William M. Lacy James Kent.

Commentaries on American law, Volume 2 online

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criminate the other. A wife is a competent witness for but not against her
husband. Yearger r. Weaver, 61 Pa. St. 425; Cauley v, Wilson, 7 Phila. 676.
See also Commonwealth v. Schriver, Quarter Sessions. Phila. 1820, M. S.;
Taylor on Evidence (Text Book Series Ed.); Greenleaf on Evidence.

" The jury must be of the State and District wherein the crime was com-
mitted, and the defendant must be Informed of the nature and cause of the
aocQsation. Art. 6.; Pomeroy Const. Law, 144, 145.

^^ This 6th Amendment to the Constitution of the United States does not

apply to criminal trials in the State Courts for the violation of State laws.

People r. PenhoUow, 49 N. Y. Supm. (42 Hun.) 103; 3 N. Y. St. Rep. 445;

5 ^'.Y. Crim. 41.



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on this snbjecfc appear to be wanting, the same principles are
probably asserted by declaratory legislative acts; and they most
be regarded as fandamental doctrines in every state, for the
colonies were parties to the national declaration of rights in 1774,
in which the trial by jury, and the other rights and liberties of

English subjects were peremptorily claimed as their nn-
[ * 13 ] doubted * inheritance and birthright It may be received

as a self-evident proposition, nniversally understood and
acki^owledged throughout this country, that no person can be taken
or imprisoned, or disseised of his freehold, or liberties, or estate,
or exiled, or condemned, or deprived pf life, liberty, or property,
unless by the law of the land, or the judgment of his peers. The
words, by the law of the landy as used in magna charta (a), in
reference to this subject, are understood to mean due process of
law, that is, by indictment or presentment of good and lawful
men; and this, says Lord Coke (6), is the true sense and exposi-
tion of those words."

manner whatever with, or affecting private contracts or engagcmenta bona
Ade, and without fraud previously formed. This last and valuuhle provision
was at that time new and unprecedented in constitutional history.

(a) Ch. 29.

(b) 2 Inst. 50. See also the matter of John and Cherry streets, 19 IVendelt,
659. The law of Hie land in hills of right, says Ch. J. Baffin, in the elaborate
opinion delivered in Hoke tJ. Henderson, 4 Dev, N. C, Bep. 15, (and one re-
plete with sound constitutional doctrines,) does not mean merely an act of
the legislature, for that construction woald abrogate all restriction on leg^-
islative authority. The clause means, that statntes which would deprive a
citizen of the rights of person or property without a regular trial, according
to the course and usage of the common law, woold not be the law of the
land in the sense of the constitution. In Tennessee "the law of the land''
in the constitution of that state, is understood to mean a general andpnbHc
law, operating equally upon every member of the community. 10 Verger,
71. The Judgment of his peers means, trial by a jury of twelve men accord-
ing to the course of the common law; and even in private suits at common
law, the right of trial by jury is preserved in the Constitution of the United
States, where the value in controversy exceeds twenty dollars. Con^,
U. S. Amendments, art. 7. In the Constitution of New York it is declaimed,
that trial by jury, *'in all cases in which it has been heretofore used," should
remain inviolate forever; and no new court should be instituted, except
courts of equity, which should not proceed according to the course of the
common law. Const. N. Y. art. 7. Under these provisions it has l)een adjnd|2:ed
that the provision in the Constitution of the United 8tat«s, relative to trial
by jury, applies only to the federal courts; and that the provision in the state
constitution applies only to cases of trials of issues of fact in civil and crim-
inal proceedings in courts of Justice; and that the provision as to new courts
referred to courts exercising the usual jurisdiction of courts of law, but pro-
ceeding by modes unknoum to ike common law. Jn the matter of Smith, 10 WentieU^
449. Co wen, J., in the matter of John and Cherry streets, 19 Wendell, 676.

" In Story due process of law is thus defined: "Law in its regular course
of administration through Courts cf Justice," 3 Const 264, 6G1; 38 How.



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Bat while cmel and imusnal pamshments are utiiversally con-
demned, Bome theorists have proposed the entire abolition of the
punishment of death, and have considered it to be an unnecessary
waste of power, if not altogether unjust and unwarrantable. It
has been supposed that the proper object of punishment, being
the protection of society by the prevention of crime, can be as
well, or more effectually answered, by the substitution of milder
sanctions. The great difficulty is, to attain the salutary ends of
pnoiahment, and, at the same time, avoid wounding Iho public
sense of humanity. The punishment of death is, doubtless, the
most dreadful and the most impressive spectacle of public justice;
and it is not possible to adopt any other punishment equally power-
ful by its ezampla It ought to be confined to the few cases of
the most aiarocious character, for it is only in such cases that
public opinion will warrant the measure, or the peace and safety
of society require it Civil society has an undoubted right to use
the means requisite for its preservation ; and the punishment of
morder with death, accords with the judg^ient and the practice
of mankind, because the intensity and the violence of the malig-
nity that will commit the crime, require to be counteracted
by the strongest motives which can be presented to
*the human mind. Grotius (a) discusses much at large, [^11]

Id Georgia, where the proviRion in the oonstitation securing trial by jury is
the fsanie as in that of New York, it has been adjudged, that it did not apply
to summary jurisdictions known and in use before the adoption of the con*
stitutioD. I^w and commissioners of pilotage, R. M. Cluirlton^H Rep. 302.
This has been also the contemporaneous and practical exposition of the same
words in the Ckinstitntlon of New York.
{a) Ik Jure BeUi, b. 2, ch. 20.

^: 13 N. Y. 378. As to definition under different state constitutions, see
19 Wend. N. Y. 659; 4 Hill, N. Y. 145; 2 Speers (S. C), 767; 2 Yer. Tenn.
554: 10 Id, 71; 3 Humph. (Tenn.) 483; Sullivan's Lect. 402; 12 N. Y. 202;
13 W. 378; 18 Id. 199; R. M. Charlt. (Ga.) 302; 1 Cur. C. C. 311; 11 How.
437; 13 Id, 142; 11 How. Pr. Rep. 289; 3 Keman, 378. An information
has been lield due process of law. Hurtado v. Cal., 110 U. S. 516; Rowan
t. State, 30 Wis, 129; Kallock v. Superior Court, 66 Cal. 229. A state sta-
tute making it a misdemeanor to practice medicine with the certificate of a
state board is not unconstitutional as depriving the party of life, liberty, or
property without due process of law. Dent v. West Va., 129 U. S. 114. Due
process of law is, law in the due course of administration or legislative pro-
(«dure and is the rules and forms which have been established for the pro-
tection of private rights.* Board of Education f. Bakewell, 122 111. 339. It
does not require a plenary suit and trial by jury in all cases, it is that pro-
cedure which is suitable and proper to the particular case as sanctioned by
established custom and usage. Ex parte Wall, 107 U. S. 265. See farther.
People©. O'Brien, 2 L. R. A. 255 (N. Y.), andcasescited in the note thereto;
also, KuQtzv. Sumption, 2 L. R. A. 655 (Ind.), and note thereto.



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and with his asaal learning and ability, the design and the
lawfulness of pnnishment; and he is decidedly of the opinion,
that capital panishments, in certain cases, are not only lawful
under the divine law, but indispensable to restrain the andacioas-
ness of guilt He recommends, however, for adoption, in many
cases, the advice, and even the example of some of the ancients,
by the substitution of servile labour and imprisonment for cap-
ital punishment This has been done since his time to a very
great extent in some parts of Europe, and especially in these
United States.*^ In the earlier code of laws prepared by William
Penn, and adopted by the legislature of Pennsylvania, in 1682 (a),
it was declared, that all prisons should be workhouses for felons
and vagrants ; and the penitentiary system founded on labour,
discipline, and instruction, accompanied with patient and humane
treatment, was first introduced into this country by the wisdom
and benevolence of that eminent lawgiver. Though the peniten-
tiary system has not been &ble sufficiently to answer the expecta-
tions of the public, either in the reformation of offenders, or as
an example to deter others, yet the more skilful structure and ar-
rangement of the prisons, and the introduction of a stricter and
more energetic system of prison discipline, consisting essentially
of solitary confinement by night, and hard labour without soli-
tude, but without conversation, in the workshops, by day; (and
which have been carried into effect with beneficial results in the
state prison at Auburn, and in the new state prison at Sing Sing,
in New York, and at Weathersfield in Connecticut,) afford en-
couraging expectations that they will be able to redeem the credit
of the system, and recommend the punishment of solitary imprison-
ment and hard labour, instead of capital and other sanguinary pun-
ishments to the universal approbation of the civilized world (6).'^

{a) Proud* 8 History of Pennsylvania^ vol. ii. app. p. 16.
(6) In Philadelphia, in 1829, a further reform in prison discipline was in-
" Beccaria contends that the ponishment of death ought not to be inflicted
in the time of peace, nor at other times except in cases where the law can
be maintained in no other way, Ch. 28. In most of the states punishment of
death or capital punishment is now abolished except for murder in the first
degree and treason. Statute 31 March. 1860, J 177, P. L. 425, abolishes cap-
ital punishment in the State of Pennsylvania except for murder in the first
" " ~ "1? 5345, ^66, 5368.

' transportation was abolished bv
rvitude substituted, of which five
years is the minimum and life the greatest punishment, or imprisonment
with hard labor for any period not exceeding two years may be inflicted in-



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*Wbile the personal secarity of every citizen is protected [*15]
fromlawless violence by the arm of government and the terrors
o! the penal code, and while it is equally guarded from nnjast and

trodnced, and is spoken of with high approbation by competent judges. It
ooDsists of solitary confinement by night and by day^ and labour by day.
Pkrdoii't Dig. 455. Doctor Lieber in his Letter to the President of the Pkila-
ddphki Society for alleviating (he miseries of public prisons, and in his Letter to
tkt Gotxrnor of South Carolina on tfie penitentiary system^ comes out with great
strength in favour of the Philadelphia system in preference to the Auburn
plan of discipline. See also the Lettre mir le systeme penitentiairey par if. De-
M€(f OounaeiUer a la cour royale^ Paris, 1837, in which the Philadelphia plan
of solitude by night and by day is ably enforced ; and the system was ap-
proved of after full discussion by the Conseil General du Vepartement de la
Seine, October 20th, 1837. But notwithstanding all this sanction, it would
seem that experience has raised a doubt as to the good effects of total and
alMoIate solitaiy confinement by day and night, in consequence of its dele-
terious effects upon the mind of the prisoner. See the 13th Annual Report of
tkeHiton Discipline Society, Boston, 1838. Doctor Lieber distinguishes the
one system as the Auburn or silent system, and the other as the Pennsylva-
nia separate or eremitic system.

There were, as early as 1834, sixteen of the United States, viz. Maine,
New Hampshire, Vermont, Massachusetts, Connecticut. New York, New
Jemey, Pennsylvania, Maryland, Virginia, Kentucky,- Tennessee, Georgia,
Ohio, Indiaoa, and Illinois, besides the District of Columbia, which had
penitentiaries or state prisons established and supported by government.
The system is extending and growing better in this country by the lights of
experience, and in 1838 the prisons in eight or nine of the states had become
asooroe of revenue to the public, as the eaminos of the convicts by their
labor left a clear eain above all expenses. It nas attracted attention in
Europe, and gentlemen of character and ability from England, France, and
Pnusia, have visited the United States, under the auspices of their respec-
tive governments, in order to insp*)ct our prisons, and. obtain a thorough
knowledge of the plan, diaciphne, and effects of our penitentiary systems.
To these visits we are indebted for the interesting work or M. M. O. de Beau-
mont et A. de TocquevUley entitled Du SysUme Phiitentiaire aux Etnts-Unis,
et de son applicnticn en France^ Paris, 1833; and which has been translated,
with notes, by Dr. Francis Lieber, advantageously known to the literary
world as the editor of that great work, the Encychpsedia Americana ; also,
for the Report of William Crawford, Esq., on the PenitetUiarics of the United
State$, presented to the British government, and ordered to be printed, in
March, ia35. His appendix to this report contains an extraordinary and
very valuable mass of facts and details on the subject, collected with great
industry and care, and accompanied with excellent plans of our princiiml
state penitentiaries. The whole work is very instructive, and ought to be
repablished in this country. The French visitants collected o.\si, documen-
tary and statistical matter relative to our state prisons, amounting to six
volumes in folio, which have not been published, but were deposited in the
oflBce of the minister of commerce and public works at Paris.

^tor Jalias, a learned professor at Berlin, in Prussia, under the direction
of his government, visited the United States on the same errand m the years
1^, 1835, and 1836, and in 1839, his work in two volumes on the Moral
^^f^diUon of the United States was published at Leipsic in Germany, and the
wcond volmne was wholly occupied with the subject of crime and punish-

, in 1830, a bill ]>aflBed the English house of commons abolishing the pun-
tthment of death for forging negotiable securities ; but this alteration in the
wW)li8hed law was rejected by a large mjyority in the house of lords.



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tyrannical proceedings on the part of the government itself, by the
provisions to which we have referred, every person is also entitled
to the preventive arm of the magistrate, as a further protection
from threatened or impending danger; and, on reasonable canse
being shown, he may require his adversary to be bound to keep
the peace. *^ If violence has been actually offered, the offender
is not only liable to be prosecuted and punished on behalf of the
state, but he is bound to render to the party aggrieved adequate
compensation in damages.'* The municipal law of our own, as

^^ Statates relating to binding over to keep the peace have been held c in-
stitutional. O'Connell r. R., 11 CI. & F. 155 ; Dunn r. R., 12 Q. B. 1031 :
Estes r. State, 2 Humph. 496 ; R. v. Holt, 7 C. & P. 518. See further Whar-
ton's C. L. 8th ed. 442 ; and Wharton Crim. Pleading <& Pract, 8th ed. i 80,

** Mr. Justice Blackstone in his Commentaries (vol. 3, ch. 8, p. 123). sajs,
*' Wherever the common law gives a right or prohihits an injury /it also
gives a remedy by action." Thus we have the maxim, ^^Vbijus ibi reme-
dium.^^ In book 2, ch. 29, p. 438, he raftks damages among that ** Species of
property that is acquired and lost by suit and judgment at law." The pri-
mary right to a satisfaction for ii^nries, is given by the law of nature, and
the suit is only the iheans of ascertaining and recovering that satisfaction.
The injured party has unquestionably a vague and indeterminable right to
some damages or other the instant he receives the injury ; and the verdict
of the jurors, and the judgment of the Court thereupon, do not, in this case
so properly vest a new title in him as fix and ascertain the old one. They
do not give but define the right.

The real object of the civil action for damages is to give compensation for
the real injury and actual loss sustained, and it xnay be the legal conse-
quences of the act complained of together -with' the actual costs and ex-
penses ; if, however, there has been oppression, fraud, or negligence from
which malice can be presumed exemplary damages may be recovered.
Smith r. Sherwood, 2 Texas, 400; See Mr. Justice Shel den's remarks. Griffin
V, Calver, 16 N. Y. 490.

Damages may be either nominal, sucli as have "no existence in point of
quality." (See remarks of Maule, J., 2 C. B. 499) as a verdict for five or ten
cents, which may mean either that the plaintiff has brought his action
merely for the purpose of establishing his right and has not been substan-
tially injured, or, that though his right exists still the action does not call
for more either in a pecuniary or moral sense. Ordinary, or such as are
given &s a fair measure of compensation and represent the wrong he has saf-
fered as near as estimable, and must not exceed the amount fixed by plain-
tiff in his action. Whitham r. Kershaw, IG Q. B. 613, and see tbesnmminK
up of Field, J., in Phillips v. L. & S. W. R. C, 5 Q. B. D. 78. In an extra-
onlinary case the English Judges, where the amount mentioned or awardcni
by the jury has exceeded that claimed, have been known to alter or amend
the writ and statement of claim by substituting such larger amount. See
note a Pollock on Torts (Text Book Series Ed.), p. 124.

Exemplary damages which are awarded in cases w^here there has been
great injury and it is imposrible to measure the compensation, and may be
stated as expressing the indignation felt at the wrong done, rather than" the
amount of injury sustained. Huckle r. Money, 2 Wilson, 205 ; Tullidge v.
Wade, 3 Id. 18 ; Merest v. Harvey, 5 Taunt. 442. See remarks ot Lord Cam-
den in Huckle v. Money and of Chief Justice Wilmot in Tullidge r. W^ade,
and also those of Washington, J., in Walker r. Smith, 1 Wash. C. C. 152;
and Kent, Ch. J., in Tillotson v. Cheetham, 3 Johns. 61 ; and see Pritchai>d v.



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well as of every other country, has likewise left with individnals
the exercise of the natural right of self-defence, in all those cases
in which the law is either too slow or too feeble to Ptay the hand
of violeDce. Homicide is justifiable in every case in which it is
i^ndered necessary in self-defence, against the person ^ho comes
to commit a known fel'^ny with force against one's person, or
habitation, or property, or against the person or property of those
▼ho stand in near domestic relations (a)" The right of self-
<lefeQce in these cases is founded on the law of nature, and is not,
^^ cannot be superseded by the law of society. In those in-
duces, says Sir Michael Foster, the law, with great propriety,
and in strict justice, considers the individual to be under the pro-
tedion of the law of nature. There are some important distinc-
tions on this subject, between justifiable and excusable homicide,
and manslaughter, and murder, which it does not belong to my
present purpose to examine; and I will only observe, that
homicide is never strictly justifiable in defence *of a [*16]
private trespass, nor upon the pretence of necessity, when
the party is not free from fault in bringing that necessity upon
himself. (6).

(<i) Hawk. P. C. 1, ch. 28, aec. 21. Foster's Discourse of Homicide, 273,
(4) Hawk. P. a b. 1, ch. 28, sec. 22, 23.

PiBpilloo, 3 Harg. St Trl. 1071 ; Wort v. Jenkins, 14 Johns. 352 ; Hnntley r.
fiacon, 15 Cono. 267 ; Lindsley v. Bushwell, 15 Conn. 225 ; The Amiable
Nancy, 3 Wheat. 546 ; Pacific Ins. Co. v. Conrad, 1 Baldwin, 138 ; and see
the case of Qainn v. So. Ca. R. Co., 1 L. R. A. 682. and the note thereto
where the namerons cases will be found collected.

A tort is aggravated by the evil motive, and on this ground rests the rnle
of exemplary damages wherever malice is proved it is a ground for addi-
tional damagee ; malice however exists as a separate fact. Milwaukee li,
R. Go. V. Arms, 91 U. S. 489. Mere speculative damages, or those that are
too remote cannot be . recovered. The question, especially in questions of
malice, in actions ex delicto, is for the jury under the superintendence of the
Coart See the works of Mr. Mayne, and Mr. Sedgwick hereon.

" The right of self-defence extends to master and servant, parent and
child, hoslnnd and wife, and where it is in defence of important rights pro-
vided no more force is uised than is necessary. The force used must be pro-
portionate to the attack ; and if so used, will be justifiable to repel an in-
inrj, even though it causes death, in self-defence of a crime in the nature of
* felony. 1 East, P. C. 259 ; R, v. Hewlett, 1 P. & F. 91 ; U. S. v. Wilt-
bergftT, 3 Wash. C. C. 515. There must be fear of life or actual bodily harm,
^nt ft reasonable ground of fear is sufficient. Shorter v. The People, 2 Comst.
m; People v. Sullivan, 3 Selden (7 N. Y.), 396 ; Maher v. People, 24 111.
^l ; liOgae v. Commonwealth, 38 Pa. St. 265. A man may justify the kill-
ing of animals during an attack but not afterwards. 1 Carr & P. 106 ; 10
Johu. N. Y. 365 ; 13 Id. 12. As to killing animals in defence of property,
«• Aldrich v. Wright, 53 N. H. 396.



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* 16 OF THE RIGHTS OF PBR80B8. [Part IV.

(2.) Of slander and libels.

As a part of the right of peiBonal security, the preservation of
every person's good name from the vile arts of detraction is jastly
indaded. The laws of the ancients, no less than those of modem
nations, made private reputation one of the objects of their pro-
tection. The Roman law took a jast distinction between slander
spoken and written; and the same distinction prevails in our law,
which considers the slander of a private person by words, in no
other light than a civil injury, for which a pecuniary compeo na-
tion may be obtained (a). The injury consists in falsely and
maliciously charging another with the commission of some
public ofPence, or the breach of some public trust, or with
any matter in relation to his particular trade or vocation, and
which, if true, would render him unworthy of employment;
or, lastly, with any other matter or thing, by which special
injury is sustained (6). Bat if the slander be communicated
by pictures, or signs, or writing, or printing, it is calculated
to have a wider circulation, to make a deeper impression, and to
become proportionably more injurious. Expressions which tend
to render a man ridiculous, or degrade him in the esteem and
opinion of the world, would be libellous if printed, though they
would not be actionable if spoken (c).'" A libel, as appli-

(a) PotUr^B Greek. Antiq. vol. 1. p. 179. Halhed's Oentoo Code, 182. Cicero
de RepuUicay lib. 4. TacU, Ann. lib. 1, ch. 72. Hor. Epist. b. 2, Ep. 1, 152.
Aul. Oel. b. 3, ch. 3. Inst. 4, 4, 1. 3 Joknaon^a Cases, 382, note; where the
reporter, with great learning and aocnracy, ha8 collected the material pro-
visions in the Roman law on the subject. Since the publication of that note,
the view of the law of defamation among the ancients has been extensively
considered in HoWs Law of Libel, b. 1, ch. 1.

{b) In Indiana, charging by words a female with incest, fornication, adul-
tery, or whoredom, is made actionable without showing special damages.
B. Statutes of Indiana, 1838, p. 452.

(c) Villers v. Monsley, 2 WUs. Rep. 403. Woodward r. Dowsing, 2 Mnnn,
A Ryl. Rep, 74. Le^y v. Milne, 12 B. Moore's Rep. 418. Clement v. Chi vis,
9 Bam. A Cress. 174. Lord Churchill v. Hunt, 1 ChiUy's R. 480. The law
implies malice, if the publication charges an individual with an indictable
offence, or exposes him to hatred, ridicule, or contempt.

*^ Slander may thus be said to be an oral or spoken defamation. Slander
is only punishable by civil action for damages. Libel is punishable either
civilly or criminally. Scandalum magnatum might perhaps be said to benn
exception, but Mr. Odgers in his work upon the subject gives us no case
since 1710. Written defamations are, when there is no justification or ex-

Online LibraryWilliam M. Lacy James KentCommentaries on American law, Volume 2 → online text (page 7 of 108)