cuted it with vigor, and to the very verge, it has been said, of a war with Portugal. This is rejection the second! We now proceed to the third rejection. After the delivery of Louis Napoleon's award, two distinct petitions were presented, one to each house of congress, for the allowance of the claim in its present form. And what were the results? In the house of representatives a report of the most favorable kind was made. It says that "a stronger case for relief in equity could scarcely have been presented." The house, not having sufficient time to take up the claim, referred it to this court. Surely that was not a rejection. In the senate an equally favorable report was unanimously presented by the committee on foreign affairs. That committee was composed of men not unknown to fame, most of whom have borne a conspicuous part in the legislation of the country, and all of whom may be supposed to have understood pretty well the principles of justice, and also what was due to the honor of their country. A bill was accordingly brought into the senate for the relief of the claimants. The fate of that bill is the only thing bearing any resemblance to a rejection which has ever occurred in the history of this claim; and therefore it may be proper to state somewhat in detail the action of the senate. It is appealed to as evidence against the justice of our claim, and therefore it is certainly proper to scrutinize it somewhat carefully in order to ascertain whether it amounts to a rejection. The bill was presented, and, without much examination, was lost by a vote of 12 to 21. A reconsideration took place, and by a vote of 22 to 17 it was ordered to its third reading. This is generally regarded as a test vote; but scruples were indulged in, another reconsideration took place, and finally, at the close of the session, after a very animated debate, a full report of which is presented to your honors, the bill was laid upon the table by a single vote. This is not a rejection; it is something like the put-off of a polite but evasive debtor: "Call again to-morrow." The whole technical force of such a vote is to postpone the consideration of a measure for the session. Its moral weight, in this instance, deserves a passing notice. It was 25 to 24; consequently this lean majority-one single legislator-constitutes the whole length, the whole breadth, and the whole strength of the three alleged rejections. The claim was once allowed by a strong vote, and the utmost that can be alleged against it is that it was once indefinitely postponed by a majority consisting of one single vote. It is true, the claimants have been delayed and postponed. They have been turned over to Portugal for redress, and sent muzzled and fettered to the footstool of Louis Napoleon for justice; but their merit has never been denied. Every congressional report upon the subject, and they amount to four in number, covering a period of nearly forty years, is in their favor. Captain Reid has been reproached with sordid motives in mingling with the glorious history of his achievement the acceptance of a pecuniary recompense. Is it dishonorable in the war-worn veteran to accept from the overflowing treasury of his happy and prosperous country the means of subsistence in his old age, and of decent sepulture when his hour of parting shall arrive? Surely The learned solicitor accompanied his lecture on this head with a reference to the example of him whose deeds and memory are deemed the best illustrations of all that is heroic in patriotism, and exalted in honor and moral rectitude. Though Captain Reid presumes not to challenge a comparison, we must say that this allusion of the learned solicitor was most unfortunate. Though there be no comparison, neither is there in this particular any contrast. Though Washington never descended to the grade of a hireling, and persisted to the last in refusing compensation, though he did not even accept reimbursement of his personal expenses from our impoverished treasury during the conflict, yet it is one of the recorded proofs of his practical wisdom, of his freedom from mere sentimentality, and of his precision and exactitude in the details of duty, that, when his country had achieved her independence and was able and willing to do justice, he rendered, in his own handwriting, a minute statement of his expenses in the public service, and received from congress a full pecuniary indemnity. This parallel, which, but for the learned solicitor's introduction of it, we would not have ventured to exhibit, refutes another of his arguments. He says that all claims allowed by government ought to be founded in some prescribed rule of law. Washington declined that very payment for his time and services which the law allowed, and accepted the indemnity which no known law directly sanctioned, but which, being due on principles of natural justice, was conceded by the enlightened equity of congress and the gratitude of his country. Captain Reid asks no gratuity; he asks neither pay nor reward for his personal toil, sufferings, or achievements. Simple indemnity for the actual pecuniary losses of himself and his brave companions is all that he seeks for himself or them. Here and elsewhere, it has been again and again urged that the allowance of this claim would be bad policy and "a dangerous precedent." Paying a just in demnity for such losses, it is said, would lead to numerous claims of the kind. When claims are not founded on meritorious services, they can be rejected; but we cannot see that any mischief will result to our country or its interests from allowing indemnity for the cost of achievements in war, so signal in themselves, and so beneficial in their consequences, as that now under review. May such "precedents" never be wanting. They must ever redound to the profit and honor of our country, and can never prove dangerous, except to our enemies. It is said, if we repudiate the award of Louis Napoleon, it will disturb our amicable relations with France and prevent European potentates from ever acting as umpires for us. France cannot easily make a national quarrel out of our awarding compensation to our gallant tars for doing their duty. And if the effect of your decision should be to deter, for all future time, American statesmen from submitting to the arbitrary determination of a European potentate, without evidence and without argument, questions of fact involving our national honor, so much the better. If it shall also deter European rulers from ever again assuming the decision of such questions, it will render them an important service. He who, by position and circumstances, is disqualified from exercising an impartial judgment, sins against his best interests and his own honor in assuming the office of judge. The award is founded in error. It seeks to falsify American history, to fix a stigma upon our national character, and, at our expense, to rescue our enemy from merited opprobrium. Unless by some competent authority repudiated upon our part, we must be deemed, through all future time, as having subscribed to its truth and our own dishonor. Instead of allowing it to seem thus acquiesced in, this court, as it may do consistently with truth and justice, ought to stamp upon the page of history its indignant reprobation of both the reference and the award. Let it not be said that posterity will prefer to the judgment of this court the award of the impartial referee. In what degree he was impartial may be gathered from the facts. He assumed powers not granted. He gave credit to the denial of a witness whose positive assertion he discredited and solemnly found to be untrue. At the very time of forming his award he was secretly progressing in negotiations for an alliance with Great Britain, the nation chiefly interested against us in the controversy. The importance of that alliance, and the necessity of securing it, may be judged by the stupendous objects it had in view, and is now struggling to accomplish. Neither will it be overlooked that he was chosen to arbitrate as president of the republic of France, and that, when preparing the award, he was actively engaged in undermining the foundations of that government, which, as chief magistrate, he was pledged to maintain. Though the reference was to a president, the award came from a king. With the hand which signed it, he had just stricken down the liberties of his country; that hand was yet reeking with the life blood of a republican constitution. It may not seem strange if, to gratify a monarchical ally, he sacrificed the rights of a republic. You have been asked to avoid scrutinizing too nicely the justice of this award, from considerations of deference to the chief of a sovereign state now in amity with us. We ask you to scrutinize it closely, to judge it fearlessly, and, as becomes an American tribunal, to discard considerations of policy when justice and national renown are involved. If the arbiter were all that his most obsequious admirers would venture to assert, his merits have been sufficiently acknowledged and amply rewarded. The liberties of one republic have been sacrificed to his ambition; let us not immolate the fame of another upon the same unholv altar ARGUMENT IN THE CASE OF ORMSBY AGAINST DOUG- STATEMENT. The mercantile agency has become one of the recognized accessories of the modern business world. Like all innovations, it encountered vigorous opposition, and the rational view of its functions and value taken by the courts was largely due to the efforts of Charles O'Conor, who was interested in much of this early litigation. One of the first cases of this class was Tappan v. Beardsley, in the circuit court for the Southern district of New York. The plaintiff recovered a verdict of ten thousand dollars, but the case dragged along for several years before going to judgment. On appeal to the supreme court of the United States, the judgment was reversed on technical grounds, without any discussion of the application of the law of libel.1 In the meantime, another suit had been brought by one Ormsby against Douglass and others, the successors of Tappan in the same mercantile agency. It appeared that the clerks or representatives of the agency, in a report to a subscriber of the agency, had stated that the plaintiff, whose standing was under investigation, was a counterfeiter, or allied with a counterfeiter. This statement was false, and Ormsby brought an action of libel. The case was tried before Judge Pierrpont, sitting at nisi prius in the superior court of the city of New York, 1858. At the conclusion of the plaintiff's evidence, Mr. O'Conor made the following argument in support of a motion for nonsuit. The motion was granted, and this ruling was subsequently sustained on appeal.' The selection is confined to that part of the argument which deals with the foundations of the principle of privileged communications. ARGUMENT. The case as it is presented by the plaintiff brings up for consideration a question of no intrinsic difficulty, but which, in this precise form, is somewhat novel in the courts of this state. It is therefore of some interest, and may properly have a very full and deliberate consideration. The novel form in which it arises does not necessarily render it difficult to deal with, for it was well said by a learned and able judge, whose remarks are often cited, that, when questions present themselves to a court which are merely new in instance, it is as easy to decide them and to apply principles to them now as it was two centuries ago, and will be as easy two centuries hence as it is now. It is only when, in the common law or in the existing statute law, there can be found no guiding principles, that courts are embarrassed and constrained to await legislative enactments adapted to the case. 110 Wall. 427. 237 N. Y. 377. |