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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 *133] a temporary *enlargement by suing out a 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 that the party is imprisoned without just
(d) 2 Mod. 306. 1 Lev. 1.
() Bushel's case, 2 Jon. 13.
(5) 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, 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 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. This it is which induces the absolute necessity of expressing upon every [*134 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.
(9) Com. Jour. 1 Apr. 1628.
(*) Book i. ch. 1.
(m) Ibid. 240.
21 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.
remanded for that cause perhaps the court would not afterwards grant a habeas corpus, being already made acquainted with the cause of the imprisonment." But this was heard with indignation and astonishment by every lawyer present: according to Mr. Selden's own(n) account of the matter, whose *135] *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, 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 practised 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 oppression of an obscure individual gave birth to the famous habeas corpus act, 31 Car. II. c. 2, which is *136] frequently *considered as another magna carta (q) of the kingdom; and by consequence and analogy has also in subsequent times reduced the general method of proceedings 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 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 endorsed 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 dis
()" Etiam judicum tunc primarius, nisi illud faceremus, rescripti illius forensis, qui libertatis personalis omnimode vindex legitimus est fere solus, usum omnimodum palam pronuntiavit (sui semper similis) nobis perpetuo in posterum Lanegandum. Quod, ut odiosissimum juris prodigium,
scientioribus hic universis censitum." Vindia Mar, claus edit. A.D. 1653.
(•) Page 132.
(P) State Tr. vii. 471.
(9) See book i. ch. 1.
abled to hold his office. 5. That no person once delivered by habeas corpus shall be recommitted for the same offence, on penalty of 500l. 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 ter[*137 miner, 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 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 the party aggrieved a sum not less than 500l., 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 antient 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 [*138 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 il nature, but sometimes from the mere inattention, of government. For it fre quently happens in foreign countries (and has happened in England during tem porary suspensions(s) of the statute) that persons apprehended upon suspicion have suffered a long imprisonment, merely because they were forgotten.22 The satisfactory remedy for this injury of false imprisonment, is by an action
"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 a 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. In a late case (Moore and Fitzgibbon) the court refused to permit an inquiry whether a child born during wedlock was the offspring of the former or the latter, but on a writ of habeas corpus directed that the child, an infant under three years of age, should be restored to the former, who was the husband of the child's mother. M. T. 1825, K. B.
If an equivocal return is made to a habeas corpus, the court will immediately grant an attachment. 5 T. R. 89.-CHRISTIAN.
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.28
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 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 1ights of individuals.
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 *139] 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. Injuries that may be offered to a person, 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.(t) This action lay at the 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 persuade and entice the wife to live se parate 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.(z) 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 *140] increased and diminished by circumstances;(a) as the rank and fortune
of the plaintiff and defendant; the relation or connection between them; the seduction or otherwise of 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
(1) F. N. B. 89.
(") 2 Inst. 434.
() Law of Nisi Prius, 74.
() Bro. Abr. tit. Trespass, 213.
() Bro. Abr. 207, 440.
(a) Law of Nisi Prius, 26.
Since the Common-Law Procedure Act, 1852, this fine to the king (for which formerly judgment was awarded by the court as a matter of form) no longer appears in the judgment.-STEWART