THREE LETTERS TO MORGAN LEWIS,

ON HIS PROSECUTION

OF THOMAS FARMER, FOR ONE HUNDRED

THOUSAND DOLLARS DAMAGES.

LETTER THE FIRST.

THE proud integrity of conscious rectitude fears no approach, and disdains the mercenary idea of damages. It is not the sound, but the ulcerated flesh that flinches from the touch. A man must feel his character exceedingly vulnerable, who can suppose that any thing said about him, or against him, can endamage him a hundred thousand dollars: yet this is the sum Morgan Lewis has laid his damages at, in his prosecution of Mr. Farmer, as chairman of a meeting of republican citizens. This is a case, abstracted from any idea of damages, that ought to be brought before the representatives of the people assembled in Legislature. It is an attempted violation of the rights of citizenship, by the man whose official duty it was to protect them.

Mr. Farmer was in the exercise of a legal and constitutional right. He was chairman of a meeting of citizens, peaceably assembled to consider on a matter that concerned themselves, the nomination of a proper person to be voted for as governor at the ensuing election. Had the meeting thought Morgan Lewis a proper person, they would have said so, and would have had a right to say so. But the meeting thought otherwise, and they had a right to say otherwise. But what has Morgan Lewis, as governor, to do with either of these cases. He is not governor jure divino, by divine right, nor is he covered with the magical mantle which covers

a king of England, that HE can do no wrong; nor is the go vernorship of the state his property, or the property of his family connexions.

If Morgan Lewis could be so unwise and vain as to suppose he could prosecute for what he calls damages, he should prosecute every man who composed that meeting, except the chairman; for, in the office of chairman, Mr. Farmer was a silent inan on any matter discussed or decided there. He could not even give a vote on any subject, unless it was a tie vote, which was not the case. The utmost use Mr. Lewis could have made of Mr. Farmer, would have been to have subpoenaed him to prove that such resolves were voted by the meeting; for Mr. Farmer's signature to those resolves, as chairman of the meeting, was no other than an attestation that such resolves were then passed.

Morgan Lewis, in this prosecution, has committed the same kind of error that a man would commit, who should prosecute a witness for proving a fact done by a third person, instead of prosecuting that third person on whom the fact was proved. Morgan Lewis is, in my estimation of character, a poor lawyer, and a worse politician. He cannot maintain this prosecution; but I think Mr. Farmer might maintain a prosecution against him. False prosecution ought to be punished; and this is a false prosecution, because it is a wilful prosecution of the wrong person. If Morgan Lewis has sustained any damage, or any injury, which I do not believe he has, it is by the members composing the meeting, and not by the chairman. The resolves of a meeting are not the act of the chairman.

But in what manner will Morgan Lewis prove damages? damages must be proved by facts; they cannot be proved by opinion-opinion proves nothing. Damages given by opinion, are not damages in fact, and a jury is tied down to fact, and cannot take cognizance of opinion. Morgan Lewis must prove, that between the time those resolves were passed, and the time he commenced his prosecution, he sustained damages to the amount of one hundred thousand dollars, and he must produce facts in proof of it. He must also prove that those damages were in consequence of those resolves, and

could he prove all this, it would not reach Mr. Farmer, because, as before said, the resolves of a meeting are not the act of the chairman.

This is not a case merely before a jury of twelve men. The whole public is a jury in a case like this, for it concerns their public rights as citizens, and it is for the purpose of freeing it from the quibbling chicanery of law, and to place it in a clear intelligible point of view before the people, that I have taken it up.

But as people do not read long pieces on the approach of an election, and as it is probable I may give a second piece on the subject of damages, I will stop where I am for the present.

April 14, 1807.

THOMAS PAINE.

LETTER THE SECOND.

In my former letter, I showed that Morgan Lewis could not maintain a prosecution against Mr. Farmer, because the resolves of a public meeting are not the act of the chairman. His signature affixed thereto is not even evidence of his approbation, though I have no doubt myself but he approved them. It is put there for the purpose of certifying that such resolves were passed. In this letter I shall proceed further into the subject.

This prosecution is, upon the face of it, an attempt to intimidate the people in their character as citizens, from exercising their right of opinion on public men and public measures. Had it been a prosecution by one individual against another individual, in which the people had no interest or concern, I should not have taken the subject up. But it is a case that involves a question of public rights, and which shows that Morgan Lewis is not a proper person to be entrusted with the guardianship of those rights. In the second place, it is a bad example, because it is giving as governor of the state, the pernicious example of instituting frivolous prosecutions for the pur

pose of making money by them. A man of conscious integrity would feel himself above it, and a man of spirit would disdain it.

One of the objections stated against Morgan Lewis in those resolves, is, that he had formed a coalition with the Federalists. If Morgan Lewis conceived and felt this to be a disgrace to him, he must necessarily, as a cause for that conception, have considered the Federalists an infamous set of men, and it is now incumbent on him to prove them such, as one of the grounds on which he is to prove damages. It is tantamount to his having said, in his own manner of speaking, they accuse me of being associated with scoundrels. Morgan Lewis is a weak He has not talents for the station he holds. He entraps himself in his own contrivances.

man.

But if the objection contained in the resolves was ill-founded, why did not Morgan Lewis come forward in the spirit of a man and the language of a gentleman, and contradict it. He would have gained credit by this, if he was innocent enough to have done it. The objection against him was publicly stated, and if not true, ought to have been publicly refuted; for, as Morgan Lewis is a public man, and the case involves a public question, it is the publie of all parties that have a right to know if the objections against him are true or not. This case is not a question of law, but a question of honour and of public rights.

The man who resorts to artifice and cunning, instead of standing on the firm and open ground of principle, can easily be found out. When those resolves first appeared, Morgan Lewis must have felt the necessity of taking some notice of them; but as it did not suit him at that time either to acknowledge them or contradict them, he had recourse to a prosecu tion, as it would afford a pretence for doing neither. A prosecution viewed in this light would accommodate itself to the situ ation he was in, by holding the matter in obscurity and indecision till the election should be over. But the artifice is too gauzy not to be seen through, and too apparently trickish not to be despised.

As to damages, Morgan Lewis has sustained none. If those resolves have had any effect, it has been to his benefit. He was a lost man among the Republicans before the resolves ap

peared, and their public appearance has given him some standing among such of the Federalists who are destitute of honour and insensible of disgrace. These men will vote for him, and also for Rufus King, the persecutor of the unfortunate Irish.

I now come to speak on the subject of damages generally; for it appears to me that certain juries have run into great mistakes on this subject. They have not distinguished between penalty and damages. Penalty is punishment for crime. Damages is indemnification for losses sustained. When a man is prosecuted criminally, all that is necessary to be proved is, the fact with which he is charged, and all that the jury has to do in this case is to bring in a verdict according to the evidence given. The court then passes sentence conformable to the law under which the crime is punishable. If it is by fine, or imprisonment, or both, the law generally limits the extent of the fine or penalty, and also the period of imprisonment. It does not leave it to any mad-headed, or avaricious individual, or to any jury, to say it shall be an hundred thousand dollars.

But in prosecutions for what are called damages, two things are necessary to be proved. First, the words spoken or published, or actions done. Secondly, damages actually sustained in consequence of those words or actions. The words or actions can often be proved, and Morgan Lewis may prove that certain resolves were passed at a meeting of the citizens, at which Thomas Farmer was chairman. But unless Morgan Lewis can prove that the meeting exercised illegal authority in passing those resolves, and that he has sustained damage in consequence thereof, a jury can award him no damages and certain it is, that juries in cases of prosecution for what is called damages, cannot inflict penalties. Penalties go to the state, and not to the individual. If in any of the late prosecutions, juries have awarded damages where damages were not proved, the execution of the verdict ought to be suspended, and the case referred to a new trial.

April 21, 1807.

THOMAS PAINE.

VOL I.

63