Sec.9.  It is a principle of English common law, that in a criminal action for libel it is immaterial whether the matter of it is true or false; and a person prosecuted for libel is not allowed, in justification, to prove to the jury the truth of his statement, since the provocation, not the falsity, is to be punished.  And, whether true or false, the libelous publication is equally dangerous to the public peace, and is presumed to have been made with malicious intent.

Sec.10.  It is held—­and perhaps it is the prevailing opinion—­that in a civil action for damages, a libel must be false as well as scandalous, and, consequently, that the truth may be pleaded in justification.  This point, however, is not fully settled.  The reason for this distinction between cases of public and private prosecution, it is not easy to perceive.  If it is just to inquire into the good or bad intentions of the publisher in one case, it would seem to be equally so in the other.

Sec.11.  But the common law has been materially modified and relaxed in this country.  In most of the states it is provided by their constitutions or by law, that the truth may be given in evidence, and if it shall appear to the jury “that the matter charged as libelous is true, and was published with good motives and for justifiable ends, the party shall be acquitted.”  As it may sometimes be proper to speak or publish an unfavorable truth concerning others, the principle of the above provision would seem to be founded in justice.  In the state of Vermont, and perhaps in a few other states, if the party prosecuted proves the truth of his statement in any case, he is acquitted.

Sec.12.  The right of personal liberty is secured by express provision of the national constitution, which guaranties to every citizen “the privilege of the writ of habeas corpus.” (Cons.  U.S. art. 1, sec. 9.) The nature of this writ has been explained. (Chap.  XXXVI, Sec.4.) The same provision has been inserted in the state constitutions.  This was a common law privilege, independently of any constitutional enactment.  The principal object of the provision seems to be to take from congress and the state legislatures the power to abolish this privilege, or even to suspend it for any time, or in any case, except the particular cases mentioned.

Sec.13.  Freedom of religious opinion and worship, or liberty of conscience, is a valuable personal right, included in the term, personal liberty, and is effectually secured in this country.  In England, the country of our ancestors, there is a church established and supported by the government.  This is sometimes called “union of church and state.”  The American people, from their love of religious freedom, have, in their constitutions, expressly prohibited congress from making laws “respecting the establishment of religion, or prohibiting the free exercise thereof.” (Amend. art. 1.) And the state constitutions have adopted similar provisions.