The Online Library of Liberty

A project of Liberty Fund, Inc.

• Lectures On Law,
• Part I.: Lectures On Law.
• Chapter XII.: Of the Common Law.
• Chapter XIII.: Of the Nature and Philosophy of Evidence.
• Part 2.: Lectures On Law.
• Chapter I.: Of the Constitutions of the United States and of Pennsylvania—of the Legislative Department.
• Chapter II.: Of the Executive Department.
• Chapter III.: Of the Judicial Department.
• Chapter IV.: Of the Nature of Courts.
• Chapter V.: Of the Constituent Parts of Courts.—of the Judges.
• Chapter VI.: The Subject Continued. of Juries.
• Chapter VII.: The Subject Continued. of Sheriffs and Coroners.
• Chapter VIII.: The Subject Continued. of Counsellors and Attornies.
• Chapter IX.: The Subject Continued. of Constables.
• Chapter X.: Of Corporations.
• Chapter XI.: Of Citizens and Aliens.
• Chapter XII.: Of the Natural Rights of Individuals.
• Part 3.: Lectures On Law.
• Chapter I.: Of the Nature of Crimes; and the Necessity and Proportion of Punishments.
• Chapter II.: Of Crimes Against the Right of Individuals to Their Property.
• Chapter III.: Of Crimes Against the Right of Individuals to Liberty, and to Reputation.
• Chapter IV.: Of Crimes Against the Right of Individuals to Personal Safety.
• Chapter V.: Of Crimes, Immediately Against the Community.
• Chapter VI.: Of Crimes, Affecting Several of the Natural Rights of Individuals.
• Chapter VII.: Of Crimes Against the Rights of Individuals Acquired Under Civil Government.
• Chapter VIII.: Of the Persons Capable of Committing Crimes; and of the Different Degrees of Guilt Incurred In the Commission of the Same Crime.
• Chapter IX.: Of the Direct Means Used By the Law to Prevent Offences.
• Chapter X.: Of the Different Steps Prescribed By the Law, For Apprehending, Detaining, Trying, and Punishing Offenders.
• Bibliographical Glossary *
• Afterword

CHAPTER III.

Of Crimes Against the Right of Individuals to Liberty, and to Reputation.

Liberty, as we have seen on former occasions, is one of the natural rights of man; and one of the most important of those natural rights. This right, as well as others, may be violated; and its violations, like those of other rights, ought to be punished, in order to be prevented. Yet these violations are scarcely discernible in our code of criminal law.

This we must ascribe to one of two causes. Either this right has been enjoyed inviolably: or the law has suffered the violations of it to escape with shameful impunity. The latter is the truth: I am compelled to add, that the latter, bad as it is, is not the whole truth. Violations of liberty have not only been overlooked: they have also been protected; they have also been encouraged; they have also been made; they have also been enjoined by the law. I speak this not only concerning the statute law; I am compelled to speak it also concerning the common law of England: I speak this not only concerning the law as it was received in the American States before their revolution; I am compelled to speak it also concerning the law as it is received in them still: I speak this not only concerning the law as it is received generally in the other sister states; I am compelled to speak it also concerning the law as it is received in Pennsylvania: nay, I am farther compelled to speak it also of the law as it is recently received in our national government.

Our publick liberty we have indeed secured;—esto perpetua—But, notwithstanding all our boasted improvements—and they are improvements of which we may well boast—the most formidable enemy to private liberty is, at this moment, the law of the land.

In some former parts of my lectures,a I have had occasion to remark, and I have remarked with pleasure, that solicitous degree of attention which the law gives to personal security. Its most distant avenues are watchfully guarded. To decide questions, by which it may be affected in the highest, or even in inferiour degrees, I have shown, in a sublime part of our system, to be the incommunicable prerogative of sovereignty or selected sovereignty itself. I have shown, that, by an operation inexpressibly fine, personal safety never sees the arm which holds the sword of justice, but at the moment when it is found necessary that its stroke should be made. Inferiour to personal safety only, if indeed inferiour even to that, is the consideration of personal liberty. And yet, while personal safety can be authoritatively affected only by the community, or a body selected from the community impartially and for the occasion, the law implicitly, causelessly, unconditionally, and continually prostrates personal liberty at the feet of every wretch who is unprincipled enough to trample upon it. I say, unprincipled; because a citizen, who has principle, will not wound it by using the authority of the law. In every state of the union—in every county of every state, there are shops opened, nay licensed, nay established by the law, at which its authority may be purchased, for a trifle, by the worst citizen, in order to infringe the personal liberty of the best.

From the disgrace of these enormities against the rights of liberty, I gladly rescue the character and principles of the common law. The history of the several processes of capias, and orders and rules of commitment will show, when we come to it, that this part of our municipal law is of statute original; and that it was produced in the darkest and rudest, though its existence has continued in the most enlightened and the most refined times.

With another part of these enormities against the rights of liberty, however, impartiality obliges me to charge the common law. Man is composed of a soul and of a body. To mental as well as to bodily freedom, he has a natural and an unquestionable right. The former was grossly violated by the common law. Witness the many overgrown titles, by which the volumes of the law are still distended: witness, in particular, the customs de modo decimandi,1 and the writs de excommunicate capiendo2 and de hereticocomburendo.b3 These parts I only mention; because from these parts we are happily relieved: they are parts of the common law, which did not suit those who emigrated to America: they were, therefore, left behind them.

But, in some respects, private liberty is still the orphan neglected; in others, she is still the victim devoted by our municipal law. So inveterate, indeed, is the vice of the law in this particular, that it has infected its very language. The terms, which denote the diminution or the destruction of personal safety—homicide, wounding, battery, assault—are all prima facie4 understood in an unfavourable meaning; though they are sometimes excused, or justified, or even enjoined, as well as sometimes prohibited and punished by the law: but to imprisonment, the idea of legal authority seems, in legal understanding, to be prima facie annexed: and when it speaks of the unauthorized kind, it is obliged to distinguish it by adding the epithets false or unlawful.

But legislators should bear in their minds, and should practically observe—and well persuaded I am, that our American legislators bear in their minds, and, whenever the necessary resettlement of things after a revolution can possibly admit of it, will practically observe, with regard to this interesting subject—the following great and important political maxim:—Every wanton, or causeless, or unnecessary act of authority, exerted, or authorized, or encouraged by the legislature over the citizens, is wrong, and unjustifiable, and tyrannical: for every citizen is, of right, entitled to liberty, personal as well as mental, in the highest possible degree, which can consist with the safety and welfare of the state. “Legum”—I repeat it—“servi sumus, ut liberi esse possimus.”5 In the course of my future investigations into this point, I shall be able to evince, in the clearest manner, that our municipal regulations concerning it are not less hostile to the true principles of utility, than they are to those of the superiour law of liberty.

Having made these preliminary observations on a subject, which so greatly needs, and so richly deserves them, I proceed to search the little that is said in some of our systems of criminal law—in others nothing is said—concerning it.

False imprisonment is punishable by indictment, like assaults and batteries; and the delinquent may be fined and imprisoned.c

Thus much concerning the crime of violating the personal liberty of man.

Reputation, except that of official characters, seems not, of late times, any more than personal liberty, to have attracted the distinguished regard of our publick law: and even when it deigns a little degree of regard to it, that regard flows from a wrong principle, and is referred to a wrong end. Libels are considered as objects of publick cognizance, not because the character, but because the tranquillity of the citizens is precious to the publick; and therefore, crimes of this nature are classed and prosecuted and punished as breaches of the peace, and as much resembling challenges to fight.d But it was not always so.

I said, on a former occasion,e that robbery itself does not flow from a fountain more rankly poisoned, than that which throws out the waters of calumny and defamation. In saying so, I was warranted by authority respectable and ancient. By the laws of the Saxons, the felon, who robbed, was punished less severely than the wretch who calumniated. By a law, made, towards the end of the seventh century, by Lothere, one of the kings of Kent,6 a calumniator was obliged to pay one shilling to him in whose house or lands he uttered the calumny. It was conceived, it seems, to diffuse a degree of contamination over things inanimate. He was obliged to pay six shillings to the person whom he calumniated, and twelve shillings to the king. When we recollect, that, long after this time, a shilling could purchase a fatted ox; we may judge concerning the light, in which defamation was viewed at this time. But Edgar the peaceable, who flourished about two centuries afterwards, made, against this crime, a law much more severe: it decreed, that a person convicted of gross and dangerous defamation should have his tongue cut out, unless he redeemed it by paying his full were, as it was called, or the price of his life. This law was confirmed by Canute7 the great.f

By the laws of Egypt, a defamer was condemned to the same punishment, which would have been inflicted on the defamed, if the defamation had been true.g Solon, in one of his laws, ordained, that a delinquent in slander should make reparation in money to the party injured; and should also pay a fine into the publick treasury.h

A libel may be described—a malicious defamation of any person, published by writing, or printing, or signs, or pictures, and tending to expose him to publick hatred, contempt, or ridicule.i It is clearly a crime at the common law.j

It has been often observed in the course of these lectures, that one extreme naturally produces its opposite. An unwarrantable attempt made in the star chamber, during the reign of James the first, to wrest the law of libels to the purposes of ministers, and an effort continued ever since to carry that attempt into execution, and even to go beyond some of its worst principles, have, in England, lost to the community the benefits of that law, wise and salutary when administered properly, and by the proper persons. The decision in that case has ever since been considered, in England, as the foundation of the law on this subject. It will be proper, therefore, to examine the parts of that decision with some degree of minuteness.

The libel, prosecuted and condemned, was a satyrical ballad on a deceased archbishop of Canterbury and his living successour.k

The first resolution is, that a libel against a magistrate, or other publick person, is a greater offence than one against a private man. This, in the unqualified manner here expressed, cannot be rationally admitted. Other circumstances being equal, that of office ought to incline the beam, if the libel refer to his official character or conduct; because an officer is a citizen and more. But a libel of one kind against a private citizen, may certainly be more atrocious, and of example more atrociously evil, than a libel of another kind against a publick officer.

Another and a more important resolution in that case is—that it is immaterial whether the libel be false or true. This resolution is clearly extra-judicial, because it appears, from the state of the case, that the author of the libel was proceeded against on his own confession. The rule, however, has been followed by more modern determinations; and reasons have been offered to support it on the principles of law. The provocation and not the falsity, says Sir William Blackstone, is the thing to be punished criminally. In a civil action, he admits, a libel must appear to be false as well as scandalous; for, if the charge be true, the plaintiff has received no private injury, and has no ground to demand a compensation for himself, whatever offence it may be against the publick peace; and, therefore, upon a civil action, the truth of the accusation may be pleaded in bar of the suit. But in a criminal prosecution, the tendency which all libels have to create animosities, and to disturb the publick peace, is the sole consideration of the law.l

Upon this passage, I observe, in the first place, that a libel is a violation of the right of character, and not of the right of personal safety. It is no wonder if the reasonings on this crime are inaccurate, when its very principle is mistaken.

I observe, in the second place, that these inaccurate reasonings are attempted to be established by a gross inconsistency. When they refer to the effects of the libel, they suppose the tendency to produce disturbances of the peace: when they refer to the causes of the libel, they say to him who is actuated by them—you ought, in a settled government, to complain for every injury in the ordinary course of law, and by no means to revenge yourself.m Why is not this advice given consistently, to the person provoked by the libel? If he has received an injury—if on that injury a crime is superinduced; the law will repair the former, and punish the latter: if no injury has been sustained, no foundation has been laid for a crime.

I observe, in the third place, that Sir William Blackstone here seems not to have been sufficiently attentive to a principle, which he properly subscribes in another part of his Commentaries:n the crime includes an injury: every publick offence is also a private wrong, and somewhat more: it affects the individual, and it likewise affects the community.

The only points, it is said, to be considered in the prosecution for a libel, are, first, the making or publishing of the book or writing: secondly, whether the matter be criminal.o

On the last of these two points, a celebrated controversy has subsisted between judges and juries; the former claiming its decision as a question of law; the latter claiming it as a question of fact, or, at least, necessarily involved in the decision of a question of fact. After what I have said, in a former lecture,p concerning the general duties and powers of juries, you will be at no loss to know my sentiments on this controverted subject. I only remark, at present, that if a libel be, as I think it is, a crime against the right of reputation; the trial on a libel must be the trial of a character; or some part of a character. Of all questions, almost, which can be proposed, I think this the most remote from a question of law.

The constitution of Pennsylvania has put this matter upon an explicit footing, consonant, or nearly consonant in my opinion, to the true principles of the common law: “in all indictments for libels, the jury shall have a right to determine the law and the facts, under the direction of the court, as in other cases.”q

The punishment of a libel is a fine, or a fine and corporal punishment.r

[a. ]Ante. vol. 2. p. 384. et. seq.

[1. ]Of the manner of tithing. A prescription de non decimando is a claim to be entirely discharged of tithes and pay no compensation in lieu of them.

[2. ]A writ issued out of a common-law court for the arrest of a person who after having been excommunicated refused to obey the sentence of the ecclesiastical court.

[b. ]4. Bl. Com. 46.

[3. ]For burning a heretic. This writ issued by special direction of the king caused one convicted of heresy to be burned to death.

[4. ]At first view; self-evident.

[5. ]We are slaves to the law in order that we may be able to be free.

[c. ]4. Bl. Com. 218. 2. Haw. 90.

[d. ]4. Bl. Com. 150.

[e. ]Vol. 2. p. 1066.

[6. ]Lothere (or Hlothere) was one of the kings of Kent and ruled the Jute kingdom of Kent (now a county in the Southeast of England) from 673 to 685.

[7. ]Canute (or Cnut) (994/995–1035) was king of England, Denmark, and Norway.

[f. ]2. Henry. 293.

[g. ]1. Gog. Or. L. 58.

[h. ]1. Pot. Ant. 179.

[i. ]1. Haw. 193.

[j. ]3. Ins. 174.

[k. ]5. Rep. 125 a.

[l. ]4. Bl. Com. 150.

[m. ]5. Rep. 125 b.

[n. ]4. Bl. Com. 5.

[o. ]Id. 151.

[p. ]Vol. 2. p. 975. et seq.

[q. ]Art. 9. s. 7.

[r. ]1. Haw. 196.