McClurg v. Ross

• Decision Date: 19 September 1812
• Citation: 5 Binn. 218
• Parties: McCLURG v. ROSS.
• Court: Pennsylvania Supreme Court

5 Binn. 218

McCLURG v. ROSS.

Supreme Court of Pennsylvania.

September 19, 1812

IN ERROR.

With certain exceptions as to persons in office, special damage & c., words are not actionable unless they contain a plain imputation of some crime liable to punishment. And unless the words, in their natural and obvious meaning, impute a crime, no inuendo can help them.

Hence to say of a man, that " he was an United Irishman, and got the money of the United Irishmen into his hands, and ran away with it, " is not actionable, because it imputes a breach of trust, rather than a felony. And if it might be considered to impute a felony in a common case, yet the jury having found that the United Irishmen were an association formed in Ireland for the purpose of overturning the government, it could be no felony to dispossess them of their funds.

THIS was an action in the Common Pleas of Alleghany for words.

The declaration alleged, that the defendant Ross, on the 6th of October 1808, uttered the following false scandalous and malicious words of and concerning the plaintiff, in the presence of divers citizens, to wit " Joseph M'Clurg (the said Joseph meaning) was an United Irishman, and got the money of the United Irishmen into his hands, and ran away with it; (meaning that the said Joseph had absconded, and had feloniously appropriated the said money to his own use, and thus had committed a felony) and is now a rich man at Pittsburg. "

The jury gave a special verdict, in August last, in which they found the publication of the words, in manner and form as the plaintiff had declared; and that the plaintiff was a member of an association of United Irishmen formed in Ireland, the object of which was to effect by force of arms a revolution in the government of that kingdom. But whether the words so spoken were actionable they were ignorant, and prayed the advice of the court. If upon the same matter it should seem to the Court that the words were actionable, then they found the defendant guilty and assessed the damages at 20 dollars, and six cents costs otherwise, they found him not guilty.

The Court below, being of opinion that the words were not actionable, gave judgment for the defendant; and now, upon this writ of error, the case was argued by

Mountain and Wilkins for the plaintiff in error.

A. W. Foster and Baldwin contra.

TILGHMAN C. J. after stating the finding of the jury and the words laid in the declaration, delivered his opinion as follows:

There is no doubt but these words if believed, must very much injure the plaintiff's character. Take them in the mildest sense, and they imply a breach of trust, which is highly dishonourable. This is one of the grounds on which the plaintiff's counsel have rested the support of the action. Cases from the civil law were cited, but we are not governed by the civil law. The common law must be our guide. There is a great difference between words spoken and words written. It is actionable to charge a man in writing, with any thing which may degrade him in the estimation of society. But many things may be spoken which afford no cause of action, although they contain charges of wicked and disgraceful conduct. This distinction is not without reason. Words are often spoken in heat, in haste, and with very little reflection or ill intention, and frequently forgotten or repented of as soon as spoken. But writing requires deliberation, and is therefore more injurious to the character attacked. We are apt to suppose that before a man reduces an accusation to writing, he has satisfied himself of the truth of it; and if he has not satisfied himself, his conduct is certainly very reprehensible. Besides the scandal is more permanent and more widely diffused. So that whether we consider the injury itself, or the mind of the person by whom the injury is committed, a libel is entitled to less allowance than a slander by words. It would be a waste of time to cite cases in support of this distinction. Every one knows that to say of a man that he is a rogue or a liar, is not actionable. It may be asked then, what is the rule by which words are determined to be actionable or not. I will not say that the cases to be found on this point are in perfect unison. But from a full consideration of them, I think myself warranted in laying it down, that (with certain exceptions as to persons in office, special damage & c.) words are not actionable, unless they contain a plain imputation of some crime liable to punishment. Such was my opinion in the case of Shæ ffer v. Kintzer, 1 Binn. 542, and I have found no reason for altering it. Let us then test the words in this declaration by that rule. It is not said that the defendant stole any person's money, but that being an United Irishman himself, he got the money of the United Irishmen into his hands, and ran away with it. Taking these expressions in their natural and obvious meaning, which is the fair mode of construction, they do not seem to import a felonious taking. I should rather understand that M'Clurg had got money into his hands by the consent of the association of which he was a member, and then broke his trust and absconded; very dishonourable conduct to be sure, but very different from felony. But it is said that we must now take it to be a felony, because the declaration avers that the charge of felony was intended, and so the jury have found it. It was decided by this Court in Shæ ffer v. Kintzer, that an inuendo cannot alter or extend the fair meaning of words. Unless the words therefore without torturing them, imply a charge of felony, neither the inuendo nor the verdict will help them. The case of Borman v. Boyer, 3 Binn. 515, was relied on by the plaintiff's counsel. But there the words were much stronger than they are here, for they plainly insinuated a taking in a secret manner and not without guilt. But there is another very striking feature by which this case is distinguished from Borman v. Boyer. The plaintiff was an United Irishman, and it was the money of the United Irishmen that he got into his hands. As an American judge, I know nothing of the dissensions which have distracted the British empire. It is not for me to offer an opinion in this place, whether the government or the people were in the wrong. But so far as the jury have introduced the subject into their verdict, I am bound to take notice of it. The jury then have found, that the United Irishmen were an association formed in Ireland for the purpose of overturning the government by force of arms; in other words, that they were in rebellion, or what could have had no other name from the British government. The charge against the plaintiff is, that he got the money of this association into his hands; for such is the plain meaning of the words. It is refining too much to say, that the words may be applied to the private property of the members of the association. Now then, when a body of men are associated for a treasonable purpose, and have provided money for effecting their object, is it a felony to dispossess them of their funds? Would it be so construed by the British courts, for that is the question? It appears to me that it would not; and therefore I cannot see how the words laid in the declaration import a crime, which rendered the plaintiff liable to punishment. They do not come within the rule which I have laid down, and consequently give no cause of action. I must be of opinion then, that the Court of Common Pleas were right in giving judgment for the defendant.

YEATES J.

Uniformity of decision in the administration of justice under every well regulated government, is of the utmost importance to the general weal. The law is no longer vague or uncertain, the rights of individuals are precisely ascertained, and the streams of justice flow in their accustomed channels.

It is freely conceded, that the cases in our books respecting actions of slander cannot be reconciled. The prevailing opinion formerly was, that defamatory words were always to be construed in their milder sense; but this has been long exploded, and a more correct principle introduced, that their construction shall be governed by their plain and ordinary import, according to the common understanding of mankind. The law in England seems to have been settled in Onslow v. Horne in 1771, 3 Wils. 186, that the words must contain an imputation of some crime liable to punishment, as well as a precise charge. But though the words be not actionable in themselves, yet if spoken of one in any trade, profession or office, which may be of probable ill consequence to such person, they will afford a ground of suit. The imputation of the mere defect or want of virtue, or the disregard of moral duties or obligations, which render a man obnoxious to mankind, is not actionable. Ib. 187. This doctrine has been recognised in Pennsylvania in repeated instances, both before and since the American revolution, as well as in our sister states generally; and if a wise and prudent legislature would fix the law on this matter by positive institutions, I do not know, that a more convenient or proper system could be adopted. To give encouragement to the vindictive passions, by sustaining actions for general expressions of censure by individuals in their daily intercourse with their fellow citizens, would not conduce to the peace of society. But it is not for this court to new model the law; we are bound to pronounce it as it is written.

The jury have here found that the defendant maliciously spoke these words, " " Joseph M'Clurg was an United Irish'man, and got the money of the United Irishmen into his hands and ran away with it, and is now a rich man in Pittsburg. " They have also found, " that M'Clurg was a member of an...