Malversation

“ Why, if there be not proof as strong as truth itself why do they dare to bring an accusation against one of your high house? Oh, young man! young man! if you have slain him by fraud or villany, I will take vengeance of you by making you the public spectacle, and giving you up to the rope and scaffold: chains shall hang about you even in your death, and your bones shall whiten in the wind. ”

“ Can't you avoid them? Let their Vengeance light
On others' Heads, no matter whose, if you
Are but secure, and have the Cain in Hand:
For they're indiff'rent where they take Revenge,
Whether on him that cheated, or his Friend,
Or on a Stranger whom they never saw,
Perhaps an honest Peasant, who ne'er dreamt [Pg 122]
Of Fraud or Villainy in all his life;
Such let them murder, if they will a Score,
The Guilt is theirs, while we secure the Gain,
Nor shall we feel the bleeding Victims Pain. ”

“ Let any impartial man in his senses be asked, for which of these two places a composition of cruelty, lust, avarice, rapine, insolence, hypocrisy, fraud, and treachery is best fitted? Surely his answer will be certain and immediate ”

“ Are we engaged in quarrels and misunderstandings with our neighbours? these were all begun and inflamed by the false, malicious tongues of our servants. Are the secrets of our family betrayed, and evil repute spread of us? our servants were the authors. Do false accusers rise up against us? (an evil too frequent in this country) they have been tampering with our servants. Do our children discover folly, malice, pride, cruelty, revenge, undutifulness in their words and actions? are they seduced to lewdness or scandalous marriages? it is all by our servants. ”

“ Justice Best says, "malice is the gist of this prosecution. Malice in law relative to libel means legal malice." Whatever your opinion may be as regards the contents of the books; however much you may condemn the filthy and immoral allusions in different parts of this pamphlet, still you would not be justified in finding a verdict of guilty, unless you are clearly of opinion that the manner of the publication and circulation does not rebut the inference of malice. ”

“ Gentlemen of the Jury, I cannot believe that you will lend yourselves to such a grovelling prosecution—persecution, as this. I pause not to investigate where the evil spirit arose, in principles or agents, against this injured and calumniated female. If the great ones of our earth will disgrace themselves—if they will listen to the suggestions of envy, hatred, and malice, and all uncharitableness, I trust that you, more humble members of the community, will not be partakers of these evil passions. ”

“ Slander, in writing or in print, says the commentator, has always been considered in our law a graver and more serious wrong and injury than slander by word of the mouth, inasmuch as it is accompanied by greater coolness and deliberation, indicates greater malice, and is in general propagated wider and farther than oral slander. Written slander is punishable in certain cases, both criminally and by action, when the mere speaking of the words would not be punishable in either way. ”

“ It is true that there are decided cases which treat perjury, without any other element, as adequate to sustain a punishment for contempt. But the mistake is, we think, evident, since it either overlooks or misconceives the essential characteristic of the obstructive tendency underlying the contempt power, or mistakenly attributes a necessarily inherent obstructive effect to false swearing. ”

“ But that will be a common topic for the advocate of the defence to use, by which he will express indignation that the accuser not only alters facts in order to bring him into danger, but that he attempts also to alter words. For those common topics which are assumed either for the purpose of demonstrating the falsehood of the accusations of the prosecutor, or for exciting pity, or for expressing indignation at an action, or for the purpose of deterring people from showing pity, are derived from the magnitude of the danger, not from the nature of the cause. ”

“ It is on days of rest, particularly, that the recital of crimes often imaginary, of close connexions, and infamous compliances, complete the corruption of a man, whose punishment for a first fault exposes him to this pernicious contact. ”

“ One chief outlet for the malevolent impulses is the avenging of wrong, whether private or public. A convicted wrong-doer is punished by the law, and the indignation roused by the crime turns to gratification at the punishment. ”

“ For the practical purposes of modern law we may divide torts into three groups, wrongs of a personal character, wrongs affecting property, and wrongs affecting person and property, either or both. Under the first group come the wrongs of physical violence and restraint, namely, assault and false imprisonment; then the wrong done to men's good name by libel and slander, in which kind there are sundry curious and not wholly rational distinctions ”

“ We shall reply to the accusation of all the various crimes we are said to be guilty of in secret, such as we find them committing in the light of day, and as being guilty of which we are held to be wicked, senseless, worthy of punishment, deserving of ridicule. ”

“ When I have been speaking for so many hours of one class of offenses, and of that man's nefarious cruelty,—when I have now expended nearly all my treasures of words of such a sort as are worthy of that man's wickedness on other matters, and have omitted to take precautions to keep your attention on the stretch by diversifying my accusations, how am I to deal with an affair of the' importance that this is ? ”

“ The gradual debasement of a word into a term of reproach is sometimes a species of scandal. It is wilfully perverted in the course of years, and made to tell a different tale,—a false tale, probably,—which generations receive as true. ”

“ As we are apt to be mistaken in our judgment with regard to the general character of persons, so are we equally so with regard to their evil intentions. An offence is taken from something that has been said or done to us. Now what has been said or done, may not have been the result of either ill-will or malice. It may have been the result of a wrong judgment they had hastily formed, or from some excited state of mind they may have been led to say, or act as they did. ”

“ The stories, seven in all, cover the ground of fraud and murder, inspired by the prevailing causes of crime—greed and jealousy. Our lawyer is happy in having the majority of his clients the innocent victims of false charges inspired and fostered in a great measure by their own folly ”

“ For, first, who can flatter himself with not being among the number of the persecutors of truth, under the description of scandals? I even speak not of those disorderly souls who have erected the standard of guilt and licentiousness, and who pay little, if indeed any, attention to the public opinion: the most notorious scandals are not always those which are most to be dreaded; and avowed debauchery, when carried to a certain degree, occasions, in general, more censures upon our conduct than imitations of our excesses. ”

“ And give me leave to say, when we suffer any temptation to atone for dishonesty itself, we are as candid and merciful as we ought to be; and so far I confess I have gone; for I have often pitied the fate of a highwayman, when I have been on the grand jury; and have more than once applied to the judge on the behalf of such as have had any mitigating circumstances in their case; but when dishonesty is attended with any blacker crime, such as cruelty, murder, ingratitude, or the like, compassion and forgiveness then become faults. I am convinced the fellow is a villain, and he shall be punished ”

“ Your crime has been accompanied with every speices of aggravation. Under the mask of friendship you have robbed a poor innocent man, deluded by your treacherous designs, and your false friendship: it is further aggravated by the baseness and inhumanity of your deceit, which cannot intitle you to any instance of mercy, but requires that you may be made an example of immediate justice. On Monday, therefore, I shall make the report of you to his Majesty. ”

“ Penalty on swearing falsely.And be it further enacted, That if any person shall wilfully, absolutely and falsely swear or affirm, touching any matter or thing material to the point in question, whereto he or she shall be thus examined, every person so offending, and being thereof duly convicted, shall be subjected, to the pains, penalties and disabilities, which by law are prescribed for the punishment of the crime of wilful and corrupt perjury. ”

“ Still, his interest in this particular defendant had become visible.
"Have you any idea of the consequences of perjury?"
"No, sir."
"Do you understand what perjury is?"
"It's to lie."
"Do you tell lies?" ”

“ If an action for libel or slander cannot be maintained, how can such an action as I have mentioned be maintained, it being in truth an action for defamation in an altered form? Every objection and every reason, which can be urged against an action for libel or slander, will equally apply against the suggested form of action. ”

“ If one should be inveigled by fraud, or driven by violence, or slip by chance into a bad place or bad company, he that should so represent the gross of that accident, as to breed an opinion of that person, that out of pure disposition and design he did put himself there, doth slanderously abuse that innocent person. ”

“ You say I am innocent, and yet you tell me I am to be condemned as a guilty man, have my gown taken from me, be torn from my wife and children, be disgraced before the eyes of all men, and be made a byword and a thing horrible to be mentioned, because I will not fee an attorney to fee another man to come and lie on my behalf, to browbeat witnesses, to make false appeals, and perhaps shed false tears in defending me. ”

“ This is by no means a sufficient ground, for giving any name of reproach to any man: least of all is it a sufficient ground, for so black a term of reproach as this. The more evil it contains, the more cautious you should be, how you apply it to any one: to bring so heavy an accusation without full proof, being neither consistent with justice nor mercy. ”

“ Malice, the term by which English Lawyers seem in some instances to have had in view the expressing consciousness of blame, presents a wrong idea, since in common language it implies hatred, an affection which in many instances of conscious guilt, may be altogether wanting:—instance offences of mere rapacity, such as theft, robbery, and homicide for lucre. ”

“ Every sentence was an accusation, and every accusation a truth. Every clause was freighted with sarcasm and derision, every slow-dropping word burned like vitriol. The dwarf reminded me of times when I had flown at my children in anger and punished them for faults which a little inquiry would have taught me that others, and not they, had committed. ”

“ By maliciously is not meant malice against any particular individual, but a mischievous intent. This is the criterion, and it is a fair criterion, if it can be collected from the offensive levity in which the subject is treated, if the matter placed in the indictment contains any such tendency.' If the words had appeared in the course of a written paper you would have entertained no doubt that the person who had uttered these words had uttered them with levity. ”

“ Do you think that you are able (and this is especially necessary against a defendant of this sort) to cause the things which he has done licentiously, or wickedly, or tyrannically, to appear just as bitter and scandalous to those who hear of them, as they did appear to those who felt them? ”

“ And if I traduce a man, whether I know him or not, and whether I intend to do him an injury or not, I apprehend the law considers it as done of malice, because it is wrongful and intentional. It equally works an injury, whether I meant to produce an injury or not, and if I had no legal excuse for the slander, why is he not to have a remedy against me for the injury it produces? ”

“ The results of wrong-doing, not only in the form of legal punishment imposed but in the remorse and the pangs of guilty conscience that the wrong-doer suffers, as well as in the disgrace that he brings to others through his criminal acts, when emphasized in news stories tend to deter others from risking the dangers of such penalties. ”

“ And yet less, my lords, can I suspect, that those by whom he is accused, act from any motive that may influence them to desire a sentence not supported by evidence, or conformable to truth; or that they can wish the ruin of any man whose crimes are not notorious and flagrant, that they persecute from private malice, or endeavour to exalt themselves by the fall of another. ”

“ The question of libel or no libel, or indeed the criminality of any paper, taken up as the former, being assumedly in the criminal court, though justly in the Jury, let us see then how far the Dialogue between a Gentleman and a Farmer is obnoxious to censure. ”

“ Do you judge of, and deal with your fellow-man in that way as to their conduct to you? If they injure, defraud you, do you say they have a natural inclination to fraud and wrongdoing, and therefore are not responsible? ”

“ Not a warning, not a hint—not a prayer even—addressed to the offender. They have not the sense of justice to see or they have not the courage to denounce the perpetrators of evil, but direct all their efforts to hushing the complaints of the victims. ”

“ The fourth is the false pleaders, that receive and sustain wittingly false causes, and plead them for hire and for gifts, which they take on the right hand and on the left, and often lose good suits by their sin, or because of ignorance or through sloth turn aside the rights and do all the wrongs on account of their covetousness, as those that are masters of guile and of dispute and of false accusation. ”