Part 16 (2/2)

--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 const.i.tutions, 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and it has continued to be law in all the states, and is still so considered, except such parts as have been altered or repealed by const.i.tutional or legislative enactments, or by usage.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 const.i.tution, and the const.i.tutions 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 a.s.sault, he may lawfully take the life of his a.s.sailant. This is by law p.r.o.nounced 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 const.i.tutions 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 const.i.tution, 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. x.x.xVI, --4.) The same provision has been inserted in the state const.i.tutions. This was a common law privilege, independently of any const.i.tutional enactment. The princ.i.p.al 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 wors.h.i.+p, 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 const.i.tutions, expressly prohibited congress from making laws ”respecting the establishment of religion, or prohibiting the free exercise thereof.” (Amend. art. 1.) And the state const.i.tutions have adopted similar provisions.

--14. Another important personal right comprehended in the term personal liberty, and guarantied in the same article of the national const.i.tution, and in the state const.i.tutions, 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 ma.n.u.scripts, were called _censors_. Hence the expression sometimes heard, ”censors.h.i.+p of the press.” To secure the liberty of speaking and publis.h.i.+ng their sentiments freely up on all subjects, the people of this country have made express provision in their const.i.tutions; 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 princ.i.p.al objects of const.i.tutions and laws.

The rights of property will const.i.tute 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 relations.h.i.+p 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.

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