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 imprisonment, 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 ia 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, tha 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, re- *27 stored 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

(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.

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, (b) 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 society and jurisprudence. It has been *28 adopted or declared in force by the constitutions of some of the states, (a) and by statute in others; (b) 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. (c) 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 the 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. The statute of New York, of 1787, was a literal transcript of the

Corpus Act of New York of 1787, and 1801; the Habeas Corpus Act of New Jersey of 1795; the Habeas Corpus Act of Ohio, Statute Law of Ohio, 1831, and of Connecticut, Revised Statutes of Connecticut, 1821, and Statutes of Connecticut, 1838 p. 336; Ordinance of Congress of July 13, 1787, for the government of the territory of the United States northwest of the river Ohio; Territorial Act of Michigan, of April 12, 1827; the Habeas Corpus Act of Indiana, 1838; the Habeas Corpus Act of Arkansas, R. Statutes, p. 434.

(b) See vol. i. p. 342.

(a) Constitutions of New York, New Jersey, and Ohio.

(b) Pennsylvania and Virginia. See, also, supra, vol. i. 472.

(c) 2 N. Hamp. 44; Marshall C. J., in Livingston v. Jefferson, 4 Hall L. J. 78.

English statute, and the Habeas Corpus Act, in the subsequent revisions of the New York statute code, in 1801 and 1813, was essentially the same. But the New York statute of 1818, (d) enlarged the extent of the application of the writ, and this has been the case also in Pennsylvania. (e) It gave to the officer, before whom the writ was returned, authority to revise the cause of commitment, and to examine into the truth of the facts alleged in the return. The English statute of 56 Geo. III. c. 100, conferred the like power. By the New York Revised Statutes, which went into operation on 1st January, 1830, all the statute provisions on the subject of the writ of habeas corpus were redigested, and some material amendments, and more specific directions added. Instead of referring to the English statute of Charles II., we will take notice of the substance of the revised statute * of New *29 York, and which, no doubt, contains equally the substance of the statute provisions on the subject in every state of the Union, (for they are all taken from the same source,) with the remedy and the sanctions somewhat extended.1

All persons restrained of their liberty, under any pretence whatsoever, are entitled to prosecute the writ, unless they be persons detained: (1.) By process from any court or judge of the United States having exclusive jurisdiction in the case.2 (2.) Or by final judgment or decree, or execution thereon, of any competent tribunal of civil or criminal jurisdiction, other than in the case of a commitment for any alleged contempt. (a) The application for the writ must be to the Supreme Court, or chancellor, or a judge of the court, or other officer having the powers of a judge at chambers; and it must be by petition in writing, signed by or on behalf of the party; and it must state the grounds of the application, and the fact must be sworn to. (b) The English statute did not

(d) Sess. 41, ch. 277.

(e) 1 Binney, 376.

(a) New York Revised Statutes, vol. ii. p. 563, sec. 21, 22.

(b) Ibid. sec. 23, 25.

1 The different character of the writs of habeas corpus at common law, and by statute, is examined in The People v. Rose Porter, 1 Duer (N. Y.) 709.

2 The state courts have jurisdiction concurrent with the federal courts, of a writ of habeas corpus for the body of a minor enlisted in the army. Commonwealth v. Fox, 7 Barr, 336.

Under the Revised Statutes of New York, authority to entertain proceedings in