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 public hatred, contempt, or ridicule. It is clearly a crime at the common law.2 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 satirical ballad on a deceased archbishop of Canterbury and his living successor.3 The first resolution is, that a libel against a magistrate, or other public 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 public 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 extrajudicial, because it appears, 35 Rep. 125 a 11 Haw. 193. 23 Ins. 174. 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 public 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 public peace, is the sole consideration of the law.1 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.2 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. 14 Bl. Com. 150. 25 Rep 125 b. 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: 1 the crime includes an injury: every public 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.2 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, 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." 4 The punishment of a libel is a fine, or a fine and corporal punishment.5 14 Bl. Com. 5. 2 Id. 151. Vol. 2, p. 189, et seq. + Art. 9, s. 7. 61 Haw. 196. CHAPTER IV. OF CRIMES AGAINST THE RIGHT OF INDIVIDUALS TO PERSONAL SAFETY. THE crimes which are next to be enumerated and considered are those against the right of personal safety. On this subject, the common law has been peculiarly accurate and attentive. An assault is an attempt or offer, with force and violence, to do a corporal hurt to another; as by striking at him; by holding up the fist at him; by pointing a pitchfork at him, if he be within its reach; by presenting a gun at him, if he be within the distance to which it will carry; or by any other act of a similar kind, done in an angry and threatening manner.1 An assault is violence incho ate.2 A battery is violence completed by beating another. Any injury done to the person of a man, in an angry, or revengeful, or rude, or insolent manner, as by touching him in any manner, or by spitting in his face, is a battery in the eye of the law. In that eye, the person of every man is sacred: between the different degrees of violence it is impossible to draw a line with great propriety, therefore, its very first degree is prohibited.* Wounding is a dangerous hurt given to another; and is an aggravated species of battery.5 11 Haw. 133. 23 Bl. Com. 120. 5 Id. 121. These offences may unquestionably be considered as private injuries, for which compensation ought to be decreed to those who suffer them. But viewed in a public light, they are breaches of the public peace: as such they may be prosecuted; and as such they may be punished. The punishment is fine, or fine and imprisonment.1 A battery or an assault, violence or an offer of violence, is susceptible of deep criminality from the atrocious intention, with which it is sometimes offered or done. An assault with a design to murder, to perpetrate the last outrage upon the honor of the fair sex, or to commit the crime which ought not to be even named-these are instances of what I mention: in these instances, to a heavy fine and imprisonment, it is usual to add the judgment of the pillory.2 Assaults, batteries, and woundings may be sometimes excused, and sometimes justified. The particular cases in which this may be done, will be explained with more propriety, when we come to consider them as private injuries, and not as public offences. Affrays are crimes against the personal safety of the citizens; for in their personal safety, their personal security and peace are undoubtedly comprehended. An affray is a fighting of persons in a public place, to the terror of the citizens. They are considered as common nuisances. They may, and ought to be suppressed by every person present; and the law, as it gives authority, so it gives protection, to those who obey its authority in suppressing them, and in apprehending such as are engaged in them; if by every person present; then still more strongly by the officers of peace and justice. In some cases, there may be an affray, where there is no actual violence; as where a man arms himself with dangerous and unusual weapons, in 11 Haw. 134. 4 Bl. Com. 217. 3 Ins. 158. 4 Bl. Com. 145. 24 Bl. Com. 217. |