John K. Porter. him with such gentleness, and regretted so much that in a careless moment he had ex posed himself, and by his own negligence had made it impossible for Porter's client to avoid hurting him, — that I was entirely con vinced. Lyman Tremain was on the other side; and he was the sort of man referred to in the quotation, — " a strong man," — and he had the last word. When Porter finished, I said to him (being under the spell), " It is impossible that there should be a verdict against you." " Oh, yes," he replied, " Ly man is sure to get a verdict; but I do not think it will be so large as he might wish." And that was the way it turned out, — except that, I think, the amount was more to Mr. Tremain's satisfaction than to Mr. Por ter's. I listened to Mr. Tremain's way of destroying Porter's spell. It was effective with the jury, but was not with me; and upon analyzing the spell afterward, I was convinced that it was an honest spell, — that is to say, Porter had set forth irrefra gable reason for believing that the injury was the result of contributory negligence, but the jury had not been able to ap preciate the full force of that reasoning. Therefore, when the other strong man with another kind of spell had the last word, he got the verdict. One notable case in which Porter was em ployed, was that of De Witt C. Littlejohn v. Horace Greeley, tried at the Oswego Term of the Supreme Court in September, 1861. The "Tribune" had opposed the re election of Mr. Littlejohn to the Assembly, upon the ground that he had favored legis lation manifestly against the public interest, and which was thought to be corrupt. No charge of personal corruption was made against Mr. Littlejohn. The trial appears by the report to have been somewhat eccen tric. The Judge had ruled out all proof of the corrupt character of the legislation, whether offered in mitigation of damages or by way of complete defence; and had also refused proof that there was a corrupt agree ment with certain parties closely related to
365
the plaintiff, under which a large amount of money was to be divided as the proceeds of a franchise created by the legislation, together with other facts, from which it was claimed that the jury might be permitted to infer that the plaintiff's action in sup porting the bills was such as to justify the "Tribune's" characterization. These rulings were a surprise to the profession; and Judge Porter, addressing the jury, said (in a way which seems not well reported) : — "A few rough notes, made during the recess, of the topics to which I can properly restrict the dis cussion, will enable me in some degree to abridge the argument. I acknowledge the embarrassment under which we present the case, after the exclu sion of the evidence on which we mainly relied. It is difficult for a lawyer to abandon in an hour the rooted convictions of twenty years. We do not readily acquiesce in what we conceive to be a departure from the settled principles of law. To our faith in them we cling tenaciously; and it fails us so rarely that in that faith we soon grow old, and part with cherished opinions as with cher ished friends. But we are bound by the rulings of the court, and must discharge our duty as we may, in conformity with the decisions made for our guidance. . . . "The truth cannot be excluded in a court in which blind Justice holds her balanced scales, — unless the defendant shall go further, and prove in addition the truth of charges he never made. Hitherto, by the common understanding of all American lawyers and jurists, it has been deemed an absolute right to aver and prove the truth of the matter alleged to be libellous. But our friends propose to inaugurate a new era in the law of libel. The jury are no longer to read the paper upon which they are to pass. They are to find damages for an accusation, though they cannot find the accusation. On a question of doubtful intent, the court is to find the fact, and the jury to visit upon the defendant the penalties of a wrong of which they believe him to be innocent. We were chal lenged by the plaintiff to prove the truth of the publication on which he counts. When we accept the challenge, and offer to prove its truth, he tells us, in substance, that we cannot be permitted to prove it, — that he will elect what evidence we may, and what we may not offer, and that we may
