Braintree March 7. 1789
I am greatly obliged, by the Letter you did me the Honour to write me on the 18th. of February; and regret very much the want of Leisure to examine the Subject of it, with that attention which its great Importance required.
That the Truth; may be pleaded in Bar of a civil Action for Damages, for actionable Words, Spoken or written, I remembered very well: but it lay in my mind that Some just Cause for publishing it, must be added. You may easily conceive a Case, when a Scandalous Truth may be told of a Man, without any honest motive, and merely from malice, in Such a Case, Morality and religion would forbid a Man from doing Mischief merely from Malevolence, and I thought that Law would give damages. The Case in 11. Mod. cited by Blackstone I have not an opportunity to examine. But this is a Point of no great Consequence at present.
The difficult and important Question is whether, the Truth of Words, can be admitted by the Court to be given in Evidence to the Jury, upon a Plea of Not guilty.? In England I Suppose it is Settled.—But it is a Serious Question whether our Constitution is not at present So different as to render the Innovation necessary.? our Chief Magistrates and Senators &c are annually eligible by the People? how are their Characters and Conduct to be known to their Constituents but by the Press? If the Press is to be Stopped, and the People kept in Ignorance, We [had] much better have the first Magistrate and Senators heriditary. I therefore, am very clear, that, under the Articles of our Constitution, which you have quoted, it would be Safest to admit Evidence to the Jury of the Truth of Accusations, and if the Jury found them true and that they were published for the Public good, they will readily acquit.
In answer to the concluding Part of your Letter, I beg leave to Say that I am indebted to your Friendship, in Part at least for a destination to another office much too high, difficult and important for my Forces. But having been found by the Course of Things, heretofore, So often to undertake Truth out of all Properties to my Talents, and having been Supported through them by good Fortune, and the favour of the World, I must again rely upon the Same assistance.—One Comfort has always alluded me.—I have been always best supported by those whom I love and esteem the most.
With the highest Respect and Esteem I have / the Honour to be, dear Sir, your affectionate / Friend and most humble Servt.
MHi: William Cushing Papers.