The paper book is not remarkable for its lucid order. Nor is the testimony set out, if it were so given, with the exactitude and precision necessary to indicate with desirable certainty, the materiality of evidence sworn to by the plaintiff, and its alleged variance from the truth; and which was charged by the defendant to have been wilfully corrupt and false. But this defect is compensated by the controlling character of some of the *174points of law arising in the cause, which will be considered, and which relieve this court from any minute attention to the confused mass of testimony — such as it is — contained on the record. The two first errors assigned are of no moment; there is nothing in them which requires further notice. The third is, that the court erred in permitting the defendant to give evidence, in mitigation of damages, of the general character of the plaintiff for truth and veracity. This assignment will cover also the refusal of the court to permit the plaintiff to give evidence of his general character to protect and shield himself, and confining him to evidence of his general character for truth and veracity ; to which the plaintiff excepted. The grievance set forth in the plaintiff’s declaration is, that the defendant charged him with having committed perjury. The defendant withdrew his first plea of not guilty, and relied solely on the plea of justification, on which issue he went to trial. And the competency of evidence as to the plaintiff’s general character for truth and veracity under that issue, is the question to be first resolved. The vibrating decisions of the English courts, seem at lasf to have settled on the position, that the defendant in actions of slander may give the general character of the plaintiff in evidence, in mitigation of damages, on the plea of not guilty, or when the plea is double, not guilty, and the plea of justification super-added. The New York courts, after a contest among the eminent judges who shed such brilliance on her judicial character, finally adopted the same conclusion: and such is the rule in our own courts. But I know of no decision, nor was any such cited in the argument, which adopts the rule in cases where the sole issue was justification. The defendant there seems to throw himself altogether upon the maintenance of the charge made by him, and to reject all aid from other sources. He admits that he made the charge; that he made it because it was true; and in short admits every thing that it was necessary the plaintiff should prove on the general issue, and puts him on his defence as to the particular-charge. It is an issue not dependent upon character, except as to the commission of the offence imputed. If the defendant succeeds in establishing the plaintiff’s guilt, he maintains his issue, and destroys his adversary; and no animal but the ass kicks the dead lion. Why, then, in such cases, give evidence of general character ? And if the defendant fail in maintaining the truth of the charge, which he has deliberately and advisedly put on the record to cover the plaintiff with disgrace — after having fallen short in his attempt thus to reach the heart of his adversary — ought he to be permitted *175to stab Mm in the leg or arm, and to throw himself back on the plea of not guilty, and resort to the plaintiff’s general character to lessen the effects of his malice ? Under such circumstances, the plea of justification is always considered a high aggravation. This plea would seem to throw the plaintiff off his guard in relation to evidence of general character, and attract his attention solely to a defence of the particular accusation. But whether evidence of general character may be given in such cases to mitigate the damages, is not the question here, and is therefore not decided. But can evidence of particular and separate departments of character be lawfully allowed ? Evidence of this kind, when admitted, goes upon the ground, that the jury cannot rightly estimate the damages done to the character, unless they have some idea of its value. But how is character estimated ? Certainly by its general import. It will not do to take up the decalogue and inquire whether a man is generally reputed as addicted to fornication, or adultery, to profane swearing, to Sabbath breaking. Nor would it be allowable to ask whether a man was generally reputed as a covetous person, who loved his neighbour’s goods or his wife; and by the same rule, it is not competent to inquire, whether a man is generally reputed as a liar. If this mode of destroying character was allowed in our courts, the standing of all men would be in peril. We have but few Catos amongst us; and if we had more, such individuals would hardly seek redress in our courts. But the law is not made for the protection of such men; but for the protection of that middle class all the world over, who have a sense of truth, honour and virtue, and who are yet not above the infirmities of life; whose sensibility as to the value of character, and whose liability to err, make them more susceptible of wounds from the shaft of slander. The thousand wagging tongues of this world — sometimes in sport and sometimes in malice — make free with some department or quality of character of good men in the main. And if malice were allowed to seize hold of these reports, and embody them in a court of justice, to destroy character, few men would be safe. The truth is, that it is only in general character that a man finds his true level in society; and that alone ought to mark his value. It is a man’s character in gross, and all taken together, his faults and his virtues — if he have, any, and few but who have some — that forms his individuality as to character; and which ought to determine for how much it is worth. Even a man’s relatives have some interest in his character; Ms wife, and his children are entitled to claim, that whatever of soundness it retains, shall be preserved to them. And I may add, *176that the hopes which we are taught to cherish for the future, lean upon our general character, taking us all in all, for support. The adjudicated cases support this view of the law. In the case of Root v. King, 7 Cow. Rep. 613, it was determined, that so far as character was in issue in an action of slander, it was character in the most general sense, and not failings or vices, which might derogate from a general good character.' Chief Justice Savage says, the proper question is, “ What is the plaintiff’s general character ?” In that cause there wag a plea of not guilty, as well as the plea of justification. The defendant may give in evidence the plaintiff’s general bad character in mitigation of damages: Phillips’ Evidence, old ed. 147. But he maintains, on the authority of Snowden v. Smith, that such evidence is not admissible, when the defendant republishes the slander by his plea, and puts the truth of the words in issue: same book and page. The same principle, to wit, that only the general character can be given in evidence, is maintained in 2 Cow. 813, and in Matson v. Buck, 5 Cow. 499; Bodwell v. Swan, 3 Pick. 376 ; and in Long v. Brougher, 5 Watts and Serg. 439. In the last case, the defendant was not permitted to give in evidence,' that the plaintiff admitted to witnesses that he had been guilty of a similar offence to that imputed to him; nor to give evidence that it was generally reported in the country for many years, that the defendant had been guilty of the same kind of offence as that charged against him. The Chief Justice, in delivering the opinion of the court, observed, that the rule was inveterate, that character can be impeached only by general evidence of its condition: all that opinion powerfully concentrated to the point, will illustrate this subject. Character cannot lawfully be attacked and frittered away in detail. There was error, therefore, in allowing the whole examination to proceed on the ground of general character as to truth and veracity. And there was( especial error, in refusing to let the plaintiff give evidence of his general character to protect himself. There never was a case, where the facts in evidence, as they are on the paper book, could more clearly illustrate the wisdom of the rule, that evidence as to general character alone is proper in such cases. But as this cause may be tried again, I make no observations on the particular facts.
The fourth error assigned is not sustained by the court, and requires no further observation. The remaining six specifications of error relate to the charge of the court, and will be considered together. To sustain the plea of justification in an action for accusing the plaintiff of perjury, the same proof is required as that *177which would be necessary to convict on an- indictment for the crime: Woodbuck v. Keller, 6 Cow. 118; Robert v. Champlain, 14 Wend. 120. Two witnesses, therefore, must concur in proving every material fact sworn to, false; or one witness, and strong circumstances. conducing to that end. But the court below do not give that essential instruction to the jury. They merely instruct the jury, that from the whole evidence of plaintiff and defendant, they must' determine, whether the facts sworn- to were true or false.. Whereas they ought to. have instructed them, that evidence of the same strength was,necessary, as would convict the plaintiff in a criminal -prosecution; and also to haye instructed them what constituted. such evidence. This 'is not specifically assigned, for error; but may, I think, be covered by the whole of the .specifications taken -together. Kive of khe assigned errors point out as many'places in the charge of the court, in which they tell the jury, that the question for them to determine was, whether the testimony given by- L. Steinman was true or false. This is, undoubtedly, error, strong error, unless it is healed by some other' part of the charge! - It is so naked, so meagre, as to be totally inadequate to. the exigencies of the case. It not only left the jury without proper information, but was calculated to lead them astray. The only other parts of the charge, in which this error can be-considered as compensated, are in the two' following sentences: First, “ If you determine that what Mr. Stein-man swore befoi;e the justice was false or untrue, then the plaintiff cannot recover, and your verdict should be for the defendant; because if Steinman did swear wilfully, absolutely,-and falsely on the trial before the -justice, in a matter material t"o the issue, then the defendant' has made good his assertion.” Second,, “To constitute, peij'ury, it is necessary that Steinman should have sworn ..wilfully, absolutely, and falsely, to a matter or point material to the issue.” I .will throw out of view the other parts of the charge indicating the point of inquiry to be, whether the matter Sworn toby Steinman was-true or false, and consider whether the .instruction in the foregoing-sentences was sufficient.. In the first ..place, then, the materiality of the testimony, or the parts of it alleged to be false,, in a trial of this kind, is,a matter of law, which ought to be-decided by the.. court, and not left to the jury; 12 Wend. 500; Rouse v. Boss, 1 Wend. 475; Power v. Pierce, 16 Wend. 450. And the rule.off. law-applies emphatically to .evidence given-before a.justice¡of;the,. peace, where what is material.- and- what is- irrelevant is.’often mingled in. admirable confusion. The trial below, as was stated at *178bar, lasted three or four days, and was concluded at midnight. There is certainly a great mass of testimony jumbled on the paper book. The court tell the jury that the testimony had been fully commented on by the counsel, and leave the question of materiality to be decided by them; which is a question of law and not of fact, and sometimes presents a difficult question of law. The animated and zealous contest of able and ingenious counsel made it only the more necessary that the court should have instructed the jury on this point, and not left them to wander darkling, without notes, through the mass, to ascertain its materiality. In the next place, the definition of what constitutes perjury is inadequate; because, although the court adopt the words of Sir Edward Coke, yet something beyond that was necessary, to give the jury a proper understanding of the crime. The word, wilfully, does not mean, in the common acceptation of the term, corruptly; nor is it predicated of the term falsely, so as necessarily to mean, wilfully false, but is predicated of the oath, meaning that he, Steinman, swore wilfully and falsely: which does not sufficiently exclude all swearing by surprise or mistake, and does not thoroughly imply, that the person taking the oath knew at the .time that he was swearing falsely. Sir William Blackstone, therefore, adds, that the oath must be corrupt and taken malo animo. And in courts, it has been decided, 6 Binney, 249, that it is perjury, if a man swear wilfully, absolutely, and falsely to a matter, which he has no probable cause for believing. Thus clearly adopting the view of Sir William Blackstone, that there must' be the malo animo, the scienter .of falsehood, or a reckless rashness, which is its equivalent. It was proper for the court to have added these explanations to the naked definition given; and for want of them, the jury may have fallen into error, in supposing that swearing wilfully and falsely, by mistake or surprise, was perjury. I will only add, that a person, who wilfully and deliberately pleads a justification in a cause of this kind, ought to be held to the same strictness of proof necessary to convict in a criminal prosecution for the same offence: for the law has so ordained. And if so, the law ought to be declared on the subject by the court, with the same strength and power of protection and punishment, in the one case as in the other. For, although the maintenance of the plea does not send the plaintiff to the penitentiary, it fixes the mark of the crimen falsi on his forehead, and permits him to go at large, despised, hated, and avoided by men.
The judgment is reversed; and a venire de novo awarded.