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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-defence, in all those cases in which the law is either too slow or too feeble to stay the hand of violence.a Homicide is justifiable in every case in which it is rendered necessary in self-defence, against the person who comes to commit a known felony with force against one's person, or habitation, or against the person of those who stand in near domestic relations.b The right of self-defence in these cases is founded on the law of nature, and is not, and cannot be superseded by the law of society.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,
It is difficult to deduce any precise measure of damages from the numerous cases, but the courts have in these cases discountenanced the idea of speculative or remote damages, though it is impossible to ascertain any certain rule from the numerous cases which remarkably illustrate “the oscillations of the judicial pendulum.” The numerous cases under the head of remote and consequential damages, are most industriously collected by Mr. Sedgwick in the 3d chapter of his treatise, and to that I must refer the student. In the Law Reporter, Boston, April, 1847, there is an elaborate review of the cases in matters of tort on the subject of exemplary damages, endeavouring to show that the decisions do not, on a strict examination and construction of the language of them, amount to authorities for going beyond compensatory damages. On this subject it appears to me that the conclusions in Mr. Sedgwick's treatise are well warranted by the decisions. and that the attempt to exclude all consideration of the malice, and wickedness, and wantonness of the tort, in estimating a proper compensation to the victim is impracticable, visionary and repugnant to just feelings of social sympathy. In trespass, when the party wantonly violates the law, "the jury should not be sparing in the damages.” Lord Abinger, 1 Meeson of Welsby, 342.
* See infra, p. 340, note.
b Hawk. P. C. b. 1. ch. 28. sec. 21. Foster's Discourse of Homicide, 273, 274.
and manslaughter, and murder, which it does not belong
to my present purpose to examine; and I will only *16 observe, that homicide is never strictly justifiable
in defence *of a private trespass, nor upon the pretence of necessity, when the party is not free from fault in bringing that necessity upon himself.a
(2) of slander and libels.
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. 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 offence criminal in itself, and indictable, and subjecting the party to an infamous punishment, or involving moral turpitude, or the breach of
a Hawk, P. C. b. 1. ch. 28. sec. 22, 23. In the State v. Morgan, 3 Iredell, N. C. Rep. 186. 193, it was declared, that killing a person to prevent a mere trespass on his property, whether the trespass could or could not be otherwise prevented, is murder.
• Potter's Greek Antiq. vol. i. p. 179. Halhed's Gentoo Code, 182. Cicero de Republica, lib. 4. Tacit. Ann. lib. 1. ch. 72. Hor. Epist. b. 2. Ep. 1. 152. Aul. Gel. b. 3. ch. 3. Inst. 4. 4. 1. 3 Johnson's Cases, 382, note; where the reporter, with great learning and accuracy, bas collected the material provisions in the Roman law on the subject. Since the publication of that note, the view of the law of defamation among the ancients has been extensively considered in Holt's Law of Libel, b. 1. ch. 1. See also the excellent introduction to Mr. Starkie's treatise on slander and libel ; in which illustrations are drawn from the Roman and the Scotch laws, and the necessity of legal restraints upon slanderous and libellous attacks on the character of individuals, is clearly enforced with strong sense and learning, and with great beauty and simplicity.
some public trust, or with any matter in relation to his particular trade or vocation, and which, if true, would render him unworthy of employment; or, lastly, with any other matter or thing, by which special injury is sustained.a But if the slander be communicated by pictures, or signs, or writing, or painting, 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 degrade him in the esteem and opinion of the world, would be libellous if printed, though they would not be actionable if spoken. A libel, as applicable to individuals, has been *well defin- *17 edc to be a inalicious publication, expressed either in printing or writing, or by signs or pictures, tending either to injure 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,
a Brooker v. Coffin, 5 Johns. Rep. 188. Spencer, Ch. J., in Van Ness v. Hamilton, 19 Johnson, 367. McCuen ads. Ludlum, 2 Harrison's N. J. Rep. 12. In Indiana, charging by words a female with incest, fornication, adultery, or whoredom, is made actionable without showing special damages. R. Statutes of Indiana, 1838, p. 452.
o Villers v. Monsley, 2 Wils. Rep. 403. Woodward v. Dowsing, 2 Mann f Ryl. Rep. 74. Levy v. Milne, 12 B. Moore's Rep. 418. Clement v. Chivis, 9 Barn. g Cross. 174. Lord Churchill v. Hunt, 1 Chitty's Rep. 480. Cooper v. Greely, 1 Denio, 347. Clark v. Binney, 2 Pock. 113. Star kie on Slander, by Wendell, vol. i. 169. The law implies malice, if the publication charges an individual with an indictable offence, or exposes him to hatred, ridicule, or contempt. Mr. Hamilton, in his argument in the case of the People v. Croswell, 3 Johns. Cases, 354, submitted the following definition of a libel, in its most comprehensive sense, as being, “a censorious or ridiculing writing, picture or sign, made with a mischievous and malicious intent towards government, magistrates or individuals.” This definition of a libel was adopted by the court in the People v. Croswell, 3 Johns. Cases, 354, and approved of by the Court in Steele v. Southwick. 9 Johns. Rep. 215.
€ 4 Mass. Rep. 168. 2 Pickering's Rep. 115. 2 Humphrey's Rep. 542, 5 Binney, 340. 3 Harrington's Rep. 407.
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 libelled, but answerable to the state by indictment, as guilty of an offence tending directly to a breach of the public peace.&
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 favour, 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 the 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 de*18 famation, as *an offence against the public peace;b
and in the time of Henry III., Bractonc adopted the language of thc Institutes of Justinian, and held slan
* 1 Hawk. P. C. b. i. ch. 73. Foster v. Commonwealth, 5 Wats & Serg. 77. The inalicious and unauthorized publication of any part of a letter wilfully opened by a person to whom it was not addressed, or the wilfully opening or reading the same by any such person not authorized so to do, is declared to be a misdemeanor. New York Revised Statutes, vol. ii. p. 695, sec. 27, 28.
b 2 Inst. 227.
der and libellous 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 offence of charging another with a crime which endangered his life.a 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. They are said to have been declaratory of the common law,c and actions of slander were slowly but gradually multiplied between the time of Edward III. and the reign of Elizabeth, 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 Palus, in the civil law.e 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, abont the beginning of the reign of James I.,f 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 19* to this day unshaken, and in the case of The
• 30 Ass. 29. Reeve's History of the English Law. voi. iii. p. 90.
Dig. 47. 10. 18.
De Libellis famosis, 5 Co. 125. Hudson's Treatise on the Star Chamber, published in 2d vol. Collec. Jurid.