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I observe, in the second place, that these inaccurate reasonings are attempted to be established by a gross inconsistency. When they refer to the effects of the libel, they suppose the tendency to produce disturbances of the peace: when they refer to the causes of the libel, they say to him who is actuated by them--you ought, in a settled government, to complain for every injury in the ordinary course of law, and by no means to revenge yourself. m Why is not this advice given consistently, to the person provoked by the libel? If he has received an injury_if on that injury a crime is superinduced ; the law will repair the former, and punish the latter : if no injury has been sustained, no foundation has been laid for a crime.
I observe, in the third place, that Sir William Blackstone here seems not to have been sufficiently attentive to a principle, which he properly subscribes in another part of his Commentaries :" the crime includes an injury: every publick offence is also a private wrong, and somewhat more: it affects the individual, and it likewise affects the community.
The only points, it is said, to be considered in the prosecution for a libel, are, first, the making or publishing of the book or writing: secondly, whether the matter be criminal.
On the last of these two points, a celebrated controversy has subsisted between judges and juries; the former claiming its decision as a question of law; the latter claiming it as a question of fact, or, at least, necessarily
m 5. Rep. 125 b.
n 4. Bl. Com. 5.
• Id, 151.
involved in the decision of a question of fact. After what I have said, in a former lecture,p concerning the general duties and powers of juries, you will be at no loss to know my sentiments on this controverted subject. I only remark, at present, that if a libel be, as I think it is, a crime against the right of reputation ; the trial on a libel must be the trial of a character, or some part
of character. Of all questions, almost, which can be proposed, I think this the most remote from a question of law.
The constitution of Pennsylvania has put this matter upon an explicit footing, consonant, or nearly consonant in my opinion, to the true principles of the common
“ in all indictments for libels, the jury shall have a right to determine the law and the facts, 'under the direction of the court, as in other cases.
The punishment of a libel is a fine, or a fine and corporal punishment."
p Vol. 2. p. 336. et seq.
9 Art. 9. s. 7.
r 1. Haw. 196.
THE crimes which are next to be enumerated and considered are those against the right of personal safety. On this subject, the common law has been peculiarly accurate and attentive.
An assault is an attempt or offer, with force and violence, to do a corporal hurt to another; as by striking at nim; by holding up the fist at him; by pointing a pitchfork at him, if he be within its reach; by presenting a gun at him, if he be within the distance to which it will carry; or by any other act of a similar kind, done in an angry and threatening manner. An assault is violence inchoate.b
A battery is violence completed by beating another. Any injury done to the person of a man, in an angry, or
a 1. Haw. 133.
3. BL. Com. 120.
revengeful, or rude, or insolent manner, as by touching him in any manner, or by spitting in his face, is a battery in the
In that eye, the person of every man is sacred : between the different degrees of violence it is impossible to draw a line : with great propriety, therefore, its very first degree is prohibited. d
Wounding is a dangerous hurt given to another; and is an aggravated species of battery.e
These offences may unquestionably be considered as private injuries, for which compensation ought to be decreed to those who suffer them. But viewed in a publick light, they are breaches of the publick peace: as such they may be prosecuted ; and as such they may be punished. The punishment is fine, or fine and imprisonment.p
A battery or an assault, violence or an offer of violence, is susceptible of deep criminality from the atrocious intention, with which it is sometimes offered or done. An. assault with a design to murder, to perpetrate the last outrage upon the honour of the fair sex, or to commit the crime which ought not to be even named—these are instances of what I mention: in these instances, to a heavy fine and imprisonment, it is usual to add the judgment of the pillory. 8
Assaults, batteries, and woundings may be sometimes excused, and sometimes justified. The particular cases in which this may be done, will be explained with more
C 1. Haw. 134.
d 3. Bl. Com. 120.
e Id. 121.
1. Haw. 134. 4. Bl. Com. 217.
8 4. Bl. Com. 217.
propriety, when we come to consider them as private injuries, and not as publick offences.
Affrays are crimes against the personal safety of the citizens; for in their personal safety, their personal secu. rity and peace are undoubtedly comprehended. An affray is a fighting of persons in a publick place, to the terrour of the citizens. They are considered as common nui. šances. They may, and ought to be suppressed by every person present; and the law, as it gives authority, so it gives protection, to those who obey its authority in suppressing them, and in apprehending such as are engagea in them; if by every person present; then still more strongly by the officers of peace and justice." In some cases, there may be an affray, where there is no actual violence; as where a man arms himself with dangerous and unusual weapons, in such a manner, as will naturally diffuse a terrour among the people.'
To challenge another, by word or letter, to fight a duel, or to be the messenger of such a challenge, or to provoke, or even to endeavour to provoke, another to send such a challenge, is a crime of a very high nature, and is severely reprehended by the law: duels are direct and insolent contempts of the justice of the state. k
Affrays are punished by fine and imprisonment, the measure of which must be regulated by the circumstances of the case.
For sending a challenge, the offenders have been adjudged to pay a fine, to be imprisoned, to
k 3. Ins. 158. 4. Bl. Com. 145.
| 1. Haw. 135.
¡ 3. Ins. 158. 1. Haw. 135.
k 1. Haw. 138.
1 Id. ibid.