I. ABSOLUTE, &c. CHAP. II. calumny was in giving the character of a servant, (g) or by a counsel or justice of the peace in the course of a cause or proI. PERS. SEC. ceeding; (h) and in a case of this nature, the party suing must prove express malice; (i) and where the language is ambiguous, and it is doubtful whether it implies any injurious matter to the plaintiff, the proper question for the jury is, not whether the intention of the publication was to injure the plaintiff, but whether the tendency of the matter published was so injurious. (k) The term malice is well defined in an old case, and its derivative malo animo, in its more extensive signification, well explained and applied; the term does not necessarily mean what must proceed from a spiteful, malignant, or revengeful disposition, but a conduct injurious to another, though proceeding from an ill-regulated mind not sufficiently cautious before it occasions an injury to another; malice, in vulgar acceptation, is a desire of revenge, or a settled anger against a person, but in its legal sense it means the doing any act without just cause. (1) Restraint upon communication of slanderous reports. Though much allowance has been made for the weakness of mankind in indulging in conversation scandalizing individuals, instead of accumulating better materials for mental improvement, yet that weak and mean propensity has of late been properly checked by the decisions of the courts, that in reporting calumnious statements of others not only must the name of the original author be given as the source of the information, but the precise words must be repeated, or their substance, without any additional assertion of the repeater, so as not only to give a perfect action against the original author, whose assertion, if (g) 3 Bos.& P. 587; 8 B. & Cres. 578. (h) 1 Dow. R. New S. 495; 4 Wilson and Shaw, 102. (i) 9 Bar. & Cres. 403; 4 Bar. & Cres. 247, 584; Allardice v. Robertson, 4 Wils. & Shaw, R. 102; 1 Dow. R. New S. 495; 8 Bar. & Cres. 578, (k) Fisher v. Clement, 10 Bar. & Cres. 472. (1) Gilb. Cases, L. & E. 190; 2 Bar. & Cres. 257. In 3 Bar. & Cres. 584, Abbott, C. J. said, "I take it to be also a general rule that an act unlawful in itself, and injurious to another, is considered both in law and reason to be done malo animo towards the person injured, and this is all that is meant by a charge of malice in a declaration of this sort, which is introduced rather to exclude the supposition that the publication may have been made on some innocent occasion, than for any other purpose. There are even some acts not in themselves unlawful, but which become so only by reason of their injury to others, which in all civil actions are charged to be maliciously done. Take the common case of an offensive trade, the melting of tallow for instance, such a trade is not in itself unlawful, but if carried on to the annoyance of the neighbouring dwellings, it becomes unlawful with respect to them, and their inhabitants may maintain an action, and may charge the act of the defendant to be malicious; and no one ever objected to such a charge, though probably in most cases the defendant has no personal malice towards his neighbours, but acts only with a view to his own profit and gain. The publication in question impeaches the plaintiff's character; a publication impeaching private character is actionable, unless the occasion of publishing makes the publication excusable; as where the publication is a violation of the criminai jurisprudence of the country, and there is nothing to call for it, the publication is not excusable." CHAP. II. I. ABSOLUTE, &c. it stood alone, might not be credited, but also without adding weight or effect to the prior slander; (m) and it is not even an excuse to repeat in writing what has been previously spoken T. PERS. SEC. or written by others. (n) I. able to indict for a libel. In case of written slander, imputing any immorality that can- When prefernot be so well negatived by the testimony of others, it may be advisable for the party calumniated to indict the slanderer, because in support of the prosecution he would himself be a witness, and by his positive evidence negative all imputation on his character. 3. Malicious prosecutions are another mode of affecting the 3. Malicious character, but these will be more properly considered under prosecutions. the next head of injuries to liberty, which they also in general affect. minal charges, injurious to reputation and pn nishable. There are also some descriptions of threats, which at the Threats of crisame time that they create alarm also injure the character, and are highly punishable, such as written menaces to impute any infamous crime, with intent to extort money, which are punishable capitally by indictment as robbery.(o) Menaces, or forcible demands of chattels with intent to steal, are punishable with transportation for life, or not less than seven years, or imprisonment for not more than four years, and with whipping if a male offender; (p) and any accusation or threat to accuse any person of any offence punishable with death, or transportation, or pillory, or of an assault with intent to commit a rape, or of any infamous crime, with intent to extort any chattel or money, is punishable in like manner; (g) and at common law extorting by duress or threat of accusation of an unnatural offence was indictable. (r) LIBERTY. The infraction of personal liberty has ever been regarded as II. PERSONAL one of the greatest injuries. It will be observed that in the scale of punishments the legislature, in most of the statutes we have noticed, have considered four years' imprisonment as nearly equivalent to transportation for life, or for seven years. The injuries to liberty are principally termed "false imprisonments or malicious prosecutions." prisonment de Imprisonment consists of any restraint of a person contrary Injury by imto his will; the most obvious are the confinement in a prison, fined, and what or private house, or in the stocks, or by forcible detention in not. the street, or by a peace officer touching another by way of (m) M'Pherson v. Daniels, 10 B. & C. 263. (n) De Crespigny v. Wellesley, 5 Bing. 392. (0) 7 & 8 Geo. 4, c. 29, s. 7. (q) Id. sect. 8. (r) 6 East, 126; Burn's J. Threat. CHAP. II. 1. ABSOLUTE, & c. arrest. (s) But it has been decided that the lifting up a person in his chair, and carrying him out of the room in which I. PERS. SEC. he was sitting with others, and excluding him from the room was not a false imprisonment, so as to entitle him to a verdict and full costs on a count for false imprisonment; (t) and the merely giving charge of a person to a peace officer, not followed by any actual apprehension of the person, does not amount to an imprisonment, though the party to avoid it on the next day attend at a police office; (u) and if in consequence of a message from a sheriff's officer holding a writ, the defendant execute and send him a bail bond, such submission to the process will not constitute an arrest, in proof of an allegation of arrest, in an action for maliciously holding to bail. (x) 1st. False imprisonment defined. prosecution, or 1st. The term false imprisonment, though technical, does not appear to convey any sufficiently definite meaning. It means in law any illegal imprisonment, either without any process whatever, or under colour of process wholly illegal, without regard to any question whether any crime has been committed or a debt due, so that the proper civil remedy is trespass vi et armis as for a direct injury wholly unwarranted 2dly. Malicious even in its inception. Whereas the terms "malicious prosecuarrest, defined. tion," or "malicious arrest," always in law suppose regular process and proceedings, but that the fucts did not warrant their issuing, and which is to be decided by the result; as where the warrant to imprison a party was perfectly regular and proper, but he was innocent of the supposed crime and ultimately acquitted; or where there has been a sufficient affidavit to hold to bail and a valid writ, but when, in fact, no debt was due, and so established on the trial or other termination of the suit. In the latter cases the remedies are not by trespass vi et armis as for a direct injury, but by action on the case for the malicious adoption of the regular proceeding when there was no probable cause or ground for issuing it. These distinctions are also substantially important, for if the process or the imprisonment were wholly illegal or misapplied as to the person intended to be imprisoned, without regard to any question of fact, or whether guilty or innocent, or the existence of any debt, then the party imprisoned may legally resist the imprisonment and may escape or be rescued, or even break prison; whereas however innocent he might be, yet if (s) Bac. Ab. Trespass, D. 3; 1 Esp. R. 431, 526. (t) Gardner v. Wedd, Easter T. 1825, C. P. on a motion for a new trial from Essex; sed quære. (u) 1 Esp. R. 431; 2 New R. 211; 1 Car. & P. 153; 1 R. & M. 26. the process and imprisonment were in form legal, each of those acts would be highly punishable, (y) for he ought to submit to the legal process and obtain his release by due course of law. Even in cases where the imprisonment is manifestly informal and illegal the party must not, to obtain his release, use any dangerous weapon, and the safest course in all cases is to obtain liberty by habeas corpus, or by procuring bail as hereafter fully explained, (2) by which means relief from continued imprisonment may be speedily obtained, and without prejudicing the remedy by action for the intervening illegal imprison ment. CHAP. II. I. ABSOLUTE, &c. 2. Liberty. Compensation for every illegal imprisonment without process, Compensation or under void or misapplied process, may be obtained by action for illegal imprisonments. of trespass, in which damages under forty shilling in general entitles the plaintiff to full costs, (a) and the wrong-doer may also be indicted. (b) The cruel act of forcing or leaving a seaman abroad is punishable by particular enactment. (c) The compensation for imprisonment, under colour of regular criminal or civil process, is by action on the case, (not trespass), and is subjected to certain qualifications, even if it turn out in the result of a prosecution that the party imprisoned be acquitted, or that in an action he obtain a verdict or nonsuit, it does not necessarily follow that he can recover any compensation for the intervening imprisonment; for there may have been adequate reasonable ground for setting on foot the inquiry, though it may ultimately be established that there was no crime or no debt. It has been considered that if in the event of every acquittal the prosecutor were liable to an action, the apprehension of that consequence would deter persons from becoming prosecutors, and crimes would go unpunished; and with regard to actions, it has also been considered that the trial of a private claim in a public court of justice is matter of right, and if the party do not succeed, his payment of the defendant's costs is a sufficient compensation. The presumption, therefore, is in general in favour of the prosecutor and of the plaintiff that they properly instituted the proceeding; and with respect to prosecutions for felony, the judges at the Old Bailey, 6 Car. 2, resolved, "that no copy of any indictment for felony be given without special order upon motions made in open Court, at the general gaol delivery; for that the late frequency of actions against prosecutors, which cannot be without copies of the indictment, deterreth people (y) Post, c. vii. (2) Post, c. viii. (a) 3 Bla. C. 318; 6 T. R. 11. VOL. I. (b) 4 Bla. C. 218, 219; 2 Burr. 993. CHAP. II. &c. 2. Liberty. from prosecuting for the king upon just occasions."(d) But it I. ABSOLUTE, has been well observed that the power of the judges to make such resolution and order, was, to say the least, questionable; and the better opinion is, that an acquitted defendant is entitled, as a matter of right, to a copy of the record of his acquittal, as well in felonies as misdemeanors. (e) In both the cases of an acquittal upon a criminal charge, or in an action where the proceeding has been unnecessarily and vexatiously by arrest, if the acquitted defendant can prove that there was no probable cause for instituting the indictment, or proceeding by arrest, (i. e. no adequate ground at the time to induce a prudent and cautious man, uninfluenced by revenge, to suspect the guilt of crime, or the existence of so large a debt,) and still more, if he can show express malice, (which however is in general to be inferred from the want of probable cause,) then he may in a special action on the case obtain compensation for the vexatious proceeding. But in general the onus probandi, at least, of the want of probable cause, lies upon the acquitted defendant. (f) In cases of arrests, either malicious or without adequate cause, the superior courts have summary jurisdiction on motion to compel the plaintiff to pay the defendant's costs, (g) but not to make compensation, which can only be enforced by action. However, if a party has maliciously and falsely sworn to a debt, he may be punished by indictment for perjury, (h) and when several combine they may be indicted for the conspiracy.(i) 3. Rights of Burial. (k) Burial, in some part of the parish church-yard, is a common law right, without even paying for breaking the soil, and that right will be enforced by mandamus to the incumbent, (/) but (d) Kelyng's Rep. 3; Brown v. Cumming, 10 Bar. & C. 71. (e) Brown v. Cumming, 10 Bar. & C. 70. It would be a monstrous power to vest in a judge to prevent an acquitted defendant from trying his civil remedy for the injury to his character and person by an unfounded prosecution. A jury is the only proper jurisdiction to decide upon the propriety of the prosecution. (f) 2 Bar. & Adolp. 179; Ib. 695; (g) 43 Geo. 3, c. 46, s. 3. (i) 2 Burr. 993. (k) Although as burial is subsequent to death it can scarcely be regarded as strictly an absolute right of the deceased, but is rather a part of the public law enforcing decency, yet as it is usually contemplated, and frequently regulated by will and by the wish of the deceased party, and is usually complied with, it is submitted that the right may properly be here considered. See in general Burn's Eccl. L. tit. Burial, 1 vol. 258. Funeral expenses to the extent of 201. have recently been allowed even against a creditor, 1 Bar. & Adol. 260, and see 2 Bla. Com. by Chitty, 508, n. 31. The burial of dead bodies, cast on shore, is enforced by 48 Geo. 3, c. 75; Burn's J. tit. Burial; and of persons found felo de se, by 4 Geo. 4, c. 52. Funerals are exempt from tolls by 3 Geo. 4, c. 126, s. 32. A conspiracy to prevent a burial is indictable at common law, 2 T. R. 734; and so is the wilfully obstructing a clergyman in reading the buria! service over the dead in the parish church, and by threats and menaces hindering the burial, 7 Dowl. & Ry. 461. The recent Anatomy Bill, 2 & 3 W. 4, c. 75, regulates schools of anatomy, and is calculated to prevent the stealing of dead bodies. (1) Willes, 258; 2 Bar. & Ald. 806; 1 Chit. R. 588, S. C.; 1 Bar. & Ald. 122. |