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cer or suitor of the court, an habeas corpus ad subjiciendum might also by com. mon law have been awarded from thence; (x) and, if the cause of imprisonment were palpably illegal, they might have discharged him: (y) but, if he were committed for any criminal matter, they could only have remanded him, or taken bail for his appearance in the court of king's bench (2) which occa sioned the common pleas for some time to discountenance such applications. But since the mention of the king's bench and common pleas, as co[*132] ordinate in this jurisdiction, by statute 16 Car. I, c. 10, it hath been holden, that every subject of the kingdom is equally entitled to the benefit of the common law writ, in either of those courts, at his option. (a) (17) It hath also been said, and by very respectable authorities, (b) that the like habeas corpus may issue out of the court of chancery in vacation; but upon the famous application to Lord Nottingham by Jenks, notwithstanding the most diligent searches, no precedent could be found where the chancellor had issued such a writ in vacation, (c) and therefore his lordship refused it. (18.)

(x) 2 Inst. 55. 4 Inst. 290. 2 Hal. P. C. 141. 2 Ventr. 24. (z) Carter, 221. 2 Jon. 13.

(b) 4 Inst. 182, 2 Hal. P. C. 147.

(y) Vangh. 155.
(a) 2 Mod. 19s. Wood's Case, C. B. Hill. 11 Geo. III.
(c) Lord Nott. MSS. Rep. July, 1676.

(17) [And now out of the court of exchequer. See 56 Geo. III, c. 100, s. 2.]

(18) [It was determined, after a very elaborate investigation of all the authorities by Lord Eldon in Crowley's Case, that the lord chancellor can issue the writ of habeas corpus at common law in vacation, overruling the decision in Jenks's Case. See 2 Swanst. 1.

The benefit of the writ of habeas corpus, which was limited by the former acts to cases of commitment or detainer for criminal, or supposed criminal, matter has been still further extended by the 59 Geo. III, c. 100, which enacts, that any one of the judges may issue a writ of habeas corpus in vacation, returnable immediately, before himself or any other judge of the same court in cases other than for criminal matter or for debt; and the non-observance of such writ is to be deemed a contempt of court. But if the writ be awarded so late in the vacation that the return cannot be conveniently made before term, then it is to be made returnable in court at a day certain. And if the writ be awarded late in term, it be may be made returnable in vacation in like manner. The act applies to Ireland as well as England, and the writ may run into counties palatine, cinque ports, and privileged places, &c., Berwick-upon Tweed, and the isles of Guernsey, Jersey, or Man.


The writ of habeas corpus is the privilege of the British subject only, and therefore cannot be obtained by an alien enemy, or a prisoner of war. See the case of the three Spanish sailors, 2 Blk. 1324; 2 Burr. 765. The relief in such cases is by application to the secretary at war. a commitment by either house of parliament for contempt or breach of privilege, the courts at Westminster cannot discharge on a habeas corpus; although on the return of the writ such commitment should appear illegal; for they have no power to control the privileges of parliament. 2 Hawk. c. 15, s. 73; 8 T. R. 314.

The writ of habeas corpus, whether at common law or under 31 Car. II, c. 2, does not issue as a matter of course upon application in the first instance, but must be grounded on an affidavit, upon which the court are to exercise their discretion whether the writ shall issue or not. 3 B. and A. 420; 2 Chitty R. 207. A habeas corpus cum causa does not lie to remove proceedings from an inferior jurisdiction, into the court of K. B., unless it appears that the defendant is actually or virtually in the custody of the court below. 1 B. and C. 513; 2 Dowl. and R. 722. The court of K. B. will grant a habeas corpus to the warden of the Fleet, to take a prisoner confined there for debt before a magistrate, to be examined from day to day respecting a charge of felony or misdemeanor. 5 B. and A. 730. The court of exchequer will not grant a habeas corpus to enable the defendant in an information, who is confined in a county gaol for a libel under the sentence of another court, to attend at Westminster to conduct his defeuce in person;-the application should be made to the court by whom the defendant was sentenced. 9 Price, 147. Nor will the court of K. B. grant a writ of habeas corpus to bring up a defendant under sentence of imprisonment for a misdemeanor, to enable him to show cause in person against a rule for a criminal information. 3 B. and A. 679, n. Where there are articles of separation between the husband and wife, if the husband afterwards confine her, she may have a habeas corpus and be set at liberty. 13 East, 173, n. A habeas corpus will be granted in the first instance, to bring up an infant who has absconded from his father and was detained by a third person without his consent. 4 Moore, 366. The court will not grant a habeas corpus to bring up the body of a feme-covert on an affidavit that she is desirous of disposing of her separate property, and that her husband will not admit the necessary parties, and that she is confined by illness and not likely to live long; nor will they, under such circumstances, grant a rile to show cause why the necessary parties should not be admitted to see her, for if there be no restraint of personal liberty, the matter is only cognizable in a court of equity. 1 Chitty R. 654. The court on affidavit, suggesting probable cause to believe that a helpless and ignorant female foreigner was exhibited for money without her consent, granted a rule on her

In the king's bench and common pleas it is necessary to apply for it by motion to the court, (d) as in the case of all other prerogative writs (certiorari, prohibition, mandamus, &c.), which do not issue as of mere course, without showing some probable cause why the extraordinary power of the crown is called in to the party's assistance. For, as was argued by Lord Chief Justice Vaughan, (e) "it is granted on motion, because it cannot be had of course; and there is, therefore, no necessity to grant it; for the court ought to be satisfied that the party hath a probable cause to be delivered." And this seems the more reasonable, because (when once granted) the person to whom it is directed can return no satisfactory excuse for not bringing up the body of the prisoner.(f) So that if it issued of mere course, without showing to the court or judge some reasonable ground for awarding it, a traitor or felon under sentence of death, a soldier or mariner in the king's service, a wife, a child, a relation, or a domestic, confined for insanity, or other prudential reasons, might obtain a temporary enlargement by suing out habeas corpus, though sure to be remanded as soon as brought up to the court. And, therefore, Sir Edward Coke, when chief justice, did not scruple, in 13 Jac. I, to deny a habeas corpus to one confined by the court of admiralty for piracy; there appearing, upon his own showing, sufficient grounds to *confine him. (g). On the other hand, if a probable ground be shown, [*133] that the party is imprisoned without just cause, (h) and therefore hath a right to be delivered, the writ of habeas corpus is then a writ of right, which "may not be denied, but ought to be granted to every man that is committed, or detained in prison, or otherwise restrained, though it be by the command of the king, the privy council, or any other." (i)

In a former part of these Commentaries (k) we expatiated at large on the personal liberty of the subject. This was shown to be a natural inherent right, which could not be surrendered or forfeited unless by the commission of some great and atrocious crime, and which ought not to be abridged in any case without the special permission of law. A doctrine coeval with the first rudiments of the English constitution, and handed down to us, from our Saxon ancestors, notwithstanding all their struggles with the Danes, and the violence. of the Norman conquest: asserted afterwards and confirmed by the conqueror himself and his descendants; and though sometimes a little impaired by the ferocity of the times, and the occasional despotism of jealous or usurping

(d) 2 Mod. 306. (g) 3 Bulstr. 27. (i) Com. Jour. 1

1 Lev. 1.
(e) Bushel's Case, 2 Jon. 13.
See also 2 Roll. Rep. 138.
(h) 2 Inst. 615.
Apr. 1628.
(k) Book I, ch. 1.

(f) Cro. Jac. 543.

keepers to show cause why a writ of habeas corpus should not issue to bring her before the court, and directed an examination before the coroner and attorney of the court, in the presence of the parties applying and applied against. Ex parte Hottentot Venus, 13 East, 195. The writ will be granted to a military officer under arrest for charges of misconduct, if he be not brought to trial pursuant to the articles of war, as soon as a court-martial can be conveniently assembled, unless the delay is satisfactorily explained. 2 M. and S. 428. The court will grant a habeas corpus to bring up the body of a bastard child within the age of nurture, for the purpose of restoring it to its mother, from whom it had been taken, first by fraud, and then by force, without prejudice to the question of guardianship, which belongs to the lord chancellor. 7 East, 579. Where a prisoner is brought up under a habeas corpus issued at common law, he may controvert the truth of the return by virtue of the 56 Geo. III, c. 100, § 4. 4 B. and C. 136. Prisoner committed for manslaughter, upon the return of the habeas corpus was allowed to give bail in the country, by reason of his poverty, which rendered him unable to appear with Dail in court. 6 M. and S. 108; 1 B. and A. 209; 2 Chit. Rep. 110.

With respect to the return. It seems sufficient to set forth, that the defendant is in custody under the sentence of a court of competent jurisdiction to inquire of the offence and pass such sentence, without setting forth the particular circumstances necessary to warrant such a sentence, 1 East, 306; 5 Dow. 199, 200. The court will not extend matter dehors the return, in support of the sentence or proceeding against the prisoner: 2 M. and S. 226; nor go into the merits, but decide upon the return of a regular conviction prima facie. 7 East, 376. Where a defendant was committed by an ecclesiastical judge of appeal for contumacy in not paying costs, and the significavit only described the suit to be "a certain cause of apper and complaint of nullity," without showing that the defendant was committed for a cause thin the jurisdiction of the spiritual judge, it was held, that the defendant was entitled to L▲ discharged on habeas corpus. 5 B. and A. 791; 1 Dowl. and Ry. 460.]

princes, yet established on the firmest basis by the provisions of magna carta and a long succession of statutes enacted under Edward III. To assert ar absolute exemption from imprisonment in all cases, is inconsistent with every idea of law and political society; and in the end would destroy all civil liberty by rendering its protection impossible: but the glory of the English law con sists in clearly defining the times, the causes, and the extent, when, wherefore, and to what degree the imprisonment of the subject may be lawful. This it is, which induces the absolute necessity of expressing upon every commitment the reason for which it is made: that the court upon an habeas corpus may examine into its validity; and according to the circumstances of the case may discharge, admit to bail, or remand the prisoner.

*And yet early in the reign of Charles I, the court of king's bench. [*134] relying on some arbitrary precedents (and those perhaps misunderstood) determined (7) that they could not upon an habeas corpus either bail or deliver a prisoner, though committed without any cause assigned, in case he was committed by the special command of the king, or by the lords of the privy council. 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. 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 a habeas corpus, being already made acquainted with the cause of the imprisonmnt." But this was heard with indignation and astonishment by every lawyer present: according to Mr. Selden's own (n) account of the matter, whose resentment was not cooled at the distance of four-and-twenty years.

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, [*135] or by his privy council, or 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, (0) who in 1676 was committed by the king in council for a turbulent speech at Guildhall, (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, 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 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

(1) State Tr. vii. 136

(m) Ibid. 240.

Etiam judicum tunc primarius, visi illud faceremus, rescripti illius forensis, qui libertatis personális omnimodæ vindex legítimus est jere solus, usum omnimodum palam pronuntiavit (sui semper similis) nobis perpetuo in posterum denegandum. Quod, ut odiosissimum juris prodigium, sciertioribus hic universis censitum," (Vinilic. Mar, claus, edit. A. D. 1653.)

(0) Page 132.

(p) State Tr. vii, 471.

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 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 (q) of the kingdom; and by consequence and analogy has also in subsequent times reduced the gereral 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. (19)

*The statute itself enacts, 1. That on complaint and request in writ[*136] ing by or on behalf of any person committed 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 petittreason or felony: or upon 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 1007., 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 offence: but that no person, after the assizes shall be open for the county in which he is detained, shall be [*137]

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 500l. 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

(q) See book 1, ch. 1.

(19) 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. 135; Matter of Jackson, 15 Mich. 436.

VOL. II.-12


the party aggrieved a sum not less than 500%., 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 [*138] sometimes from the mere inattention of *government. For it frequently 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. (20)

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 pub. lic peace. (21)

III. 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.

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(20) [Besides the efficacy of the writ of habeas corpus in liberating the subject from illegal confinement in a public prison, it also extends its influence to remove every unjust restraint of personal freedom in private life, though imposed by a husband or a father; but when women or infants are brought before the court by an habeas corpus, the court will only set them free from an unmerited or unreasonable confinement, and will not determine the validity of a marriage, or the right to the guardianship, but will leave them at liberty to choose where they will go; and if there be any reason to apprehend that they will be seized in returning from the court, they will be sent home under the protection of an officer. But if a child is too young to have any discretion of its own, then the court will deliver it into the custody of its parent, or the person who appears to be its legal guardian. See 3 Burr. 1434, where all the prior cases are considered by Lord Mansfield.

If an equivocal return is made to an habeas corpus, the court will immediately grant an ⚫ttachment. 5 T. R. 89.]

As a general rule the protection of personal liberty in the United States is left to state juris dictions, and the highest court in each state, and the judges thereof, and generally some othe courts and judicial officers, are empowered to issue the writ of habeas corpus for that purpose The federal courts of record and the judges thereof have, however, a jurisdiction conferred upon them in cases of imprisonment under pretence of federal authority, and also in certaia other cases of imprisonment, where the questions involved make the writ important to the enforcement of some national authority, or are such as might involve the country in difficulty with a foreign nation. See 1 Statutes at Large, 81; 4 id. 634; 5 id. 539. On this subject in general the valuable treatise of Mr. Hurd on the writ of habeas corpus should be consulted. The state courts may issue the writ in the case of confinement under federal authority, but when return is made that the party is held under such authority, they cannnot proceed further, and the legality of the imprisonment must be determined by the federal tribunals. Ableman v. Booth, 21 Hov. 506. (21) [Since the common law procedure act, 1852, this fine to the king (for which for erly judgment was awarded by the court as a matter of form) no longer appears in the judgn ent.]

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