delivered the opinion of the Court.
This is an action of libel against the defendants, now • appellants, editors and proprietors of a newspaper. Without setting out the alleged libel at length, it is sufficient *175to say, it charges the plaintiff, elected, as a republican senator from Washington County, with being under the influence and control of a corrupt democratic ring — with having participated in the republican caucus in nominating Mr. Pratt as Treasurer, and afterwards with having voted for Mr. Compton, the democratic ring candidate— with having aided the ring senators in defeating the bill for repealing the Act authorizing the publication of the laws in newspapers, and by so doing, had proved false to his political obligations and a traitor to his party, and had brought dishonor upon the republicans of Washington County, who had elected him to the Senate.
It further charges him with having a contract to furnish stone to the canal, which was given to him by its president, Mr. Gorman, the head and front of the democratic ring, because he was a senator, and “had a vote to give in the Senate,” and for no other reason.
The article then concludes by saying, “The fruits of the ■'contract to furnish stone to lengthen lochs on the canal are iappealing. Look out for more.”
The question presented by the demurrer is, whether a publication making such charges as these in regard to the •official conduct of the plaintiff is in law a libel ?
Tt is well settled that any publication which tends to injure one’s reputation, and expose him to hatred or con-tern])!, if made without lawful excuse, is libellous.
It can hardly be necessary to say that such charges as these, against the official conduct of the plaintiff, and the imputation of the base and sordid motives by which such conduct was governed, were calculated to injure his reputation and expose him to the contempt of all honorablo men. Independent altogether of the innuendoes, the article on its face shows that these charges were made against the plaintiff, and we have no hesitation, therefore, in saying that the publication is in itself libellous.
If so, the question then is, whether it was published without lawful excuse ? And in this behalf it is insisted *176the defendants, as proprietors of a newspaper, had the right to criticise and censure the official acts and conduct of the plaintiff as senator, and if the article in question was published in good faith and without malice, honestly believing it to he true, they are not liable for damages. In other words, as proprietors of a newspaper they have the right to say whatever they please in regard to the official conduct of a public man, however false and libellous it may be, and impute to him corrupt and unworthy motives, provided they do so in good faith, and without malice, honestly believing it to he true. No such privilege is recognized by law. The liberty of the press guaranteed by the' Constitution is a right belonging to every one, whether proprietor of a newspaper or not, to publish whatever he pleases, without the license, interference or control of the government, being responsible alone for the abuse of the privilege. It is a right which, from the introduction of the printing press down to the year 1694, did not in England belong to the subject. On the contrary, no one was allowed to publish any printed matter without the license and supervision of the government, and it was against such interference on the part of the government, and in favor of the right of the citizen, that this provision found its way into our Bill of Rights.
It has only been within recent years, says an eminent Judge, that the law of libel has gradually developed itself into anything like a satisfactory and settled form, and the full liberty to criticise the conduct and motives of public men, and the measures and policy of government now recognized as lawful, would, half a century ago, have exposed the author to fine and punishment. Cockburn, C. J., Wason vs. Walter, Law Rep., 4 Q. B., 15.
No one denies the right of the defendants to discuss and criticise boldly and fearlessly the official conduct of the plaintiff. It is a right which, in every free country belongs to the citizen, and the exercise of it, within lawful *177and proper limits, affords some protection at least against official abuse and corruption. But there is a broad distinction between fair and legitimate discussion in regard to the conduct of a public man, and the imputation of corrupt motives, by which that conduct may be supposed to be governed. And if one goes out of his way to asperse the personal character of a public man, and to ascribe to him base and corrupt motives, he must do so at his peril: and must either prove the truth of what he says, or answer in damages to the party injured.
The fact that one is the proprietor of a newspaper, entitles him to no privilege in this respect, not possessed by the community in general. The law recognizes no duty, imposed on him, arising from his relations to the public;, to defame and libel the character of any one, and if lie does, it is no answer to say, he did so in good faith, and without malice, honestly believing it to be true. Malice in one sense may be said to be an essential element in an action for libel, but not malice in the ordinary sense of hatred or ill will against the person, of whom the defamatory words are spoken. If the publication be in itself libellous, the law in all such cases implies malice ; in other words it says, you have no right to libel another, whatever may have been the motive or intention.
In Campbell vs. Spottiswoode, Law Rep., 8 Law Times, N. S., 201, this privilege was claimed by the editor of the Saturday Review as a bar to the action, but Blackburn, J., said:
“A writer in a newspaper stands in no other position than, any other of the Queen’s subjects. Then it was said that., according to the authorities, an honest belief in the truth of the libel was an answer. But that is not so.”
( ’rompton, J. “ It is said that there is a privilege in newspaper writers to publish comments on public matters, if. they write honestly and believe their comments to be true. 1 am at a loss to see how any one has any right to go beyond *178fair comment 01* discussion, and impute base motives, merely because he believes them to be true.”
And such we understand to be the settled law on the subject. And there was no error in overruling the defendants’ demurrer to the declaration, and in sustaining the demurrer to their second and third pleas.
- These pleas being out of the way, the case was tried on the general issue plea of not guilty, and under this issue, all the law applicable to the case was fairly submitted to the jury. The article being per se libellous, and its publication being established, the only question before the jury, was the amount of damages, which, under all the circumstances, the plaintiff was entitled to recover. In estimating these, they were to consider whether it was published maliciously and wantonly, for the purpose of injuring the character and reputation of the plaintiff; or as editors of a newspaper, honestly commenting upon the official acts and conduct of the plaintiff, and in the belief of its truth. And so the Court instructed the jury.
The defendants’ second prayer, however, presents a question of interest, and which in view of the present practice in England, and in some States in this country, requires more than a passing notice ; and that is, in a civil action whether the question of libel or no libel is one for the Court to determine, or whether it ought to be submitted to the finding of the jury. Whatever may have been the earlier rule on this subject, the practice seems to be well established now in England, for the Court to instruct the jury, as to what in law amounts to a libel, and then to leave it for them to find whether the publication be libellous or not. Upon an examination of the cases, however, it will be found, we think, that this practice has grown out of the provisions of Mr. Fox’s Libel Act in criminal prosecutions for libel, and it is somewhat curious to note some of the results to which this practice has led.
*179In Parmiter vs. Coupland, et al., 6 Mees. & Wels., 105, decided in 1840, Coleridge, J., told the jury that there was a difference with regard to censures on public and on private persons ; and having told the jury what, in point of law, constituted a libel, he left it to them to say, whether the publications in question were calculated to be injurious to the character of the plaintiff. The jury found a verdict for the defendants. Motion for a new trial was then made, on the ground that the Judge ought to have directed the jury, that the publications were in law libellous. 'When this motion came up for hearing in the Court of Exchequer, Parke, B., interrupting the counsel, said, “the practice used to be as you say before Mr. Pox's Act.” “That Act,” the counsel replied, “is expressly confined to criminal cases.” Parke, B., “It is true: but it has been the constant practice, in recent times, for the Judge to define what is a libel, and then, leave it to the jury to find, first, whether the writing complained of was published by the defendant; and, secondly, whether it fell within the definition of the offence.” The Court held there was no misdirection on the part of the Judge below, but granted a new trial, because the verdict was wrong. In other words, having decided that it was the province of the jury, to find whether the publications were libellous, and the jury having found they were not, the Court granted a new trial, because the jury ought to have found they were libellous.
The case of Parmiter vs. Coupland, et al., was followed in the same year by Baylis vs. Lawrence, in the Queen's Bench, 11 Ad. & Ell., 920. Lord Chief Justice Abieger, before whom the case was tried, left it to the jury to find whether the publication was a libel; and on motion for a new trial, Lord Deemae said he had always followed the practice adopted by Lord Abieger, leaving the jury to find under all the circumstances, whether the publication amounts to a libel. The practice is analogous to the *180enactments of 32 Geo. III, chap. 60, “ Fox’s Libel Act.” This Act is not in force in this State, and here the Court has always decided whether the publication is in law a libel, leaving to the jury to find the fact of publication, and such other facts'as may be pertinent to the issue ; and we see no good reason for changing the practice. In actions of slander, the question, whether the words spoken are in themselves actionable, is a question of law for the Court, and for the same reason, when the slanderous words are published, if the jDublication be free from ambiguity, the question whether they are libellous, is a question of law for the Court.
The other prayers are based either on the theory, that the defendants were exempt from liability, because thejr were the proprietors of a newspaper, or that the publication was not in law libellous, and these prayers, for the reasons already expressed, were properly refused.
We come now to the questions arising uj>on the exceptions to evidence. As we have said, the real question in this case was one of damages, and in mitigation of these and to disprove malice in fact, "the defendants were permitted to prove certain facts and circumstances, as tending to give color to the charges and statements made in the publication. And for this purpose, they proved that when the bill repealing “the newspaper law,” was before the Senate on its passage, the plaintiff voted to commit it to the finance committee, and that with the exception of Mr. Lancaster, all the republican senators voted the other way; — that in the election of Treasurer, Mr. Compton, the democratic candidate, received two republican votes, and that they were informed one of these votes was cast by the plaintiff; also evidence tending to prove that the plaintiff and one Hawkins had a contract in 1881, to furnish stone to the canal.
Now to rebut this evidence, and to show the quo animo with which the defamatory language was used, the *181plaintiff' liad the right to prove he did not in fact vote for Mr. Compton, that there was no arrangement or understand in g of any kind with Mr. Gforman, the president of the canal, or with any one else in regard to his vote for Treasurer; and there was no error, therefore, in the rulings of the Court in the fourth, fifth and sixth exceptions.
In considering the third exception it must be borne in mind that the plaintiff, for the purpose of proving ma.lice hi fact, had offered in evidencie, other libellous articles of similar import, published by the defendants subsequent to the one set out in the declaration. The defendants had the right to prove the truth of these subsequent libels, and to prove all the facts and circumstances surrounding their publication. Wagner vs. Holbrunner, 7 Gill, 296.
On the other hand, it was competent for the plaintiff to prove that they were not published in good faith, but were published maliciously and wantonly, for the purpose of do laming and injuring his character. With that view and for that purpose, he had the right to show that before these libels were published, he had in fact voted for the repeal of “Ike newspaper lato,” and that this fact was known to the defendants. The weight to be attached to such evidence was a question for the jury.
In the first exception, the defendants offered to prove what it cost per perch to deliver stone to the canal under the contract of Hawkins and the plaintiff, and the price paid to them forthe same; and also that the contract was given to them without any competition or public notice. The object of this evidence was to show that the contract was one highly beneficial to the plaintiff, and was awarded to them under such circumstances as to excite a reasonable suspicion in regard to its fairness.
In mitigation of damages, the defendants had a right to .prove that the libel complained of was published by them under an honest conviction of its truth, arising from prob*182able grounds of suspicion, lenown to them at the time. Rigdon vs. Wolcott, 6 G. & J., 413; Wagner vs. Holbruner, 7 Gill, 296. But such probable grounds must have been known to them at the time of using the defamatory-language, otherwise such evidence would he inadmissible to repel the presumption of malice arising from the publication of the libel itself. The defendants did not, however, offer to prove that the terms of the contract, or the circumstances under which it was awarded to the plaintiff, were known to them at the time of the publication of the libel sued on, and for this reason the evidence offered by them was inadmissible.
VVe come now to the seventh exception. The defendants had offered evidence, as. we have seen, tending to prove that the plaintiff and Hawkins had a contract to furnish stone to the canal, and that Mr. Gorman was president of the canal, and was chairman of the democratic State central committee.
. Now to rehut this evidence, and to repel any inference that might arise from such proof, the majority of the Court, are of opinion the plaintiff had the right to prove that the price paid for stone under such contract was the same paid to all other persons under similar contracts. I have not been able, however, to persuade myself that such evidence was in rebuttal to anything proved by the defendants. They had, in the first exception, offered evidence tending to show what in fact it cost the plaintiff to deliver the stone under the contract, and how much was paid to him for the same. Now, it seems to me, if they were not permitted to offer evidence from which the jury might find that the contract was awarded to the plaintiff on the ground of favoritism, neither was it competent for the plaintiff to prove facts from which the jury might infer it was a fair and proper contract.. Such evidence was offered by the defendants in mitigation of damages and was excluded, and it does not seem fair that the plaintiff, for the *183purpose of aggravating damages, should have been permitted to prove the plaintiff’s contract to have been a fair and reasonable one. In this view, I am authorized to say, Judge Stone concurs: but a majority of the Court are of opinion for the reasons stated, that such evidence was proper, and the ruling of the Court in this respect must be affirmed.
(Decided 29th March, 1883.)We have not stopped to consider the questions arising on the evidence in the second exception. In regard to this we all agree it was irrelevant, and therefore properly excluded.
Finding no error in the several rulings of the Court below, the judgment will be affirmed.
rJiuUjment affirmed.