A new trial was moved for, on the following grounds:
1. That the first libel set forth in the declaration is not supported by proof.
2. That the libel stated in the other count was justified.
S. That the jury were misdirected by the judge.
This cause was tried under the qualified abandonment, as stated; to which, objections have been raised in the argument. I consider the doctrine laid down in 1 Sound. 207. n. 2. as the law on the subject, and that the exception is incorrectly taken. The course adopted by the plaintiff was proper ; and it was compe*128tent to him to abandon part of the libellous matter, in any one count, provided the part relied on contained suf-ficient to sustain the action; and as evidence of this, the judge correctly admitted the whole publication containing the libellous matter.
x I do not think the case requires a very minute or extensive examination of the rules of pleading or of evidence, applicable to an action for a libel. These are so fully laid down in the books, and particularly in the famous case of The King v. Horne, in Cowper, recently recognised by this court, in the case of Van Vechten v. Hopkins, as to render a repetition of the law on the subject unnecessary. I shall confine myself to an application of some of the principles thus established, to the facts disclosed in this cause.
It cannot seriously be contended, that the words relied on in the first and third counts, in themselves, are not sufficiently explicit to be well understood ; and that on account of their vagueness and uncertainty, they are not actionable.
The allusion to the plaintiff, in the first part of the publication stated in the first count, is evident, and does not leave a doubt that he was the person intended ; yet as it might possibly require an explanation, the testimony adduced gives such explanation, and wholly removes the ambiguity, if any can be supposed to exist; nor is this paragraph susceptible of a construction different from the one given to it by the witness; that by Genet, the French emissary, was intended the plaintiff in this cause; that the charge of spy, in the next paragraph, if taken in connection with the preceding article, must be applied to the plaintiff, and that Bonaparte meant the emperor of France.
The paragraph containing the charge of spy, immediately follows the animadversions on the plaintiff’s conduct; and from the manner in which it is introduced, no room is left to doubt that this charge was intended to apply to *1290m. It is in vain to say that this might be deemed a separate or distinct paragraph, disconnected with the former part of the publication. It must and will irresistibly be taken in connection, and the meaning and true construction necessarily follows, which manifestly charges the plaintiff with being a spy of the French government ; giving information of the strength, measures, and movements of the government of the United States, to aid the emperor of the French in subjugating them; and, consequently, representing the plaintiff in an odious, if not in a criminal point of view; and, according to the rules of law, libellous in either case. The objection, therefore, to the insufficiency of the proof, as to the first libel set forth in the declaration, cannot be sustained.
I shall now proceed to an examination of the alleged justification of the libellous matter relied on in the 3d count; that the plaintiff' had traitorously betrayed the secrets of his own government. To justify this charge the defendant proved, that the plaintiff had published his instructions as minister, and that his name had been on the list of proscribed emigrants.
It could not be pretended, nor was it attempted, that the plaintiff had not incurred the displeasure of the executive directory of France, and had been proscribed. The cause of this proscription does not appear. That its existence, at the period stated, ought to be deemed conclusive evidence of the alleged treachery to his government, I cannot admit. The plaintiff might have published his instructions, without being subjected to such a charge. It might have been done by him to repel improper accusations, or in exercise of a sound discretion, given him by the power he represented, and not unfrequently extended to persons holding the important office he held under that government. Nor is it unreasonable to infer, that this discretion, in some measure, existed, as the instructions stated that the abandonment of this cautious or (as translated by some) secret policy, depended on *130future .occurrences ; and was to be pursued or not, according to the plaintiff’s own judgment. The proceeding of the executive directory, subsequent to the publication of those instructions, do not prove treachery in the plaintiff. It is a fact, too well attested, that many innocent persons have fallen victims to the measures of that extraordinary tribunal. How far the publication of those instructions operated as treachery to his own government, the jury were to decide; and it was properly submitted to them by the judge, with his opinion, that a strong defence had been made out; giving to the defendant a full opportunity to receive the effect of his justification, which the jury, no doubt, have considered, and their verdict ought not now to be disturbed. A new trial must, consequently, be refused.
Thompson, J. and Van Ness, J. were of the same opinion.
Kent, Ch. j. I am also of the same opinion.I Xvill only add, on the second point, that whether the defendant had made out a justification of the charge that the plaintiff had traitorously made public his instructions, was a mixed question properly submitted to the jury, under the advice of the court. The fact cannot be said to be, per se, traitorous. These instructions are understood to .be confidential and secret; but it does not follow, that they are to remain so in every possible case. The fitness or the fraud of the disclosure will depend upon the motive and the circumstances attending the publication. This seems to be the better opinion of the xvriters cited by the counsel for the plaintiff, and who treat particularly upon this branch of the diplomatic duties. Wicquefort (L' Ambassadeur, tom. 1. s. 14.) says, that the ambassador is not obliged to show his instructions to the foreign court; and he even maintains,' that he ought not to show them, without necessity, and without an express order. If necessity forms an exception to the general *131rule, the ambassador must be left to judge of its force; . . . . and no prudent minister would readily yield to it without strong reasons, sufficient to procure the approbation of his sovereign. In the Dictionnaire Universel of Robinct, (tom. 22. tit. Instruction, s. 3.) it is stated, that sometimes the ambassador shows his instructions, without order; but this, as it is there observed, ought to be the work of reason and of choice, and for some justifiable end. Martens, in his Summary of the Law of Nations, (p. 217.) is equally explicit. He says, that the instructions to the minister are not usually produced to the court where he is sent, unless his own court orders him to do it, or unless he, from urgent motives, thinks himself justifiable in communicating certain passages of them; and that Les Memoires du Comte d'Avaux furnish a number of examples of such communications, and the matter is left to the discretion of the minister. Wicquefort refers to a number of specimens of these state papers, which had been made public, probably, after the negotiations had terminated; and it ought to be observed, in the present case, that when the plaintiff published his letter of instructions, his functions, as minister, had terminated, pr were about to cease. The criminality or innocence of the act will, then, depend altogether upon the intent with which it was done. This is one of those cases in which we may apply the maxim, that actus non facit reum nisi mens sit rea. The more natural inference from the facts before us, is, that the plaintiff published his instructions without any criminal views, and merely to vindicate his official conduct. His object was to prove his fidelity in his trust, and not to betray the essential interests of his government. I think the jury were warranted in drawing this conclusion. The act may have been ill advised or injudicious, without ' being chargeable with perfidious motives. Nor does it appear, that the French government ever considered this act of the plaintiff as ground for any specific charge or complaint.
*132Spencer, j. not having heard cause, declined giving an opinion. the argument in the.
Motion denied.