jury to judge of the law was the point in dispute upon which that judge first delivered his opinion, and afterwards invited argument. The charge there was of libel upon President Adams, and was prosecuted under the Sedition Law so called, which expressly provided that the jury should have the right to determine the law and the fact, under the direction of the court, as in other cases. The defence insisted that the Sedition Law was unconstitutional and void, and proposed to argue that question to the jury, but were stopped by the court. The question of the constitutionality of a statute, it was said by Judge Chase, was a judicial question, and could only be passed upon by the court; the jury might determine the law applicable to the case under the statute, but they could not inquire into the validity of the statute by which that right was given.1

Whatever may be the true import of Mr. Fox's Libel Act, it would seem clear that a constitutional provision which allows the jury to determine the law refers the questions of law to them for their rightful decision. Wherever such provisions exist, the jury, we think, are the judges of the law; and the argument of counsel upon it is rightfully addressed to both the court and the jury. Nor can the distinction be maintained which was taken by Judge Chase, and which forbids the jury considering questions affecting the constitutional validity of statutes. When the question before them is, what is the law of the case, the highest and paramount law of the case cannot be shut from view. Nevertheless, we conceive it to be proper and indeed the duty of the judge to instruct the jury upon the law in these cases, and it is to be expected that they will generally adopt and follow his opinion.

Where, however, the constitution provides that they shall be judges of the law "as in other cases," or may determine the law and the fact "under the direction of the court," we must perhaps conclude that the intention has been simply to put libel cases on the same footing with any other criminal prosecutions, and that the jury will be expected to receive the law from the court.

1 Wharton's State Trials, 688.

2.66 By the last clause of the sixth section of the eighth article of the constitution of this State, it is declared that, in all indictments for libel, the jury shall have the right to determine the law and the facts under the direction of the court as in other cases. It would seem from this that the framers of our Bill of Rights did not imagine that juries were rightfully judges of the law and fact in criminal cases, independently of the directions of courts. Their right to judge of the law is a

"Good Motives and Justifiable Ends."

In civil suits to recover damages for slander or libel, the truth is generally a complete defence, if pleaded and established. In criminal prosecutions it was formerly not so. The basis of the prosecution being that the libel was likely to disturb the peace and order of society, that liability was supposed to be all the greater if the injurious charges were true, as a man would be more likely to commit a breach of the peace when the matters alleged against him were true than if they were false, in which latter case he might, perhaps, afford to treat them with contempt. Hence arose the common maxim, "The greater the truth the greater the "libel," which subjected the law on this subject to a great deal of ridicule and contempt. The constitutional provisions we have quoted generally make the truth a defence if published with good motives and for justifiable ends. Precisely what showing shall establish good motives and justifiable occasion must be settled by future decisions. In one case the suggestion was thrown out that proof of the truth of the charge alone might be sufficient, but this was not an authoritative decision, and it could not be true in any case where the matter published was not fit to be spread before the public, whether true or false. It must be held, we think, that where the defendant justifies in a criminal prosecution, the burden is upon him to prove, not only the truth of the charge, but also the "good motives and justifiable ends" of the publication. These might appear from the very character of the publication itself, if it was true; as where it exhibited the misconduct or unfitness of a candidate for public office; but where it related to a

right to be exercised only under the direction of the courts; and if they go aside from that direction and determine the law incorrectly, they depart from their duty and commit a public wrong; and this in criminal as well as in civil cases." Montgomery v. State, 11 Ohio, 427. See also State v. Allen, 1 McCord, 525. 1 Foss v. Hildreth, 10 Allen, 76. See ante, 455. 3 Charge of Judge Betts to the jury in King v. Root, 4 Wend. 121: "Should the scope of proofs and circumstances lead you to suppose the defendants had no good end in contemplation, that they were instigated to these charges solely to avenge personal and political resentments against the plaintiff, still, if they have satisfactorily shown the charges to be true, they must be acquitted of all liability to damage in a private action on account of the publication. Indeed, if good motives and justifiable ends must be shown, they might well be implied from the establishment of the truth of a charge, for the like reason that malice is inferred from its falsity."

person in private life, and who was himself taking no such action as should put his character in issue before the public, some further showing would generally be requisite after the truth had been proved.1

1 In Commonwealth v. Bonner, 9 Met. 410, the defendant was indicted for a libel on one Oliver Brown, in the following words: "However, there were few who, according to the old toper's dictionary, were drunk; yea, in all conscience, drunk as a drunken man; and who and which of you desperadoes of the town got them so? Was it you whose groggery was open, and the rat soup measured out at your bar to drunkards, while a daughter lay a corpse in your house, and even on the day she was laid in her cold and silent grave, a victim of God's chastening rod upon your guilty drunkard-manufacturing head? Was it you who refused to close your drunkery on the day that your aged father was laid in the narrow house appointed for all the living, and which must erelong receive your recreant carcass? We ask again, Was it you? Was it you?" On the trial the defendant introduced evidence to prove, and contended that he did prove, all the facts alleged in his publication. The court charged the jury that the burden was upon the defendant to show that the matter charged to be libellous was published with good motives and for justifiable ends; that malice is the wilful doing of an unlawful act, and does not necessarily imply personal ill-will towards the person libelled. The defendant excepted to the ruling of the court as applied to the facts proved, contending that, having proved the truth of all the facts alleged in the libel, and the publication being in reference to an illegal traffic, a public nuisance, the jury should have been instructed that it was incumbent on the government to show that defendant's motives were malicious, in the popular sense of the word, as respects said Brown. By the court, Shaw, Ch. J.: "The court are of opinion that the charge of the judge of the Common Pleas was strictly correct. If the publication be libellous, that is, be such as to bring the person libelled into hatred, contempt, and ridicule amongst the people, malice is presumed from the injurious act. But by Rev. Stat. c. 133, § 6, ' in every prosecution for writing or publishing a libel, the defendant may give in evidence, in his defence upon the trial, the truth of the matter contained in the publication charged as libellous: provided, that such evidence shall not be deemed a sufficient justification, unless it shall be further made to appear, on the trial, that the⚫ matter charged to be libellous was published with good motives and for justifiable ends.' Nothing can be more explicit. The judge therefore was right in directing the jury that, after the publication had been shown to have been made by the defendant, and to be libellous and malicious, the burden was on the defendant, not only to prove the truth of the matter charged as libellous, but likewise that it was published with good motives and for justifiable ends. We are also satisfied that the judge was right in his description or definition of legal malice, that it is not malice in its popular sense, viz. that of hatred and ill-will to the party libelled, but an act done wilfully, unlawfully, and in violation of the just rights of another." And yet it would seem as if, conceding the facts published to be true, the jury ought to have found the occasion a proper one for correcting such indecent conduct by public exposure. See further on this subject, Regina v. New

man, 1 El. & Bl. 268 and 558; Same case, 18 E. L. & Eq. 113; Barthelemy v. People, 2 Hill, 248; State v. White, 7 Ired. 180; Commonwealth v. Snelling, 15 Pick. 337. The fact that the publication is copied from another source is clearly no protection, if it is not true in fact. Regina v. Newman, ub sup. Neither are the motives or good character of the defendant, if he has published libellous matter which is false. Barthelemy v. People, 2 Hill, 248; Commonwealth Snelling, 15 Pick. 337.

V.

CHAPTER XIII.

RELIGIOUS LIBERTY.

HE who shall examine with care the American constitutions will find nothing more fully or more plainly expressed than the desire of their framers to preserve and perpetuate religious liberty, and to guard against the slightest approach towards inequality of civil or political rights based upon difference of religious belief. The American people came to the work of framing their fundamental laws, after centuries of oppression and persecution, sometimes by one religious party and sometimes by another, had taught them the utter futility of attempting to propagate religious opinions by the terrors of human laws. They could not fail to perceive also that the union of Church and State was, if not wholly impracticable in America, certainly opposed to the spirit of our institutions, and that any domineering of one sect over another was repressing to the energies of the people, and must necessarily tend to discontent and disorder. Whatever, therefore, may have been their individual sentiments upon religious questions, or upon the propriety of the State assuming any supervision of religious affairs under other circumstances, the general voice has been to make all persons equal before the law, and to leave questions of religious belief and religious worship to be questions between every man and his Maker, which human tribunals are not to take cognizance of, so long as the public order is not disturbed, except as the person himself, by voluntary action in associating himself with a religious organization, may have conferred upon such organization a jurisdiction over him in ecclesiastical matters. These constitutions, therefore, have not established religious toleration merely, but religious equality; in that particular being far in advance not only of the mother country, but also of much of the colonial legislation, which, though more liberal than that of other civilized countries, was still connected with features of discrimination based upon religious belief.1

1 It was not easy two centuries ago to make men understand how there could be complete religious liberty, and at the same time order and due subordination