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§ 18a. Advice of counsel, how far a defense.— It is remarkable with what uncertainty the books speak of the manner, in which the advice of counsel constitutes a defense to the action for malicious prosecution. Some of the cases hold that it is proof of probable cause ;' some maintain that it disproves malice, in most cases imposing no limitation upon its scope, while others, and it is believed the majority of cases, refer to it as establishing both the absence of malice and the presence of a probable cause. If the position of these courts is correct, which hold that the advice of counsel establishes the existence of probable cause, then the advice of counsel will constitute an absolute bar to all actions for malicious prosecution, whenever there has been a full and fair disclosure of all the facts within the knowledge of the prosecutor; and the proof of actual malice as the cause of the prosecution will not render him liable, not even where the procurement of professional opinion was to furnish a cloak for his malice, or as a matter of precaution, to learn whether it was safe to commence proceedings. But probable cause does not rest upon the sincerity of the prosecutor's belief, nor upon its reasonableness, as shown by facts which are calculated to influence his judgment peculiarly, and not the judgment of others. It must be established by facts, which are likely to induce any reasonable man to believe that the accused is guilty. If probable cause depends upon the honest reasonable belief of the prosecutor in the guilt of the accused, it is certainly based upon reasonable grounds, if his legal adviser tells him that he has a good cause of action. But his belief does not enter into the determination of the question of probable cause. Although his honest belief in the guilt of the accused is necessary to shield him from a judgment for malicious prosecution, it is not because such belief is necessary to establish probable cause, but because its absence proves that the prosecution was instituted for the gratification of his malice. The opinion of counsel can not supplant the judgment of the court as to what is probable cause, and such would be the effect of the rule, that the advice of counsel establishes probable cause. As Mr. Justice Story said: “What constitutes a probable cause of action is, when the facts are given, matter of law upon which the court is to decide ; and it can not be proper to introduce certificates of counsel to establish what the law is."

1 See Olmstead v. Partridge, 16 Gray, 383; Besson v. Southard, 10 N. Y. 237; Laughlin v. Clawson, 27 Pa. St. 330; Fisher v. Forrester, 33 Pa. St. 501; Ross v. Innis, 26 Ill. 259; Potter v. Sealey, 8 Cal. 217; Levy v. Brannan, 39 Cal. 485. Mr. Cooley, in his work on Torts, p. 183, says: “A prudent man is, therefore, expected to take such advice (of counsel), and when he does so, and places all the facts before his counsel, and acts upon his opinion, proof of the fact makes out a case of probable cause, provided the disclosure appears to have been full and fair, and not to have withheld any of the material facts."

Snow 0. Allen, 1 Stark. 409; Sommer o. Wilt, 4 Serg. & R. 20; Davenport v. Lynch, 6 Jones L. 545; Stanton v. Hart, 27 Mich. 539; Murphy 7. Larson, 77 m. 172; Williams v. Van Meter, 8 Mo. 339; Center v. Spring, 2 Clarke, 393; Rover v. Webster, 3 Clarke, 502.

3 See Soule v. Winslow, 66 Me. 447; Bartlett v. Brown, 6 R. I. 37; Ames v. Rathbun, 55 Barb. 194; Walter v. Sample, 25 Pa. St. 275; Turner o. Walker, 3 G. & J. 380; Gould v. Gardner, 8 La. Ann. 11; Phillips o. Bonham, 16 La. Ann. 387; Lemay v. Williams, 32 Ark. 166; Wood o. Weir, 5 B. Mon. 544; Wicker v. Hotchkiss, 62 Ill. 107; Davie v. Wisher, 72 ni. 262; Wilkinson v. Arnold, 13 Ind. 45; Bliss v. Wyman, 7 Cal. 257. In the case of Blunt v. Little, 3 Mason, 102, Mr. Justice Story said: “It is certainly going a great way to admit the evidence of any counsel that he advised a suit upon a deliberate examination of the facts, for the purpose of repelling the imputation of malice and establishing probable cause. My opinion, however, is that such evidence is admissible.” So, also, in Walter 0. Sample, 25 Pa. St. 275, we find the law stated thus: "Professors of the law are the proper advisers of men in doubtful circumstances, and their advice, when fairly obtained, exempts the party who acts upon it from the imputation of proceeding maliciously and without probable cause.

The better opinion, therefore, is that the advice of counsel only furnishes evidence of his good motives, in rebuttal to the inference of malice from the want of probable cause. It does not constitute a conclusive presumption of good faith on the part of the prosecutor. If, therefore, there are facts, which establish the existence of malice, and show that the procurement of professional opinion was to cloak his malice, or as a matter of precaution to learn whether it was safe to commence proceedings, the defense will not prevail, and the prosecutor will, notwithstanding, be held liable.1

1 Blunt o. Little, 3 Mason, 102.

antly. * *

Burnap o. Albert, Taney, 344; Ames o. Rathbun, 55 Barb. 194; Kimball v. Bates, 50 Me. 308; Brown v. Randall, 36 Conn. 56; Prough v. Entriken, 11 Pa. St. 81; Fisher v. Forrester, 33 Pa. St. 501; Schmidt o. Weidman, 63 Pa. St. 173; Davenport v. Lynch, 6 Jones L. 545; Glascock 0. Bridges, 15 La. Ann. 672; King v. Ward, 77 III. 603; Rover 0. Webster, 3 Clarke, 502; Chapman v. Dodd, 10 Minn. 350. In Snow v. Allen, 1 Stark. 409, one of the earliest cases in which the advice of counsel was set up as a defense, Lord Ellenborough inquired: “How can it be contended here that the defendant acted maliciously? He acted ignor

* He was acting under what he thought was good advice, it was unfortunate that his attorney was mislead by Higgin's Case (Cro. Jac. 320); but unless you can show that the defendant was actuated by some purposed malice, the plaintiff can not recover.” In Sharpe v. Johnstone (59 Mo. 577; s.c. 76 Mo. 660), Judge Hough said (76 Mo.) 674: “Although defendants may have communicated to counsel learned in the law, all the facts and circumstances bearing upon the guilt or innocence of the plaintiff, which they knew or by any reasonable diligence could have ascertained, yet, if, notwithstanding the advice of counsel, they believed that the prosecution would fail, and they were actuated in commencing said prosecution, not simply by angry passions or hostile feelings, but by a desire to injure and wrong the plaintiff, then most certainly they could not be said to have consulted counsel in good faith, and the jury would have been warranted in finding that the prosecution was malicious." See the annotation of the author to Sharpe v. Johnstone, in 21 Am. Law. Reg. (N. S.) 582.

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§ 18a

CHAPTER III.

PERSONAL LIBERTY.

§ 30. Personal liberty - How guaranteed. — It is altogether needless in this connection to indulge in a panegyric upon the blessings of guaranteed personal liberty. The love of liberty, of freedom from irksome and unlawful restraints, is implanted in every human breast. In the American Declaration of Independence, and in the bills of rights of almost every State constitution, we find that personal liberty is expressly guaranteed to all men equally. But notwithstanding the existence of these fundamental and constitutional guaranties of personal liberty, the astounding anomaly of the slavery of an entire race in more than one-third of the States of the American Union, during three-fourths of a century of national existence, gave the lie to their own constitutional declarations, that “all men are endowed by their Creator, with certain alienable rights, among which are the right to life, liberty, and the pursuit of happiness.” But, happily, this contradiction is now a thing of the past, and in accordance with the provisions of the thirteenth amendment to the constitution of the United States, it is now the fundamental and practically unchangeable law of the land, that “ neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.

But to a practical understanding of the effect of these constitutional guaranties, a clear idea of what personal liberty consists is necessary. It is not to be confounded with a license to do what one pleases. Liberty, according

I U.S. Const. Amend., art. XIII.

to Montesquieu, consists “ only in the power of doing what we ought to will, and in not being constrained to do what we ought not to will.” No man has a right to make such a use of his liberty as to commit an injury to the rights of others. His liberty is controlled by the oft quoted maxim, sic utere tuo, ut alienum non lædas. Indeed liberty is that amount of personal freedom, which is consistent with a strict obedience to this rule. “Liberty,” in the words of Mr. Webster, “is the creature of law, essentially different from that authorized licentiousness that trespasses on right. It is a legal and refined idea, the offspring of high civilization, which the savage never understood, and never can understand. Liberty exists in proportion to wholesome restraint; the more restraint on others to keep off from us, the more liberty we have. It is an error to suppose that liberty consists in a paucity of laws. If one wants few laws, let him go to Turkey. The Turk enjoys that blessing. The working of our complex system, full of checks on legislative, executive and judicial power, is favorable to liberty and justice. Those checks and restraints are so many safeguards set around individual rights and interests. That man is free who is protected from injury.”ı While liberty does not consist in a paucity of laws, still it is only consistent with a limitation of the restrictive laws to those which exercise a wholesome restraint. 6. That man is free who is protected from injury," and his protection involves necessarily the restraint of other individuals from the commission of the injury. In the proper balancing of the contending interests of individuals, personal liberty is secured and developed ; any further restraint is unwholesome and subversive of liberty. As Herbert Spencer has expressed it, “every man may claim the fullest liberty to exercise his faculties compatible with the possession of like liberty by every other man.” ?

1 Webster's Works, vol. II., p. 393. : Social Statics, p. 94.

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