was committed by the special command of the king, or by the lords of the privy council.

Occasion of petition of right.-This drew on a parliamentary inquiry, and produced the petition of right, 3 Car. I, which recites this illegal judgment, and enacts that no freeman hereafter shall be so imprisoned or detained.

Violation of this law. But when in the following year, Mr. Selden and others were committed by the lords of the council, in pursuance of his majesty's special command, under a general charge of "notable contempts and stirring up sedition against the king and government," the judges delayed for two terms (including also the long vacation) to deliver an opinion how far such a charge was bailable. And when at length they agreed that it was, they however annexed a condition of finding sureties for the good behaviour, which still protracted their imprisonment, the chief justice, Sir Nicholas Hyde, at the same time declaring, (m) that "if they were again remanded for that cause, perhaps the court would not afterwards grant an habeas corpus, being already made acquainted with the cause of the imprisonment." But this was heard with indig nation and astonishment by every lawyer present: according to Mr. Selden's own (n) acccount of the matter, whose resentment was not cooled at the distance of four-and-twenty years.

New law. These pitiful evasions gave rise to the statute 16 Car. I, c. 10, § 8, whereby it is enacted, that if any person be committed by the king himself in person, or by his privy *council, or [*135] by any of the members thereof, he shall have granted unto him, without any delay upon any pretence whatsoever, a writ of habeas corpus, upon demand or motion made to the court of king's bench or common pleas; who shall thereupon, within three court days after the return is made, examine and determine the legality of such commitment, and do what to justice shall appertain, in delivering, bailing, or remanding such prisoner. Yet still in the case of Jenks, before alluded to, (o) who in 1676 was committed by the king in council for a turbulent speech at Guild-hall, (p) new shifts and devices were made use of to prevent his enlargement by law, the chief justice (as well as the chancellor) declining to award a writ of habeas corpus ad subjiciendum (that you have the body to answer), in vacation, though at last he thought proper to award the usual writs ad deliberandum, &c., whereby the prisoner was discharged at the Old Bailey. Other abuses had also crept into daily practice, which had in some measure defeated the benefit of this great constitutional remedy. The party imprisoning was at liberty to delay his obedience to the first writ, and might wait till a second and a third, called an alias and a pluries, were issued, before he produced the party; and many other vexatious shifts were practiced

(m) State Tr. vii. 240.

(n) "Etiam judicum tunc primarius, nisi illud faceremus, rescripti illius forensis, qui libertatis personalis omnimodo vindex legitimus est fere solus, usum omnimodum palam pronuntiavit (sui semper similis) nobis perpetuo in posterum denegandum. Quod ut odiosissimum juris prodigium, scientioribus hic universis cénsitum." (Then also the chief justice (always the same) openly declared, that unless we could do it (find sureties for good behaviour) the use of this forensic rescript, which is almost the only lawful protection of every kind of personal liberty, would ever after be denied us. Which was considered by all the lawyers present as a most odious and monstrous declaration.) (Vindic. Mar. claus. edit. A. D. 1653.)

(0) Page 132.

(p) State Tr. vii. 471.

to detain state-prisoners in custody. But whoever will attentively consider the English history, may observe, that the flagrant abuse of any power, by the crown or its ministers, has always been productive of a struggle; which either discovers the exercise of that power to be contrary to law, or (if legal) restrains it for the future. This was the case in the present instance.

The habeas corpus act.- The oppression of an obscure individual gave birth to the famous habeas corpus act, 31 Car. II, c. 2, which is frequently considered as another magna carta (g) of the kingdom; and by consequence and analogy has also in subsequent times reduced the general method of proceeding on these writs (though not within the reach of that statute, but issuing merely at the common law) to the true standard of law and liberty.'

*The statute itself enacts, 1. That on complaint and request in writing by or on behalf of any person committed [*136] and charged with any crime, (unless committed for treason or felony expressed in the warrant; or as accessory, or on suspicion of being accessory, before the fact, to any petit-treason or felony: or any suspicion of such petit-treason or felony, plainly expressed in the warrant; or unless he is convicted or charged in execution by legal process), the lord chancellor or any of the twelve judges, in vacation, upon viewing a copy of the warrant, or affidavit that a copy is denied, shall (unless the party has neglected for two terms to apply to any court for his enlargement) award a habeas corpus for such prisoner, returnable immediately before himself or any other of the judges; and upon the return made shall discharge the party, if bailable, upon giving security to appear and answer to the accusation in the proper court of judicature. 2. That such writs shall be indorsed, as granted in pursuance of this act, and signed by the person awarding them. 3. That the writ shall be returned and the prisoner brought up, within a limited time according to the distance, not exceeding in any case twenty days. 4. That officers and keepers neglecting to make due returns, or not delivering to the prisoner or his agent within six hours after demand a copy of the warrant of commitment, or shifting the custody of a prisoner from one to another, without sufficient reason or authority (specified in the act), shall for the first offence forfeit 100l., and for the second offence 2007., to the party grieved, and be disabled to hold his office. 5. That no person once delivered by habeas corpus, shall be recommitted for the same offence, on penalty of 5007. 6. That every person committed for treason or felony shall, if he requires it the first week of the next term, or the first day of the next session of oyer and terminer, be indicted in that term or session, or else admitted to bail: unless the king's witnesses cannot be produced at that time: and if acquitted, or if not indicted and tried in the second term, or session, he shall be discharged from his imprisonment for such imputed of

(q) See book 1, ch. 1.

Mr. Hallam (Const. Hist. ch. xiii), gives a different account of the passing of the habeas corpus act, and shows that the case of Jenks had very little to do with it. The act conferred no

new rights, but only furnished more complete means for enforcing those which existed before. Hallam's Const. Hist. ch. xiii; Beeching's Case, 4 B. and C. 136; Matter of Jackson, 15 Mich. 417.

fence: but that no person, after the assizes shall be *open

[*137] for the county in which he is detained, shall be removed by habeas corpus, till after the assizes are ended; but shall be left to the justice of the judges of assize. 7. That any such prisoner may move for and obtain his habeas corpus, as well out of the chancery or exchequer, as out of the king's bench or common pleas; and the lord chancellor or judges denying the same, on sight of the warrant, or oath that the same is refused, forfeit severally to the party .grieved the sum of 5007. 8. That this writ of habeas corpus shall run into the counties palatine, cinque ports, and other privileged places, and the islands of Jersey and Guernsey. 9. That no inhabitant of England (except persons contracting, or convicts praying to be transported; or, having committed some capital offence in the place to which they are sent), shall be sent prisoner to Scotland, Ireland, Jersey, Guernsey, or any places beyond the seas, within or without the king's dominions; on pain that the party committing, his advisers, aiders, and assistants, shall forfeit to the party aggrieved a sum not less than 5007., to be recovered with treble costs; shall be disabled to bear any office of trust or profit; shall incur the penalties of præmunire; and shall be incapable of the king's pardon.

This is the substance of that great and important statute: which extends (we may observe) only to the case of commitments for such criminal charge, as can produce no inconvenience to public justice by a temporary enlargement of the prisoner: all other cases of unjust imprisonment being left to the habeas corpus at common law. But even upon writs at the common law it is now expected by the court, agreeable to ancient precedents (r) and the spirit of the act of parliament, that the writ should be immediately obeyed, without waiting for any alias or pluries; otherwise an attachment will issue. By which admirable regulations, judicial as well as parliamentary, the remedy is now complete for removing the injury of unjust and illegal confinement. A remedy the more necessary, because the , oppression does not always arise from the ill-nature, but sometimes from the mere inattention of *government. For it frequently

[*138] happens in foreign countries (and has happened in England during temporary suspensions (s) of the statute), that persons apprehended upon suspicion have suffered a long imprisonment, merely because they were forgotten.1

1 As a general rule the protection of personal liberty in the United States is left to state jurisdictions, and the highest court in each state, and the judges thereof, and generally some other courts and judicial officers, are empowered to issue the writ of habeas corpus for that purpose. But the supreme court of the United States and the circuit and district courts, as well as their respective justices and judges, have also by statute the authority to issue the writ in certain cases. But in no case does the writ extend to a

prisoner in jail unless where he is in custody under or by color of the authority of the United States, or is committed for trial before some court thereof, or is in custody for an act done or omitted in pursuance of a law of the United States, or of an order, process or decree of a court or judge thereof, or is in custody in violation of the constitution or of a law or treaty of the United States; or, being a subject or citizen of a foreign state and domiciled therein, is in custody for an act done or omitted under any alleged right, title, author

Private remedy for false imprisonment. The satisfactory remedy for this injury of false imprisonment is by an action of trespass vi et armis, usually called an action of false imprisonment: which is generally, and almost unavoidably, accompanied with a charge of assault and battery also: and therein the party shall recover damages for the injury he has received; and also the defendant is, as for all other injuries committed with force, or vi et armis, liable to pay a fine to the king for the violation of the public peace.

III. Injuries to property rights.- With regard to the third absolute right of individuals, or that of private property, though the enjoyment of it, when acquired, is strictly a personal right, yet as its nature and original, and the means of its acquisition or loss, fell more directly under our second general division, of the rights of things; and as, of course, the wrongs that affect these rights must be referred to the corresponding division in the present book of our Commentaries; I conceive it will be more commodious and easy to consider together, rather than in a separate view, the injuries that may be offered to the enjoyment, as well as to the rights of property. And therefore I shall here conclude the head of injuries affecting the absolute rights of individuals.

Injuries affecting domestic relations. We are next to contemplate those which affect their relative rights or such as are incident to persons considered as members of society, and connected to each other by various ties and relations; and, in particular, such injuries as may be done to persons under the four following relations, husband and wife, parent and child, guardian and ward, master and

servant.

*I. Abduction.-Injuries that may be offered to a person, [*139] considered as a husband, are principally three: abduction, or taking away a man's wife; adultery, or criminal conversation with her; and beating or otherwise abusing her. 1. As to the first sort, abduction, or taking her away, this may either be by fraud and persuasion, or open violence: though the law in both cases supposes force and constraint, the wife having no power to consent; and therefore gives a remedy by writ of ravishment, or action of trespass vi et armis, de uxore rapta et abducta (for the ravishment and abduction of his wife). (t) This action lay at common law; and thereby the husband shall recover, not the possession (u) of his wife, but damages for taking her away: and by statute Westm. 1, 3 Edw. I, c. 13, the offender shall also be imprisoned two years, and be fined at the pleasure of the king. Both the king and the husband may therefore have this action; (w) and the husband is also entitled to recover damages in an action on the case against such as

(u) 2 Inst. 434.

(w) Ibid.

(t) F. N. B. 89. ity, privilege, protection or exemption claimed under the commission or order or sanction of any foreign state, or under color thereof, the validity or effect whereof depends upon the law of nations; or unless it is necessary to bring the prisoner into court to testify. As to when the jurisdiction of the federal courts is exclusive, see Tarble's

Case, 13 Wall. 397. The federal supreme court may also issue the writ in the exercise of its appellate jurisdiction. But the court in reviewing a criminal case on a writ of habeas corpus will inquire only into the jurisdiction of the court that sentenced. Ex parte Rowland, 104 U. S. 604; Ex parte Carll, 106 U. S. 521.

persuade and entice the wife to live separate from him without a sufficient cause. (x) The old law was so strict in this point, that if one's wife missed her way upon the road, it was not lawful for another man to take her into his house unless she was benighted and in danger of being lost or drowned: (y) but a stranger might carry her behind him on horseback to market to a justice of the peace for a warrant against her husband, or to the spiritual court to sue for a divorce. (2)

2. Adultery, or criminal conversation with a man's wife, though it is, as a public crime, left by our laws to the coercion of the spiritual courts; yet, considered as a civil injury (and surely there can be no greater), the law gives a satisfaction to the husband for it by action of trespass vi et armis against the adulterer, wherein the damages recovered are usually very large and exemplary. But these are properly increased and diminished by circumstances; (a) as the rank and fortune of the plaintiff and defendant; the relation or *connexion between them; the seduction or otherwise of [*140] the wife, founded on her previous behaviour and character, and the husband's obligation by settlement or otherwise to provide for those children, which he cannot but suspect to be spurious. In this case, and upon indictments for polygamy, a marriage in fact must be proved; though generally, in other cases, reputation and cohabitation are sufficient evidence of marriage. (b)

3. For beating the wife. The third injury is that of beating a man's wife, or otherwise ill-using her; for which, if it be a common assault, battery, or imprisonment, the law gives the usual remedy to recover damages, by action of trespass vi et armis, which must be brought in the name of the husband and wife jointly: but if the beating or other maltreatment be very enormous, so that thereby the husband is deprived for any time of the company and assistance of his wife, the law then gives him a separate remedy by an action of trespass in nature of an action upon the case for this ill-usage, per quod consortium amisit (by which means he lost his wife); in which he shall recover a satisfaction in damages. (c)

II. Actions by parents.- Injuries that may be offered to a person considered in the relation of a parent' were likewise of two kinds:

1. For abduction, or taking his children away; and,

2. Marrying his son and heir without the father's consent, whereby during the continuance of the military tenures he lost the

1 Trespass on the case may be brought at the election of the husband. [Blagg v. Ilsley, 127 Mass. 191, 34 Am. Rep. 361; Andrews' Steph. Pl. 82.]

2 The American authorities follow the English in holding that, in an action for debauching the plaintiff's daughter, it is necessary to declare upon an injury to the plaintiff in the relation of master and servant, and to give some evidence from which a loss of service may be implied. Lee v. Hodges, 13

(z) Bro. Abr. 207, 440.

(c) Cro. Jac. 501, 538.

Grat. 726; McDaniel v. Edwards, 7 Ired. 408. If, therefore, the daughter at the time of the seduction was actually in the service of another as his indentured apprentice or otherwise, the parent cannot maintain this action: South v. Denniston, 2 Watts, 474; Dain v. Wyckoff, 7 N. Y. 191; Parker v. Meek, 3 Sneed, 29; unless the daughter was under age, and was absent from home at the time with the consent of the parent, and with the right on his part to recall her