The Absolute Rights of Persons

THE rights of persons in private life are either absolute, being such as belong to individuals in a single unconnected state; or relative, being those which arise from the civil and domestic relations.

The absolute rights of individuals may be resolved into the right of personal security, the right of personal liberty, and the right to acquire and enjoy property. These rights have been justly considered, and frequently declared, by the people of this country, to be natural, inherent, and unalienable. The history of our colonial governments bears constant marks of the vigilance of a free and intelligent people; who understood the best securities for political happiness, and the true foundation of the social ties. The inhabitants of Massachusetts, in the very infancy of their establishment. declared by law that the free enjoyment of the liberties which humanity, civility and Christianity called for, was due to every man in his place and proportion, and ever had been, and ever would be, the tranquillity and stability of the commonwealth. They insisted that they brought with them into this country the privileges of English freemen, and they defined and declared those privileges with a caution, sagacity and precision, that have not been surpassed by their descendants. Those rights were afterwards, in the year 1692, on the receipt of their new charter, re-asserted and declared. It was their fundamental doctrine, that no tax, aid or imposition whatever, could rightfully be assessed or levied upon them, without the act and consent of their own legislature; and that justice ought to be equally, impartially, freely, and promptly administered. The right of trial by jury, and the necessity of due proof preceding conviction, were claimed as undeniable rights; and it was further expressly ordained, that no person should suffer without express law, either in life, limb, liberty, good name, or estate; nor without being first brought to answer by due course and process of law.¹

The first act of the General Assembly of the colony of Connecticut, in 1639, contained a declaration of rights in nearly the same language;² and among the early resolutions of the General Assembly of the colony of New York, we meet with similar proofs of an enlightened sense of the provisions requisite for civil security. It was declared by them,³ that the imprisonment of subjects without due commitment for legal cause, and proscribing and forcing them into banishment, and forcibly seizing their property, were illegal and arbitrary acts. It was held to be the unquestionable right of every freeman, to have a perfect and entire property in his goods and estate; and that no money could be imposed or levied, without the consent of the General Assembly. The erection of any court of judicature without the like consent, and exactions upon the administration of justice, were declared to be grievances. Testimonies of the same honorable character are doubtless to be met with in the records of the other colony legislatures. But we need not pursue our researches on this point, for the best evidence that call be produced of the deep and universal sense of the value of our natural rights, and of the energy of the principles of the common law, are the memorials of the spirit which pervaded and animated every part of our country, after the peace of 1763, when the same parent power which had nourished and protected us, attempted to abridge our immunities, and retard the progress of our rising greatness.

The House of Burgesses in Virginia took an early and distinguished part, upon the first promulgation of the stamp act, in the assertion of their public rights as free born English subjects.⁴ The claim to common law rights, soon becomes a topic of universal concern and national vindication. In October, 1765, a convention of delegates from nine colonies, assembled at New York, and made and published a declaration of rights, in which they insisted that the people of the colonies were entitled to all the inherent rights and liberties of English subjects, of which the most essential were the exclusive power to tax themselves, and the privilege of trial by jury.⁵ The sense of America was, however, more fully ascertained, and more explicitly and solemnly promulgated, in the memorable declaration of rights of the first continental congress, in October, 1774. That declaration contained the assertion of several great and fundamental principles of American liberty, and it constituted the basis of those subsequent bills of rights, which, under various modifications, pervaded all our constitutional charters. It was declared, “that the inhabitants of the English colonies in North America, by the Immutable laws of nature, the principles of the English constitution, and their several charters or compacts, were entitled to life, liberty, and property; and that they had never ceded to any sovereign power whatever, a right to dispose of either, without their consent; that their ancestors, who first settled the colonies, were, at the time of their emigration from the mother country, entitled to all the rights, liberties, and immunities of free and natural born subjects; and by such emigration, they by no means forfeited, surrendered, or lost any of those rights; that the foundation of English liberty, and of all free government, was a right in the people to participate in the legislative power, and that they were entitled to a free and exclusive power of legislation, in all matters of taxation and internal policy, in their several provincial legislatures, where their right of representation could alone be preserved; that the respective colonies were entitled to the common law of England, and more especially to the great and inestimable privilege of being tried by their peers of the vicinage, according to the course of that law; that they were entitled to the benefit of such of the English statutes as existed at the time of their colonization, and which they had by experience found to be applicable to their several local and other circumstances;— that they were likewise entitled to all the immunities and privileges granted and confirmed to them by royal charters, or secured by their several codes of provincial laws.”⁶ Upon the formation of the several state constitutions, after the colonies had become independent states, it was, in most instances, thought proper to collect, digest, and declare, in a precise and definite manner, and it, the shape of abstract propositions and elementary maxims, the most essential articles appertaining to civil liberty and the natural rights of mankind.

The precedent for these declaratory bills of rights was to be found, not only ire the colonial annals to which I have alluded, but in the practice of the English nation, who had frequently been obliged to recover by intrepid councils, or by force of arms, and then to proclaim by the most solemn and positive enactments, their indefeasible rights, as a barrier against the tyranny of the executive power. The establishment of Magna Carta, and its generous provisions for all classes of freemen against the complicated oppressions of the feudal system; the petition of right, early in the reign of Charles I, asserting by statute the rights of the nation as contained in their ancient laws, and especially in “the great charter of the liberties of England;” and the bill of rights at the revolution, in 1688, are illustrious examples of the intelligence and spirit of the English nation, and they form distinguished eras in their constitutional history. But the necessity in our representative republics of these declaratory codes, has been frequently questioned, inasmuch as the government, in all its parts, is the creature of the people, and every department of it is filled by their agents, duly chosen or appointed, according to their will, and made responsible for mal-administration. It may be observed, on the one hand, that no gross violation of those absolute private rights, which are clearly understood and settled by the common reason of mankind, is to be apprehended in the ordinary course of public affairs; and as to extraordinary instances of faction and turbulence, and the corruption and violence which they necessarily engender, no parchment checks can be relied on as affording, under such circumstances, any effectual protection to public liberty. When the spirit of liberty has fled, and truth and justice are disregarded, private rights can easily be sacrificed under the forms of law. On the other hand, there is weight due to the consideration, that a bill of rights is of real efficacy in controlling the excesses of party spirit. It serves to guide and enlighten public opinion, and to render it more quick to detect, and more resolute to resist, attempts to disturb private right. It requires more than ordinary hardness and audacity of character, to trample down principles, which our ancestors cultivated with reverence, which we imbibed in our early education, which recommend themselves to the judgment of the world by their truth and simplicity, and which are constantly placed before the eyes of the people, accompanied with the imposing force and solemnity of a constitutional sanction. Bills of rights are part of the muniments of freemen, show in their title to protection, and they become of increased value when placed under the protection of an independent judiciary, instituted as the appropriate guardian of private right. Care, however, is to be taken in the digest of these declaratory provisions, to confine the manual to a few plain and unexceptionable principles. We weaken greatly the force of them, if we encumber the constitution, and Perhaps embarrass the future operations and more enlarged experience of the legislature, with a catalogue of ethical and political aphorisms, which, in some instances, may reasonably be questioned, and in others, justly condemned.⁷

In the revision of the constitution of New York, in 1821, the declaration of rights was considerably enlarged, and yet the most comprehensive, and the most valuable and effectual of its provisions, were to be found in the original constitution of 1777, as it was digested by some master statesmen, in the midst of the tempest of war and invasion. It was declared,⁸ that no authority should be exercised over the people or members of this state, on any pretense whatever, but such as should be derived from, and granted by them; and that trial by jury, as formerly used, should remain inviolate for ever; and that no bills of attainder should be passed, and no new courts instituted, but such as should proceed according to the course of the common law; and that no member of the state should be disfranchised, or deprived of airy of his rights or privileges under the constitution, unless by the law of the land, or the judgment of his peers. Several of the early state constitutions had no formal bill of rights inserted in then; and experience teaches us, that the most solid basis of public safety, and the most certain assurance of the uninterrupted enjoyment of our personal rights and liberties, consists, not so much in bills of rights, as in the skillful organization of the government, and its aptitude, by means of its structure and genius, and the spirit of the people which pervades it, to produce wise laws, and a just, firm, and intelligent administration of justice.

I shall devote the remainder of the present lecture to examine more particularly the right of personal security and personal liberty, and postpone the consideration of the right of private property, until we arrive at another branch of our inquiries.

(1.) The right of personal security is guarded by provisions which have been transcribed into the constitutions in this country from Magna Carta, and other fundamental acts of the English Parliament, and it is enforced by additional and more precise injunctions. The substance of the provisions is, that no person, except on impeachment, and in cases arising in the military and naval service, shall be held to answer for a capital, or otherwise infamous crime, or for any offense above the common law degree of petit larceny, unless he shall have been previously charged on the presentment or indictment of a grand jury; that no person shall be subject, for the same offense, to be twice put in jeopardy of life or limb; nor shall he be compelled, in any criminal case, to be a witness against himself; and in all criminal prosecutions, the accused is entitled to a speedy and public trial by an impartial jury; and upon the trial he is entitled to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense. And as a further guard against abuse and oppression in criminal proceedings, it is declared, that excessive bail cannot be required, nor excessive fines imposed, or cruel and unusual punishments inflicted; nor can any bill of attainder, or ex post facto law, be passed. The constitution of the United States, and the constitutions of almost every state in the Union, contain the same declarations in substance, and nearly in the same language. And where express constitutional provisions on this subject appear to be wanting, the same principles are probably asserted by declaratory legislative acts; and they must be regarded as fundamental doctrines in every state, for all the colonies were parties to the national declaration of nights in 1774, in which the trial by jury, and the other rights and liberties of English subjects, were peremptorily claimed as their undoubted inheritance and birthright.

It may be received as a self-evident proposition, universally understood and acknowledged throughout this country, that no person can be taken, or imprisoned, or diseased of his freehold, or liberties, or estate, or exiled, or condemned, or deprived of life, liberty, or property, unless by the law of the land, or the judgment of his peers. The words, by the law of the land, as used in Magna Carta,⁹ in reference to this subject, are understood to mean due process of law, that is, by indictment or presentment of good and lawful men; and this, says Lord Coke,¹⁰ is the true sense and exposition of those words.

But while cruel and unusual punishments are universally condemned, some theorists have proposed the entire abolition of the punishment of death, and have considered it to be an unnecessary waste of power, if not altogether unjust and unwarrantable. It has been supposed, that the object of punishment, and the ends of government, can be as well, or more effectually answered, by the substitution of milder sanctions. The great difficulty is, to attain the salutary ends of punishment, and, at the same time, avoid wounding the public sense of humanity. The punishment of death is, doubtless, the most dreadful, and the most impressive spectacle of public justice; and it is not possible to adopt any other punishment equally powerful by its example. It ought to be confined to the few cases of the most atrocious character, for it is only in such cases that public opinion will warrant the measure, or the peace and safety of society require it. Civil society has an undoubted right to use the means requisite for its preservation; and the punishment of murder, with death, accords with the judgment and the practice of mankind, because the intensity and the violence of the malignity that will commit that crime, require to be counteracted by the strongest motives which call be presented to the human mind. Grotius¹¹ discusses much at large, and with his usual learning and ability, the design and the lawfulness of punishment; and he is decidedly of the opinion, that capital punishments in certain cases, are not only lawful under the divine law, but indispensable to restrain the audaciousness of guilt. He recommends, however, for adoption in many cases, the advice, and even the example of some of the ancients, by the substitution of servile labor and imprisonment for capital punishment. This has been done since his time to a very great extent in some parts of Europe, and especially in these United States. Though the penitentiary system has not hitherto answered the expectations of the public, either in the reformation of offenders, or as an example to deter others; yet the more skillful arrangement of the prisons, and the introduction of a stricter and more energetic system of prison discipline, consisting essentially of close confinement, united with productive labor, (and which have been carried into effect. with beneficial results in the state prison at Auburn, and in the new state prison at Mount Pleasant, in this state,) afford encouraging expectations that they will be able to redeems the credit of the system, and recommend the punishment of solitary imprisonment and hard labor, instead of capital and other sanguinary punishments, to the universal approbation of the civilized world.

While the personal security of every citizen is protected from lawless violence, by the arm of government, and the terrors of the penal code; and while it is equally guarded from unjust and tyrannical proceedings oil the part of the government itself, by the provisions to which we have referred; every person is also entitled to the preventive arm of the magistrate as a further protection from threatened or impending danger; and, on reasonable cause being shown, he may require his adversary to be bound to keep the peace. If violence has been actually offered, the offender is not only liable to be prosecuted and punished on behalf of the state, but he is bound to render to the party aggrieved, adequate compensation in damages. The municipal law of our own, as well as of every other country, has likewise left with individuals the exercise of the natural right of self defense, in all those cases in which the law is either too slow, or too feeble to stay the hand of violence. Homicide is justifiable in every case in which it is rendered necessary in self-defense, against the person who comes to commit a known felony with force against one’s person, or habitation, or property, or against the person or property of those who stand in near domestic relations.¹² The right of self-defense in these cases is founded in the law of nature, and is not, and cannot be superseded by the law of society. In those instances, says Sir Michael Foster, the law, with great propriety, and in strict justice, considers the individual to be under the protection of the law of nature. There are some important distinctions on this subject, between justifiable and excusable homicide, and manslaughter, and murder, which it does not belong to my present purpose to examine; and I will only observe, that homicide is never strictly justifiable in defense of a private trespass, nor upon the pretense of necessity, when the party is not free from fault in bringing that necessity upon himself.¹³

(2.) As a part of the right of personal security, the preservation of every person’s good name from the vile arts of detraction is justly included. The laws of the ancients, no less than those of modern nations, made private reputation one of the objects of their protection.¹⁴ The Roman law took a just distinction between slander spoken and written; and the same distinction prevails in our law, which considers the slander of a private person by words, in no other light than a civil injury, for which a pecuniary compensation may be obtained. The injury consists in falsely and maliciously charging another with the commission of some public office, or the breach of some public trust, or with any matter in relation to his particular trade or vocation, and which, if trite, would render him unworthy of employment; or, lastly, with any other matter or thing, by which special injury is sustained. But if the slander be communicated by pictures, or signs, or writing, or printing, it is calculated to have a wider circulation, to make a deeper impression, and to become proportionably more injurious. Expressions which tend to render a man ridiculous, or lower him in the esteem and opinion of the world, would be libelous if printed, though they would not be actionable if spoken.¹⁵ A libel, as applicable to individuals, has been well defined¹⁶ to be a malicious publication, expressed either in printing or writing, or by signs or pictures, tending either to blacken the memory of one dead, or the reputation of one alive, and expose him to public hatred, contempt, or ridicule. A malicious intent towards government, magistrates, or individuals, and an injurious or offensive tendency, must concur to constitute the libel. It then becomes a grievance, and the law has accordingly considered it in the light of a public as well as a private injury, and has rendered the party not only liable to a private suit at the instance of the party libeled, but answerable to the state by indictment, as guilty of an offense tending directly to a breach of the public peace.¹⁷

But though the law be solicitous to protect every man in his fair fame and character, it is equally careful that the liberty of speech, and of the press, should be duly preserved. The liberal communication of sentiment, and entire freedom of discussion, in respect to the character and conduct of public men, and of candidates for public favor, is deemed essential to the judicious exercise of the right of suffrage, and of that control over their rulers, which resides in the free people of these United States. It has, accordingly, become a constitutional principle in this country, that “every citizen may freely speak, write, and publish his sentiments, on all subjects, being responsible for the abuse of that right, and that no law can rightfully be passed to restrain or abridge the freedom of speech, or of the press.”

The law of England, even under the Anglo-Saxon line of princes, took severe and exemplary notice of defamation, as an offense against the public peace;¹⁸ and in the time of Henry III., Bracton¹⁹ adopted the language of the Institutes of Justinian, and held slander and libelous writings to be actionable injuries. But the first private suit for slanderous words to be met with in the English law, was in the reign of Edward III., and for the high offense of charging another with a crime which endangered his life.²⁰ The mischiefs of licensed abuse were felt to be so extensive, and so incompatible with the preservation of peace, that. several acts of parliament, known as the statutes de scandalis magnatum, were passed to suppress and punish the propagation of false and malicious slander.²¹ They are said to have been declaratory of the common law,²² and actions of slander were slowly, but gradually multiplied, between the time of Edward III., and the reign of Elizabeth,²³ when they had become frequent. The remedy was applied to a variety of cases and in a private action of slander for damages, and even in the action of scandalum magnatum, the defendant was allowed to justify, by showing the truth of the fact charged, for if the words were true, it was then a case of damnum absque injuria, according to the just opinion of Paulus, in the civil law.²⁴ But in the case of a public prosecution for a libel, it became the established principle of the English law, as declared in the Court of Star Chamber, about the beginning of the reign of James I,²⁵ that the truth of the libel could not be shown by way of justification, because, whether true or false, it was equally dangerous to the public peace. The same doctrine remains in England to this day unshaken; and in the case of The King v. Burdett,²⁶ it was held, that where a libel imputes to others the commission of a triable crime, the evidence of the truth of it was inadmissible, and that the intention was to be collected from the paper itself, unless explained by the mode of publication, or other circumstances, and that if the contents were likely to produce mischief, the defendant must be presumed to intend that which his act was likely to produce. “The liberty of the press,” as one of the judges in that case observed, “cannot impute criminal conduct to others without violating the right of character, and that right can only be attacked in a court of justice, where the party attacked has a fair opportunity of defending himself. Where vituperation begins, the liberty of the press ends.” Whether the rule of the English law was founded on a just basis, and whether it was applicable to the free press and free institutions in this country, has been a question extensively and laboriously discussed in several cases which have been brought before our American tribunals.

In the case of The People v. Croswell,²⁷ which came before the Supreme Court of this state in 1804, and was argued at the bar with very great ability, the court were equally divided in opinion on the point, whether, on an indictment for a libel, the defendant was entitled to give in evidence to the jury the truth of the charges contained in the libel. In the Court of Appeals in South Carolina, in 1811, the court unanimously decided, in the case of The State v. Lehre,²⁸ that by the English common law it was settled, on sound principles of policy derived from the civil law, that the defendant had no right to justify the libel by giving the truth of it in evidence. The court, in the learned and able opinion which was delivered in that case, considered that the law, as then declared, was not. only the law of England, but probably the law of all Europe, and of most of the free states of America. The same question has been frequently discussed in Massachusetts. In the case of The Commonwealth v. Chase,²⁹ in 1808, it was decided, that the publication of a libel maliciously, and with intent to defame, was clearly a public offense, whether the libel be true or not; and the rule was held to be founded on sound principles, indispensable to restrain all tendencies to breaches of the peace, and to private animosity and revenge. The essence of the offense consisted in the malicious intent to defame the reputation of another; and a man may maliciously publish the truth against another with the intent to defame his character, and if the publication be true, the tendency of the publication to inflame the passions, and to excite revenge, is not diminished. But though a defendant, on an indictment for a libel, cannot justify himself for publishing the libel, merely by proving the truth of it, yet he may repel the criminal charge by proving that the publication was for a justifiable purpose, and not malicious; and if the purpose be justifiable, the defendant may give in evidence the truth of the words, when such evidence will tend to negative the malicious intent to defame. The same question was again agitated and discussed before the same court in 1825, in the case of The Commonwealth v. Blanding³⁰ and the court strongly enforced the doctrine of the former case, that, as a general rule, the truth of the libel was not admissible in evidence upon the trial of the indictment; and this principle of the common law. was declared to be founded in common sense and common justice, and prevailed in the codes of every civilized country. It was further held, that whether in any particular case such evidence be admissible, was to be determined by the court; and, if admissible, then the jury were to determine whether the publication was made with good motives, and for justifiable ends. The sauce rule, that the truth cannot be admitted in evidence on indictment for a libel, though it may in a civil suit for damages, has been adjudged in Louisiana;³¹ and the weight of judicial authority undoubtedly is, that the English common law doctrine of libel is the common late doctrine in this country, in all cases in which it has not been expressly controlled by constitutional or legislative provisions. The decisions in Massachusetts and Louisiana were made notwithstanding the constitution of the one state had declared, that “the liberty of the press ought not to be restrained,” and that the other had said, that “every citizen might freely speak, write, and print, on any subject, being responsible for the abuse of that liberty.” Those decisions went only to control the malicious abuse or licentiousness of the press, and that is the most effectual way to preserve its freedom in the genuine sense of the constitutional declarations on the subject. Without such a check, the press, in the hands of evil and designing men, would become a most formidable engine, and as mighty for mischief as for good. Since the decision in 1825, the legislature of Massachusetts have interposed, and by an act passed in March, 1827 have allowed the truth to be given in evidence in all prosecutions for libels, but with a proviso that such evidence should not be a justification, unless it should be made satisfactorily to appear upon the trial, that the matter charged as libelous was published with good motives, and for justifiable ends.

The constitutions of several of the United States have made special provision in favor of giving the truth in evidence in public prosecutions for libels. In the constitutions of Pennsylvania, Delaware, Tennessee, Kentucky, Ohio, Indiana. and Illinois, it is declared, that in prosecutions for libels on men in respect to their public official conduct, the truth may he given in evidence, when the matter published was proper for public information. In the constitutions of Mississippi and Missouri, the extension of the right to give the truth in evidence is snore at and applies to all prosecutions or indictments for libel::, without any qualifications annexed in restraint or the privilege; and an act of the legislature of New Jersey, in 1799, allowed the same unrestricted privilege. The legislature of Pennsylvania, in 1809³² went far beyond their own constitution, and declared by statute, that no person should be indictable for a publication on the official conduct of men in public trust; and that in all actions or criminal prosecutions for a libel, the defendant might plead the truth in justification, or give it in evidence. The decision of the Court of Errors of this state, in Thorn v. Blanchard,³³ carried the toleration of a libelous publication to as great an extent as the Pennsylvania law; for it appeared to be the doctrine of a majority of the court, that where a person petitioned the council of appointment to remove a public officer for corruption in office, public policy would not permit the officer libeled to have any redress by private action, whether the charge wag true or false, or the motives of the petitioner innocent or malicious. The English law on the point seems to be founded in a juster policy. Petitions to the king, or to parliament, or to the secretary at war, for the redress of any grievance, are privileged communications, and not actionable libels, provided the privilege be not abused; but if it appear that the communication was made maliciously, and without probable cause, the pretense under which it is wade aggravates the case, and an action lies.³⁴ The constitution of this state, as amended in 1821, is a little varied in its language from those provisions which have been mentioned, and is not quite so latitudinary in its indulgence as some of them. It declares, that “in all prosecutions or indictments for libels, the truth may be given in evidence to the jury; and if it shall appear to the jury, that. the matter charged as libelous, is true, and was published with good motives, and for justifiable ends, the party shall be acquitted.” These provisions in favor of giving the truth in evidence, are to be found only in those constitutions which have been promulgated long since our revolution; and the current of opinion seems to have been setting strongly, not only in favor of erecting barriers against any previous restraints upon publications, (and which was all that the earlier sages of the revolution had in view, but in favor of the policy that would diminish or destroy altogether every obstacle or responsibility in the way of the publication of the truth. The subject is not without its difficulties, and it has been found embarrassing to preserve equally, and in just harmony and proportion, the protection which is due to character, and the protection which ought to be afforded to liberty of speech, and of the press. These rights are frequently brought into dangerous collision, and the tendency of measures in this country has been to relax too far the vigilance with which the common law surrounded and guarded character, while we are animated with a generous anxiety to maintain freedom of discussion. The constitution of this state makes the facts in every possible case a necessary subject of open investigation; and however improper or unfit those facts may be for public information, and however painful or injurious to the individuals concerned, yet it would seem, that they may, in the first instance, be laid bare before the jury. The facts are to go to them, at all events; for the jury are to determine, as it shall appear to them, whether the motives of the libeler were good, and his end justifiable.

The act of Congress of the 14th of July, 1798, made it an indictable offense to libel the government, or Congress, or the President of the United States; and it made it lawful for the defendant, upon the trial, to give in evidence in his defense, the truth of the matter contained in the publication charged as a libel. This act was, by the terms of it, declaratory, and it. was intended to convey the sense of Congress, that in prosecutions of that kind it was the common right of the defendant to give the truth in evidence. So, the case of The People v. Croswell, in this state, was followed by an act of the legislature on the 6th of April, 1805, enacting and declaring, that in every prosecution, for a libel, (and which included public and private prosecutions) it should be lawful for the defendant to give in evidence in his defense the truth of the natter charged; but such evidence was not to be a justification, unless, on the trial, it should be made satisfactorily to appear, that the matter charged as libelous was published with good motives, and for justifiable ends; and this was the whole extent of the doctrine which had been claimed in favor of the press in the case of The People v. Croswell.

There appears to have been some contrariety of opinion in the. English books on the point, whether a defendant in a private action upon a libel, could be permitted to justify the charge, by pleading the truth. But the prevailing, and the better opinion is, that the truth may, in all cases, be pleaded by way of justification, in a private action for damages, arising, from written or printed defamation, as well as in an action for slanderous words.³⁵ The ground of the private action, is the injury which the party has sustained, and his consequent right to damages as a recompense for that injury;, but if the charge, in its substance and measure. be true in point of fact, the law considers the plaintiff as coming into court without any equitable title to relief. And yet it is easy to be perceived. that in the case of libels upon private character, greater strictness as to allowing the truth in evidence, by way of justification, ought to be observed, than in the case of public prosecutions; for the public have no interest in the detail of private vices and defects, when the individual charged is not a candidate for any public trust; and publications of that kind, are apt to be infected with malice, and to he very injurious to the peace and happiness of families. If the libel was made, in order to expose to the public eye personal defects, or misfortunes, or vices, the proof of thee truth of the charge would rather aggravate than lessen the baseness and evil tendency of the publication; and there is much justice and sound policy in the opinion, that in private, as well as public prosecutions for libels, the inquiry should be pointed to the innocence or malice of the publisher’s intentions. The truth ought to be admissible in evidence to explain that intent, and not in every instance to justify it.³⁶ The guilt and the essential ground of action for defamation, consist in the malicious intention; and when the mind is not in fault, no prosecution can be sustained.³⁷ On the other hand, the truth may be printed and published maliciously, and with an evil intent, and for no good purpose, and when it would be productive only of private misery, and public scandal and disgrace.

(3.) The right of personal liberty, is another absolute right of individuals, which has long been a favorite object of the English law. It is not only a constitutional principle, as we have already seen, that no person shall be deprived of his liberty without due process of law, but effectual provision is made against the continuance of all unlawful restraint, or imprisonment, by the security of the privilege of habeas corpus.

Every restraint upon a man’s liberty is, in the eye of the law, an imprisonment, wherever may be the place, or whatever may be the manner in which the restraint is effected.³⁸ Whenever any person is detained with or without due process of law, unless for treason or felony, plainly and specially expressed in the warrant of commitment, or unless such person be a convict, or legally charged in execution, he is entitled to his writ of habeas corpus. It is a writ of right, which every person is entitled to, ex merito justiciae;³⁹ but the benefit of it was, in a great degree, eluded in England prior to the statute of Charles II, as the judges only awarded it in term time, and they assumed a discretionary power of awarding or refusing it.⁴⁰ The explicit and peremptory provisions of the statute of 31 Charles II. c. 2., restored the writ of habeas corpus to all the efficacy which was requisite for the due protection of the liberty of the subject. That statute has been re-enacted or adopted, if not in terms, yet in substance and effect, in all these United States.⁴¹ The privilege of this writ, is also made an express constitutional right at all times, except in cases of invasion or rebellion, by the constitution of the United States, and by the constitutions of most of the states in the Union. The citizens are declared in some of these constitutions, to be entitled to enjoy the privilege of this writ in the most “free, easy, cheap, expeditious, and ample manner;” and the right is equally perfect in those states where such a declaration is wanting. The right of deliverance from all unlawful imprisonment, to the full extent of the remedy provided by the habeas corpus act, is a common law right; and it is undoubtedly true, as has been already observed,⁴² that the common law of England, so far as it was applicable to our circumstances, was brought over by our ancestors, upon their emigration to this country. The revolution did not involve in it any abolition of the common law. It was rather calculated to strengthen and invigorate all the just principles of that law, suitable to our state of the society and jurisprudence. It has been adopted or declared in force, by the constitutions of some of the states,⁴³ and by statute in others;⁴⁴ and where it has not been so explicitly adopted, it is nevertheless to be considered as the law of the land, subject to the modifications which have been suggested, and to express legislative repeal.⁴⁵ We shall, accordingly, in the course of these lectures, take it for granted, that the common law of England, applicable to our situation and governments? is the law of this country, in all cases in which it has not been altered or rejected by statute, or varied by local usages, under the sanction of judicial decisions.

The substance of our statute provisions on the subject of the writ of habeas corpus, may be found in the statute of 31 Charles II. c. 2., which is the basis of all the American statutes on the subject, and which the statute of this state⁴⁶ has closely followed. It is provided, that the person imprisoned, if he be not a person convict, or in execution by legal process, or committed for treason or felony, plainly expressed in the warrant., or ha, not neglected to apply within two whole terns after his imprisonment, may apply by any one on his behalf, in vacation time, to a judicial officer, for the writ of habeas corpus; and the officer, upon few of the copy of the warrant of commitment, or upon proof of the denial of it after due demand, must allow the writ to be directed to the person in whose custody the party is detained, and made returnable immediately before him. Upon service of the writ, the party detained is to be brought before the judge, with all reasonable diligence, together with the true cause of the commitment, and detainer, and the judge is thereupon required to discharge the prisoner, upon reasonable sureties, or else remand him, as the nature of the case, and the circumstances of the commitment, shall require.

An adequate penalty is imposed upon the person whose duty it shall be to make return to the writ, for neglecting or refusing to obey the same within the time prescribed; and if the judicial officer shall refuse to allow the writ when, duly demanded, he also forfeits a penalty to the party aggrieved. The penalty is granted against the judicial magistrate, who, in vacation time, denies the writ; and judges are trot responsible for the exercise of their discretion, according to their judgment, in term time; for they then sit and act, not in a ministerial, but in a judicial capacity.⁴⁷ Nor does any penalty attach upon the act of the judge, after the prisoner is brought before him. He is then, according to his best judgment and discretion, to bail, discharge, or remand the prisoner.

The act of this state of the 21st of April, 1818,⁴⁸ declared that the provisions of the permanent habeas corpus act should extend to” all cases, where any person, not being committed or detained for any criminal or supposed criminal matter, nor in execution by legal process, should be confined or restrained of his liberty, under any color or pretense whatsoever.” The habeas corpus act in Pennsylvania, is equally extensive.⁴⁹ When the prisoner is brought before the judge, his judicial discretion commences, and he acts under no other responsibility than that which belongs to the ordinary exercise of judicial power, The prisoner is to be bailed, or discharged, or remanded, as to justice shall appertain. He may be remanded in the following cases: (1.) when it appears that he is detained upon legal process, out of some court having jurisdiction of criminal matters: (2.) when he is detained by warrant, under the hand and seal of a magistrate, for some matter or offense, for which, by law, the prisoner is not bailable; (3.) when he is a convict in execution, or detained in execution by legal civil process; and, (4.) when detained for a contempt, specially and plainly charged in the commitment, by some court having authority to commit for contempts, unless the power and authority of such, court shall have expired and ceased.

Upon the return of the habeas corpus, the judge is not confined to the face of the return, but he is to examine into the facts contained in the return, and into the cause of the imprisonment, whether the commitment be for any criminal or supposed criminal matter, or not; and then he is to discharge, bail, or remand, as the case shall appear to require. This power of revising the cause of commitment is given by the act of this state of 1818; and it authorizes the judge to re-examine all the testimony taken before the magistrate who originally committed, and to tape further proof on the subject, for he is “to examine into the facts.” This was the construction given to the act in The Matter of Washburn;⁵⁰ and it is a new power, not to be found in the English statute, and it probably exists in other states, and is an improvement upon the English provisions. The power gives to the judge who takes cognizance of the case, upon the return of the writ, the character of a court of review, even as to the acts of a co-ordinate magistrate. The policy of the introduction of these new checks, is to prevent more effectually the continuance of till unjust or groundless imprisonment.

A question was raised, and much discussed, in the courts of justice in this state, in the case of Yates,⁵¹ whether the judge before whom a prisoner was brought upon habeas corpus, had a right to examine into the validity of a commitment of a person for a Contempt, by a court confessedly competent for the purpose. The person committed by the Chancellor in that case, by an order by him made, sitting in the Court of Chancery, was brought before a judge of the Supreme Court, in vacation time, upon habeas corpus, and discharged. The Chancellor, disregarding the discharge, recommitted the party, and the same judge again, on habeas corpus, discharged him. He was again recommitted, and an habeas corpus was again issued, returnable before the Supreme Court, where the case was elaborately discussed and considered, and the party remanded to prison, as being in execution under a conviction for a contempt, and, therefore, not entitled to his discharge. This order of the Supreme Court being brought up in review before the Court of Errors by a writ of error, the judgment or order of the Supreme Court was reversed. Whatever inference might have been drawn in the first instance from that reversal, yet the question was put afloat, and the better opinion would rather seem to be, that the doctrine of the Supreme Court was reinstated in all its force, by another decision of that court, subsequently affirmed by the same Court of Errors, holding, that the Chancellor was not responsible to the party he had so repeatedly committed, for the penalty given by statute upon re-imprisonment after a discharge on habeas corpus,⁵² the result of that controversy leaves the following principles undisturbed, and tends to settle and confirm them, viz. (1.) That every court has a right to commit for contempt, and that no other court has a right, upon habeas corpus, to control that commitment. (2.) That no judge is responsible, in a private suit, to pains and penalties for his judicial acts. If any doubt had remained as to the ultimate effect of the decisions in the case of Yates, that doubt was entirely removed by the act of 1818, already referred to, which declared, that a party in prison for a contempt, could not be discharged on habeas corpus, so long as the power of the court which determines the contempt continued. That act may be considered as only declaratory of the established principle of law, that every court of justice has a right to commit for contempts, and that it belongs exclusively to the court offended, to judge of contempts, and what amounts to them; and no other court or judge can, or ought to undertake, in a collateral way, to question or review an adjudication of a contempt made by another competent jurisdiction. This may be considered as the established doctrine, equally in England and in this country.⁵³

It is provided, by the habeas corpus act, that a person set at large by the writ, cannot be re-imprisoned for the same offense, unless by the legal order or process of the court wherein he was bound by recognizance to appear, or of some other court having jurisdiction of the cause. The construction given to this prohibition in the case of Yates,⁵⁴ was, that the power of the judge in vacation to discharge on habeas corpus, did not extend to cases of commitments in execution by the judgment of a court of record, for this would be giving to a single judge the right to control the decisions of all the courts of record, and even the decision of a majority of the court of which he was a member, provided he reserved the exercise of his power until after the adjournment of the court. Such a discharge was not considered to be any obstacle to a re-imprisonment for the same offense by the court which committed. The discharge was considered as not warranted by the statute, which never intended to vest the power of review of judicial decisions of the regular tribunals, in a single member out of court, and acting in a summary manner. It expressly excepted from the operation of its provisions, the case of persons convict, or in execution by legal process.⁵⁵

By the specific provisions which have been considered, the remedy for an unjust detention is distinctly marked; and even in cases of valid imprisonment, care is taken that it be not unreasonably or unnecessarily protracted. Persons committed for treason or felony, are, upon their petition, to be indicted and tried by the second term after their commitment, or they will e discharged, unless satisfactory cause be shown for the delay. No citizen can be sent a prisoner out of the state, for any crime committed within it; and whoever is concerned in doing it is responsible to the party in exemplary damages, and is also deemed guilty of a misdemeanor, and disabled to hold any office of profit or trust. The judge awarding the habeas corpus is also authorized to attach any person who meditates to elude the requisitions of the writ, by withdrawing from the jurisdiction of this state with the party in confinement.⁵⁶

This is the substance of the provisions of the habeas corpus act, intended for the security of the personal liberty of the citizen. The statute has always been considered in England as a stable bulwark of civil liberty, and nothing similar to it can be found in any of the free commonwealths of antiquity. Its excellence consists in the easy, prompt, and efficient remedy afforded for all unlawful imprisonment, and personal liberty is not left to rest for its security upon general and abstract declarations of right.

In addition to the benefit of the writ of habeas corpus, which operates merely to remove all unlawful imprisonment, the party aggrieved is entitled to his private action of trespass to recover damages for the false imprisonment; and the party offending, and acting without legal sanction, is also liable to fine and imprisonment, as for a misdemeanor.

In England, the regular consequence of personal liberty is said to be, that every Englishman may claim a right to abide in his own country so long as he pleases, and is not to be driven from it, unless by the sentence of the law, prescribing exportation or banishment in the given case; or unless required abroad while in the military or naval service. Exportation in England rests entirely upon statute, for it was a punishment unknown to the common law.

Some of our American constitutions⁵⁷ have declared, that no person shall be liable to be transported out of the state for any offense committed within it. It would not be consistent with the spirit of that provision to prescribe banishment as a part of the punishment, whatever foreign place or asylum might be deemed suitable for the reception of convicts. In this, and in most of the states, no such constitutional restriction is imposed upon the discretion of the legislature; and in this state, the governor is authorized to pardon upon such conditions as he may think proper. Convicts have sometimes been pardoned under the condition of leaving the state in a given time, and not returning. This was equivalent, in its effect and operation, to a judicial sentence of exportation or banishment.

In England, the king, by the prerogative writ of ne exeat, may prohibit a subject from going abroad without license. But this prerogative is said to have been unknown to the common law, which, in the freedom of its spirit, allowed every man to depart the realm at his pleasure. The first invasion of this privilege, was by the constitutions of Clarendon, in the reign of Henry II.,⁵⁸ and they were understood to apply exclusively to the clergy, and prohibited them from leaving the kingdom without the king’s license. In the Magna Carta of king John, every one was allowed to depart the kingdom, and return at his pleasure, except in time of war.⁵⁹ But this provision was omitted in the charter of Henry III; and in the reign of Edward I, it began to be considered necessary to have the king’s license to go abroad; and it became at last to be the settled doctrine, and no subject possessed the right of quitting the kingdom without the king’s license; and prerogative writs, which were in substance the same as the ne exeat, became in use, requiring security of persons meditating a departure, that they should not leave the realm without the king’s license.⁶⁰ The prerogative of the crown, on this point, seems to be conceded; but until the king’s proclamation, or a writ of ne exeat, has actually issued, it is understood that any Englishman may go beyond sea.

This writ of ne exeat has, in modern times, been applied as a civil remedy in Chancery, to prevent debtors escaping from their creditors. It amounts, in ordinary civil cases, to nothing more than process to hold to bail, or compel a party to give security to abide the decree. In this view, we have at present no concern with this writ; and in this country, the writ of ne exeat is not in use, except in Chancery for civil purposes, between party and party. No citizen can be sent abroad, or, under the existing law of the land, prevented from going abroad, except in those cases in which he may be detained by civil process, or upon a criminal charge. The constitutions of several of the United States have declared, that all people have a natural right to emigrate from the state, and have prohibited the interruption of that right.⁶¹ We shall, in the course of the next lecture, examine particularly into the foundation of this right of emigration. when carried to the extent of a perpetual renunciation of one’s allegiance to the country of his birth.