New-York daily tribune. [volume], December 12, 1842, Image 3

About New-York daily tribune. [volume] (New-York [N.Y.]) 1842-1866

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You will consider, Gentlemen of the Jury,
Mr- Cooper, only ten days after my first pub
tion on which this suit is founded, and aim'
oeously with my own article complained of,
peared personally in the columns of The Trib
otmy own instance, and there gave his own ver
of the whole matter?which version, ao far as
facts were concerned, was virtually admitted bi
to be correct, and to modify by so much tbe for
one. Not merely the alledged misataternenta
high colorings of my own coi respondent wer
corrected, but ev?'ri tbo?e which had never appes
in my paper ; as, for instance, the assertion of
Albany Journal that the case of Cooper vs. W
at Fonda stood nearly at the foot of the calen?
when it appears by Mr. Cooper's card thai it st
JNo. 13 on a calendar of forty. The vindicatio
Mr. Cooj?9r went, to every reader of The Trib
the week after the obnoxious letter, and was as
and complete as he himself saw fit to make ii
Every thing was conceded to lm statement exc
ray conviction that, his course in the Fonda 1
suit had not been magnanimous.
[Here were interposed aome observations
reply to Mr. R. Cooper's points, which it is
necessary to recapitulate. *]
Gentlemen uf the Jury, you are called to dec
whether I have ' wickedly and maliciously' libe
Mr. Cooper ; uk?l. if I have, to what extent I hi
damaged him. I beg you. in making up your \
diet, to consider, first the admitted, notorious fa
in this case, apart from any comments; secon?
the character of rny comments, and whether
mind of the reader would not substantially hi
?applied them if they bad been wholly omitt
and the bare facts stated in my paper. If j
should thereupon adjudge that I have done wn
and injury to Mr. Cooper, I ask you to consii
how far ? have endeavored to make reparation,
what spirit nnd temper, and with what socce
and whether he doc% not at tbia moment stand
as fair a light before tho readers of The Trib?
as if I had stated the nake<l facts in that pap
and left them to provoke their own comments.
Surely, it cannot be that my opinion, or the op
ion of an anonymous correspondent, that he h
r.ot acted generously in the premises?an opini
avowedly based on the accompanying fuels?c
have wrought any essential injury to him, in t
face of his own explicit self-vindication. 1 hei
Gentlemen, of the ' legal presumption ' of mali
in certain cases; but I am sure that anypiesun
lion at all of malice in this case can be ncitr
legal nor just. Tbe presumption which disregar
such evidence must be too violent to be tolerat
by you.
But should you find, Gentlemen, that I had
right to express an opinion as to the honor a
magnanimity of Mr. Cooper, in pushing his ca
to a trial aa related, you will of course compel r
to pay whatever damage has been done to r
character by such expression, followed and accoi
panied by his own statement of the whole matte
I will not predict your estimate, Gentlemen, b
I may express my profound conviction that i
opinion which Mr. Cooper might choose to e
press of any act of my life?no construction 1
could put upon my conduct or motives?could pc
sibly damage me toan extent which would entit
or incline me to ask damages at your hands.
But, Gentlemen, you are bound to consider
you cannot refuse to consider?that if you conden
me to pay any sum whatever for this expressii
of my opinions on hia conduct, you thereby se
jour own lips, with thoso of your neighbors an
countrymen, against any such expression in th
or any other case?you will no longer have a rigl
to censure the rich man who barrasses his pot
neighbor with vexatious lawsuits merely to oppre.
and ruin him, but will be liable by your own ve
diet to prosecution and damages whenever yo
shall feel constrained to condemn what appear
to you injustice, oppression, or littleness, no ma
ter how flagrant tho case may be.
Gentlemen of the Jury, my character, my repu
tation are in your hands. I think T may say that
commit them to your keeping untarnished : I wil
' not doubt that you will return them to me unsullied
? ask of you no mercy, but justice. I have no
sought this issue ; but neither have I feared o
shunned it. Should you render the verdict agains
me, I shall deplore far more than any pecuniar
consequence tbe stigma of libeler which your vet
diet would tend to cast upon me?an imputado
which I was never till now called to repel befure
Jury of my countrymen. Hut, Gentlemen, foelin,
no consciousness of deserving such a stigma
feeling, at this moment as ever, a profound con
viction that I do not deserve it?I shall yet be cou
soled by the reflection that many noblerand worthie
than I have suffered far more than any judgerneu
hero could inflict on me. for tho Rights of Frei
Speech and Opiniou?the Right of rebuking op
pression und meanness in the language of man)?
sincerity and honest feeling. By their exampU
may I still be upheld and strengthened. Gentle
men, I fearlessly await your decision !
[The Jury here had a short recess, it being noon
The defence occupied in all, wo believe, 50 min
utes, or just as much time as the Opening. The
Court resuming its attendance,]
Mr. J. Fenimore CoorfiR summed up in per
son tbe cause for the prosecution. He commencer
by giving at length the reasons which had induce?:
him to bring tbia suit in Saratogu. The last and
only one that made any impression on our mind
was this, that he had heard a great deal of good ol
the People of Saratoga, and wished to form a bel?
ter acquaintance with them.?(Of course, this de
siro was very fluttering ; but we hope the Sarato
gana wo n't feel too proud to speak to common
folks hereafter, for tee want liberty to go again ne*t
summer.)
Mr. Cooper now walked into tho Public Press
and its alleged abuses, arrogant pretensions, its
interference in this case, probable motives, ?fee,
but tho public are already aware of hi?? sentiments
respecting the Press, and would not thank us to
recapitulate them. His stories of Editors pub?
lishing truth and falsehood with equal relish may
have foundation in individual canes, but certainly
none in general practice. No cluss of mon spend
a tenth part so much time or money in endeavor?
ing to procure the earliest and best information
from all quarters, as it is their duty to do. Occa?
sionally an erroneous or utterly false statement
gets into print and is copied?for Editors cannot
intuitively separate all truth from falsehood?but
the evil arises mainly from the circumstance that
others than Editors aie often the spectators of
events demanding publicity ; since we cannot tell
where the next man is to be killed, or the next
destructive storm rage, or the next important
cause to be tried : if we had the power of prophecy,
it would then be time to invent some steam-light
ning balloon, and have a reporter ready on the
spot the moment before any notable event should
occur. This would do it ; but now we luckless
Editors must too often depend on tbe observation
and reports of those who are less observant, less
careful, possibly in ?orne cases less ??agacious, than
those of our own tribe. Our limitations are not un?
like those of Mr. Weiler, Junior, as stated while
under cross-examination iu the case of Bardell vs.
Pickwick :
" Yes, 1 have a pair of eyes," replied Sam. " and lhai 's just
it. Ifthev wasapairef patent double million magnityin' ga*
microscopies of hexira power, p'raps I might be able to s?e
through a flight of siairs and a deal door, but bein' only
eye* you see, my wision 's limited.*'
Fenimore proceeded to consider out Defence,
which he used up in five minutes., by pronouncing
it no defence at nil ! It had nothing to do with the
matter in issue whatever, and we must be very
green if we meant to be serious in offering it. ( W*
were rather green in Supreme Court libel law,
bat's a fact; but wo were pat to school soon after,
and have already run up quite a little bill foi
lion, which is one sign of progress.) His H
tlie Judge would tell the Jury that our law v/t
law whatever, or had nothing to do with this ?
(So he did?Cooper was right here.) In si
our speech could not have been meant to app
this case, but was probably ibe ?crapings o
Editorial closet?mere odds and ends?wha:
Editors call ' Balaam.' Here followed a histo
digression, concerning what Editors call ' Bala
which, as it was intended to illustrate the ir
vancy of our whole argument we though very
tiueut. It wound up w ith what was meant ?
joke about Balaam and his As?, which of ce
was a good thing; but its point wholly escapee
and we believe the auditors were equally unft
nate. However the wag himself appreciated
enjoyed it. m
There were several other jokes (we aupj
they were) uttered in the course of this Ii
speech, but we did n't get into their merits, (pn
bly not being in the best humor for joking;)
one we remembered be<?ause it was reallv good.
came down to our comprehension. Fenimore
replying to our remarks about die ' handsome ]
Effingham,' (see Speech,) when he observed t
if we should sue him for libel in ' pronouncing
not handsome, he should not plead the Sene
Issue, but Justify.' That was a neat hit, and v
planted. We. can tell him, however, that if
Court should rule as hard against him as it d
against Editors when they undertake to justify,
would find it diflicult to get in the testimony
establish a matter even so plain as our plainne
Fenimore now took up the Fonda libel-suit, o
fought the whole battle over again, from beginni
to end. Now we had scarcely touched on tl
supposing that, since we did no? justify, we coi
only refer to the statements contained in the pul
cations put in issue between us, and that the. Jud
would check us, if we went beyond thei-e. Fe
more, however, had no trouble; said whatever
pleased?much of which would have been v?
pertinent if he, instead of we, had been on tr
?showed that he did not believe any thing of \
Weed's family being sick at the time of the Fon
Trials, why he did net, ?&c. ,fcc. We thought
might have reserved all this till we got down
dinner, which every body was now hungry for, ai
where it would have been more in place than a
dressed to the Jury.
Knowing what we positively did and do of t;
severe illness of the wife of Mr. Weed and the da
gerous state of hia eldest daughter at the time
the Fonda Trials in question?regarding them
we do?the jokes attempted tobe cut by Fenimo
over their condition?his talk of the story growit
up from one girl to the mother and three or foi
daughters?his fun about their probably havii
the Asiatic Cholera among them or some oth
contagious disease, &.c. &c. however it may hu?
sounded to others, did seem to us rather inhu?
Hallo there ! we bad like to have put our foe
right into it, again, after all our tuition. We mea
to say that, considering that, jusl the day befor?
Mr. Weed had been choked by his counsel int
surrendering at discretion to Fenimore. being ai
sured (correctly) by said Counsel that, as the la'
is now expounded and administered by tbe Suprem
Court, he had no earthly choice but to bow hi
neck to the yoke, pay all that might bo claimed r
him and publish whatever humiliations should b
required, or else preparo to be immediately ruine
by the suits which Fenimore and Richard had ai
ready commenced or were getting ready for hin
?considering all this, and how much Mr. Wee?
has paid and must pay towards his subsistenci??
how keenly W. has bad to smart for speaking hi
mind of him?we did jiot think that Fenimore'?
talk at this timo und placo of Weed's family, uni
?f Weed himself as a man so paltry that he wouli
pretend to sickness in his family as an excuse ti
keep away from Court and resort to nick afte
trick to put off his case for a day or two?it seem
ed to us, considering the present relations of th?
parties, most ungen-There we go again ! Wi
mean to say that the whole of this part of Mr
Cooper's speech grated upon our feelings rat.hei
harshly.?We believe that isn't a libel. (Th.!
talking with a gag in the mouth is rather awkwarc
at first, but we'll get the hang of it in time. Have
patience with us, Fenimore on one side and fht
Public on the other, till we nick it.)
On one point Mr. Cooper was not quite
candid. Having assumed to talk over all thu
matter, Weed's conduct, his own views, feeling?
etc. in Cotiit, and been pet mined to proceed in it
to the end, he ought, seeing we were not allowed
a word after him, to have stated tbe fact that Mr.
Weed arrived at Fonda barely a few hours after
his case had been litigated in his absence, and giv?
en to tbe Jury dead against him. Aa it was. the
Jury were left with the* impression that he neither
did nor meant to attend that trial at all !
Personally, Fenimore treated us pretty well on
this trial?let US thank him for that?and so much
the more that he did it quite at the expense of his
consistency and his logic. For. after stating
plumply that he considered us the best of the
whole-Press-gang he had been fighting with, he
vet went on to argue that !vl 1 we had done and at?
tempted with the intent of rendering him strict
justice had been in aggravation o? e>ur original
trespass! Yes, there he stood, saying one mo?
ment that we were, on the whole, rather a clever
fellow, and every other arguing that we ha?l done
nothing but to injuru him wantonly and malicious?
ly at first, and then ail in our power to aggravate
that injury ! (What a set the rest of us must be !)
And here is where he hit us hard for the first
time. He had talked over an hour without gain?
ing, as we could perceive, an inch of ground.
When his compliment was put in. we supposed he
was going on to say he was satisfied with our ex?
planation of the matter and our intentions to do
him justice, and would now throw up thei case.
But instead of this he took a shear the other way,
and came down upon us with the assertten that
our publishing his statement o?f the Fonda business
with our comments, was an aggravation of our
original offence?was in effect adding insult to in?
jury !
Let us look at this strange twist taken in the
matter : We had published a letter from Fonda,
narrating the occurrences there and commenting
severely on Fenimore's conduct. That letter con
rained some misstatements of fact, and on these
some of the strictures were based. Mr. Cooper
writes another letter, correcting those misstate?
ments, and we copy it. Now it never occurred to
us that there could be any occasion for our endors?
ing his statements, or saying we believed them?
we supposed it was sufficient that oae ranking as a
gentleman and associating with gentlemen had
made a statement of facts relating to his own per?
sonal conduct?conduct of which a hundred per?
sons were witnesses, any one of whom couid in?
stantly confute him if he were simple as weil as
rile enough to lie about it.
We understood at once that what a third per
BgBg-??_B_____jgggB_gBggM
son had written or the spur of the moment.
as it regarded Mr. Cooper's own acts in thi
ence of witnesses, must of course be wrong
it differed from Mr. Cooper's own maturer
ment, and all inferences founded on such poi
tbe former account fell of course. I: did not
to us that any body could think differently
this, and we supposed there was nothing m
be said in the premises. All we did say. thei
w_3 in substance that, taking Mr. C.'s ov?
count of the facts, his conduct had not been
we considered honorable and magnanimous.
could suppose that we meant (see the article
ted in our Defence,) to discredit and expr?s
disbelief in Mr. Cooper's account of his own
Yer Mr. C. did suppose it?at least, he pi
whole rase in that light to the Jury as strong
he could ; and?alas for us !?the Judge tool
same view of the matter, and that floored u?
Let us be carefully just to Mr. Cooper:
expression in our own article of Nov. 30, "j
ing his case to a default on the first and the
ihe ser-ond day of the term," does give a bare
to his representation, and if this were the v
article, might afford it some justification. \
we meant to imply was that he appeared an?:
dared himself ready to try the case on the
day of the term, theugh, when appealed t<
consented to wait a day. If a man were ben
pushing his ease to trial in his opponent's abs
with a sixty-wolf power, lie could do no raure
wait till it was called in its order by the c]
and then say, with the sweetest of smiles ai
bow to the Judge, 44 Ready oh tbe part of
plaintiff, sir"'?and simply stand there. If
body knows how to push a case harder than !
they may teach us the art, if they do n't chi
too much for the tuition.
But, considering that our correspondent
been quite wrong in his hearsay statement on
very point, we ought to have used a different \*.
or phrase in this connection ; and bo we shoul
we had supposed the idea adopted by Mr. Cc
er, to wit, that we discredited his statements off
could possibly occur to any one. But taking
other view, viz. that his facts qualified our c
language used in connection with them, we s
posed every body understood that we could m
only by the phiase so misapplied by Mr. Coo
that he was ready and willing to go to trial on
first day of the term in Mr. Weed's abser
though upon remonstrance he desisted ; and t
he did go to trial the second day under those r
eise circumstances. If we had supposed Coo
could sue us after wa had published his own stE
ment, we should have been more precise ?
suarded than we were. But we are sure nobc
understood us as saying that he absolutely pus!
his case to trial the first day, and then the secc
day over again. Mr. C. is a strange man in so
respects, but we never meant to accuse him
working miracles.
But, in order to show beyond cavil that theci
struction placed by Fonimore and His Honor
our expression of Nov. 30th and its purpose
wrong, we copy from The Tribune of ?\'ov. ?9
1841, (the very day before the article so misct
strued appeared in our columns,) an Editori
which appeared directly under our Editorial net
and in our next Weekly directly over tho article
Nov. 30th. It is word for word as follows :
"ICTMr. J. FnsiMORE Cooper informs tbe public il,rou
the Albany Argus thai lie has directed: legal proceedings
he commenced ' against the Kditors, Publishers, kc. ol i
Tribune anil Evening Journal.' So we are to ' catch it'
publishing a letter troni Fonda, detailing the proceedings
Ihe late Circuit Court held there in thecasesof J. Fenim?
Cooper vs. Thurlow Weed, and the Peopleof New-York
Jtmca Walaon Webb. Precisely what we have ?lone to
:ur ?lie pain? ami penalties of the law we do not und
Hand, but we doubtless shall when the Sheriff clutches a
Mr. J. Keniiwore Cooper rains down upon us. Mr. C. tf
ihe story at greater length, and put*? in some excuses I
his conduct m ?lrivii-?.- his own suit to a vvrdict by d?lai
un the second day of the term, iu* the lacroi'a statr-m?:
from Mr. Weed luai he was compelled to get outol thecr
to attend the bedside of a dy?n?? daughter, and would bei
ihe next day; bul we do not perceive that he contradi,
our correspondent on any essential point. At all even
having published the letter excepted to asa mailer ol int,
ligence, without any sort of feeling toward Mr. Cooper b
guch as his conduct in the cas.* *r*ni?-d to excite, we have
all tin.en siood rendy to publi-h cheerfully any correction
contradiction be muht ?boose to send us. He chooses
send none, bul a suit K>r libel instead. So be it, then.
Walk in, Mr. Sheriff!
"There is one comfort to sustain us, under tint terrible di
pen*ation. Mr. Coper will have lo bring his action to tn
somewhere, lie will nni lilie to bring il in New York, Ii
we are known here, nor in OLsego, for he is known there.
We believe he has no resource left but to bring it in Mon
(.?ornery County, amone ihose who were the witnesses i
and 'sympathiser?' in bis late defeat by CeL Webb. Th
is rallier inconvenient to u*, but we (eel confident of a u
trial an.l a good deliver-ince before any American Jury.
So, Mr. Emngbatn, fetch on your bears ! "
Will any man say alter this that we actuall
meant, in our article of Nov. 30th, to charge Mi
Couper with positively insisting on going to trii
on the first day of ihe term ?
Une word more about all this * pushing,' and w
push out of it. Richard, Fenimore and His Honor
(if we mistake not,) each in turn dwelt on th.
enormity ul" our correspondent's mistake with re
gard to Mi. C.'s ultimate rouise on the first day
assumed, eningly, that we meant to persist in in
stead ?.if correcting that mistake, and theifupoi
represented us a*, holding up tbe pluintitf to odiun
as a monster of inhumanity, ?fee t&C. Now w<
don't concur in all this?we here express no opin
ion on Mr. C.'s course in all that matter?but w?
Jo say that if h u-ouldhave been so heinous to in
sist mi a trial the first day, we eannot see that i
was much better to insist just so on the second
day, in view of Mr. Weed's alhi?tions. That h
about what we meant in our article of Nov. 30th,
whereon the second count in the Declarador
ngainst us was based.
Mr. C. was wrong in attempting to show that
our articles alleged as libels were reflections on the
Court?but as His Honor set thai right, and it had
nothing to do with the issue to be tried, we let it
pass. If we had libeled the Court, that should
not aggravate th** damages going into Fenimore'?
pocket, but was quite another affuir.?But every
body acquainted with Courts well knows that a
Judge cannot properly defer to an application of
the defendant only to put off a cause, unless it be
supported by affidavit ; but a plaintiff may. If we
had been Judge, we could not have felt justified in
putting over this case a second time, by a mere
knowledge of Mr. Weed's troubles ; if we had
been plaintiff, we could not have refused it. That's
the odds.
There was a little point made by the prosecu?
tion which seemed to us too little. Our Fonda
letter had averred that Cooper had three libel-suits
coming off there a: that Circuit?two against
Webb, one against Weed. Richard and Fenimore
argued that this was a lie?the ona against Weed
was all. The nicety of the distinction here taken
will be appreciated when we explain that the suits
against Webb were indictments for libels onJ.
Fenimore Cooper !
We supposed that Fenimor-3 would pile up the
law against us, but were disappointed. Ho
merely cited the last case decided against an Edi?
tor by the Supreme Court of this State. Qf course,
it was very fierce against Editors and their libels,
but did not strike us as at all meeting the issue we
had raised, or covering the grounds on which this
case ought t? have been det-ided.
Fenimore closed very effectively with an appeal
for his character, and a picture of the suffering ???
his wife and family?his grown-up daughter
suffused in tears by these attacks on their
Some said this was mawkish, but we com
good, and think it told. We have a diff?re
ery as to what the girls were crying for, I
won't state it lest another do?e of Supreme
law be administered to us. (' Not any n
present, I thank ye.')
Fenimore closed something before 2 o'
having spoken over an hour and a half. If 1
not wasted so much time in promising to ma
! a short speech and to close directly, be
have got through considerably sooner. Then
wrong to Richard by continually recurring t
tulsome eulogiums on the argument of " my le
kinsman.'' Richard had made a good speec
an effective on???no mistake about it?and
more must mar it first by needless provoking
ruptions, and then by praises which, thoug
served, were horribly out of place and out of
Fenimore, my friend, you and I had better
don the Bar?we are not likely either of us I
much of a figure there. Let us quit befor
mako ourselves ridiculous.
?His Honor Judge WiLI-ARS occupied a
half hour in charging the Jury. We coule
?lecentiy appear occupied in taking down
Charge, and no one else did it?so we musts
of it with great circumspection. That he v,
go dead against us un the Law of the cas?
knew right well, from his decisions andcbarg
similar trials before. Not having his Law p
before us, we shall not venture to ?peak of tl
Suffice it to say, that they were New-York Supi
and Circuit Court Law?no better and no v.
than he has measureel oil" to several Editorial
prits before us. They are the settled maxim
the Supreme Court of this State in regard to
law of libel as applied to Editors and Newspaj
and we must have been a goose to expect any
ter than had been served out to our betters.
Judge was hardly, ff it all, at libertv to kuov
tolerate any other.
But, while we could not have the vanity to
pose His Honor would abandon his law nnd at
ours, we did expect that he would consider our
even though he had considered every crumb i
before. He of course understood that we had
tested this issue for tho very purpose of brinj
before the Bench, and thence before the Pul
certain considerations connected with the Lai
Libel as applied to the Press which we thou
our State Tribunals had not duly regarded, i
Cooper, so far as we could judge, never wantei
bring this case into Court any more than we di
we always supposed he thought it would cost,
way and another, ?mite as much as it would cc
to?and we know he was willing to let us off v
easily. But we never wanted to be let off. '
wanted to go into Court and be instructed ai
the point in which we had misapprehended
spirit of the Common Law in its application
such cases as ours. This we did not get. On
we said with regard to the Right of Free Op
ions, and the inapplicability of the Law of LibeJ
what is obviously and avowedly an expression
Opinion, founded on a?:corupanying facts, he i
not (so far as we could galher) deign to bestov
syllable. The Law that we tried to bring to b
on the case he set aside at one brush as wholly
applicable?a part of it as applying only to thei.
ctisaiou of public affairs and the character and r
tives of public men, where necessarily a larger!
erty is allowed, and the residue as applying to v
bal defamation or slander only, with regard
which the law ii far less strict than with libel
by writing, and prescibes that the person slander
must have been charged with some infamous crii
or ofience calculated to exclude him from Socie
before an action will lie. Tlieae two classes. Jud
W. charged, absorb all the principles and cas
from the Common Law cited by us.
Perhaps we ought to submit to this dictum wit
out question ; and, if it were a mere matter ofopi
ion on legal lore we should of course do so with i
humility. But where the point at issue appea
to be simply the meaning of a remarkably cle
sentence of plain English, (a language we ha'
studied some,) it does not seem so very presum
tuous iu us to havp an opinion, after all. Let i
look, then, to the first authority we cited to H
Honor :
'? In the ca-eot hatten,- of the person, the law can, w it
out hesitation, pron-iunre. that any, the least degree ot vi
leHce shall be deemed illegal, and entitle the complain*
to his remedy; hot,communications concerning reputatit
cannot be so prohibited ; every ?lay's convenience requin
tint men and thei- affair-, shuuUl be di'.cussed, though Jr
ejuently at the hazard of individual reputation : and it cm
rtuces mainly to the ends ot morality und good order, to tli
iafety and security of society, that considerable lotituc
should be afforded to meh communications. The dread n
public censure und disgrace is not (inly the most effectua
and therefore the most important, hul in numberless instar
ces the only security mh'ch lociely possesses for the preserve
tion of decency and the performance of the private duties o
life.
" Tlie law may, indeed, ?lefine particular offenem, am
diminish their frequency by ihe ihrem of punishment ; ba
il cannot dehne, and therefore cannot compel, an observ
nr.ee ot the duties, upon tbe discharge of which the happi
nes* of the community most essentially depends. It is p<n
?ble, Is short, lb?-a strict observer ol every legal ?nac?
ment to he destitute of every honorable feeling .ind princi
pie, and Utterly until for ?uppirtir.:; any uselul lelmion U
Ihe society in which hi? ?-xisience is tolerated.
" There are, il is true, other and siron? motives for gooc
conduct; bul, however powerful such are, or ought to be
common experience proves, that their practical operatior
upon the mass ol mankind is weak when compared to Ihr
love ?if character, and Strongly suggests, even to a sujerti
cial observer, the state of IhiOBS which would ensue wer*
praise and blame lo become alike imliifereiit. Hence it in
that the very liability of reputation to public censure tend:,, ir
a ?n ry considerable decree, to the preservation ot us puriiy.'
[ Starkie on Slander?Introduction,p. 21.
We have great respect for Judge Willard'.s
opinion, though lie has none for ours; but we will
give our head for a foot-ball if the author is not
here maintaining tbe wisdom, justice and lawful
nets of publications and strictures affecting indi
vidual and private character, if the aarao be in?
tended to rebuke immorality, injustice and wrong?
doing. In other words, he is maintaining the
Freedom of the Pp.ess, in a sense very differ?
ent from Mr. Fenimore Coopers definitiun that
this means only freedom from a Government Cen?
sorship. We cited many more passages to the
same effect to His Honor?and with the same ef?
fect.
Then as to the cases of legal immunity from the
action for defamation cited by us to His Honor,
we know well that many of them refer in terms to
actions for slander only?as, for instance, where a
master is applied to for the character ?f a former
servant, and gives him a bad one?the master is
not bound (decides Lord Mansfield) to respond to
an action for defamation, unless the defendant
prove express malice against him. If he goes
about officiously abusing his former servant, that
is a presumption of malice ; but, if a man come to
him to inquire of that servant's character, and he
answer, either verbaily or in writing, " Sir, he ia
a thief and a drunkard," an action for defamation
dees not He against him. Now it would be nothing
to the purpose if the precedents were all confined
to verbal slander ; it was the reason of the law
that we were searching for?'the spirit thatgiveth
life.' And this we find plainly stat??d by Starkie
(p. 223) a? follows:
"The benefit of th? prima facie presumption [of inno
cencel extends to all -n/io appear to act in the discharge of any
duty which the convenience ?r exigencies aj Society call upon
them to perform."
If the principle here affiimed does not cover the
case of Editors, acting in their legitimate sj
and criticising public transactions of general
est, then we know nothing of tbe process o
soning.
W e did not see how His Honor's views ace
at all with Starkies Conclusion, (p. 580-4,) i
it is strongly laid down that a malicious int
essential to the action for libel, that this is
collected from ?he evidence, (not inferred
the bare fact of publishing) that the Court is
by its legal opinion and experience the Jury.
" are thereby assisted in forming a correct ji
ment upon the defendant's intention.'' W
not ignorant that the author is herecontempl
a criminal procedure; but it is abundantly
down that a libel cannot exist without a maii,
intent, which is its essence ; and wherever it
exist the libeler is liable alike to criminal and
prosecution.
His Honor thought the consideration urge
us that we had not invaded the sanctuary ol
plaintiff's family and given currency to any ?
daloiis repon about him or his in their priv?t?
pacity, ought to have force-in considering the q
tion of damages. Grateful as we are to His r
or for his good word on this behalf, we yet
leave to observe that we brought this fact
view only to illustrate the question of Libel or
Libel. And. as His Honor appeared to us to
derstand. as the Supreme Court in its late deci
represented, that the Press claims the preroga
of libeling whom and how they please?a pre
sion which, he thought, ought lo be Signally
exemplarily rebuked?we beg leave to make
moie effort to put our position in his eye, and t\
that, contrary to his impression, we hold that
Editor may be guilty of a libel as clearly and f
as any other man, and when he is he ought tc
signally punished. We will suppose th?? two
lowing paragraphs to appear one of these morni
in some paper?not ours, for of No. 1, the casi
not supposable:
No. 1.
" Art-Ain in High Life.?A report is current in the I
ionable circles thai the spr'urhtly and dashing ?Miss Q
X-of No.? Broadway, is likely soon io becoin
mother, without having entered the bonds ol holy m
mony. We shall give tartfier particulars of this as osm
affair in a lew days."
No. II.
" I'robable Murder.?John Jonum, who has been
in charge ol the ship Southampton for some days pas
missing, and it Is feared, from marks of blood found on
vessel, that he has been murdered lor a sum of nionej
was known lo have. Suspicion rests on a fellow nar
Moses Manz, who Ims been seen hovering about the d'
of late, and who absconded the morning bet?re Jonum '
missed. The Police an; in pursuit of him."
Now we suppose any plain man in the coun
perceives a glance that No. I is prima facu
base and filthy libel and No. 2 is not, though
may by bare possibility be such. Every presun
tion of the law is very properly against the ini
cence of the utterer of No. 1 ; we insist that t
same presumption is, rightfully and by the Co
mon Law, in favor of the innocence of tho utt
ing of No. 2, although it fixes on Moses Mai
the suspicion of a crime far blacker than any i
plied in No. 1. The mere fact that a paragra
appearing in a newspaper is injurious to son
body's reputation does not render it prima fai
libeious. Such is the dictate of common sense a
we think of Common Law ; we trust it will j
be recognized as law even in the Supreme Coi
of New-York.
But we have filled our paper, and must close.
The Judge charged very hard against us on t
facts of the case, as calling for a pretty si-zal
verdict?our legal guilt had of course been settl
long before in the Supremo Court.
When the Charge commenced, we would i
have given Fenimore the fim red cent for hia v<
diet; when it closed, we understood that we w<
booked to suffer some. If the Jury had return
a verdict in our favor, the Judge must have be
constrained by his charge to set it aside, as co
crary to law.
The Jury retired about half past 2, and t!
rest of us went to dinner. The Jury were hu
gry too, and did not stay out long. On comp-i
ing notes, there were seven of them for a verdii
of $100, ?wo for $200, and three for $.**00. The
added these sums up?total $2,G00?divided fc
12, and the dividend was a little over $200 : s
they called it $200 damages and 6 cents conn
which of course carries full cost* against us. W
went back from dinner, took the verdict in a
meekness, took a sleigh and struck a bee-line fo
New-York.
Thus for The Tribune the rub-a-dub is over ; tin
ad*?e we trust laid aside ; the staves all in theil
places; the hoops tightly driven; and the headinf
not particularly out of order. Nothing remains bu
to pay piper or cooper or whatever; and that shni
be promptly attended to.
Ves, Fenimore shall have his $200. To L>*
sure, we do n't exactly see how we came to ow?
him that sun: bat he has won it, and shall b<
paid. ' Th? ourt awards it, and the law do til
give it.' We should like to meet him and have h
social chat over the whole buaiiiess, now it is over.
There has been a good deal of fun in it, com?? to look
back; and if he has as little ill-will toward us as
we bear to him, there shall never be another hard
thought between us. We don't blame him a
bit for the whole matt?r; he thought we injured
him, iiicd us, and got his pay. Since the Jury have
cut down his HtUe bill from $3,000 to $200, we
won't bigg*'* a bit about the balance, but pay ?ton
sight. In fact, we rather like the idea of being
so munificent a patron (for our means) of Ameri?
can Literature; and are glad to do any thing for
one of the most creditable (of old) ??f our authors,
who are now generally reduced to any shift for a
livinor by that grand National rascality and greater
folly, the denial of International Copyright.?
('My pensive public,' don't flatter yourself that
we are to be rendered mealy-mouthed toward you
by our bufferings. We shall put it to your iniqui?
ties just as straight as a loon's leg, calling a spade
a spade and not an oblong garden implement, un?
til the judicial construction of the Law of Libel
shall take another hitch, and iu penalties be in?
voked to shield communities as well ai individuals
from censure for their transgression*. Till then,
keep a bright look out !)
And Richard, too, shall have his share of \ the
spoils of victory.' Ha has earaed them fairly,
and, in the main, like a gentleman?making us ao
needless trouble, and we presume no needless ex?
pense. All was fair and above board, save some
little specks in his opening of the case, which we
noticed some hours ago, and have long since for?
given. For the rest, we rather like what we have
?een of him ; and if any body has any law business
in Otsego or any libel-suits to prosecute any where,
we heartily recommend Richard te do the work,
warranting the client to be handsomely taken in
and done for thioughout.?(There's a puff, now,
a man may be proud of. We don't give such every?
day out of pure kindness. It was Fenimore, we
believe, that said on th? trial that our word went
a great way in this country.) Con we say a good
word for yen, gallant foeman ? We'll praise any
thing of yours we have read except Tbe Manikins.
?But sadder thought? rush in on us in closing?
Our case is well enough, or of no moment ; but
we cannot resist the conviction that by the result
of these Cooper libe?-ncits. and by the Judicial
constructions which produce that result, the Liber?
ty of the Press?its proper influence and resnecta
bility, its power to rebuke wrong and to exert a
?alutury influence upon the Public Morals, is fear?
fully impaired. We do not see how any paper can
exist, ami speak and act worthily and ?safully is
this State, without subjecting itself daily to in?
numerable unjust and crushing prosecutions and
indictments for libel. Lven if Juries could have
nerves of iron to say and do what they really think
right between man and man, the costs of such
prosecutions would rain any journal.?-But the
Liberty of the Pi ess has often been compelled to
appeal from the Bench to the People. It will dv
so now. and we will not doubt with ?access. Let
not, then, the wrong-doer who is cunning enough
to keep the blind side of the law, the swindliog
Banker who has spirited away the means of the
widow and orphan, the tibortioo who has dragged
a fresh victim to hi*: lair, imagine ihat they are
pernnnemlr shielded by this misapplication of
the law of Libel from fearless exposure to public
scrutiny and indignation by the eagle gaze ef an
unfettered Press. Clouds and darkness may for
the moment rest upon it, but they cannet, in the
nature o? things, endure. In the very gh?m of
its present humiliation we read the prediction of
its speedy and certain restoration to it?) Rights
and its true dignity?to a sphere not of legal suf?
ferance merely, but of admitted usefulness and
hoHor.
D33 We came down from Albany very plea?
santly by the Itivei route (east side) on Saturday,
leaving Albany a little after i) A. M., reaching
Rhinebeck by stage about b*, P. M., after deduct?
ing dinner-time at Hudson, and finding the good
old De Win Clinton awaiting us at the Rhinebeck
dock. Sho had been up as far as Bristol, where
she had difficulty in turning round in the ice and
was detained some hours, but sho did it at last,
running through ice six or eight inches thick with
case, but bothered to turn round in it. She waited
a while longer at Rhinebeck, and then reached the
City through some ice about 4 A. M. with all
comers. Wo d<? not think last night's boat would
attempt to go above Rhinebeck at any rate, a? the
sleighing on both sides is now excellent, and the
stage-lime very good.
03d Rev. Abel C. Thomas lectures this even?
ing and Wednesday evening upon the End of tut?
World. His direct purpose is to review anil
refuto the doctrines of Miller and his followers
We doubt not those interested in the subject will
be highly gratified and instructed by these lectures.
XT Wetsei.l'8 Dressing Establishment.?The atten?
tion of travelers and citizens Is directed to the advertise?
ment of Mr. George Wetsell, whose extensive aad well
regulated establishment u known by most persons whohtve
visited New-York, from ml parts of the Union. Mr. W's.
arrangements are ample?hi? assortment full and complete,
and all who are acquainted with the industrious and enter?
prising proprietor, know diat no man is more worthy of a
liberal support. _
Sa.nus's Sarsaparille ?Scrotula?Other diseases haw
slain iheir thousands, but Scrofula has slain its lens ?>l thou?
sands. This very alarming affection appears under a great
variety of forms, from the slightest deviation from health to
the most fatal of local and general diseases. One of its
mast common forms is tubarcular phthisis pulroonialis or
consumption oi the lungs; diseases of the hip and knee joint
and white swelling, also the glands of the neck and other
parts ol the hod?. Experience bus stiowa thai Sanda's Sar
saparilla is a cure for the most inveterate complaint, and
in numerous instances it has brought returning health aad
lite where the vital spark hail almost fled. From tu prepa?
ration and peculiar combination with other vegetable sub
stances k operates by removing In lb? first place unhealthy
action from diseased organs, substituting healthy action in
ilsplace, giving tane to the general energi? ef the system.
For particulars of its curativ? powers, see different ad?
vertisements in the daijy papers.
Prepared and sold nt wholesale and retail, and for ex?
portation by A. 1$. Sands k Co. Druggists and Chemists,
Granite BuildiugsSTO Broadwny, corner of Chambers-sL,
New-York. Also sold by A. B. it D. Sands, 79 and 100 Ful
ton-st.; David Sands ?Co., 77 East Broadway. Price $1
per bottle. Six boules for $?.
XT The magniflcvnt nnd cosily dresses worn by Queen
Victoria and the Dutches* of Kent on her Majesty's mar?
riage and coronation, now at the New-York .Museum, are
well worth visiting. In addition to which, Sii/nor Bliu
Miss Clvmence the danseuse, Mr. Wrlsht the lalsette vc?
callsl, Mr. Brown ihe comic singer, Mr. Delarue, ?c. are
?II to be seen for one shilling.
n." Dem. Whig O.mernl Committee.?A
Special Meeting of this Committee will be held at tin?
Broadway House, on Tucsrlny evening, Dec. 13, at seven
o'clock. ELLIS POTTER, Chairman.
J. H. HouartHaws, ) u , .
EDW. E. Cowi.es, '{Secretaries. dJ2
End ?of the World.?At the Brooklyn
Lyceum on Monday and Wednesday Evenings
12th and Mili instants, Rev. ABEL C. THOM?
AS will analyze and nttempt to confute the the?
ory. Commence at 7 o'clock. Admttance ta
O" 23(10
B.C. 457
A. D. 1843
each Lecture, one shilling. d!2 VtMfcW ?
XT Mercantile Library Aneocialioai??The
Filth Lecture of the course will he delivered by SLUM
Bcrritt, Esq., of Worcester, Mass., on Tuesday evening,
13th inst.,at balf-pasl seven o'clock, nt the Broadway Tab?
ernacle. Subject?" The indispensable character and ne
c?rssity of popular Lectures in view of the present and pro?
spective wants of th* community."
Tickets, 25 cents, to be obtained al the Library or at the
door during die evening. Doors open at a quarter be for?
7 o'cl?)ck. By order.
d!22t* ISAAC IT. BAILEY, Rec. Secretary.
Office of the IVero- York Howery Fire Jnsu-ranee Co. )
No. 124 Bowery, corner Grand. \
XT Thin Company continues to ?mure against Loss
and Damage by Fire at reduced rates of premium from
farmer charges.
Office hours from 8 o'clock, A. M. to sunset.
JAMES LOVETT, President.
Peter PmcKN.tr, Sec'ry. (2) d6 lm
MARINE JOURNAL.
PORT OP NKVVVyoRK, DECEMBER 12. 1942.
ARKIVED.
Ship Atalanta, Hart, 13 days from New-Orleans, with radz
to Post k Pi;lllips.
Ship Union, Russell, from N Orleans and the Bar 24di ult,
with cotton, to Johnson k Lowden.
Bark Ann Louisa, Cliflord. from Vera Cru* Not 16, with
specie, u.c. to Hargous BioiLer* k Co.
Br brig Isabella, Newman, 50 days from Cape de Verds,
with md7.e, to Benj Richard*.
Brig Tyhee, Ogden, 4 days from Charleston? with coll?n
and nee, to O Bu.kley.
Brig Georgiana, Tredwell, 10 days from Georgetown,
S C, wiUi cotton, toR M DemilL
Sehr Repeater, Francis, 3 days from Wilmington, N C,
with naval stores, u> Mr Powell.
Sehr Cygnet, Eldridge, 5 days from Richmond, with coal.
.Sci.r Atalanto, Newell, 3 days fro? Sow Bedford, with
oil, to Grinn*-H Si Minium.
BELOW-1 ship, 1 bark and 4 brigs-Wind light, N JC.
DIED:
At Woodbridge, N. J., in the &5th year of her age, Ma.
r?a Magdalena, consort of John T. Kessler, ef the city ef
New-York.
The relations aad friends of the famdy are invited to at?
tend her fanerai, from on board lb? steamboat Rariun, foot
of Barelay-sL on Tuesday morning, Ulli inst. st half past
11 o'clock. *
On Saturday evening, JOth inst., Maria 8. Wood, aged;
35 vears, daughter of tt.e late Abner Wood, of this city.
Tve relatives and friends of tho famdy are respectfully
invited to attend ihe fnneral on Tuesday morning, 13th. ?.
7 o'clock, from No. 61 Washington-?.., Jersey City. Her
remains will be taken to Wai-wick, O. C, for interment. *
On Saturday evening nut, at ?lixabethlown, N. J., Mr.
William Cargill, of this city, in die 76th year of his age
INDIA RUBBER SHOES?We con
tinue to iell this necessary article at prices lower than
ever known, vie : by the case or dozen for plain sIkxts SOe.
per pair-, figured, 37jc Terms cash. A lull supply of
Lined and Pur trimmed. Mens sire only sold at retaiL?
Price for the beMquality U 75 cents.
E. CORNING k SON, 143 Water street,
dl2 Stis- 2d door belowMaJden ?">*?
L" AD?ES' Day Class in learuinguTaiDg.
The sabscriber will commence a new Chu?*, exclu
?ively for Ladies, this afternoon at 3i *??*. *"** J* Jj
145*'Fulton street. Term, 12 lessons; gggLg??*1*
tow. First exercise free. jAMESj^ WARWJCB. 1
EW~POEM?TH?LIA: A Tale of
the Antar^c By J. C PALMER, U. S. N.
? Aodax aimiom qui fr?te prunos,
Rate lam fragih perfidrepit." ' deseca.
With twelve Illustrations, by A. T. Agate, One of the Ar
im*nay y _S05 Broadway.
N~"?TICE is herehj giren that an appli
r at ion will be made at ihe next Session of ibe Legis
iiore ?I ?h* State of New-York to ii corporate the Saust
David's Bene-volekt SocieTvof the City of N*w.iork.
New-York, Dec 1Q, 1342. dl2 law?*?