Andrew W. Young.

The Government Class Book Designed for the Instruction of Youth in the Principles of Constitutional Government and the Rights and Duties of Citizens online

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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

§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.)

Chapter XLVIII.

Domestic Relations. Husband and Wife.

§1. To render a marriage contract lawful, the parties must be of
sufficient age, called the age of consent; which, by the common law of
the land, is fourteen years in males, and twelve in females. In some
states the age of consent has been altered by statute. In Ohio, Indiana,
and Michigan, it has been raised to eighteen years in males, and
fourteen in females; in Illinois to seventeen and fourteen; in
Wisconsin, to eighteen and fifteen.

§2. The parties must also have sufficient understanding to transact the
ordinary business of life. Idiots and lunatics cannot legally contract
marriage. Persons must also act freely. If the consent of either party
has been obtained by force or fraud, the marriage may be declared void.
The parties must not be nearly related. The degrees of relationship at
which they are forbidden to marry are in some states fixed by law; but
the laws of these states on the subject are not uniform. Some states
have forbidden marriages which come within what is called the Levitical
degrees; but these degrees have received different interpretations.
According to the interpretation of some, the relation of uncle and niece
and aunt and nephew, come within this rule.

§3. No person can lawfully remarry who has a wife or husband living.
Such second marriage is, by the common law, null and void. In some of
the states, perhaps in most of them, it is declared _polygamy_, and a
state prison offense, except in certain cases; as when the husband or
wife of the party who remarries has been long absent, and the party
re-marrying does not know the other to have been living within the time;
or when the former husband or wife of the party remarrying has been
sentenced to imprisonment for life; or when the former marriage has been
lawfully annulled or dissolved. If, however, a marriage has been
annulled or dissolved for the cause of adultery, the criminal party is,
in some states at least, not allowed to remarry.

§4. In some of the cases excepted in the preceding section, the second
marriage is merely excusable. Although the party to such marriage is
exempt from the _penalty_, yet if the former wife or husband is living,
though the fact is unknown, and no divorce has been duly announced, or
the first marriage has not been duly annulled; the second marriage is
void. Where there is no statute regulation, the common law governs,
which is, that nothing but death, or a decree of a competent court, can
dissolve the marriage tie.

§5. The manner in which marriages are to be solemnized, and by whom, and
the manner in which marriage licenses are to be obtained, or notices of
marriage published, (which are required in some states,) are prescribed
by the laws of the states in which such regulations exist. Marriages may
usually be solemnized by ministers of the gospel, judges, justices of
the peace, and certain other officers. But by the common law, a marriage
is rendered valid by a simple consent of the parties declared before
witnesses, or subsequently acknowledged; or such consent may be inferred
from continual cohabitation and reputation as husband and wife.

§6. In law, the husband and wife are regarded as one person. By the
common law, the husband, by marriage, acquires a right to the property
of the wife which she had before marriage, and which she may acquire
after marriage. To her personal property, including debts due her by
bond, note, or otherwise, he has an absolute right, and may use and
dispose of the same as he pleases. Her chattels real, however, which are
leases of land for years, though personal property, he can not dispose
of by will; and if he makes no disposition of them during his life time,
and she outlives him, she takes them in her own right. If he survives
his wife, he acquires an absolute right to them.

§7. But to the real estate of the wife, the husband does not acquire an
absolute right. He has only a right to the use, rents, and profits
thereof during his life, if he shall die before his wife; and in that
event she takes the estate again in her own right. If the wife dies
first, and there are no children, her heirs immediately take the estate.
If there are children living, the husband holds the estate for life, and
on his death it goes to the wife or her heirs.

§8. But this rule of the common law which gives to the husband the
possession and disposal of the property of the wife, has been repealed
by special enactments in most of the states. By these state laws, the
real and personal property of the wife owned by her before marriage, or
conveyed to her by any other person than her husband after marriage,
with the rents and profits of such property, is declared to be her own,
and at her disposal, and not liable for the debts of her husband, except
in a few cases specified in the law of each state. In some of these
states, although the property of the wife is not liable for the
husband's debts, he has the control and management, and the rents and
profits of it.

§9. As the husband, by common law, acquires, by marriage, an interest in
the property of his wife, he becomes liable for her debts contracted
before marriage; but if they are not recovered of him during coverture,
he is discharged _Coverture_, in law, is the state of a married woman,
considered as under _cover_, or under the power of her husband. Some of
the states which have abolished the common law right of the husband to
the property of the wife acquired before marriage, have also abolished
the common law obligation of the husband to pay the debts of the wife
contracted before marriage; her property alone being liable for such

§10. The husband is bound to maintain his wife, and is liable for debts
which she may contract for necessaries, but for nothing more. If he
refuses to provide for her wants, or if, through other ill treatment or
fault on his part, they become separate, he is liable to fulfill her
contracts for necessaries, even though he has forbidden persons to trust
her. If they part by consent, and he secures to her a separate
maintenance, and pays it according to agreement, he is not liable, even
for necessaries.

§11. The husband and wife can not be witnesses for or against each
other; but any declarations made by a wife when acting as agent for her
husband, may be admitted in evidence against him. In a few states, laws
have been proposed, and, it is believed, in some they have been passed,
removing, to some extent, this restriction upon the right of a husband
or wife to the testimony of the other.

Chapter XLIX.

Domestic Relations, continued. Parent and Child; Guardian and Ward;
Minors; Masters, Apprentices, and Servants.

§1. Parents, as the natural guardians of their children, are obliged to
provide for their support and education during their minority, or while
they are under twenty-one years of age. At twenty-one they attain the
age of majority, when they are said to be _of age_. Under this age they
are, in law, _infants_, or _minors_. The father, if he is able, is bound
to support his minor children, even if they have property of their own;
but in such case the mother is not so bound. But a husband is not
obliged to maintain the child of his wife by a former husband. If,
however, he takes the child into his family, he is responsible for its
maintenance and education while it lives with him.

§2. A father may be liable for necessaries sold to a child. But to be so
liable, it must be proved that the contract for the articles was made by
his actual authority, or the circumstances must be sufficient to imply
authority; or that neglect to provide for the child, or some other fault
on the part of the father, rendered assistance to the child necessary.
Being bound to provide for his children, the father has a right to their
labor or service; and he may recover their wages from any person
employing them without his consent.

§3. In general, a minor cannot bind himself by contract. If he lives
with his father or guardian, by whom he is properly supplied, he can not
bind himself even for necessaries. But if, on contracting a debt, he
agrees to pay it after he shall have become of age, he will then become
liable. If a minor has no father or other guardian, his contracts for
necessaries are binding upon him.

§4. If a minor takes an estate and agrees to pay rent, he will be liable
for its payment after he shall have become of age. If he receives rents,
he can not demand them again when of age. If he pays money on a
contract, and enjoys the benefit of the contract and then avoids it when
he comes of age, he can not recover back the consideration paid. And if
he avoids an executed contract when he comes of age, on the grounds of
infancy, he must restore the consideration.

§5. Minors are answerable for crimes, and may be indicted and tried,
and, on conviction, be fined and imprisoned. They are responsible also
for acts of fraud. Their age and the peculiar circumstances in which
they were placed, might be such as to exempt them from liability; but in
cases of gross and palpable fraud committed by minors who have arrived
at the age of discretion, they would be bound by a contract.

§6. In general, male infants and unmarried females under eighteen years,
may, of their own free will, bind themselves, in writing, to serve as
_apprentices_ and servants, in any trade or employment; males until the
age of twenty-one, and females until the age of eighteen years, or for a
shorter time. But the minor must have the consent of the father; or if
the father is dead, or disqualified by law, or neglects to provide for
his family, consent must be had of the mother; or, if the mother is dead
or disqualified, then of the guardian.

§7. Pauper children may be bound out by the officers having charge of
the poor. And the laws of many of the states, perhaps of most or all of
them, very properly require, that a person, to whom a poor child is
bound, shall agree to cause such child to be taught to read and write,
and, if a male, to be also instructed in the general rules of

§8. Masters have a right to correct their apprentices with moderation
for negligence and misbehavior; and they may recover damage at law of
their apprentices for willful absence. On the other hand, a master may
be prosecuted for ill usage to his apprentice, and for a breach of his
covenant. A master is liable to pay for necessaries for his apprentice,
and for medical attendance, but he is not so liable in the case of a
hired servant.

§9. When an apprentice becomes immoral and disobedient, an investigation
of the matter may be had by the proper authorities; and for good cause
the indenture may be annulled, and the parties discharged from their
obligations. Upon the death of a master, an apprenticeship is dissolved.

§10. There is, it is believed, no statute law in any state, particularly
defining the rights and obligations of _hired servants_ and the persons
employing them. Both are obliged to fulfill their agreement. If a hired
servant leaves the service of his employer, without good cause, before
he has worked out the time for which he was hired, he cannot recover his
wages. And for immoral conduct, willful disobedience, or habitual
neglect, he may be dismissed. On the other hand, ill usage, or any
failure on the part of the employer to fulfill his engagement, releases
the laborer from his service.

§11. How far a master is answerable for the acts of his hired servant,
is not clear. As a general rule, the master is bound for contracts
made, and liable for injuries done, by a servant actually engaged in the
business of his master, whether the injury proceeds from negligence or
from want of skill. But for an injury done by a willful act of the
servant, it is considered that the master is not liable. If the servant
employs another to do his business, the master is liable for the injury
done by the person so employed. But a servant is accountable to his
master for a breach of trust, or for negligence in business, or for
injuring another person in his master's business.

Chapter L.

Right of Property. How Title to property is acquired; Wills and
Testaments Title to Property by Descent.

§1. Every citizen of the United States is capable of holding lands, or
real estate, and of taking them by devise, descent, or purchase, and of
selling and conveying away such estate. Aliens, by common law, have not
this power. In many of the states, however, this disability has been
removed by statute. On declaring their intention to become citizens, and
complying with certain regulations, aliens acquire the right to take and
hold real estate to themselves and their heirs. But they may hold and
dispose of personal property without any special enactment.

§2. To _devise_ property is to give or bequeath it by will. A _will_ is
a written instrument in which a person declares his will concerning the
disposal of his property after his death. It is also called _testament_.
This word is from the Latin _testis_, meaning witness. Hence the word
has come to be applied to this instrument, which is the witness or proof
of a person's will. A person making a will is called _testator_; one who
dies without making a will or testament, is called _intestate_.

§3. All persons of full age and sound mind, except married women, may
give and bequeath real and personal estate by a last will and testament.
In many of the states, personal estate may be willed at an earlier age.
In a few states, females at eighteen may make a will of real and
personal estate. In a few states, personal estate may be willed
verbally, if the will is within a specified time reduced to writing, and
subscribed by disinterested witnesses. In Ohio such will must be written
within ten days after the speaking of the testamentary words. A will of
this kind is called a _nuncupative_ will.

§4. In most of the states, laws have been enacted, allowing married
women to hold, in their own exclusive right, all the property, real and
personal, which they owned at the time of marriage, and which they may
acquire after marriage. (Chap. XLVIII, §8.) With the right of possession
is also given, it is presumed, the power of disposing of the property by

§5. A will devising real estate must be subscribed by at least two, in
some slates three, attending witnesses, in whose presence the testator
must subscribe the will, or acknowledge that he subscribed it, and
declare it to be his last will and testament. If the testator is unable
to sign his will, another person may write the testator's name by his
direction; but he should sign his own name as witness to the will.

§6. A testator may revoke or alter his will by a later will or writing,
executed in the same manner. But the second will, to revoke the former,
must contain words expressly revoking it, or directing a different
disposal of the property. A will may also be revoked by a sale of the
property. And any alteration of the estate or interest of the testator
in lands devised, is held to be an implied revocation of the will. Lands
purchased after a will has been made, are not conveyed by it. As a
general rule, a will is also revoked by the subsequent marriage of the
testator and birth of a child, unless the wife and child have been
otherwise provided for. The will of an unmarried woman is revoked by her

§7. By the statutes of some states, a child born after the death of the
testator, or born in his lifetime and after the making of the will,
inherits a share of the estate, as if the father had died intestate. In
some other states, the statute goes further, and gives the same relief
to all the children who are not provided for in the will, and who have
not had their portion in the parent's lifetime.

§8. A _codicil_ is an addition or a supplement to a will, and must be
executed with the same solemnity. It is no revocation of a will, except
in the precise degree in which it is inconsistent with it.

§9. After the death of a testator, the will is brought before the court
of probate to be proved. (Chap. XX, §5.) When a will has been duly
proved and allowed, the court issues letters testamentary to the
executor. An _executor_ is a person named in the will of a testator to
carry the will into effect. _Letters testamentary_ give him the power to
act in settling the estate of the deceased. If he refuses to act, or is
not lawfully qualified, the court appoints a person, who, in that case,
is called _administrator_; and the court issues _letters of
administration_ with the will annexed. Letters of administration are
also issued in case of a person dying intestate. They give to the
administrator the requisite authority to settle the estate.

§10. Taking property by _descent_, is the receiving of it from an
ancestor or other relative dying intestate. If a person dies without
making a will, his property falls, or _descends_ to his lawful heirs.
The order or rule of descent is not uniform in this country, being
determined, to a great extent, by the laws of the states. In general,
however, the real estate of an intestate descends, first to his lineal
descendants, that is, persons descending in a direct line, as from
parents to children, and from children to grand-children. The lineal
descendants most nearly related to the intestate, however distant the
relation may be, takes the estate.

§11. If any children of an intestate are dead, and any are living, the
inheritance descends to the children living, and to the descendants of
the children dead, so that each child living shall receive such share as
he would receive if all were living, and the children of those who are
dead such share as the parents would receive if living. Thus, suppose an
intestate had three sons, one of whom is dead, but has left children. In
this case, each of the sons living would share one-third of the
property, and the children of the deceased son the remaining third.

§12. But if the children are all dead, and there are grand-children
living, the grand-children share equally, though not an equal number are
children of each parent. If, for example, an intestate dies leaving no
children, but having had two sons, one of whom had left three children,
and the other two, the five share equally in the estate. The laws of
Rhode Island, New Jersey, North Carolina, South Carolina, Tennessee,
Louisiana, and Alabama, unless recently altered, are exceptions to this
rule. In these states, and perhaps in a few others, though the children
of the intestate are all dead, the grand-children do not share equally,
but those of each stock, or family, take the portion which their parent
would have taken if living.

§13. The order of descent is so different in the states, especially when
there are no lineal descendants of an intestate, that it can be
ascertained only by reference to the laws of each state. As a general
rule, real estate passes, (1.) to the lineal descendants; (2.) to the
father; (3.) to the mother; (4.) to the collateral or _side_ relatives,
as brothers, sisters, nephews, nieces, &c. But even to this general rule
there are exceptions in the laws of some states.

§14. The rule of descent given in the preceding sections, it will be
seen, relates to _real_, and not to personal estate. The rule in regard
to real estate, and that relating to personal estate, are generally
somewhat different in the same state.

Chapter LI.

Deeds and Mortgages.

§1. In whatever manner a person acquires possession of real estate,
whether by devise, descent, purchase, or gift, evidence of possession

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Online LibraryAndrew W. YoungThe Government Class Book Designed for the Instruction of Youth in the Principles of Constitutional Government and the Rights and Duties of Citizens → online text (page 14 of 27)