Commonwealth v. Buckingham

CHARGE TO THE JURY.

You perceive, gentlemen, that this is a charge against the defendant, for publishing a malicious libel on the character and.conduct of Alexis Eustaphieve,- a consul of his Imperial Russian Majesty, duly accredited, and residing in this city. The intent alleged is, that it was with design to injure and vilify him as well in his office, as in'his general good name and estimation, and to have it believed, that he had, upon a certain occasion, conducted himself in a disgraceful manner.

The indictment contains a second count, in which the same piece is charged to have been published by the defendant, with the design, that it should be believed, that the Russian consul had conducted, upon a certain occasion, in a manner unworthy of his office and station of consul, by engaging in brawls and quarrels with persons of low character, and that it should be believed, that he was unworthy to hold and sustain that office and station.

*445If the piece complained of should not in your estima- . , r _ ... ... . . tiorí be a libel; if the defendant did not publish it; or it it does not relate to the Russian consul, the defendant must be acquitted : and although you should be satisfied of these several facts, yef, as the essence of the crime consists in malice, if you should find that the act of the defendant was free from this quality, he must be acquitted.

But it is not necessary that you should be satisfied that the piece was published with all the evil motives which are alleged in the indictment. If you should believe that the libel was designed to vilify the Russian consul as an individual only, and to bring him into contempt and hatred, you will find a verdict against the defendant on the first count only. But if you should believe that it was published with the malicious design to injure the Russian consul in his office also, and to cause it to be believed that he was unworthy to retain it, then it will be your duty to find a general verdict. And if, after a full review of the case, the guilt of the defendant should remain doubtful, that doubt is to operate in favour of his innocence; and you are to weigh his conduct in the judgment of charity, by that golden rule, which- we should wish, in like circumstances, should be applied to our own actions.

The fact of publication is admitted by the defendant; and in an interview with Mr. Ellery, he confessed that the piece was intended to apply to the Russian consul.

“The technical definition of the crime of libel is, that it is an excitement to a breach of the peace by means of a written instrument containing matter injurious to the fame and character of another.” (4 Barn, and *446Alderson, 112.) This definition is well enough, and will guide you in forming your verdict. The piece begins with paying a compliment to the performances of t^ie PUP^S aQd t0 the ability of their instructors. It proceeds to speak of a communication, which the editor had received, giving the details of “ an unpleasant and disgraceful disturbance,” which occurred in the course of the evening, “ the history of which would not do honour to the parties concerned.” So that the writer was upon a subject of dblicacy, affecting the character of other persons. Mr. Eustaphieve is then introduce)! under the description of •the “ Rugged Russian Bear,” as being “ a conspicuous actor in the farce, which had well-nigh turned out to be a tragicomedy , in consequence of his attempting to jump, with his cocked hat and all, down the throat of one of his opponents.” He then agrees with his correspondent, that it was best to .give no opinion -on the merits of the controversy, but to Heave it to the decision of him “ who, while acting as the representative of the greatest monarch in the world, the magnanimous Alexander, the autocrat of all the"Russias, ,&c. does not deem it a derogation from the dignity of his high vocation, to become a party in the quarrels of dancing masters and fiddlers:” thus bringing the details of this scene into direct connexion with the office which he held, and asserting, that though Mr. Eustaphieve was the representative of the Emperor Alexander, he did yet condescend to engage in the quarrels of dancing masters and fiddlers.

Whether this piece has the tendency to degrade the Russian consul in public estimation as a man, and to affect his standing in his office, it is for you, gentlemen, to judge. Consuls are persons appointed by the sovereign of a state, to reside in foreign ports, for the purpose of taking care of the commercial interests of his subjects, transacting business there. They are usually persons of *447known probity and commercial intelligence, and are re- . , * , , , i , - , . quired to understand not only the laws and rights or their own country, but the laws and customs of the place where they are to reside. ' It is their duty to aid and protect their fellow subjects, and to advise and assist them in all cases, wherein their right or'.interest may be concerned. The affairs of trade, and the interests, rights, and privileges of merchants and seamen in foreign countries, are ordinarily left to the conduct of their consuls. . It is expected of them, that they correspond with the ambassador from their respective sovereigns to the government of the country within which they are stationed, and that they should send to him information of any transactions, which may affect the political or commercial interests of their oxvn country. And in case 'no ambassador or other public minister from their sovereign should reside at the time in the country, they are to transmit their letters directly home to their government. Though a consul be a public minister under the protection of the law of nations, he yet enjoys some important privileges annexed • to his office,, which distinguish him from the private inhabitants of the place where he resides. So that you perceive that, from their situation, consuls are officers of honour and trust,- that it is in their power to do much good or harm ; and even to affect the relations of friendly countries : and hence arises the importance, that they should be honourable men", and that they should support the dignity of their station, by their grave and prudent deportment.

Now consider whether, to represent an individual who holds an office of this kind' as guilty of disgraceful conduct, and engaging in the quarrels of dancing masters and fiddlers, is not injurious to his fame and character. *448In common with all other citizens, Mr. Eustaphieve'is en- . , . * . iz»i n . titled to be protected from unlawful attempts to render him an object of odium or contempt. In rendering him such, Y011 consider, whether his official character will not be sacrificed. It is not to be supposed that his government will retain an officer in a station of confidence and responsibility, if he should not maintain a character becoming that station. So that it is not foreign to your duty to inquire, whether the piece complained of has that tendency ; and if it has, whether it will not also tend to provoke him and his friends to acts of revenge, and so t.o a breach of the peace, which is the definition of the offence.

Here you will recollect the construction which the counsel for the defendant have put on this piece. They say, with-truth it contains no charge of official misconduct, nor any imputation on the moral character of the Kusian consul. They also say, it is harmless, sportive wit, which a wise man would disregard ; and they insist, that no good comes from prosecutions of this description. They call' -upon you, farther, to give to the words the most favourable sense, and it is your duty to do so; but you are not to violaté your understanding, by giving to the words any signification which is ndt consistent with sound sense and the common meaning of the language.

You will next inquire, if the intent of the defendant in publishing this piece was malicious; and if you find that it was done deliberately and wilfully, and that he neglected a favourable opportunity to redress the injury, it will be evidence of malice. To this point, the testimony of Mr. Ellery is material. He testifies, that some time in January last, he, as a friend of the Russian consul, called on the defendant, and informed him that this *449piece had greatly wounded the feelings of that gentleman, and that he was apprehensive, it would tend to injure him with his government. To this the defendant replied, that he hove no ill will to the Russian consul, and had no acquaintance with him ; that he had no knowledge of the circumstances of the transaction, but that he" had written the piece in consequence of a communication, which had been sent to him on «the subject. Hr. Ellery then proposed to the defendant, to publish an apology, that the redress might be as public as the injury. The defendant declined publishing one which Mr. Ellery had written, and wrote one himself, which he was willing to publish. The substance of this was, that as many respectable persons had declared there was nothing improper in the conduct of the consul, and others equally respectable maintained the contrary, it was not for him to decide the matter. For my part, I regret that this negotiation was not more successful; and I think it is to be lamented, that when the defendant wrote this piece, it had not occurred to his prudence, that, possibly h.e was about to inflict a severe wound in the breast of a man, who, he says, had never injured him, and against whom, he declares, neither at that time, nor at any other, had he entertained any malice.

Gentlemen, with the scene at Concert Hall you have no concern at this time. If any riot was committed there, let those who were engaged in it be presented acr cording to law. If the Russian consul committed any offence against the laws, or against good manners, he is liable to legal animadversion, and he will derive no protection from his official station. But let it not be understood, that the printer of a newspaper may publish piece, calculated nto bring that gentleman into contempt " *450with us and to destroy him with his own government. wjt]30ut tria}; anc[ without opportunity to be heard in his own defence.

We do not hold our characters in this Commonwealth at the mercy of the printers of any newspaper. A citizen may not be charged with any disgraceful or flagitious conduct, affecting his good name, his standing in society, or his employment, except before the judicial tribunals of the country, where he may . be heard in his defence, and tried according to the established rules of law.

That the law of libel is ancient, and dates from a period beyond that of newspapers, is no reason, in my opinion, for relaxing its principles. The printer of a newspaper has power in proportion to his talents, to the interest which he excites, and to the diffusion of his publication. Who is the perfect man that may not by the eloquent and ingenious satirist be placed in an uncomfortable situation 1 What is there, of all that is sacred and venerable, that has not been exposed to the shafts of ridicule 1 And if, whenever we open a newspaper, we are to expect to find some extravagant representation of ourselves, or of our neighbours, "something caricatured either of praise or blame; who that is conscious of the defects, which are incident to the human character, would wish to live in such a society.

While all protection and encouragement are to be given to the directors of the press, in diffusing intelligence, in imparting instruction, and in the free discussion of all truths affecting religion, morals, government, and whatever concerns human happiness ; there is a limit beyond which, if they pass, it must be known that they violate the law. Whether this is one of those cases, is left to your judgment to decide,

*451The jury brought in a verdict of guilty on the first count, and not guilty on the second. At the request oí the defendant, the court then pronounced sentence, which was, that he should be imprisoned thirty days in the commonjail, and pay the costs of prosecution.