendant in
this city, on or about the day of

last, in which is contained the two following
sentences: — " Mattheivs invited me to supply
an appointment for him in the great meeting-
house, which was built for the Methodists, and
about which Hainmet made crooked work." fyc.
And again, " I find Mr. Hammet has txonc to
a world of spirits, to answer for the deeds done
in the body : As it respects his division, it ap-
pears his motives were impure, arising from a
desire of popularity ; in consequence of which,
there was a breach of confidence by him as re-
spected the incorporation of the house ; awful
to relate, it appeals he died drunk V The
book is a journal of the defendant's life, and
the present edition appears to have been pub-
lished in Philadelphia, on

The disseminating that book here on the
last, constitutes the offence of publishing
a libel, or which in law does not imply print-
ing it. but making it public. Thus in Chitty's
Criminal Law, 3d. vol. p. 870, it is said, "the
party who writes a libel dictated by another,



he who composes it, he who prints or procures
it to be printed, he who publishes or causes it
to be published, all in short, who assist in
framing or diffusing it, are implicated in the
guilt of the offence." And so in 2d M'Nally,
643, it is laid down, that if a book is passed
only from one hand to another, with the in-
tention of making the contents known, (and it
be libellous) this is a publication. See also 1
Sulk. 417, 2 Cam]). 512. Hawkins, b. 1, c.
73, s. 10. It has been clearly proved in this
case, (and indeed is not denied by the defend-
ant) that he caused to be sold in this city, at
the time stated, several copies of the book con-
taining; the libel in question. The offence
therefore as far as the publication is concerned
is certain! i/ complete. Let us then next inquire
whether these words are libellous? And 1st.
are they defamatory? do they tend to blacken
the memory of the deceased, and to rouse the
feelings of his family, and excite them to a
breach of the peace. If they do this, "in any
degree," it clearly follows from the authorities
above quoted, that they are defamatory and
libellous. And here I must observe, that I
can scarcely imagine any accusation, either
against the living or the dead, better calculated
to disturb the peace and harmony of the com-
munity, than that here made against the Rev.
William Hammet. It appears from the proof
given in this case, and indeed is notorious to
us all, that Mr. Hammet was a preacher of
the Methodist persuasion, that he was a lead-
er of one of the divisions of that sect in
Charleston, calling themselves "Primitive Me-
thodists," that these Methodists had caused a
house of public worship to be built, called
Trinity Church, of which Mr. Hammet was
the pastor, and in which he constantly preach-
ed for many years, and up to the period of his
death. The members of this congregation, it
appears, were by an act of the Legislature,
made a body politic and corporate in 1793.
And Mr. Hammet died, leaving two children,
a son and daughter, the former of whom (a
merchant of this city, now about 27 years of
age,) has instituted this prosecution. Inform-
ing a judgment of the defamatory nature of
the libel, these facts must be always kept in
mind. The first part of the libel to which I
call your attention, is the following: — "I
find that Mr. Hammet has gone to the world
of spirits, to answer for the deeds dune in the
body." These words considered by themselves
contain a simple truth, which might with
equal justice, be applied to every hnman be-
ing who has ever existed. Yet when we
take them in connection with what follows,
no man who reads them can doubt that they
are intended to convey the impression that
Mr. Hammet was not a pious man, that he
perished in his sins, un regenerate., and had

gone to answer for his offences, and to meet
merited punishment for his crimes. This is
the construction put on the words in the In-
dictment. You will determine, Gentlemen,
the correctness of the innuendo, but if correct,
who can doubt their libellous character ? — 1
proceed, however, to the next charge — "As
respects his division it appears his motives
were impure, arising from a desire of popular-
ity," and in another place we find these words,
"Mr. Hammet made crooked work."' These
sentences contain in substance, the same
charge, and my imagination cannot conceive a
charge of a more serious nature. Mr. Ham-
met was a preacher of the Gospel — he profes-
sed to be a humble follower of the "meek and
lowly Jesus," his employment imperiously re-
quired him to renounce all the vain pomp and
glory of this world — he professed to be a
" Teacher sent from God," and he took on
himself the office of guiding and directing
others in the road to heaven. To say of such
a man that " his motives were impure," is to
accuse him of the basest hypocrisy, and when it
isadded, that he was influenced •• by the desire
of popularity," what is it but to say that he was
destitute of all Christian graces and virtues,
and thai, forgetting his duty to God, and re-
gardless of his obligations to his flock, he had
set himself up as the idol of his own worship,
and had departed from the service of the
Master whom he professed to follow. The
next charge is contained in these words:
•• There was a breach of confidence by him us
respected the incorporation of the House." 1 To
commit a breach of confidence under an\ cir-
cumstances, is one of the basest acts of which
a man can be guilty, and to commit such an
act in relation to those who are your inferiors
and dependents must aggravate the crime.
But can language paint the depravity of which
he must be guilty, who defrau Is his spiritual
children, ami at the very time they are look-
ing up to him for guidance and protection? —
If such a crime can be aggravated, it must be
by committing a breach ol confidence in rela-
tion to the house of God itself to cover the
crime with the cloak of religion, ami to profess
to do the act in the name, and as the servant
of the Most High. Comment on such a charge
is unnecessary. " Awjul to relate it appears
he died drunk.'' 1 Death, it has been well said,
puts the seals of our character. At that so-
lemn moment, when the earth is beginning to
disappear, and Heaven is opening befi
few men have been ever found so steeled
againsl all virtuous emotions, and so harden-
ed in iniquity, as not to feel a deep sense of
their awful situation. The coldest heart has
been wanned, the most i/inty bosom has been
often softened by the approach of death. But
for any man in such a situation, to fly from



the contemplation of his awful condition, to
rush covered with voluntary crime into the
presence of God, and to close his eyes in
drunkenness when he knows they must next
be opened in the presence of his God, is a de-
gree of depravity which lam happy in believ-
ing has seldom been witnessed in any age or
in any country. That a preacher of the word
of life should do such an act, is I believe with-
out example in the history of the world, and
I thank God, it has been clearly proved in
this case, that in relation to Mr. Hammer,
there is not the shadow of a foundation for
the charge. It appears from the evidence that
he died calmly and triumphantly, in peace
with all men, and in hope of a blessed im-
mortality. Such is the defamatory nature of 'j
the libel before, us, and surely it would be a
waste of argument to prove that it tends to
bring the memory of Mr. Hammet into public j
hatred and contempt, or to 'show that it has a
tendency to excite the family of the deceased,
and disturb the peace and harmony of society.
Having thus shown that the words used are
defamatory, it follows, as a legal inference
that they were published "maliciously," or to
use terms according to their proper meaning.
that they were published with illegal and im-
proper motives, and contrary to the duty which
every man owes to society, and against the
peace and dignity of the state. Even if the
charges were true, the motive would not there-
by be purified. But happily for the reputa-
tion of Mr. Hammet, as far as the truth of the
charges have been investigated at this trial, it
appears they have no foundation. It is true

Online LibraryLorenzo DowThe dealings of God, man, and the devil : as exemplified in the life, experience, and travels of Lorenzo Dow, in a period of over half a century: together with his polemic and miscellaneous writings, complete → online text (page 100 of 126)