George Barrell Cheever: Deacon Giles' distillery (1844)

Here I may properly quote, as the ground of my defence, a passage from the law of libel, which seems to me a sufficient shield, even if I had not the statute for my justification. "Whenever it appears on the plaintiff's own showing, or in evidence on the part of the defendant, that the publication was made upon an occasion, and under circumstances, which afford a primd facie presumption, that, notwithstanding the tendency of the words to defame or disparage the plaintiff, they were not spoken or published with that view, but, on the contrary, in the bona fide discharge of some legal or moral duty to society, or even in the fair and honest prosecution of the rights of the party himself, or the protection of his interests, the plaintiff will fail, unless he can establish the malicious intention by extrinsic evidence, and show that the defendant used the occasion as a mere color and pretext for venting his malice. When the publication arises in the course of discharging any duty, the performance of which is required by the ordinary exigencies of society, although the party was under no absolute legal obligation to perform it, the occasion operates in the nature of evidence, and supplies a prima, facie justification."

In the same tenor, the law on indictment declares that the defendant, to rebut the inference of malice, may "give in evidence any circumstances which show that what he did was done in the fair and honest discharge of any duty to society."

Nothing better could be desired than this interpretation of the law for me to stand upon. Here is an exigency in society precisely such as this law contemplates. It is such an exigency as demands efforts of the same nature with that, which in my case is charged as libellous. Here is a powerful vice spreading through the community. The business of distilling is the great fountain and sustaining cause of that vice. The efforts of good men are demanded against it. Here, then, you have an occasion for the publication of the article. You have a great motive before the mind of the writer. You have a pressing exigency in society. And the article itself exhibits to you the strongest primd facie evidence that it was written to meet that exigency. It was not written for the purpose of attacking any individual; it was not written to defame Deacon Stone; it was not composed with any malicious or injurious intention whatever. I contend that the primd facie evidence itself is almost exclusive of the idea of malice. The feeling with which any unprejudiced individual would peruse the article, would never suggest that idea. The state of mind produced by its perusal is very different from that which would be roused by a defamatory personal attack; it suggests no feeling of anger or bitterness, or malice of any kind; nor does it look as if any such feeling rested in the bosom of the writer.