Three Letters to Morgan Lewis
ON HIS PROSECUTION OF
THOMAS FARMAR, FOR ONE HUNDRED THOUSAND DOLLARS DAMAGES
Philip Foner's introduction:
Morgan Lewis, formerly Attorney-General and Justice of the Supreme Court in New York, was nominated and elected Governor of the Empire State in 1804. During the campaign a meeting to oppose his election was held by Republicans in New York City and Lewis was accused of working secretly with the Federalists. After the election, Governor Lewis sued Thomas Farmar, chairman of the meeting, for libel. Paine wrote these public letters to arouse public support for Farmar. They appeared in the New York Public Advertiser and the Philadelphia National Aurora of April 27, 1807. Later they were published in pamphlet form.
THE proud integrity of conscious rectitude fears no reproach, and disdains the mercenary idea of damages. It is not the found, but the ulcerated flesh that flinches from the touch. A man must feel his character exceedingly vulnerable, who can suppose that anything said about him, or against him, can endamage him an hundred thousand dollars: yet this is the sum Morgan Lewis has laid his damages at, at his persecution of Mr. Farmar, as chairman of a meeting of Republican citizens. This is a case, abstracted from any idea of damages, that ought to be brought before the representatives of the people assembled in legislature. It is an attempted violation of the rights of citizenship, by the man whose official duty it was to protect them.
Mr. Farmar was in the exercise of a legal and constitutional right. He was chairman of a meeting of citizens, peaceably assembled to consider on a matter that concerned themselves, the nomination of a proper person to be voted for as governor at the ensuing election. Had the meeting thought Morgan Lewis a proper person, they would have said so, and would have had a right to say so. But the meeting thought otherwise, and they had a right to say otherwise. But what has Morgan Lewis, as governor, to do with either of these cases. He is not governor jure divino, by divine right, nor is he covered with the magical mantle which covers a king of England, that HE can do no wrong; nor is the governorship of the state his property, or the property of his family connections.1
If Morgan Lewis could be so unwise and vain as to suppose he could prosecute for what he calls damages, he should prosecute every man who composed that meeting, except the chairman; for in the office of chairman Mr. Farmar was a silent man on any matter discussed or decided there. He could not even give a vote on any subject, unless it was a tie vote, which was not the case. The utmost use Mr. Lewis could have made of Mr. Farmar would have been to have subpoenaed him to prove that such resolves were voted by the meeting; for Mr. Farmar's signature to those resolves, as chairman of the meeting, was no other than an attestation that such resolves were then passed.
Morgan Lewis, in this prosecution, has committed the same kind of error that a man would commit who should prosecute a witness for proving a fact done by a third person, instead of prosecuting that third person on whom the fact was proved. Morgan Lewis is, in my estimation of character, a poor lawyer, and a worse politician. He cannot maintain this prosecution; but I think Mr. Farmar might maintain a prosecution against him. False prosecution ought to be punished; and this is a false prosecution, because it is a willful prosecution of the wrong person. If Morgan Lewis has sustained any damage, or any injury, which I do not by the chairman. The resolves of a meeting are not the act of the chairman.
But in what manner will Morgan Lewis prove damages? Damages must be proved by facts; they cannot be proved by opinion-opinions prove nothing. Damages given by opinion, are not damages in fact, and a jury is tied down to fact, and cannot take cognizance of opinion. Morgan Lewis must prove that between the time those resolves were passed, and the time he commenced his prosecution, he sustained damages to the amount of one hundred thousand dollars, and he must produce facts in proof of it. He must also prove that those damages were in consequence of those resolves, and could he prove all this, it would not reach Mr. Farmar, because as before said, the resolves of a meeting are not the act of the chairman.
This is not a case merely before a jury of twelve men. The whole public is a jury in a case like this, for it concerns their public rights as citizens, and it is for the purpose of freeing it from the quibling chicanery of law, and to place it in a clear intelligible point of view before the people that I have taken it up.
But as people do not read long pieces on the approach of an election, and as it is probable I may give a second piece on the subject of Damages, I will stop where I am for the present.
In my former letter, I showed that Morgan Lewis could not maintain a prosecution against Mr. Farmar because the resolves of a public meeting are not the act of the chairman. His signature affixed thereto is not even evidence of his approbation, though I have no doubt myself but he approved them. It is put there for the purpose of certifying that such resolves were passed. In this letter I shall proceed further into the subject.
This prosecution is, upon the face of it, an attempt to intimidate the people in their character as citizens, from exercising their right of opinion on public men and public measures. Had it been a prosecution by one individual against another individual, in which the people had no interest or concern, I should not have taken the subject up. But it is a case that involves a question of public rights, and which shows that Morgan Lewis is not a proper person to be entrusted with the guardianship of those rights. In the second place, it is a bad example, because it is giving, as governor of the state, the pernicious example of instituting frivolous prosecutions for the purpose of making money by them. A man of conscious integrity would feel himself above it, and a man of spirit would disdain it.
One of the objections stated against Morgan Lewis in those resolves, is, that he had formed a coalition with the federalists. If Morgan Lewis conceived and felt this to be a disgrace to him, he must necessarily, as a cause for that conception, have considered the federalists an infamous set of men, and it is now incumbent on him to prove them such, as one of the grounds on which he is to prove damages. It it tantamount to his having said, in his own manner of speaking, they accuse me of being associated with scoundrels. Morgan Lewis is a weak man. He has not talents for the station he holds. He entraps himself in his own contrivances.
But if the objection contained in the resolves was ill-founded, why did not Morgan Lewis come forward in the spirit of a man and the language of a gentleman, and contradict it. He would have gained credit by this, if he was innocent enough to have done it. The objection against him was publicly stated, and if not true ought to have been publicly refuted; for as Morgan Lewis is a public man, and the case involves a public question, it is the public of all parties that have a right to know if the objections against him are true or not. This case is not a question of law, but a question of honor and of public rights.
The man who resorts to artifice and cunning, instead of standing on the firm and open ground of principle can easily be found out. When those resolves first appeared, Morgan Lewis must have felt the necessity of taking some notice of them; but as it did not suit him at that time either to acknowledge them or contradict them, he had recourse to a prosecution, as it would afford a pretence for doing neither. A prosecution viewed in this light would accommodate itself to the situation he was in, by holding the matter in obscurity and indecision 'till the election should be over. But the artifice is too gauzy not to be seen through, and too apparently trickish not to be despised.
As to damages, Morgan Lewis has sustained none. If those resolves have had any effect, it has been to his benefit. He was a lost man among the republicans before the resolves appeared, and their public appearance has given him some standing among such of the federalists who are destitute of honor and insensible of disgrace. These men will vote for him, and also for Rufus King, the persecutor of the unfortunate Irish.2
I now come to speak on the subject of damages generally; for it appears to me that certain juries have run into great mistakes on this subject. They have not distinguished between penalty and damages. Penalty is punishment for crime. Damages is indemnification for losses sustained. When a man is prosecuted criminally, all that is necessary to be proved is, the fact with which he is charged, and all that the jury has to do in this case is to bring in a verdict according to the evidence given. The court then passes sentence conformable to the law under which the crime is punishable. If it is by fine, or imprisonment, or both, the law generally limits the extent of the fine or penalty, and also the period of imprisonment. It does not leave it to any mad-headed, or avaricious individual, or to any jury, to say it shall be an hundred thousand dollars.
But in prosecutions for what are called damages, two things are necessary to be proved. First, the words spoken or published, or actions done. Secondly, damages actually sustained in consequence of those words or actions. The words or actions can often be proved, and Morgan Lewis may prove that certain resolves were passed at a meeting of the citizens, at which Thomas Farmar was chairman. But unless Morgan Lewis can prove that the meeting exercised illegal authority in passing those resolves, and that he has sustained damage in consequence thereof, a jury can award him no damages: and certain it is, the juries in cases of prosecution for what is called damages, cannot inflict penalties. Penalties go to the state, and not to the individual. If in any of the late prosecutions, juries have awarded damages where damages were not proved, the execution of the verdict ought to be suspended, and the case referred to a new trial.
In this letter I shall continue my observations on damages. The one is the man whose character is already so infamous that nothing said of him can make him appear worse than he is. The other is the man whose character is so invulnerable that no reproach against him can reach him. It falls pointless to the ground, or reacts upon the party from whence it came.
The first time Mr. Jefferson was elected president the majority in his favor was 92 to 84. As this majority was small, the faction of the Feds redoubled their abuse and multiplied falsehood upon falsehood to throw him out at the next election. Their malignity and their lies were permitted to pass uncontradicted, and the event was, that at the next election Mr. Jefferson had a majority of 162 to 14.
As this is an instance that invulnerable character cannot suffer damage, I leave it to Coleman, Cullen and Rufus King to identify the persons of the contrary description; and they may, if they please, draw lots among themselves to decide which of them shall stand foremost on the list of infamous security from damage:
When Morgan Lewis in conversation with William Livingston, said that "De Witt Clinton, Judge Comstock, and fudge Johnson were three of the damnedest rascals that ever disgraced the councils of a state" the venom and vulgarity of the expression, were too visible to do injury, and the character of the man who said it, too equivocal to obtain credit. It was not worth the trouble of contradicting. Calumny is a vice of a curious constitution. Trying to kill it keeps it alive; leave it to itself and it will die a natural death.
Chancellor Lansing's ill judged and ill written address to the public comes precisely under the head of calumny3. He insinuated in that address a charge against Gov. Clinton when he (Gov. Clinton) was almost three hundred miles distant from New York, and when called upon by George Clinton Jr. to explain himself, that the public might know what he meant refused to do it. Mr. Lansing holds the office of Chancellor during good behavior, and this is the reverse of good behavior. The words good behavior which are the words of the constitution must have some meaning or why are they put there. They certainly apply to the whole of a man's moral and civil character and not merely to official character. A man may be punctual in his official character because it is his interest to be so, and yet be dishonorable and unjust in every thing else.
Mr. Lansing should have recollected that Gov. Clinton's long experience in the office of governor enabled him to give useful advice to a young beginner, and his well known integrity precludes every idea of his giving any other. If Governor Clinton gave any advice to Mr. Lansing on the subject he speaks of, Mr. Lansing ought to have felt himself obliged to him, instead of which he has turned treacherous and ungrateful.
But though men of conscious integrity, calm and philosophical, will not descend to the low expedient of prosecuting for the sake of what are called damages, there nevertheless ought to be a law for punishing calumny; and this becomes the more necessary because it often happens that the prosecutor for damages is himself the calumniator. Morgan Lewis's prosecution of Thomas Farmar for one hundred thousand dollars damages, is holding Mr. Farmar up to the public as an unjust man. Maturin Livingston is playing the same game towards Mr. Jackson, one of the editors of the independent Republican, and the Anglo Irish Imposter Cullen, who is secured from damage by the infamy of his character, is trying to make three thousand dollars out of Mr. Frank, one of the editors of the Public Advertiser. As the matter stands at present, a rogue has a better chance than an honest man.
There is not a man in the United States, Thomas Jefferson excepted, that has been more abused by this mean and unprincipled faction than myself; yet I have never prosecuted any of them. I have left them to welter in their own lies. But had there been a law to punish calumny and lying by penalty and the money to be given to the poor, I would have done it. But as to damages, as I do not believe they have character enough of their own to endamage mine, I could claim none.
JAMES MONROE AND RUFUS KING
The names of Monroe and King ought not to be mentioned in the same breath, but for the same purpose of framing the different character [s] of the two ministers.
When Hamilton Rowan effected his escape from an Irish prison and came to Paris he met Thomas Paine in the street and they agreed to spend the day together in the country. Mr. Paine called on Mr. Monroe to inform him of it and that he should not dine with him that day. On Mr. Paine mentioning the name of Hamilton Rowan, Mr. Monroe desired Mr. Paine to introduce him, which he did. Mr. Monroe received him with great cordiality and respect. Mr. Rowan then took his leave and when they were descending the stairs to go their country walk, Mr. Monroe called Mr. Paine back and said to him, "As Mr. Rowan has met with a great many difficulties it is most probable he may be in difficulty with respect to money; please to tell from me that I will supply him."
Compare this nobleness of heart with the scoundrel conduct of Rufus King towards the comrades of Hamilton Rowan and every man of honor and feeling must despise and detest the wretch.
Lewis had married Margaret Beekman Livingston and was thus allied with the wealthy "Livingston interest."-Editor.
In 1798, after the Irish rebellion was suppressed by the British, the British government consented to spare the lives of the leaders of the rebellion on condition that they would go to some other country. They chose to go to the United States, but Rufus King, Federalist minister plenipotentiary to Great Britain, refused to permit them to come to this country. In a letter to the Secretary of State, June 14, 1798, he urged that these "Malcontents" be kept out of the United States. See Charles R. King, The Life and Correspondence of Rufus King, 6 vols., New York, 1895, vol. II, pp. 637-38.-Editor.
John Lansing became Chancellor of New York State in 1801 and held the post until 1814.-Editor