It remains now only to add a few words respecting the fac.s which constitute the publication of a libel. The writing of slanderous words either to the person slandered, or a third person, in a private letter is a publication. 4 Blac. Abr. 4th ed. 483. To shew to another what one has written is held to be a publication however confidentially it may be done. To leave a libel where it may be seen by others is a publication. But were one to write or paint a libel and conceal it, and it be stolen or accidentally lost, and afterwards become published by those into whose possession it may have fallen, it has been said that the author is not guilty thereof. But this construction of the law appears to be more subtle than just, for who writes libels only to read them himself? And by the words of our statute it would seem that not only he who publishes the libel, but he also who "writes" or "makes" it, however innocent of its publication, shall, as well as those therein concerned suffer the penalties of the law.

ASSAULT AND BATTERY.

"Whoever shall be guilty of assaulting and beating, wounding short of maiming, or of falsely imprisoning any person, shall on conviction thereof, suffer fine or imprisonment, or both at the discretion of the court." 1 sess. Leg. Coun. chap. 50, sec. 32.

says

Assault is an attempt or offer to beat another without touching him, as if one lift up his cane or his fist in a threatening manner at another, or strike at him and miss him. 3 Blac. Com. 120. This is termed insultus, and is described to be "an unlawful setting upon one's person.' "Finch. L. 202. "If A lays his hand on his sword and if it was not assize time I would not take suck language from you, this is no asault, for it is plain he did not design to do him. any corporeal hurt at that time, and a man's intention must operate with his act in constituting the assault." 1 Bae. Abr. 3d ed. 154. "No words whatsoever, be they never so provoking can amount to an assault." Ibid.

Battery is "the unlawful beating of another." 3 Blac. Com. 120 And every battery includes an assault. 1 Bac. Abr. 3d ed. 154.The least touching of a person wilfully or in anger is a battery.Even spitting in one's face is a battery. Ibid.

But a battery is sometimes justifiable. For as has been already shewn, one may lawfully chastise a servant, pupil or the like. If one be struck or even assaulted he may strike in his own defence.An officer or other person in the execution of his duty may lay his hands on one, and this will not justify the person touched to resist by force. If on such an occasion the person touched strike the officer, the officer may then strike in his own defence, and if the other should

FALSE IMPRISONMENT.

endeavor to justify himself by pleading the first assault of the officer, the officer may set forth the whole case, saying at first he laid hands gently on the other, (molliter manus imposuit.)

The offence of wounding short of maiming seems to require no explanation.

¡A

March 19 1818. sec. 4. M. D. I, p 387.

"Whoever shall be guilty of assaulting any free white person, shall suffer fine not exceeding one hundred dollars, or imprisonment not exceeding three months, or both at the discretion of the court."

FALSE IMPRISONMENT.

See the section last quoted.

"Every confinement of the person in an imprisonment whether it be in a co..mou prison or in a private house, or in the stocks, or even by forcibly detaining one in the public streets. Unlawful or false imprisonment consists in such confinement or detention without a sufficient authority.." 3 Blac. Com. 17. "False imprisonment also arise by executing a lawful warrant at an unlawful time." Ibid. One may not for instance be arrested for debt on Sunday, that is from midnight to midnight.

may

But as the injury done to an individual in consequence of false imprisonment would be at best but slowly and oftentimes imperfectly redressed by either a criminal or a civil prosecution (both of which it is good ground for,) the ancient law, besides these, provided several remedies against this species of oppression. The first was a writ of mainprize, commanding the sheriff to release a prisoner on the security of mainpernors, a kind of bail who were answerable for the defendant's appearance not only to the accusations already brought but to all manner of accusations that might be exhibited against him. The second was the writ of odio et atia, which commanded the sheriff to inquire by inquest whether a prisoner charged with murder was accused through hatred or ill will. And if the fact was so found the prisoner was delivered to bail. The third was the writ de homine replegiando, by which a man was replevied, that is delivered to bail, the bailor becoming liable to be imprisoned if the party replevid were not forthcoming in due time. "But the incapacity of these three writs to give complete relief in every case hath entirely antiquated them, and hath caused a general recourse to be had to the writ of habeas corpus, the most celebrated writ in the English law." 3 Blat. Com. 129.

HABEAS CORPUS.

By, the constitution of this state the writ of habeas corpus shal not be suspended. At common law this writ is used for a variety of purposes: but those of a civil nature, such as the removal of actions or parties from one court to another and the like, are foreign to the object of this work. I therefore pass them over, and proceed to that branch of the writ which is immediately connected with the business now before us. It is called the writ of habeas corpus ad subjiciendum It is "directed to the person detaining another, and commanding him to produce the body of the prisoner with the day and cause of his caption and detention, to do, submit to, and receive whatever the judge or court awarding such writ shall consider in that behalf." 3 B ac. Co. 131.

The nature and operation of this writ seems not to have been well fixed in England until the famous habeas corpus act, 31 Carr II. c. 2, considered in that country as a second magna charta. There can be little doubt therefore but that the ordinance, in extending to the state the benefit of this writ, meant the common law writ last mentioned, as settled by the latest uuthorities and regulated by that memorable statute, as far as may be consistent with our local policy and the general principles of our government. Without troubling the reader therefore with literal quotations from the various authorities from which I derive my information, I shall endeavor to compress into a brief digest the principal incidents of this interesting process, as far as I conceive them in force under our existing laws.

1. This writ issues only in cases of actual imprisonment or detention of some person; but in all such cases it issues of course at the request of the party imprisoned or some in his behalf, unless he be imprisoned for high treason, or other offence at the prosecution of the United States for which he cannot be bailed,* and such cause of his detention be expressed fully in the warrant, or unless the prisoner be convicted of some capital or other offence for which imprisonment is part of the punishment Regularly therefore the party applying for a habeas corpus should exhibit to the judge a copy of the warrant or other authority, for the detention of the prisoner, if there be any, or an affidavit that a copy thereof has been refused. 2. This writ may be addressed not only to gaolers, sheriffs and others who usually hold prisoners in custody, but also to any private citizen who may imprison another, commanding him to bring up the prisoner, &c. 3. It is usual to make the writ returnable to a judge in his chambers, but may be returnable to the next session of the court if the time be near. 4. The time given for the return of this writ is according to

*This writ can be of no service to those who cannot be either discharged or bailed In England it is denied to those charged with petty treason, felony, &c. But all of fences against the state are under some circumstances bailable.

1

the distance it has to travel: when the parties are in the neighborhood of the judge it is usual to make the writ returnable immediately, for the law admits of no unnecessary delay, when the liberty of a citizen is concerned. 5. If the person to whom the writ is addressed neg lect to make a return ihercto within the time prescribed, or make a false return, as that the person required is not in his custody, or is sick and cannot be removed and the like, and such return be not true, the court will proceed in a summary way, by writ of attachment, to cause the offender to be brought before them and punished with fine and imprisonment at their discretion for the contempt shown their authority and the laws of the country. 6. The prisoner being brought up, the court or a judge thereof may deliver him to bail or remand him to prison, according to the circumstances of the case, or even discharge him altogether, if the commitment or cause of detention be illegal. By the statute of this state which gives to the court and judges thereof a like power of issuing and proceeding on this writ, it is provided "that whenever it shall appear that any person has been lawfully add regularly committed for any crime exclusively cognizable by the court, it shall be the duty of the judge of the said court to remand such person to prison." 2 sess. L. C. c. 5 s. 2. And if one be once bailed or discharged on a habeas corpus, those who presume to arrest him again, or cause or procure him to be arrested for the same offence or cause, unless very good reason be shown, are punishable for a contempt in like manner as has been just now mentioned.

The privilege of the writ of habeas corpus shall not be suspended unless when in cases of rebellion or invasion, the public safety may require it. Con. U. S. Art. Sec. 9.f

The mode of proceeding and other matters relative to habeas corpus are fully laid down in the Code of Practice of this state to which the reader is referred.

SWINDLING.

There remains but one offence more to be enumerated; one recognized by the act of the second session of the legislative council sup*If an equivocal return be made to a habeas corpus the court will immediately gran on attachment. 5 Term reports 89.

The justices of the supreme court of the United States, as well as judges of the federal district courts, have power to grant writs of habeas corpus for the purpose of enquiry into the cause of commitment: but the writs of habeas corpus issued by their authority shall in no case extend to prisoners in gaol unless they be in custody under or by color of the authority of the United States, or are committed for trial befare some court thereof, or are necessary to be brought into court to testify. L. U. S. 1 Con. 1 Sess. c. 20 sec. 14.

plementary to the act of crimes and punishments already mentioned. "All persons who knowingly, fraudulently and designedly, by any false pretence or pretences, shall obtain, or aid or assist another in obtaining from any person money or any property whatever, with intent to defraud any person of the same, shall be deemed offenders against the law and the public peace, and shall on due conviction be punished by imprisonment at hard labor or otherwise not exceeding twelve months." 2 sess. Leg. Coun. chap. 4 sec. 3.

I believe I may venture to predict that it will be the fault of our courts of justice if this be not found a very useful clause of our crinainal code. For the inhabitants of this state are, for a variety of obvious reasons, peculiarly exposed to the impositions from which it is the business of the section last quoted to protect thein. The present situation of the country holds out an invitation to nearly all kinds of adventurers; and as the swindler is ever sure to be among the numher, it is well that we are provided for his reception. The law in this point is well calculated for our purpose, as it expressed in plain but comprehensive terms; happily embracing the whole subject, from the enterprising speculations of the more accomplished sharper down to the meanest chicaneries of humbler knäves.

To define this offence with more precision thap bas been already done by the statute is perhaps impossible: and to illustrate it by examples, though not an unentertaining would certainly be an almost endless task. For the arts by which needy villains defraud men of their property are as numerous as the range of thought will admit of. Age after age has given birth to new discoveries in this nefarious science; and by it romance has been furnished with incidents until the human imagination seems exhausted in conceiving them. Yet still some new contrivance affords us daily fresh proof of the unwearied industry and ingenuity of fraud.

I shall now conclude this branch of my subject, that is the exposi tion of crimes and punishments, with that section of the statute which provides for the punishment of those who may be condemned in a fine which they are unable to pay; and also that which renders offenders' property liable for the payment of costs and the satis faction of the party injured.

"Every person being adjudged to pay any fine under this act, shall in default of making such payment, be imprisoned for any term not exceeding one year." 1 sess. Leg. Coun. chap. 50, sec. 41. "The lands, tenements, good and chattels of every person convicted of any crime or misdemeanor, shall from the time (when such person shall be committed to prison,* charged with such crime or misdemeanor, be liable and subject in preference to all other demands whatever (except dower and jointure) in the first place to the discharge of the

*Should not the offender have been committed to prison. Query, when does the ien commence?