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1821, is a little varied in its language * from those provisons 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 libellous 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 New York 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 libeller were good, and his end justifiable.

to the question of probable cause on indictments for a malicious prosecution, it was settled in the Exchequer Chamber in England, on error from the Q. B., that it was the province of the jury to decide on the existence of facts, and for the court to determine whether the facts, if proved, constituted probable cause. Panton v. Williams, 2 Adol. & Ell. (N. S.) 169.

1 The same provision, in hæc verba, is embodied in the constitution of New York, adopted in 1846, except that the word criminal is inserted, so as to make it read "in all criminal prosecutions."

*

The act of Congress of the 14th of July, 1798, made it *24 an indictable offence to libel the Government, or Congress, or the President of the United States; and made it lawful for the defendant, upon the trial, to give in evidence in his defence the truth of the matter contained in the publication charged as a libel. This act was, by the terms of it, declaratory, and 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 New York, 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 defence the truth of the matter 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 libellous 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 this 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. (a)

(a) Holt C. J., 11 Mod. 99; 3 Blacks. Com. 125; Buller N. P. 8; J'Anson v. Stewart, 1 Term Rep. 748; 1 Starkie on Slander and Libel, Wendell's edit. 1842, p. 210, note. In Massachusetts, a statute passed in March, 1827, not only allows the truth to be pleaded by way of justification in all actions for libels, as well as for oral slander, but every inference to be drawn from such a plea in admission of the fact of publication, or of malice, if the plea be not proved, is destroyed. The statute affords facility and encouragement to the plea. This statute is said to have been passed in consequence of a decision of the Supreme Court of Massachusetts, in the case of Jackson v. Stetson and wife, 15 Mass. 48, that a plea of justification, accompanying the general issue, was proof of the speaking of the words, and that if the defendant failed to establish it by proof, the plea was evidence of malice. The statute has been said to be only declaratory of the common-law rule, and it is undoubtedly just and truc, that a failure to prove the plea of justification will not deprive the defendant of the right of adducing such evidence in mitigation of damages under the general issue as would have been admissible if a plea of justification had not accompanied it. Starkie on Slander and Libel, vol. i. Amer. edit. 1843. Int. by Wendell, pp. 49-55. Putting a plea in justification of a charge, and failing, is evidence of mal

The ground of the private action is the injury which the party has sustained, and his consequent * right to damages 25 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 be 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 the 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. (a) The guilt and the essential ground of action for defamation consists in the malicious intention; and when the mind is not in fault, no prosecution can be sustained. (b) On the other hand, 26 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. (a)

ice and aggravation of damages. Warwick v. Foulkes, 12 Mees. & W. 507; Matson v. Buck, 5 Cowen, 499.

(a) Vinnius in Inst. 4, 4, 1; Edin. Review, vol. xxvii. pp. 102, 142, vol. xxxvii. p. 207.

(b) We have a remarkable illustration of this principle in a decision cited by Lord Coke, when at the bar, and arguing the case of Brook v. Montague, (Cro. Jac. 91.) A preacher, in his sermon, recited a story out of Fox's Martyrology, of one Greenwood, as being a very wicked man and a persecutor, who died under signal visitations of God's displeasure. The preacher intended to show, by that example, the judgment of Providence upon great sinners; but he was totally mistaken as to the fact, for Greenwood was not dead nor diseased, but present at the preaching of the sermon. He brought his action for the defamation; and the court instructed the jury, that the defendant, having read and delivered the words as a matter of history, and without any evil intention, was not liable in damages.

(a) Though the plaintiff, in an action for a libel, makes the usual but unnecessary

(3.) Of personal liberty and security.

1. Writ of habeas corpus. 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 impris onment, by the security of the privilege of the writ of habeas corpus.1

averment in the declaration, of his general good credit and character, the defendant cannot go into proof of his general bad character, by way of mitigation of damages, or in support of averments in his plea to that effect. Nor can the plaintiff, in order to rebut the defence, go into evidence of his general good character, when the same is not impeached. Cornwall v. Richardson, Ryan & Moody, 305; Stow v. Converse, 3 Conn. 326; Matthews v. Huntley, 9 N. Hamp. 146. A plaintiff cannot be expected, and ought not to be required, to go into proof of so general a nature, and his good character is always presumed in law, unless by evidence of particular facts, fairly and specifically put in issue, that presumption be negatived. Baron Wood vindicated this rule with great energy and effect, in Jones v. Stevens, 11 Price, 235; and the case of the Earl of Leicester v. Walter, 2 Campb. N. P. 251, was overruled by the Court of Exchequer.

In England, the defendant in an action of slander may give in evidence, under the general issue, any defence except that which amounts to a justification of the charge, as, for instance, the truth of it, and the statute of limitations. Introduction, pp. 26, 27, to 1 Starkie on Slander and Libel, and the notes to vol. i. pp. 402 to 406, by Mr. Wendell, the learned editor of the American edition. The defence of privileged communications may be given in evidence, and need not be specially pleaded when it goes to show no malice, and the question of malice is a question of fact for a jury. Lillie v. Price, 5 Adol. & Ell. 645. The facts ought not to be specially pleaded in bar as a justification, when they do not amount to it on the face of the plea; for whether the libel was with or without malice cannot appear in the pleadings, and is matter for a jury. Turrill v. Dolloway, 17 Wendell, 426; S. C. 26 Id. 383. See 1 Starkie, Int. pp. 27-35, 38-49. The cases of Cooper v. Barber, 24 Wendell, 105, and Cooper v. Weed and others, cited by Mr. Wendell, in his interesting Introduction to his edition of Starkie, I apprehend were not correctly decided, so far as evidence of the matters contained in the notice annexed to the pleas was not permitted to go to the jury, to explain, mitigate, and repel the inference of malice. The observations of Mr. Wendell on those cases appear to be well founded, and, unless the jury are permitted to take cognizance of the question of malice, and of all the circumstances attending the publication, grievous injustice may be inflicted upon a defendant.

In 1843 the statute of 6 and 7 Vic. c. 96, was passed for the amendment of the law of defamation and libel. It provided that in actions for defamation, the truth of the matters charged should not be a defence, unless it were proved; also, that the publication was for the public benefit, and that the defendant might give his apology in evidence in mitigation of damages.

1 As to the writ of habeas corpus to determine the custody of infant children, and the practice under the writ, see Mercein v. The People, 25 Wendell, 64; People v. Mercein, 3 Hill, 399; The People v. 19 Wendell, 16; People v. Chegaray, 18 Id. 637; People v. Humphrey, 24 Barb. (N. Y.) 521.

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. (b) 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 justicia; (c) 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. (d)2 The explicit and peremptory provisions of the statute of 31 Charles II. c. 2, restored the writ of habeas corpus to all the efficacy to which it was entitled at common law, and which was requisite for the due protection of the liberty of the subject. That statute has been reenacted or adopted, if not in terms, yet in substance and effect, in all the United States. (a) The privilege of this writ is also made

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(b) 2 Inst. 589. Words may constitute an imprisonment, if they impose a restraint upon the person, and he be accordingly restrained and submits. Homer v. Battyn, Buller N. P. 62; Pike v. Hanson, 9 N. Hamp. 491.

(c) 4 Inst. 290.

(d) 3 Bulst. 27. The writ of habeas corpus had been in England, from the time of Magna Charta, a matter of right, but generally and fatally disregarded in cases relating to the government. The illegal and arbitrary imprisonments by the privy council and crown officers under Elizabeth gave rise to an impressive address from the common-law judges, in 1591, to Chancellor Hatton and Lord Burleigh, complaining of them in just and manly terms. Anderson's Rep. vol. i. p. 297. Mr. Hallam, in his Constitutional History of England, vol. i. pp. 317–320, gives, from an original manuscript in the British Museum, a more full and correct copy of this remarkable document, so honorable to the judges of the common-law courts. But afterwards, in 1627, when certain knights were imprisoned by the special command of the king, for not yielding to the forced loan, the Court of K. B. refused to bail or discharge them upon habeas corpus, though no cause, other than the king's command, was returned.

(a) See, for instance, the Habeas Corpus Act in Massachusetts of 16th March, 1785, and Massachusetts Revised Statutes, 1836, part 3, tit. 4, ch. 111; the Habeas Corpus Act of South Carolina of 1712, and referred to in 2 Bay, 563, and 2 S. C. Rep. p. 698; the Habeas Corpus Act of North Carolina, R. S. 1837, vol. i. p. 314; the Habeas Corpus Act of Pennsylvania of 18th Feb. 1785, and referred to in 1 Binney, 374; the Habeas

2 The writ of habeas corpus is not so far a writ of right that the court may not refuse to issue it, when it appears, upon the face of the petition, that the party detained will not be entitled to a discharge, if brought before the court. Sims's case, 7 Cush. 285; Passmore Williamson's case, 26 Penn. 1.