the publication is true; and that the plaintiff was frequently intoxicated when presiding in the senate. So far then from disclaiming malice, they virtually admit it They in the face of the court. are clearly excluded, therefore, from the benefit of any defence based upon the absence of malice. If the evidence offered, of general intemperance, was to operate in favour of the defendants, by raising a presumption that the plaintiff was actually in the situation described in the libel, then it was clearly improper. The justification must be as broad as the charge. If the evidence was offered in mitigation, to repel the presumption of malice, then they were not entitled to it, because they had admitted the malicious intent by the notice. The evidence then could have no possible legal effect, unless it was to shew the plaintiff's general bad character. His general character was in issue; and to that should the evidence have been pointed; not to any foibles, or failings or vices, which may derogate from a good general moral. character. The plaintiff had courted an investigation into his general character; which had been declined; and, of course, that was admitted to be good. The general character should form the subject of examination. The character of the plaintiff comes in collaterally. is not distinctly put in issue. To confine the inquiry to the particular character of the party, in the capacity in which he has been libelled, would be, in some measure, infringing on the well settled rule, that under the general issue, the truth of the words cannot be given in evidence in mitigation of It It damages. (Per Thompson, J. in ed. In no point of view, therefore, was the testimony admissible under the pleadings, even without the qualification of the judge. Had such evidence been offered under the general issue alone, with a view to show the court and jury that there was no malice in the defendants, because in reality they only repeated what every one else did, and what the plaintiff's conduct led them to believe was the truth, a very different question would have been presented. They would then have brought themselves within some of the recent English cases; which now have no direct application to this case, because the question arose under a totally different state of the pleadings. 3. As to the receiving of improper testimony, I think there was none. The journals were shewn to have been printed by the printer to the state, and to have been laid upon the tables of members, where any error would probably have been corrected. They were proved by the clerk. This was certainly, prima facie, enough. A printed copy of public documents, transmitted to congress by the president of the United States, and printed by the printer to congress, has been holden to be admissible as evidence.. As to the rejection of proper testimony; that is necessarliy negatived in the view which I have taken relative to the admissibility of reports and character. 4. Was the verdict against evidence? Whether the libel was true or not, was the question before the jury. The evidence was contradictory. It was the province of the jury to weigh it; and the court ought not to set aside the verdict unless in a clear case. 5. Are the damages excessive? In the case of Tillotson v. Cheetham, (2 John. 63,) the recovery was $1400 in favour of the secretary of state, against a printer, for a libel imputing to him corrupt conduct. The court said, "We can not interfere on account of the damages. A case must be very gross, and the recovery, enormous to justify our interposition on a mere question of damages, in an action of slander.” The same point was so decided in Coleman v. Southwick, (9 John. 45.) and Southwick v. Stevens, (10 John. 443.) These cases were between editors and printers of newspapers. In one the verdict was $1500; in the other $640. In actions for libel and for other defamation, unless some rule of law has been violated, or there has been some improper conduct by the parties or jury, a new trial will not be granted. (3 John. 180. 9 id. 36. 15 id. 493.) The motion for a new trial must New trial denied. be denied. Reference has been made to the British books for the definition of felony. It has also been urged, that as the law in force at the time of adopting the constitution, had declared certain crimes to be felonies, there was something for that instrument to operate on in the use of the term felony-that, as in the revised code, certain offences are still declared to be felonies, and neither murder, nor homicide of any grade, is so called, that, therefore, murder in this state is not felony. On the first point, the court remarks, that the term felony has been adopted by us from the jurisprudence of England; and, probably, into that from the Teutonic or German laws and institutions. In this country, its signification is different from what it is England, and there, probably different from what it was in the Teutonic or German laws. In the latter, the fee, that is the fief or land, was only forfeited-but in England, both the fee and goods, in some cases are forfeited. It was adopted in England as a technical term, and in the course of time its meaning was, probably, changed as above specified. Mr. Justice Blackstone says, that, "by long use we began to signify by the term felony the actual crime committed, and not the penal consequence."→ Again, he says, "the idea of felony is indeed so generally connected with that of capital punishment, that we find it hard to separate them; and to this usage the interpretations of the law do now conform; and, therefore, if a statute makes any new offence felony, the law implies that it shall be punished with death." He, therefore, uses it as a general term, including all capital crimes below treason. In this country, it has also been adopted into our statutes and law language. It will be found to have been employed several times in the constitution of this State, (see art. 3. sec. 8, and 23; also art. 13, declaration of rights, sec. 15), and very often in our statutes, (see revised code, title, crimes and misdemeanours, chap. 1 and 2.) By an examination of these references and the constitution, it will be seen, that it has become a term in common use with us, and means something very different from what it did in Eng land. This court is, therefore, now called on for the first time, as it is believed, in this country, to expound the law in this particular, and to define the term felony, un der our constitution and laws.And I am of opinion that the term felony, in this country, means all crimes or offences above the grade of misdemeanours, Mr. Christian says, it is used in England in contradistinction to misdemeanours, and that misdemeanours comprehend all indictable offences which do not amount to felony. I, therefore, consider the use of the term in our system of jurisprudence, as descriptive of the offence, or its grade, without any reference to its punishment' or consequences. Hence in the use of the term felony, in the 56th section of the "act concerning crimes and punishments," on which the indictment is founded, I am of opinion, that the legislature meant all crimes whereof the punishment is death, and such others as are expressly declared to be felony by that act, and perhaps, I may go further, and say, all such whereof the punishment, by the common law, was the forfeiture of goods or lands. Such I find to be the fact in Virginia: as may be seen by Tucker's Blackstone, page 95, note (1.) The learned judge there remarks, that, "although forfeiture of lands, as well as of goods, is abolished in Virginia, yet this does not alter the nature of felony but all offences which induced a forfeiture at the common law, or which have been declared capital by statute, still remain felonies, as if the, consequences were still the same. : On the second point I will only remark, that felony not being punishable in this state with forfeiture, it becomes unnecessary, in my opinion, to charge a murder, for example, to have been feloniously committed, and that murder here, as well as in England, necessarly means felony. It will hence follow, that, in my opinion, it was not necessary to aver in this indictment, that the trial of Soye, for the murder of Reddit, in which the perjury was committed, was a trial for a felony. It will be observed, however, that this indictment does state, that Soye was tried for the felonious murder of Reddit. On the third point, it is understood to be urged, that it is not from a charge of murder, in its broadest and most general signification, that the prisoner is charged with having intended to discharge Soye, but only the particular act charged in that indictment, as a murder-that as every indictment for murder is necessarily an indictment for man-slaughter, it will follow, that one for man-slaughter only, will never be preferred under this law, because, if perjury be thereon committed, the punishment will not be death. It will at once be observed, that the statute in this case, declares, that on conviction, the party shall suffer such punishment as is due to the crime with which he has discharged, or attempted to dis charge, the other, and not the crime of which the party on trial may be convicted. If, as is contended on this point, it was the intention of the legislature, that the prisoner should suffer, on conviction, only such punishment as Soye has been sentenced to receive, on his conviction for manslaughter, instead of murder, it is inconceivable why such different language has been employed by the legislature. Indeed, it will necessarily suggest itself to the mind of every one, that the charge of murder may be reduced to manslaughter, by the perjury itself, and that the party would not only have a powerful motive for reducing the charge, but would, in that event, enjoy the benefit of the perjury. If the intention of the legislature was what is contended for by the prisoner, it was easy for them to say so. But how very different is the language of the act. The evil resulting, in practice, from construing this statute agreeably to its plain meaning, and the force and effect of the terms employed, is one that this court cannot control and it would be nothing less than a direct act of legislation in this court, to say, that the punishment which the prisoner shall suffer, on this indictment, shall be such as is prescribed for the crime of nianslaughter, whereof Soye was con victed-whereas the law expressly says, it shall be such as is due to the crime with which he discharged or attempted to discharge, Soye. It is needless to add, that the punishment or murder being death, under this construction of the law, that of the prisoner at the bar must also be death. SENTENCE.* John Brewer: You have been indicted for perjury, and found guilty. The court has heard the objections made by your counsel, why sentence should not now be pronounced against you. It has listened to and examined them, with all the attention and ability in its power. It has considered them with a full knowledge of the awful consequences to you, should they be overruled, and with a deep and appalling sense of its own responsibility You have had able counsel assigned to you, who have distinguished themselves in your defence. Every thing that talents and ingenuity could effect, has been attempted in your behalf; but such has been the irresistible strength of the current of evidence and law against you, that both the jury and the court have been constrained to pronounce you guilty. Twelve of your fellow citizens have passed on the question of your guilt or your innocence, and it surely cannot yet have escaped your recollection, that after the very able effort of the counsel in your behalf, they required but a few moments to pronounce you guilty. It is needless to say from how much responsibility it would have relieved the court, if the jury had found you not guilty, and how much pleasure it would have afforded the judge, to have been relieved from this most unpleasant duty, which he has now to perform. Your counsel, as they have repeatedly declared to the jury, have in vain sought for your motive in the committing of this crime; and, although by the laws of your country you have been declared guilty, it is possible, in the All-Seeing eye of your God, you may not be so. It is my most earnest wish, that this may be the case; but, if not, your motive is between him and yourself; and in the name of the violated laws of our common country, I now call upon you to prepare to die. You are now on the brink of the grave: You are on the borders of eternity; you are now rapidly hastening to that unknown land," from whose bourne no traveller returns." If you in reality be guilty, in the sight of God, as well as man, let me most earnestly exhort you to repent. The crime of perjury, of which you have been convicted, is justly described in the indictment, as being committed to the great |