Imágenes de páginas


ing of unlicensed works was visited with the severest punishments.

“After the Reformation in England, the Crown assumed the right which the church had previously exercised of prohibiting the printing of all works, 'but such as should first be seen and allowed.' The Censorship of the press became part of the prerogative, and printing was further restrained by patents and monopolies. Elizabeth interdicted printing save in London, Oxford and Cambridge."

Under the Stuarts, political discussion was silenced by the licenser, the Star Chamber, the dungeon, the pillory, mutilation and branding. In 1680, the twelve judges under Chief Justice Scroggs declared it to be criminal at common law to publish any public news, whether true or false, without the King's license.

In 1695, the Licensing Act expired and henceforth in England every writing could be freely published.

In 1791, at the time of the adoption of the first ten amendments to the Constitution, the regulation of the practice of the courts in the trial of causes of libel by Mr. Fox's Libel Bill, was agitating the Parliament of England. For nearly a century the English press had been free, but two principles of law had worked great injustice to those indicted for libel.

In the first place, a publisher in England until 1843, was held criminally answerable for the acts of his servants—the fact of publication having been held sufficient proof of the guilt of the publisher.

* Const. History, vol. ii., pp. 101 and 103.



In the second place, the question whether the writing were a libel or not was held to be a question for the court alone, the jury could only decide on the fact of publication. This was held to be the law of England until 1792. While the mere opinion of one man could fix the question of intention, malice, sedition, or criminal nature of a writing, the liberty of the press was a mere shadow, and the only difficulty in punishing a Junius was in the finding of him.

Thus it took a contest of many generations to free the English press from governmental dictation, and now while no previous restraint can be imposed upon a writer, still men discuss with earnestness concerning what laws are most fit to restrain and punish slanderous words and a libelous press.

Every man has a right to freely utter and publish whatever he may please, except so far as such publications from their blaspheny, obscenity or scandalous character may be a public offense; or by their falsehood or malice they may injuriously affect the standing, reputation or pecuniary interest of individuals.

With free speech and press came of necessity the right of assembly and petition for redress of grievances. They are but the public and general use of the right to speak and write upon questions of common interest.

The Second, Third and Fourth amendments prevent the enactment of laws that might abridge the sacred right of self-defense or subject the property of a citizen to wanton violence.

It is a legacy of English law that every man's house is his castle, and to provide for the security of the people in their persons, houses, papers and effects against unreasonable searches and seizures is but the re-enactment of a common law principle that runneth back so far that the memory of man runneth not to the contrary.

The independence and security of the people of a Republic are guaranteed by the efficiency of its militia ; or, at least, by the ability and willingness of the people to vindicate, if needs be, by force their demands. The fear of a standing army pervaded the minds of our ancestors, and from the days of Tacitus, a large standing army and the heavy taxes needed to support it, have been odious to the free and enlightened citizens of every nation.

The history of “general warrants” carries us back to the days of violent Kings and arbitrary arrests. The judges of the King's Bench, however, in 1763, put an end to warrants that authorized the arrest of all suspected persons, by declaring that the common law requires that the offender and his supposed crime must be named in the warrant and the time and place of his offense described with reasonable certainty.

The Alien and Sedition law of 1798, authorized the President to order all such aliens as he should judge dangerous to the peace and safety of the United States government, or all such as he had reasonable ground to suspect of treasonable conduct against the government, to depart out of the United States or be imprisoned. That law authorized the President to drive men into exile or to imprison them, not after a jury trial but upon suspicion, and justly was it viewed with hostility by the Democracy of the early days of the Republic.


An officer who makes an illegal arrest is a trespasser and liable for damages in a civil suit therefor, while for a person illegally confined in prison the writ of Habeas corpus to inquire into his imprisonment, enables him to secure a speedy relief.

The Fifth, Sixth and Eighth amendments chiefly regulate criminal prosecutions and all speak in behalf of the defendant.

English criminal law grew up by a gradual mitigation of rigorous proceedings against the accused. It is only in recent times that the defendant, for a crime of greater magnitude than that of a misdemeanor, has been permitted to have counsel for his assistance.

To compel a man by torture or force to commit perjury or convict himself is humanely forbidden by our fundamental law. True, the cases of some petty criminals against the United States government need not come before a grand jury, but in whatever way a man is deprived of life, liberty or property, it must be, by due process of law, by some general and well known process, by some publicly recognized method.

The policy of the law has become so mild toward defendants that a man is not held to be twice put in jeopardy of life or limb, if after conviction he receives a new trial, and even ex post facto laws may be passed by Congress, if they are for the benefit of the accused. The strictness, too, with which the courts construe penal statutes gives every possible advantage to the accused.

Private property is not to be taken for public use, by the Federal government, without just compensation. The compensation to the citizen for the taxes

taken from him is the security afforded him by the government; when property is taken by the right of eminent domain, the individual who has been deprived of more than his share for the common good, is compensated.

“There are occasions,” said Chief Justice Taney, * “when private property may lawfully be taken or destroyed to prevent it from falling into the hands of the public enemy, and also where a military officer charged with a particular duty may take private property for public use. The government is bound then to make full compensation to the owner, and the officer is not a trespasser nor individually liable. But the danger must be immediate and impending, and the necessity urgent for the public service.

The nation, however, as a supreme political society, cannot be sued and is only morally bound to make compensation. The officer of government who takes private property without legal justification, is individually responsible.

Even the moral responsibility of the government for the destruction of property, which is compelled by some over-ruling necessity, is very doubtful. † The pulling down of houses in time of peace to prevent the spread of fire, or the seizure of private provisions for the army in the time of war, are instances of that over-ruling necessity, where the natural right of selfdefense comes in and the government seems not even morally bound to make compensation. Such, at least, has been the policy of the government of late years.

* 13 Howard, 115. † See Wm. Lawrence's Articles in The American Law Regis

ter for 1874.

« AnteriorContinuar »