Blackstone’s Commentaries with Notes of Reference (1803)
St. George Tucker
Of Wrongs, And Their Remedies, Respecting The Rights of Persons
THE former chapters of this part of our commentaries having been employed in describing the several methods of redressing private wrongs, either by the mere act of the parties, or the mere operation of law; and in treating of the nature and several species of courts; together with the cognizance of wrongs or injuries by private or special tribunals, and the public ecclesiastical, military, and maritime jurisdictions of this kingdom: I come now to consider at large, and in a more particular manner, the respective remedies in the public and general courts of common law for injuries or private wrongs of any denomination whatsoever, no exclusively appropriated to any of the former tribunals. And herein I shall, first, define the several injuries cognizable by the courts of common law, with the respective remedies applicable to each particular injury: and shall, secondly, describe the method of pursuing and obtaining these remedies in the several courts.
First then, as to the several injuries cognizable by the courts of common law, with the respective remedies applicable to each particular injury. And, in treating of these, I shall at present confine myself to such wrongs as may be committed in the mutual intercourse between subject and subject; which the king as the fountain of justice is officially bound too redress in the ordinary forms of law: reserving such injuries or encroachments as may occur between the crown and the subject, to be distinctly considered hereafter; as the remedy in such cases is generally of a peculiar and eccentric nature.
NOW, as all wrong may be considered as merely a privation of right, the one natural remedy for every species of wrong is the being put in possession of that right, whereof the party injured is deprived. This may either be effected by a specific delivery or restoration of the subject-matter in dispute to the legal owner; as when lands or personal chattels are unjustly withheld or invaded: or, where that is not a possible, or at least not an adequate remedy, by making the sufferer a pecuniary satisfaction in damages; as in case of assault, breach of contract, etc: to which damages the party injured has acquired an incomplete or inchoate right, the instant he receives the injury;1 though such right be not fully ascertained till they are assessed by the intervention of the law. The instruments whereby this remedy is obtained (which are sometimes considered in the light of the remedy itself) are a diversity of suits and actions, which are defined by the mirrour2 to be “the lawful demand of one’s right:” or as Bracton and Fleta express it, in the words of Justinian,3 jus prosequendi in judicio quod alicui debetur.
THE Romans introduced, pretty early, set forms for actions and suits in their law, after the example of the Greeks, and made it a rule that each injury should be redressed by its proper remedy only. “Actiones,” say the pandects, “compositae sunt, quibus inter se homines disceptarent, quas actiones ne populus prout vellet institueret, certas solemnesque esse voluerunt.“4 The forms of these actions were originally preserved in the books of the pontifical college, as choice and inestimable secrets, till one Cneius Flavius, the secretary of Appius Claudius, stole a copy and published them to the people.5 The concealment was ridiculous: but the establishment of some standard was undoubtedly necessary, to fix the true state of question of right; lest in a long and arbitrary process it might be shifted continually, and be at length no longer discernible. Or, as Cicero expresses it,6 “sunt jura, sunt formulae, de omnibus rebus constitutae, ne quis aut in genere injuriae, aut in ratione actionis, errare possit. Expressae enim sunt ex uniuscujusque damno, dolore, incommodo, calamitate, injuria, publicae a praetore formulae, ad quas privata lis accommodatur.” And in the same manner our Bracton, speaking of the original writs upon which all our actions are founded, declares them to be fixed and immutable, unless by authority of parliament.7 And all the modern legislators of Europe have found it expedient from the same reasons to fall into the same or a similar method. With us in England the several suits, or remedial instruments of justice, are from the subject of them distinguished into three kinds; actions personal, real, and mixed.
PERSONAL actions are such whereby a man claims a debt, or personal duty, or damages in lieu thereof; and likewise whereby a man claims a satisfaction in damages for some injury done to his person or property. The former are said to be founded on contracts, the latter upon torts or wrongs: and they are the same which the civil law calls “actiones in personam, quae adversus eum intenduntur, qui ex contractu vel delicto obligatus est aliquid dare vel concedere.”8 Of the former nature are all actions upon debt or promises; of the latter all actions for trespasses, nuisances, assaults, defamatory words, and the like.
REAL actions, (or, as they are called in the mirror,9 feudal actions) which concern real property only, are such whereby the plaintiff, here called the demandant, claims title to have any lands or tenements, rents, commons, or other hereditaments, in fee-simple, fee-tail, or for term of life. By these actions formerly all disputes concerning real estates were decided; but they are now pretty generally laid aside in practice, upon account of the great nicety required in their management, and the inconvenient length of their process: a much more expeditious method of trying titles being since introduced, by other actions personal and mixed.
MIXED actions are suits partaking of the nature of the other two, wherein some real property is demanded, and also personal damages for a wrong sustained. As for instance, an action of waste: which is brought by him who has the inheritance, in remainder or reversion, against the tenant for life, who has committed waste therein, to recover not only the land wasted, which would make it merely a real action; but also treble damages, in pursuance of the statute of Gloucester,10 which is a personal recompense; and so both, being joined together, denominate it a mixed action.
UNDER these three heads may every species of remedy by suit or action in the courts of common law be comprised. But in order effectually to apply the remedy, it is first necessary to ascertain the complaint. I proceed therefore now to enumerate the several kinds, and to inquire into the respective natures, of all private wrongs, or civil injuries, which may be offered to the rights of either a man’s person or his property; recounting at the same time the respective remedies, which are furnished by the law for every infraction of right. But I must first beg leave to premise, that all civil injuries are of two kinds, the one without force or violence, as slander or breach of contract; the other coupled with force and violence, as batteries, or false imprisonment.11 Which latter species favor something of the criminal kind, being always attended with some violation of the peace; for which in strictness of law a fine ought to be paid to the king, as well as private satisfaction to the party injured.12 And this distinction of private wrongs, into injuries with and without force, we shall find to run through all the variety of which we are now to treat. In considering of which, I shall follow the same method, that was pursued with regard to the distribution of rights: for as these are nothing else but an infringement or breach of those rights, which we have before laid down and explained, it will follow that this negative system, of wrongs, must correspond and tally with the former positive system, of rights. As therefore we divided13 all rights into those of persons, and those of things, so we must make the same general distribution of injuries into such as affect the rights of persons, and such as affect the rights of property.
THE rights of persons, we may remember, were distributed into absolute and relative: absolute, which were such as appertained and belonged to private men, considered merely as individuals, or single persons; and relative, which were incident to them as members of society, and connected to each other by various ties and relations. And the absolute rights of each individual were defined to be the right of personal security, the right of personal liberty, and the right of private property: so that the wrongs or injuries affecting them must consequently be of a correspondent nature.
I. AS to injuries which affect the personal security of individuals, they are either injuries against their lives, their limbs, their bodies, their health, or their reputations.
1. WITH regard to the first subdivision, or injuries affecting the life of man, they do not fall under our present contemplation; being one of the most atrocious species of crimes, the subject of the next book of our commentaries.
2, 3. THE two next species of injuries, affecting the limbs or bodies of individuals, I shall consider in one and the same view. And these may be committed, 1. By threats and menaces of bodily hurt, through fear of which a man’s business is interrupted. A menace alone, without a consequent inconvenience, makes not the injury; but, to complete the wrong, there must be both of them together.14 The remedy for this is in pecuniary damages, to be recovered by action of trespass vi et armis,15 this being an inchoate, though not an absolute, violence. 2. By assault; which is an attempt or offer to beat another, without touching him: as if one lists up his cane, or his fist, in a threatening manner at another; or strikes at him, but misses him; this is an assault, insultus, which Finch16describes to be “an unlawful setting upon one’s person.” This also is an inchoate violence, amounting considerably higher than bare threats; and therefore, though no actual suffering is proved, yet the party injured may have redress by action of trespass vi et armis; wherein he shall recover damages as a compensation for the injury. 3. By battery; which is the unlawful beating of another. The least touching of another’s person wilfully, or in anger, is a battery; for the law cannot draw the line between different degrees of violence, and therefore totally prohibits the first and lowest stage of it: every man’s person being sacred, and no other having a right to meddle with it, in any the slightest manner. And therefore upon a similar principle the Cornelian law de injuriis prohibited pulsation as well as verberation; distinguishing verberation, which was accompanied with pain, from pulsation which was attended with none.17 But battery is, in some cases, justifiable or lawful; as where one who has authority, a parent or master, gives moderate correction to his child, his scholar, or his apprentice. So also on the principle of self-defense: for if one strikes me first, or even only assaults me, I may strike in my own
defense; and, if sued for it, may plead son assault demesne, or that it was the plaintiff’s own original assault that occasioned it. So likewise in defense of my goods or possession, if a man endeavors to deprive me of them, I may justify laying hands upon him to prevent him; and in case he persists with violence, I may proceed to beat him away.18 Thus too in the exercise of an office, as that of church-warden or beadle, a man may lay hands upon another to turn him out of church, and prevent his disturbing the congregation19 And, if sued for this or the like battery, he may set forth the whole case, and plead that he laid hands upon him gently, molliter manus imposuit, for this purpose. On account of these causes of justification, battery is defined to be the unlawful beating of another; for which the remedy is, as for assault, by action of trespass vi et armis: wherein the jury will give adequate damages. 4. By mayhem or wounding; which is an injury still more atrocious, and consists in violently depriving another of the use of a member proper for his defense in fight. This is a battery, attended with this aggravating circumstance, that thereby the party injured is for ever disabled from making so good a defense against future external injuries, as he otherwise might have done. Among these defensive members are reckoned not only arms and legs, but a finger, an eye, and a fore-tooth,20 and also some others.21 But the loss of one of the jaw-teeth, the ear, or the nose, is no mayhem at common law; as they can be of no use in fighting. The same remedial action of trespass vi et armis lies also to recover damages for this injury; an injury, which (when wilful) no motive can justify, but necessary self-preservation. If the ear be cut off, treble damages is given by statute 37 Hen. VIII. c. 6. though this is not mayhem at common law. And here I must observe, that for these three last injuries, assault, battery, and mayhem, an indictment may be brought as well as an action; and frequently both are accordingly
prosecuted: the one at the suit of the crown for the crime against the public; the other at the suit of the party injured, to make him a reparation in damages.
4. INJURIES, affecting a man’s health, are where by any unwholesome practices of another a man sustains any apparent damage in his vigor or constitution. As by selling him bad provisions or wine;22 by the exercise of a noisome trade, which infects the air in his neighborhood;23 or by the neglect or unskillful management of his physician, surgeon, or apothecary. For it has been solemnly resolved,24 that mala praxis is a great misdemeanor and offense at common law, whether it be for curiosity and experiment, or by neglect; because it breaks the trust which the party had placed in his physician, and tends to the patient’s destruction. Thus also, in the civil law,25 neglect or want of skill in physicians and surgeons “culpae adnumerantur; veluti si medicus curationem dereliquerit, male quempiam secuerit, aut perperam ei medicamentum dederit.” There are wrongs or injuries unaccompanied by force, for which there is a remedy in damages by a special action of trespass, upon the case. This action, of trespass, or transgression, on the case, is an universal remedy, given for all personal wrongs and injuries without force; so called, because the plaintiff’s whole case or cause of complaint is set forth at length in the original writ.26 For though in general there are methods prescribed and forms of action previously settled, for redressing those wrongs which most usually occur, and in which the very act itself is immediately prejudicial or injurious to the plaintiff’s person or property, as battery, non-payment of debts, detaining one’s goods, or the like; yet where any special consequential damage arises which could not be foreseen and provided for in the ordinary course of justice, the party injured is allowed, both by common law and the statute of Westm. 2. c. 24. to bring a special action on his own case, by a writ formed according to the peculiar circumstances of his own particular grievance.27 For wherever the common law gives a right or prohibits an injury, it also gives a remedy by action;28 and therefore, wherever a new injury is done, a new method of remedy must be pursued.29 And it is a settled distinction,30 that where an act is done which is in itself an immediate injury to another’s person or property, there the remedy is usually by an action of trespass vi et armis: but where there is no act done, but only a culpable omission; or where the act is not immediately injurious, but only by consequence and collaterally; there no action of trespass vi et armis will lie, but an action on the special case, for the damages consequent on such omission or act.
5. LASTLY; injuries affecting a man’s reputation or good name are, first, by malicious, scandalous, and slanderous words tending to his damage and derogation. As if a man, maliciously and falsely, utter any slander or false tale of another: which may either endanger him in law, by impeaching him of some heinous crime, as to say that a man has poisoned another, or is perjured;31 or which may exclude him from society, as to charge him with having an infectious disease; or which may impair or hurt his trade or livelihood, as to call a tradesman a bankrupt, a physician a quack, or a lawyer a knave.32 Words spoken in derogation of a peer, a judge, or other great officer of the realm, which are called scandalum magnatum, are held to be still more heinous;33 and, though they be such as would not be actionable in the case of a common person, yet when spoken in disgrace of such high and respectable characters, they amount to an atrocious injury: which is redressed by an action on the case founded on many ancient statutes;34 as well on behalf of the crown, to inflict the punishment of imprisonment on the slanderer, as on behalf of the party, to recover damages for the injury sustained. Words also tending to scandalize a magistrate, or person in a public trust, are reputed more highly injurious than when spoken of a private man.35 It is said, that formerly no actions were brought for words, unless the slander was such, as (if true) would endanger the life of the object of it.36 But, too great encouragement being given by this lenity to false and malicious slanderers, it is now held that for scandalous words of the several species before-mentioned, that may endanger a man in law, may exclude him from society, may impair his trade, or may affect a peer of the realm, a magistrate, or one in public trust, an action on the case may be had, without proving any particular damage to have happened, but
merely upon the probability that it might happen. But with regard to words that do not thus apparently, and upon the face of them, import such defamation as will of course be injurious, it is necessary that the plaintiff should aver some particular damage to have happened; which is called laying his action with a per quod. As if I say that such a clergyman is a bastard, he cannot for this bring any action against me, unless he can show some special loss by it; in which case he may bring his action against me, for saying he was a bastard, per quod he lost the presentation to such a living.37 In like manner to slander another man’s title, by spreading such injurious reports as, if true, would deprive him of his estate (as to call the issue in tail, or one who has land by descent, a bastard) is actionable, provided any special damage accrues to the proprietor thereby; as if he loses an opportunity of selling the land.38 But mere scurrility, or opprobrious words, which neither in themselves import, nor are in fact attended with, any injurious effects, will not support an action. So scandals, which concern matters merely spiritual, as to call a man heretic or adulterer, are cognizable only in the ecclesiastical court;39 unless any temporal damage ensues, which may be a foundation for a per quod. Words of heat and passion, as to call man rogue and rascal, if productive of no ill consequence, and not of any of the dangerous species before-mentioned, are not actionable: neither are words spoken in a friendly manner, as by way of advice, admonition, or concern, without any tincture or circumstance of ill will: for, in both these cases, they are not maliciously spoken, which is part of the definition of slander.40 Neither (as was formerly hinted41) are any reflecting words made use of in legal proceedings, and pertinent to the cause in hand, a sufficient cause of action for slander.42 Also if the defendant
be able to justify, and prove the words to be true, no action will lie,43 even though special damage has ensued: for then it is no slander or false tale. As if I can prove the tradesman a bankrupt, the physician a quack, the lawyer a knave, and the divine a heretic, this will destroy their respective actions; for though there may be damage sufficient accruing from it, yet, if the fact be true, it is damnum absque injuria; and where there is no injury, the law gives no remedy. And this is agreeable to the reasoning of the civil law:44 “eum, qui nocentem infamat, non est aequum et bonum ob eam rem condemnari; delicta enim nocentium nota esse oportet et expedit.”
A SECOND way of affecting a man’s reputation is by printed or written libels, pictures, signs, and the like; which set him in an odious or ridiculous45 light, and thereby diminish his reputation. With regard to libels in general, there are, as in many other cases, two remedies; one by indictment and another by action. The former for the public offense; for every libel has a tendency to break the peace, or provoke others to break it: which offense is the same whether the matter contained be true or false; and therefore the defendant, on an indictment for publishing a libel, is not allowed to allege the truth of it by way of justification.46 But in the remedy by action on the case, which is to repair the party in damages for the injury done him, the defendant may, as for words spoken, justify the truth of the facts, and show that the plaintiff has received no injury at all.47 What was said with regard to words spoken, will also hold in every particular with regard to libels by writing or printing, and the civil actions consequent thereupon: but as to signs or pictures, it seems necessary always to show, by proper innuendo’s and averments of the defendant’s meaning, the import and application of the scandal, and that some special damage has followed; otherwise it cannot appear, that such libel by picture was understood to be leveled 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,48 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.49 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.50 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 for a malicious prosecution may be founded on such an indictment whereon no acquittal can be; 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.51 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 wrongdoer 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.52 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;53 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 wagoners for misbehavior in the public service, or the apprehending of wagoners for misbehavior in the public highways.54 False imprisonment also may arise by executing a lawful warrant or process at an unlawful time, as on a Sunday;55 or in a place privileged from arrests, as in the verge of the king’s court. 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 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 offense, and bail has been refused; or specially, when the offense 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.56 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 charge whatsoever.57
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,58 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-defense, 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 opinion59 that the writ de otio et atia was thereby revived.
3. THE writ de homine replegiando60 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,61 till he produces the party. But this writ is guarded with so many exceptions,62 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 has almost entirely antiquated them, and has 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 has a course 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 courts above.63 Such is that ad satisfaciendum, when a prisoner has 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.64 Such also are those ad prosequendum, testificandum, deliberandum, 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 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;65 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. & M. c. 13. that no habeas corpus shall issue to remove any prisoner out of any jail, 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 expedient66having 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 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.
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.67 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,68 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,69 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;70 unless the term should intervene, and then it may be returned in court.71 Indeed, if the party were privileged in the courts of common pleas and exchequer, as being an officer or suitor of the court, a habeas corpus ad subjiciendum might also have been awarded from thence:72 and, if the cause of imprisonment were palpably illegal, they might have discharged him;73 but, if he were committed for any criminal mater, they could only have remanded him, or taken bail for his appearance in the court of king’s bench;74 which occasioned the common pleas to discountenance such applications. It has also been said, and by very respectable authorities,75 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 vacation76, and therefore his lordship refused it.
IN the court of king’s bench it was, and is still, necessary to apply for it by motion to the court,77 as in the case of all other prerogative writs (certiorari, prohibition, mandamus, etc) 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,78 “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 has 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.79 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 a habeas corpus to one confined by the court of admiralty for piracy; there appearing, upon his own showing, sufficient grounds to confine him.80 On the other hand, if a probable ground be shown, that the party is imprisoned without just cause,81 and therefore has 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.”82
IN a former part of these commentaries83 we expatiated at large on the personal liberty of the subject. It 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, nor ought 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 consist 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 induces an 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 precedent (and those perhaps misunderstood) determined84 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 behavior, which still protracted their imprisonment; the chief justice, Sir Nicholas Hyde, at the same time declaring,85 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 imprisonment.” But this was heard with indignation and astonishment by every lawyer present; according to Mr. Selden’s own account of the matter, whose resentment was not cooled at the distance of four and twenty years.86
THESE pitiful evasions gave rise to the statute 16 Car. I. c. 10. §. 8. whereby it was 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 pretense 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,87 who in 1676 was committed by the king in council for a turbulent speech at Guildhall,88 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, etc, 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 minister, 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 Carta89 of the kingdom; and by consequence has also in subsequent times reduced the
method of proceeding on these writs (though not within the reach of that statute, but issuing merely at the common law) to the true standard of law and liberty.
THE statute itself enacts, 1. That 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. 2. That such writs shall be endorsed as granted in pursuance of this act, and signed by the person awarding them.90 3. 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 for suspicion of the same, or as accessory thereto before the fact, or 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. 4. That officers and keepers neglecting to make due returns, or not delivering to the prisoner of 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 offense forfeit 100£ and for the second offense 200£ 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 offense on penalty of 500£. 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 offense: but that no person, after the assizes shall be opened 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 500£. 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 offense 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 advisors, aiders, and assistants shall forfeit to the party grieved 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 praemunire; 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 precedents91 and the spirit of the act of parliament, that the writ should be immediately obeyed, without waiting for any alias or pluries; otherwise an attachment will issue. By which admirable regulations, judicial as well as parliamentary, the remedy is now complete for removing the injury of unjust and illegal confinement. A remedy the more necessary, because the oppression does not always arise from the ill-nature, but sometimes from the mere inattention, of government. For it frequently happens in foreign countries, (and has happened in England during temporary suspensions92 of the statute) that persons apprehended upon suspicion have suffered a long imprisonment, merely because they were forgotten.
THE satisfactory remedy for this injury of false imprisonment, is by an action of trespass, vi et armis, usually called an action of false imprisonment; which is generally, and almost unavoidably, accompanied with a charge of assault and battery also: and therein the party shall recover damages for the injury he has received; and also the defendant is, as for all other injuries committed with force, or vi et armis, liable to pay a fine to the king for the violation of the public peace.
III. WITH regard to the third absolute right of individuals, or that of private property, though the enjoyment of it, when acquired, is strictly a personal right; yet as its nature and original, and the means of its acquisition or loss, fell more directly under our second general division, of the rights of things; and as, of course, the wrongs that affect these rights must be referred to the corresponding division in the present book of our commentaries; I conceive it will be more commodious and easy to consider together, rather than in a separate view, the injuries that may be offered to the enjoyment, as well as to the rights, of property. And therefore I shall here conclude the head of injuries affecting the absolute rights of individuals.
WE are next to contemplate those which affect their relative rights; or such as are incident to persons considered as members of society, and connected to each other by various ties and relations: and, in particular, such injuries as may be done to persons under the four following relations; husband and wife, parent and child, guardian and ward, master and servant.
I. 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.93 This action lay at the common law; and thereby the husband shall recover, not the possession94 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:95 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 separate from him without a sufficient cause.96 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:97 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.98 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 an action of trespass vi et armis against the adulterer, wherein the damages recovered are usually very large and exemplary. But these are properly increased or diminished by circumstances;99 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 behavior and character; and the husband’s obligation by settlement or otherwise to provide for those children, which he cannot but suspect to be spurious. 3. The third injury is that of beating a man’s wife or otherwise ill using her; for which, if it be a common assault, battery, or imprisonment, the law gives the usual remedy to recover damages, by action of trespass vi et armis, which must be brought in the names of the husband and wife jointly: but if the beating or other maltreatment be very enormous, so that thereby the husband is deprived for any time of the company and assistance of his wife, the law then gives him a separate remedy by an action upon the case for this ill-usage, per quod consortium amisit , in which he shall recover a satisfaction in damages.100
II. INJURIES that may be offered to a person considered in the relation of a parent were likewise of two kinds; 1. Abduction, or taking his children away; and 2. Marrying his son and heir without the father’s consent, whereby during the continuance of the military tenures he lost the value of his marriage. But this last injury is now ceased, together with the right upon which it was grounded: for, the father being no longer entitled to the value of the marriage, the marrying his heir does him no sort of injury, for which a civil action will lie. As to the other, of abduction or taking away the children from the father, that is also a matter of doubt whether it be a civil injury, or no; for, before the abolition of the tenure in chivalry, it was equally a doubt whether an action would lie for taking and carrying away any other child besides the heir: some holding that it would not, upon the supposition that the only ground or cause of action was losing the value of the heir’s marriage; and others holding that an action would lie for taking away any of the children, for that the parent has an interest in them all, to provide for their education.101 If therefore before the abolition of these tenures it was an injury to the father to take away the rest of his children, as well as his heir, (as I am inclined to think it was) it still remains an injury, and is remediable by a writ of ravishment, or, action of trespass vi et armis, de filio, vel filia, rapto vel abducto;102 in the same manner as the husband may have it, on account of the abduction of his wife.
III. OF a similar nature to the last is the relation of guardian and ward; and the like actions mutatis mutandis, as are given to fathers, the guardian also has for recovery of damages, when his ward is stolen or ravished away from him.103 And though guardianship in chivalry is now totally abolished, which was the only beneficial kind of guardianship to the guardian, yet the guardian in socage was always104 and is still entitled to an action of ravishment, if his ward or pupil be taken from him: but then he must account to his pupil for the damages which he so recovers.105 And, as guardian in socage was also entitled at common law to a writ of right of ward, de custodia terrae et haeredis, in order to recover the possession and custody of the infant,106 so I apprehend that he is still entitled to sue out this antiquated writ. But a more speedy and summary method of redressing all complaints relative to wards and guardians has of late obtained, by an application to the court of chancery; which is the supreme guardian, and has the superintendent jurisdiction, of all the infants in the kingdom. And it is expressly provided by statute 12 Car. II. c. 24. that testamentary guardians may maintain an action of ravishment or trespass, for recovery of any of their wards, and also for damages to be applied to the use and benefit of the infants.107
IV. To the relation between master and servant, and the rights accruing therefrom, there are two species of injuries incident. The one is, retaining a man’s hired servant before his time is expired; the other, beating or confining him in such a manner that he is not able to perform his work. As to the first; the retaining another person’s servant during the time he has agreed to serve his present master; this, as it is an ungentlemanlike, so it is also an illegal act. For every master has by his contract purchased for a valuable consideration the service of his domestics for a limited time: the inveigling or hiring his servant, which induces a breach of this contract, is therefore an injury to the master; and for that injury the law has given him a remedy by a special action on the case: and he may also have an action against the servant for the non-performance of his agreement.108 But, if the new master were not apprized of the former contract, no action lies against him,109 unless he refuse to restore the servant upon demand. The other point of injury, is that of beating, confining, or disabling a man’s servant, which depends upon the same principle as the last; viz. the property which the master has by his contract acquired in the labor of the servant. In this case, besides the remedy of an action of battery or imprisonment, which the servant himself as an individual may have against the aggressor, the master also, as a recompense for his immediate loss, may maintain an action of trespass, vi et armis; in which he must allege and prove the special damage he has sustained by the beating of his servant, per quod servitium amisit:110 and then the jury will make him a proportionable pecuniary satisfaction. A similar practice to which, we find also to have obtained among the Athenians; where masters were entitled to an action against such as beat or ill treated their servants.111
WE may observe that, in these relative injuries, notice is only taken of the wrong done to the superior of the parties related, by the breach and dissolution of either the relation itself, or at least the advantages accruing therefrom; while the loss of the inferior by such injuries is totally unregarded. One reason for which may be this: that the inferior has no kind of property in the company, care, or assistance of the superior, as the superior is held to have in those of the inferior; and therefore the inferior can suffer no loss or injury. The wife cannot recover damages for beating her husband, for she has no separate interest in any thing during her coverture. The child has no property in his father or guardian; as they have in him, for the sake of giving him education and nurture. Yet the wife or the child, if the husband or parent be slain, have a peculiar species of criminal prosecution allowed them, in the nature of a civil satisfaction; which is called an appeal, and which will be considered in the next book. And so the servant, whose master is disabled, does not thereby lose his maintenance or wages. He had no property in his master; and, if he receives his part of the stipulated contract, he suffers no injury, and is therefore entitled to no action, for any battery or imprisonment which such master may happen to endure.
1. See book II. ch. 29.
2. c. 2. § 1.
3. Inst. 4. 6. pr.
4. Ff. 1. 2. 2. § 6.
5. Cio. Pro Muraena. § 11. de orat. L. 1. c. 41.
6. Pro Qu. Roscio. § 8.
7. Sunt quaedam brevia formata super certis casibus de cursu, et de communi consilio totius regni approbata et concessa, quae quidem nullatenus mutari poterint absque consensu et voluntate eorum. (l. 5. de exceptionibus. c. 17. § 2.)
8. Inst. 4. 6. 15.
9. c. 2. § 6.
10. 6 Edw I. C. 5.
11. Finch. L. 184.
12. Finch. L. 198. Jenk. Cent. 185.
13. See book I. Ch. 1.
14. Finch. L. 202.
15. Registr. 104. 27 Aff. 11. 7 Edw IV. 24.
16. Finch. L. 202.
17. Ff. 47. 10. 5.
18. Finch. L. 203.
19. 1 Sid. 301.
20. Finch. L. 204.
21. 1 Hawk. P. C. 111.
22. 1 Roll. Abr. 90.
23. 9 Rep. 57. Hutt. 135.
24. Lord Raym. 214.
25. Inst 4. 3. 6 & 7.
26. For example: “Rex vicecomiti salutem. Si A fecerit te securum de clamore suo prosequendo, tunc pone per vadium et salvos plegios B, quod sit coram justitiariis nostris apud Westmonasterium in octabis sancti Michaelis, ostensurus quare cum idem B ad dextrum oculum ipsius A casualiter laesum bene et competenter curandum apud S. pro quadam pecuniae summa prae manibus soluta assumpsisset, idem B curam suam circa oculum praedictum tam negligenter et improvide apposuit, quod idem A defectu ipsius B visum oculi praedicti totaliter amisit, ad damnum ipsius A viginti librarum, ut dicit. Et habeas ibi nomina plegiorum et hoc breve. Tesle meipso apud Westmonasterium &c.” (Registr. Brev. 105.)
27. See pag 51.
28. 1 Salk. 20. 6 Mod. 54.
29. Cro. Jac. 478.
30. 11 Mod. 180. Lord Raym. 1402. Stra. 635.
31. Finch. L. 185.
32. Ibid. 186.
33. 1 Ventr. 60.
34. Westm. 1. 3 Edw. I. c. 34. 2 Ric. II. c. 5. 12 Ric. II. c. 11.
35. Lord Raym. 1369.
36. 2 Vent. 28.
37. 4 Rep. 17. 1 Lev. 248.
38. Cro. Jac. 213. Cro. Eliz. 197.
39. Noy. 64. 1 Freem. 277.
40. Finch. L. 186. 1 Lev. 82. Cro. Jac. 91.
41. pag. 29.
42. Dyer. 285. Cro. Jac. 90.
43. 4 Rep. 13.
44. Ff. 47. 10. 18.
45. 2 Show. 314. 11 Mod. 99.
46. 5 Rep. 125.
47. 11 Mod. 99.
48. Finch. L. 605.
49. F. N. B. 116.
50. Carth, 421. Lord Raym. 253.
51. 10 Mod. 219. Stra. 691.
52. 2 Inst. 589.
53. Ibid. 46.
54. Stat 7 Geo. III. c. 42.
55. Stat. 29 Car. II. c. 7.
56. F. N. B. 250. 1 Hal. P. C. 141. Coke on bail and mainpr. Ch. 10.
57. Co. ibid. ch. 3.
58. l. 3. tr. 2. c. 8.
59. 2 Inst. 43. 55. 315.
60. F. N. B. 66.
61. Raym. 474.
62. Nisi captus est per speciale praeceptum nostrum, vel capitalis justitiarii nostri, vel pro morte hominus, vel pro foresta nostra, vel pro aliquo alio retto, quare secundum consuetudinem Angliae non sint replegiabilis. (Registr. 77.)
63. 2 Mod. 198.
64. 2 Lilly prac. Reg. 4.
65. 2 Mod. 306.
66. Bohun instit. Legal. 85. edit. 1708.
67. St. Trials. viii. 142.
68. The pluries habeas corpus directed to Berwick in 43 Eliz. (cited 4 Burr. 836.) 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.
69. Cro. Jac. 543.
70. 4 Burr. 856.
71. Ibid. 460. 542. 606.
72. 2 Inst. 55. 4 Inst. 293. 2 Hal. P. C. 144. 2 Ventr. 22.
73. Vaugh. 155.
74. Carter. 221. 2 Jon. 13.
75. 4 Inst. 182. 2 Hal. P. C. 147.
76. Lord Nott. MSS Rep. July 1676.
77. 2 Mod. 306. 1 Lev. 1.
78. Bushell’s case. 2 Jon. 13.
79. Cro. Jac. 543.
80. 3 Bulstr. 27.
81. 2 Inst. 615.
82. Com. journ. 1 Apr. 1628.
83. Book I. ch. 1.
84. State Tr. Vii. 136.
85. Ibid. 240.
86. ” Etiam judicum tunc primarius, nisi illud saceremus, rescripti illius forensis, qui libertatis personalis omnimodae vindex legitimus est fere solus, usum omnimodum palam pronuntiavit (sui semper similis) nobis perpetuo in posterum denegandum. Quod, ul odiosissimum juris prodigium, scientioribus hic universis censitum.” (Vindic. Mar. clauf. Edit. A.D.1653.)
87. pag. 132.
88. State Trials. Vii. 471.
89. See book I. ch. 1.
90. These two clauses seem to be transposed, and should properly be placed after the following provisions.
91. 4 Burr. 856.
92. See Vol. I. pag. 136.
93. F. N. B. 89.
94. 2 Inst. 434.
96. Law of nisi prius. 74.
97. Bro. Abr. t. trespass. 213.
98. Ibid. 207. 440.
99. Law of nisi prius. 26. 100. Cro. Jac. 501. 538.
100. Cro. Jac. 501. 538.
101. Cro. Eliz. 770. 102. F. N. B. 90.
102. F. N. B. 90.
103. Ibid. 139.
105. Hale on F. N. B. 139.
106. F. N. B. Ibid.
107. 2 P. Wms. 108.
108. F. N. B. 167.
109. Ibid. Winch. 51.
110. 9 Rep. 113. 10 Rep. 130.
111. Pott. Antiqu. B. 1. c. 26.