levelled at the plaintiff, or that it was attended with any actionable consequences. A third way of destroying or injuring a man's reputation is by preferring malicious indictments or prosecutions against him; which, under the mask of justice and public spirit, are sometimes made the engines of private spite and enmity. For this, however, the law has given a very adequate remedy in damages, either by an action of conspiracy, (y) which cannot be brought but against two at the least; or, which is the more usual way, by a special action on the case for a false and malicious prosecution. (2) In order to carry on the former (which gives a recompense for the danger to which the party has been exposed) it is necessary that the plaintiff should obtain a copy of the record of his indictment and acquittal; but, in prosecutions for felony, it is usual to deny a copy of the indictment, where there is any, the least, probable cause to found such prosecution upon. (a) For it would be a very great discouragement to the public justice of the kingdom, if prosecutors, who had a tolerable ground of suspicion, were liable to be sued at law whenever their indictments miscarried. But an action on the case for a malicious prosecution [*127] may be founded upon an indictment, whereon no acquittal can be had; as if it be rejected by the grand jury, or be coram non judice, or be insufficiently drawn. For it is not the danger of the plaintiff, but the scandal, vexation, and expense, upon which this action is founded. (b) However, any probable cause for preferring it is sufficient to justify the defendant. II. We are next to consider the violation of the right of personal liberty. This is effected by the injury of false imprisonment, for which the law has not only decreed a punishment, as a heinous public crime, but has also given a private reparation to the party; as well by removing the actual confinement for the present, as, after it is over, by subjecting the wrong-doer to a civil action, on account of the damage sustained by the loss of time and liberty. To constitute the injury of false imprisonment there are two points requisite: 1. The detention of the person: and 2. The unlawfulness of such detention. Every confinement of the person is an imprisonment, whether it be in a common prison, or in a private house, or in the stocks, or even by forcibly detaining one in the public streets. (c) Unlawful, or false, imprisonment consists in such confinement or detention without sufficient authority; which authority may arise either from some process from the courts of justice, or from some warrant from a legal officer having power to commit, under his hand and seal, and expressing the cause of such commitment; (d) or from some other special cause warranted, for the necessity of the thing, either by common law, or act of parliament; such as the arresting of a felon by a private person without warrant, the impressing of mariners for the public service, or the apprehending of waggoners for misbehaviour in the public highways. (e) False imprisonment also may arise by executing a lawful warrant or process at an *unlawful time, as on a Sunday; (f) for the statute hath declared, [*128] that such service or process shall be void. (10) This is the injury. Let us next see the remedy: which is of two sorts; the one removing the injury, the other making satisfaction for it. The means of removing the actual injury of false imprisonment are fourfold. 1. By writ of mainprize. 2. By writ of 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 hath (y) Finch, L. 805. (z) F. N. B. 116, (c) 2. Inst. 589. (a) Carth. 421. Lord Raym. 253. (d) I bid. 52, 591. (f) Stat. 29 Car. II, c. 7. Salk. 78. 5 Mod. 95. (b) 10 Mod. 219, 220. Stra. 691. (e) Stat. 13 Geo. III, c. 78. (10) The statute excepts cases of treason, felony and breach of the peace, in which the execution of a lawful warrant or process is allowed upon a Sunday. 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 anciently 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 West. 2, 13 Edw. I, c. 29. But the statute *of Gloucester, 6 Edw. I, c. 9, restrained it in the case of killing by mis[*129] adventure or self-defence, 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. (o) Such is that ad satisfaciendum, when a prisoner hath *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 [*130] 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 committed. Such is, lastly, the common writ ad faciendum et recipiendum which issues out of any of the courts of Westminsterhall, 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 (g) F. N. B. 250. 1 Hal. P. C. 141. Coke on Ball and Mainp. ch. 10. (h) Coke on Bail and Mainp. ch. 3. 4 Inst. 179. (m) Raym. 474. (i) L. 3, tr. 2, c. 8. (k) 2 Inst. 43, 55, 315. (1) F. N. B. 66. (n) Nisi captus est per speciale præceptum nostrum, vel capitalis justitiarii nostri, vel pro morte hominis, vel pro foresta nostra, vel pro aliquo alio retto, quare secundum consuetudinem Angliæ non sit replegiabilis. Registr. 77. (0) 2 Mod. 198. (p) 2 Lilly Prac. Reg. 4. VOL. II.-10 73 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, (g) 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 and 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 declaration 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 is therefore enacted by statute 12 Geo. I, c. 29, that the inferior *court [*131] 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. (s) 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) (11) 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 should 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 appearance in the court of king's bench (z) 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[*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) It hath (r) Bohun, Instit. Legal. 85, edit. 1708. (8) St. Trials, viii. 142. (g) 2 Mod. 806, (t) The pluries habeas corpus directed to Berwick in 43 Eliz. (cited Burr. 856), was teste'd die Jovis prox' post quinden' Sancti Martini. It appears, by referring to the dominical letter of that year, that this quindena (Nov. 25) happened that year on a Saturday. The Thursday after was therefore the 30th of November-two days after the expiration of the term. (v) Burr. 606. (u) Cro. Jac. 543. (w) Ibid. 460, 542, 606. (a) 2 Mod. 198. Wood's Case, C. B. Hill. 11 Geo. III. (11) Watson's Case, 9 Ad. and E., 731. also been said, and by very respectable authorities, (b) that the like habeas cor pus 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. 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 an 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 an 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 [*133] a probable ground be shown, 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 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 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, relying on some arbitrary precedents (and those perhaps misunder. [*134] stood), determined (?) that they could not upon an habeas corpus either bail or deliver a prisoner, though committed without any cause assigned, in case he (b) 4 Inst. 182, 2 Hal. P. C. 147. (d) 2 Mod. 306. 1 Lev. 1. (c) Lord Nott. MSS. Rep. July, 1676. 3 Bulstr. 27. See also 2 Roll. Rep. 138. O Com. Jour. 1 Apr. 1628. (k) Book I, ch. 1. 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 tharge 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 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, or by his privy council, or by any of the members thereof, he shall [*135] 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 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 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 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. (12) (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 censitum," (Vindic. Mar. claus. edit. A. D. 1653.) (0) Page 132. (p) State Tr. vii. 471. (g) See book 1, ch. 1. (12) 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. |