Tit. II. 1. Adversus quos datur, p. 310. Sit ab omni rapina. Dig. 4. 2. 13. Cod. 8. 4. 7. Our law against forcible entry and detainer, are founded on similar considerations.

Tit. III. De lege Aquilia, p. 312, This was a plebiscite, proposed by Aquilius a tribune of the people. A. U. C. 572. Almost all the causes of action damni injuriæ under the Lex Aquilia, are also the subjects of our action of Trespass on the Case.

A great deal of nice distinction has been employed in ascertaining whether Trespass vi et armis, or Trespass on the Case should be brought, for an injury done. See Bourdon v. Alloway, 11 Mod. 180.

For some time the criterion was thought to be, whether the act was done wilfully or negligently. Tripe et al. v. Potter, and Ogle v. Barnes, cited in Leame v. Bray, 3 East, 595. At present, the criterion adopted is, whether the injury complained of ensues directly and immediately from the act of the defendant, or is only a consequence of such act and collateral to it, and which might or might not have happened. Thus, I forcibly or carelessly throw, or negligently let fall, or by not securing as I ought I permit to fall, a log into the street; whereby one passenger is wounded, and an hour or two afterward another pas . senger by stumbling over the log, is lamed. Here, the first man if he sue me, must bring trespass vi et armis, and the second man, Case.

So, a New England schooner on a West India voyage, was fired into, and her crew so disabled, that unable to proceed on her voyage, she turned back. The owner brought case for loss of freight and profit The Court determined at once, that this was case. Adams and others v. Hemingway, 1 Mass. Rep. 145.5 kor

on the voyage.

The Court of King's Bench, say, the criterion by which we are to deeide, is, whether the injury is immediately and directly connected with the action or an accidental consequence only. To which purpose the chief or leading cases are, Reynells v. Clarke, 8 Mod. 272. 1 Strange 638. 2 Lord Raym. 1402; Scot v. Shepherd, 3 Wils. 403; Day. Edwards, 5 Term Rep. 649; Weaver v. Wond, Hob. 134. Leame v. Bray, 3 East 593. where all the cases were considered: this was in 1803. But in Rogers v. Imbleton, 5 Bos. and Puil 117 Anno 1806. Sir James Mansfield, put the Criterion on the point of wilfulness or negligence; and intimated that Leame v. Bray, was not settled law. That court did so again in Huggett v. Montgomery, Trin. 1807. 5 Bos. and Pull.

446.

J

The court of king's bench however, decided Covell v. Laming, 1 Camph. N. P. Rep. 497. Mich. 1808, according to Leame v. Brøy : And declared somewhat sharply in Lotan v. Cross, 2 Campb. N, P

Rep. 464. Ann. 1810, that they would not permit the principle of Leame v. Bray, to be canvassed in a motion for a new trial. The question must be raised if at all, upon the record.

The principle of Leame v. Bray, has been recognized in Virginia, Taylor v. Rainbow, 2 Hen. and Munf. 423. and in the case before cited in Massachusetts, viz. Adams et al v. Hemingway, 1 Mass. rep. 145. In New-York Vail v, Lewis et al. 4 Johns. 450. In Hughes v. Heiser, 1 Binney, 463. action on the case for a nuisance: held sufficient though the damage was consequential. Judge Blackstone in Scot v. Shepherd laid down a very convenient doctrine on this subject, which I think may be considered as law at this day; to wit, that where the injury is immediate, plaintiff may bring trespass vi et armis, with a per quod for the consequential damage, or, bring case for the consequential damage alone and pass over the immediate injury, 2. Sir W. Bl. rep. 197. which doctrine is like Pitts v. Gaince, 1 Salk. 10.

But where the injury is both immediate and wilful, the better way is to bring trespass vi et armis. Leame v. Bray, Sup. Ogle et al. v. Barnes et al. 8 Term Rep. 188.

The difficulty suggested by Le Blanc in Leame v. Bray, as to cases where vessels run foul of each other, the immediate agent being the winds and the waves, is settled by Lord Ellenborough in Coval! v. Laming, who very properly states that the helms-man ought to be answerable; that is I presume, in common cases, not in violent storms. See further on this subject Savignac v. Roome, 6 Term. Rep. 125. Mucmanus v. Cricket, 1 East, 106. and Morley v. Gainsford, 2 H. Bl. 442. Chitty has also taken some pains on the question in the first volume of his pleadings p. 122. On actions in form ex Delicto.

Injuria occiderit. By 33 Ch. 2. ch. 7. treble damages are given for maliciously maiming cattle, destroying a plantation of trees, or throwing down an inclosure.

In eo anno. vid. post. § 9 of this title.

See further respecting actions on the case under the civil law, the last section (16th) of this title, De actione directa, utili, et in factum.

§ 1. De Quadrupede, quæ pecudum numero est, p. 312. Neque de Canibus. By the English and our law, damages are recoverable for wantonly killing a dog, Hale's Pl. Cr. 5. 12. Townsend v. Wathen, 9 East, 277. So for wild creatures reclaimed. Ib. and felony may be committed by stealing them. Hawk. Pl. Cr. Lib. 1. ch. 34.

§ 2. De injuria, p. 313. 24 Hen 8 ch. 10. 1 Hale Pl. Cr. 488.

§ 6. De curatione relicta, p. 314. see 3 Bl. Comm. 157. 263. Seare . Prentice, 8 East, 348. where it is held, that an action on the case

lies against a surgeon, not only for negligence, but gross ignorance and want of skill.

§ 9. Quanti damnum æstimatur, et de hæredibus, p. 315. The general principle of our law is, that actio personalis moritur cum persona: and a bad principle it is. For, if my father was maimed or slaughtered, or my sister seduced, what good reason is there that the offender should escape from damages under this maxim? See post Inst. 4. 12. 1.

§ 11. De concursu hujus actionis et capitalis, p. 316. If a felon should be pardoned, or be allowed his clergy, or be burned in the hand, he may afterward be sued civilly: 1 Bac. ab. 64. but not pending the Indictment. Style 346. Ante tit 2. § 5.

Tit IV 1. Quibus modis injuria fit, p 319.

Quasi debitoris qui nihil deberet. See Page v. Wipple, 3 East, 314. no action will lie for permitting and suffering the plaintiff to be arrested, after he had paid debt and costs. Malice, is the gist of all these actions. Hence, case does not lie against a plaintiff who brings a vexatious suit, Pacton v. Honnor, 1 Bos. and Pull. 205. Saville v. Rob er s Salk. 13. for plaintiff may be amerced pro falso clamore suo, and is liable to costs.

But it will lie when a man is maliciously sued for a greater debt than he owes, and thereby held to excessive bail. Daw v. Swaine, 1 Sid. 424. Skinner v. Gunton, et al. 1 Saund. 228. But there must be a scienter that so much is not due. Jackson v. Burleigh, 3 Esp. Rep. 34. But if plaintiff having no cause of action do not hold defendant to unreasonable bail, the action will not lie. Neal v Spencer, cases in K. B. 257. If A bring this action against B, and prove that B was largely indebted to him on balance, the suit will lie, although A might be indebted in a small sum to B on their running account, Wetherden v. Embden, 1 Campb. N. P. 295. Wilkinson v. Mawbry, Ib. 297. But knowledge and malice must be shewn, Sebiel v. Fairbain, 1 Bos. and Pull. 388. Gibson v. Charters, 2 Bos. and Pull. 129.

As to Libel, "Libellum aut Carmen aut Historiam." The civil law was very severe against this offence.

A libel was regarded as with us, more serious than slander. The Author, the Transcriber, the Publisher, the Seller, were all liable to punishment, whether it was anonymous or not. Dig. 47. 10. 5 and 29. Cod. 9. 36. abusive pictures, statues, inscriptions, &c. are libellous Dig 47. 10. 5. 10. like the case of Philip Thicknesse, wherein the sending a wooden gun to Lord Orwell, was held to be a libellous reflection on his military character. The falsely charging a man with a capital crime was punished even with death. Cod. 6. 36. See the case de libellis famosis. 5 Co. Rep. 125.

I hardly know any subject so important as the liberty of the Press, and the right of discussion. All the difficulties involved in it, relate either to political questions, to religious questions, or to questions respecting private character.

Political questions relate either to the investigation of political Theories, or the examination of the measures of Government, or the character and capacities of our actual rulers. I do not know a plainer position, than this: a government that forbids the investigation of the principles on which it is founded, must feel that they will not bear, (and for that very reason the public good requires) such an investigation. In England, I know of no objection to the temperate discussion of the preference of a republican to a monarchical form of government, where it is not a cover to incite insurrection. No prosecution was, set on foot againt the innumerable disquisitions on the inadequacy of parliamentary representation: the republican sentiments of Dr. Price, Dr. Priestley, and Mr. Godwin, were allowed without molestation. In my own case, Sr. John Scott, then attorney general, took a distinction that I had no right to complain of: "continue if you please to publish "your reply to Mr. Burke in an octavo form, so as to confine it proba"bly to that class of readers who may consider it coolly: so soon as it "is published cheaply for dissemination among the populace, it will "he my duty to prosecute." It was on the same principles that Paine and Jordan were prosecuted for dispersing in a cheap form, the Rights of Man. A defensive measure on the part of government, certainly excusable, probably justifiable. In this country, a defence of monarchical government would be borne with less patience, than a defence of republics in England. But if the manner be decent and temperate, such discussions ought to give offence in neither country: but if in either country they should be merely the cover for exciting to civil commotion, let a jury judge of the intent, and the author, and publisher proceed at their peril.

So in discussing the actual measures of a government, or the capacities of those who direct it, the temper and manner of the discussion, will always furnish a clue to the design of the author. It is a farce to talk, of freedom in a country, where the public characters and public conduct of public men, are shielded from investigation. Hence the injustice, the absurdity, the tyranny of the sedition law under the administration of the president Adams. There should be no previous restrictions on the press. The public are deeply interested in having every public measure, and every public character, sifted to the bottom. The people are deeply interested that such investigations honestly

conducted, should incessantly take place. But if the charges be founded on falsehood or forgery, if there should be groundless insinuation of base and unworthy motives, or needless and malignant attacks upon private character, under cover of public dicussion, let the hand of justice fall heavy on the offender. The only way to preserve the liberty of the Press, is to punish its prostitution.

. Hereon it may be observed, that the doctrine advanced by judge Chase (a man of admirable talent, but whose political opinions from the bench, were neither dictated by wisdom or by virtue) is strongly to be reprobated. Namely, that a political writer should be prepared with legal proof of every fact he means to advance, before he publishes. It was a doctrine calculated, as he well knew, to prohibit all political discussion whatever.

No man will venture to publish, who is required before a court in Massachusetts, to prove that the Sun shone at mid day in South Carolina: or that Mr. Pickering, with the knowledge of Mr. Adams, wrote to judge Bee on the case of Jonathan Robbins, previous to the Trial. In political prosecutions, a defendant ought to be allowed to introduce whatever evidence he pleases of the facts he has published, and submit it (not to a court guided by the technical rules of evidence, as to meum and tuum, but) to the jury, whether it was reasonably sufficient to jus tify the assertion in the extent to which it was made. In writing upon popular and public facts, popular documents and common fame may fairly be resorted to, provided the mode of stating the fact be commensurate with the proof relied on. Indeed no writer ought to be called upon for proof of such facts, till they are denied upon affidavit.

The president Adams, was not singular in wishing the sentiments of government to be communicated to the judiciary on a political question. That has been done in England during Mr. Pitt's administration, and since at least the particulars detailed in a public paper as matters of notoriety, have not to my knowledge been denied. In fact, what individual or what set of men does not feel averse to be dragged before the tribunal of public opinion, in cases where they feel conscious of misdeed? But in that country, the high character and station of the judges, and the great confidence so universally (and a few instances excepted) so deservedly reposed in them, and the attention due to the opinion of the bar, as well as of the bench-form a public safeguard of great practical importance: a much more efficacious one, than the farce of a written constitution in this country; which every party, bold and unprincipled in proportion to its ignorance, construes and miscon strues, uses and abuses, as the temptation of the moment may happen