The means of removing the actual injury of false imprisonment are fourfold. 1. By writ of mainprize. 2. By writ de odio et atia." 3. By writ de homine replegiando. 4. By writ of habeas corpus.

1. The writ of mainprize, manucaptio, is a writ directed to the sheriff, (either generally, when any man is imprisoned for a bailable offence and bail has been refused; or specially, when the offence or cause of commitment is not properly bailable below,) commanding him to take sureties for the prisoner's appearance, usually called mainpernors, and to set him at large.(g) Mainpernors differ from bail, in that a man's bail may imprison or surrender him up before the stipulated day of appearance; mainpernors can do neither, but are barely sureties for his appearance at the day: bail are only sureties that the party be answerable for the special matter for which they stipulate; mainpernors are bound to produce him to answer all charges whatsoever. (h)

2. The writ de odio et atia was antiently used to be directed to the sheriff, commanding him to inquire whether a prisoner charged with murder was committed upon just cause of suspicion, or merely propter odium et atiam, for hatred and ill will; and if upon the inquisition due cause of suspicion did not appear, then there issued another writ for the sheriff to admit him to bail. This writ, according to Bracton,(i) ought not to be denied to any man, it being expressly ordered to be made out gratis, without any denial, by magna carta, c. 26, and statute Westm. 2, 13 Edw. I. c. 29. But the statute *of Gloucester, 6 Edw.

I. c. 9, restrained it in the case of killing by misadventure or self-defence, [*129

and the statute 28 Edw. III. c. 9 abolished it in all cases whatsoever: but as the statute 42 Edw. III. c. 1 repealed all statutes then in being, contrary to the great charter, Sir Edward Coke is of opinion(k) that the writ de odio et atia was thereby revived.

3. The writ de homine replegiando(1) lies to replevy a man out of prison, or out of the custody of any private person, (in the same manner that chattels taken in distress may be replevied, of which in the next chapter,) upon giving security to the sheriff that the man shall be forthcoming to answer any charge against him. And if the person be conveyed out of the sheriff's jurisdiction, the sheriff may return that he is eloigned, elongatus; upon which a process issues (called a capias in withernam) to imprison the defendant himself, without bail or mainprize,(m) till he produces the party. But this writ is guarded with so many exceptions,(n) that it is not an effectual remedy in numerous instances, especially where the crown is concerned. The incapacity therefore of these three remedies to give complete relief in every case hath almost entirely antiquated them, and hath caused a general recourse to be had, in behalf of persons aggrieved by illegal imprisonment, to

4. The writ of habeas corpus, the most celebrated writ in the English law. Of this there are various kinds made use of by the courts at Westminster, for removing prisoners from one court into another for the more easy administration of justice. Such is the habeas corpus ad respondendum, when a man hath a cause of action against one who is confined by the process of some inferior court; in order to remove the prisoner, and charge him with this new action in the court above.(0) Such is that ad satisfaciendum, when a prisoner hath [*130 *had judgment against him in an action, and the plaintiff is desirous to bring him up to some superior court to charge him with process of execution.(p) Such also are those ad prosequendum, testificandum, deliberandum, &c.; which issue when it is necessary to remove a prisoner, in order to prosecute or bear testimony in any court, or to be tried in the proper jurisdiction wherein the fact was

17 Of the two first-mentioned writs nothing is now known in practice, their use and application being entirely superseded by summary resort to magistrates, or, upon their refusal, to a judge of the court, as the case may require.-CHITTY.

committed.18 Such is, lastly, the common writ ad faciendum et recipiendum, which issues out of any of the courts of Westminster hall, when a person is sued in some inferior jurisdiction, and is desirous to remove the action into the superior court; commanding the inferior judges to produce the body of the defendant, together with the day and cause of his caption and detainer, (whence the writ is frequently denominated an habeas corpus cum causa,) to do and receive whatsoever the king's court shall consider in that behalf. This is a writ grantable of common right, without any motion in court,(q) and it instantly supersedes all proceedings in the court below. But in order to prevent the surreptitious discharge of prisoners, it is ordered by statute 1 & 2 P. and M. c. 13 that no habeas corpus shall issue to remove any prisoner out of any gaol, unless signed by some judge of the court out of which it is awarded. And to avoid vexatious delays by removal of frivolous causes, it is enacted by statute 21 Jac. I. c. 23 that, where the judge of an inferior court of record is a barrister of three years' standing, no cause shall be removed from thence by habeas corpus or other writ, after issue or demurrer deliberately joined; that no cause, if once remanded to the inferior court by writ of procedendo or otherwise, shall ever afterwards be again removed; and that no cause shall be removed at all, if the debt or damages laid in the decla ration do not amount to the sum of five pounds. But an expedient(r) having been found out to elude the latter branch of the statute, by procuring a nominal plaintiff to bring another action for five pounds or upwards, (and then, by the course of the court, the habeas corpus removed both actions together,) it

*131] is therefore enacted by statute 12 Geo. I. c. 29, that the inferior *court may proceed in such actions as are under the value of five pounds, notwithstanding other actions may be brought against the same defendant to a greater amount. And by statute 19 Geo. III. c. 70, no cause under the value of ten pounds shall be removed by habeas corpus, or otherwise, into any superior court, unless the defendant so removing the same shall give special bail for payment of the debt and costs.

But the great and efficacious writ, in all manner of illegal confinement, is that of habeas corpus ad subjiciendum; directed to the person detaining another, and commanding him to produce the body of the prisoner, with the day and cause of his caption and detention, ad faciendum, subjiciendum, et recipiendum, to do, submit to, and receive whatsoever the judge or court awarding such writ shall consider in that behalf.(8) This is a high prerogative writ, and therefore by the common law issuing out of the court of king's bench not only in term-time, but also during the vacation,(t) by a fiat from the chief justice or any other of the judges, and running into all parts of the king's dominions; for the king is at all times entitled to have an account why the liberty of any of his subjects is restrained, (u) wherever that restraint may be inflicted. If it issues in vacation, it is usually returnable before the judge himself who awarded it, and he proceeds by himself thereon;(v) unless the term shall intervene, and then it may be returned in court.(w) Indeed, if the party were privileged in the courts of common pleas and exchequer, as being (or supposed to be) an officer or suitor of the court, an habeas corpus ad subjiciendum might also by common 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 ap

18 By 44 Geo. III. c. 102, any of the judges of England or Ireland may award a writ of habeas corpus ad testificandum to bring a prisoner detained in any gaol to be examined as a witness in any court of record or sitting at nisi prius.-CHITTY.

19 Ry statute 57 Geo. III. c. 124, extended to 157., and by statute 7 & 8 Geo. IV. c. 71, 6, extended to 201.-CHITTY.

[*132

pearance in the court of king's bench, (2) which *occasioned the common pleas for some time to discountenance such applications. But since the mention of the king's bench and common pleas, as co-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) 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.20

(Carter, 221. 2 Jon. 13.

() 2 Mod. 198. Wood's Case, C. B. Hill. 11 Geo. III.

(*) 4 Inst. 182. 2 Hal. P. C 47.
(e) Lord Nott. MSS. Rep. Ju.y, 1676.

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. I.

By two modern statutes, the 43 Geo. III. c. 140 and 44 Geo. III. c. 102, the habeas corpus ad testificandum has been rendered more efficient. By the first, a judge may award the writ for the purpose of bringing any prisoner from any gaol in England or Ireland as a witness, before any court-martial, commissioners of bankrupt or for auditing public accounts, or other commissioners, under any commission or warrant from his majesty: (the statute has the same application to the habeas corpus ad deliberandum.) By the other statute, a similar power is given for bringing up any prisoner as a witness before any of the courts, or any justice of oyer and terminer, or gaol-delivery, or sitting at nisi prius, in England or Ireland.

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 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. On 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. & 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 King's Bench, unless it appears that the defendant is actually or virtually in the custody of the court below. 1 B. & C. 513. 2 Dowl. & R. 722. The court of King's Bench 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 misdemeanour. 5 B. & 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 defence in person: the application should be made to the court by whom the defendant was sentenced. 9 Price, 147. Nor will the court of King's Bench grant a writ of habeas corpus to bring up a defendant under sentence of imprisonment for a misdemeanour, to enable him to show cause in person against a rule for a criminal information. 3 B. & 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 had 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

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 a habeas corpus, though sure to *133] 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 that the party is imprisoned without just

(d) 2 Mod. 306. 1 Lev. 1.
() Bushel's case, 2 Jon. 13.

(f) Cro. Jac. 543.

(#) 3 Bulstr. 27. See also 2 Roll. Rep. 138.

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 rule 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. Where application had been made for the discharge of an impressed seaman, before the two years of his protection by the stat. 13 Geo. II. c. 17 were expired, which was then ineffectual, because the facts were not verified with sufficient certainty, yet, the doubt being removed by another affidavit, the court granted a writ of habeas corpus for the purpose of liberating him, though the two years were expired. 8 East, 27. 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 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, 495. 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 courtmartial can be conveniently assembled, unless the delay is satisfactorily explained. 2 M. & 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, s. 4. 4 B. & 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 bail in court. 6 M. & S. 108. 1 B. & A. 209. 2. Chit. Rep. 110.

With respect to the Return. A return in the following words, "I had not, at the time of receiving this writ, nor have I since, had the body of A. B. detained in my custody, so that I could not have her, &c." was holden bad, and an attachment was granted against the party who made it. 5 T. R. 89. 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 Dowl. 199, 200. The court will not extend matter dehors the return, in support of the sentence or proceeding against the defendant, (2 M. & 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 appeal and complaint of nullity," without snowing that the defendant was committed for a cause within the jurisdiction of the spiritual judge, it was held that the defendant was entitled to be discharged on habeas corpus. 5 B. & A. 791. 1 Dowl. & Ry. 460.-CHITTY.

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 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 an 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 consists in clearly defining the times, the causes, and the extent, when, wherefore, and to what degree, the *imprisonment of the subject may be lawful. [*134 This it is which induces the absolute necessity of expressing upon every commitment the reason for which it is made: that the court upon a 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, relying on some arbitrary precedents, (and those perhaps misunderstood,) determined() that they could not upon a 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

(*) 2 Inst. 615.

(1) Com. Jour. 1 Apr. 1628.

(*) Book i. ch. 1.
State Tr. vii. 136.

(m) Ibid. 240.

"It has been decided by the Supreme Court of the United States that that tribunal has authority to issue a habeas corpus where a person is imprisoned under the warrant or order of any other court. It is in the nature of a writ of error to examine the legality of the commitment. As it is the exercise of the appellate power of the court to award the writ, it is within its jurisdiction to do so. It is revising the effect of the process of the inferior court under which the prisoner is detained, and is not the exercise of original jurisdiction. But the Supreme Court has no appellate jurisdiction in criminal cases confided to it by the laws of the United States, and hence will not grant a habeas corpus where a party has been committed for a contempt,adjudged by a court of competent jurisdiction, nor inquire into the sufficiency of the cause of commitment. Ex parte Kearney, 7 Wheat, 38. Ex parte Tobias Watkins, 3 Peters, 193. S. C. 7 Peters, 568. But neither the Supreme Court nor any other court of the United States, nor judge thereof, can issue a habeas corpus to bring up a prisoner who is in custody under a sentence or execution of a State court for any other purpose than to be used as a witness. Ex parte Dorr, 3 Howard, 103. The court on a habeas corpus cannot look behind the sentence where the court had jurisdiction. Johnson vs. The United States 3 McLean, 89.-SHARSWOOD.