The government class book / Designed for the instruction of youth in the principles of constitutional government and the rights and duties of citizens.

by Andrew W. Young

Chapter XLVII.

Rights of Persons. Personal Security; Personal Liberty; Religious Liberty; Liberty of Speech, and of the Press; Right of Property.

§1. Having taken a general view of the state governments and the government of the United States, and seen how wisely they are adapted to promote the general welfare and secure the blessings of liberty; we proceed to give a digest of the laws which more particularly define the rights and prescribe the duties of citizens, or by which their social and civil intercourse is to be regulated. These laws, it will be recollected, we have elsewhere called the municipal or civil laws, as distinguished from the political or fundamental law of the state. (Chap. III, §6.)

§2. These laws are of two kinds, the written or statute law, and the unwritten or common law. Statute laws are those which are enacted by the legislature, and recorded in writing, and are usually collected and published in books. The word statute is from the Latin statuo, to set, fix, or establish.

§3. The common law is not a code of written laws enacted by a legislature, but consists of rules of action which have become binding from long usage and established custom. It is said to be founded in reason and the principles of justice. The common law of England was brought over by our ancestors, and established here before the revolution. Some of the states, in their constitutions, adopted after the revolution, declared it to be the law of their respective states; and it has continued to be law in all the states, and is still so considered, except such parts as have been altered or repealed by constitutional or legislative enactments, or by usage.

§4. The most valuable rights protected by law are the rights of personal security and personal liberty. The right of personal security is the right to be secure from injury to our persons or good names. By personal liberty is meant the freedom of our bodies or persons from restraint or confinement. Provisions guarantying these rights have been incorporated into our national constitution, and the constitutions of the several states.

§5. The right of personal security is also protected by the law, by which a man, on showing reasonable cause of danger of personal injury, may require his adversary to be bound with sureties to keep the peace. And for violence committed, the offender may be prosecuted in behalf of the state and punished, and is liable also to the party aggrieved in a civil suit for damages.

§6. This right is further protected by the law which permits a man to exercise the natural right of self-defense. In defending his person in case of a felonious assault, he may lawfully take the life of his assailant. This is by law pronounced justifiable homicide, and is allowed also in defense of one's property against felonious and violent injury. But homicide (man-killing) is not justifiable in case of a private injury, nor upon the pretense of necessity when the party is not free from fault in bringing that necessity upon himself.

§7. The right to be secure in our good names, which is included in the right of personal security, is protected by the law against slander and libel. A slander is a false and malicious report or statement tending to injure another in his reputation or business, and which, if true, would render him unworthy of confidence or employment; or it is the maliciously charging of another with anything by which he sustains special injury. The slander of a person by words spoken, is a civil injury, that is, an injury for which redress is to be obtained in a civil suit for damages.

§8. A slander written or printed, is called libel. A libel is a malicious publication in print or writing, signs or pictures, tending to expose a person to public hatred, contempt, or ridicule. And it is considered in law a publication of such defamatory writing, though communicated to a single person. A slander written or printed is likely to have a wider circulation, to make a deeper impression, and to become more injurious. A person may therefore be liable in damages for words in print or writing, for which he would not be liable if merely spoken. In case of libel, a person is not only liable to a private suit for damages, but may be indicted and tried as for other public offenses.

§9. It is a principle of English common law, that in a criminal action for libel it is immaterial whether the matter of it is true or false; and a person prosecuted for libel is not allowed, in justification, to prove to the jury the truth of his statement, since the provocation, not the falsity, is to be punished. And, whether true or false, the libelous publication is equally dangerous to the public peace, and is presumed to have been made with malicious intent.

§10. It is held--and perhaps it is the prevailing opinion--that in a civil action for damages, a libel must be false as well as scandalous, and, consequently, that the truth may be pleaded in justification. This point, however, is not fully settled. The reason for this distinction between cases of public and private prosecution, it is not easy to perceive. If it is just to inquire into the good or bad intentions of the publisher in one case, it would seem to be equally so in the other.

§11. But the common law has been materially modified and relaxed in this country. In most of the states it is provided by their constitutions or by law, that the truth may be given in evidence, and if it shall appear to the jury "that the matter charged as libelous is true, and was published with good motives and for justifiable ends, the party shall be acquitted." As it may sometimes be proper to speak or publish an unfavorable truth concerning others, the principle of the above provision would seem to be founded in justice. In the state of Vermont, and perhaps in a few other states, if the party prosecuted proves the truth of his statement in any case, he is acquitted.

§12. The right of personal liberty is secured by express provision of the national constitution, which guaranties to every citizen "the privilege of the writ of habeas corpus." (Cons. U.S. art. 1, sec. 9.) The nature of this writ has been explained. (Chap. XXXVI, §4.) The same provision has been inserted in the state constitutions. This was a common law privilege, independently of any constitutional enactment. The principal object of the provision seems to be to take from congress and the state legislatures the power to abolish this privilege, or even to suspend it for any time, or in any case, except the particular cases mentioned.

§13. Freedom of religious opinion and worship, or liberty of conscience, is a valuable personal right, included in the term, personal liberty, and is effectually secured in this country. In England, the country of our ancestors, there is a church established and supported by the government. This is sometimes called "union of church and state." The American people, from their love of religious freedom, have, in their constitutions, expressly prohibited congress from making laws "respecting the establishment of religion, or prohibiting the free exercise thereof." (Amend. art. 1.) And the state constitutions have adopted similar provisions.

§14. Another important personal right comprehended in the term personal liberty, and guarantied in the same article of the national constitution, and in the state constitutions, is the liberty of speech and of the press. Some of the monarchical governments of Europe prohibited the people from speaking against the sovereign or his government. Books and papers could not be published until they had been examined and approved. The persons authorized to examine the manuscripts, were called censors. Hence the expression sometimes heard, "censorship of the press." To secure the liberty of speaking and publishing their sentiments freely up on all subjects, the people of this country have made express provision in their constitutions; which, however, while they properly guaranty this right, leave men "responsible for its abuse," and liable to prosecution for slander or libel. (§7, 8.)

§15. The right of property is the right to acquire property, and to be free in the use and enjoyment of it. To protect men in the enjoyment of this right, is one of the principal objects of constitutions and laws. The rights of property will constitute the subject matter of several subsequent chapters of this digest of "common and statutory law." (Chap. L, and onward.)