Front Page Titles (by Subject) CHAPTER VIII.: OF WRONGS, AND THEIR REMEDIES, RESPECTING THE RIGHTS OF PERSONS. - Commentaries on the Laws of England in Four Books, vol. 2
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CHAPTER VIII.: OF WRONGS, AND THEIR REMEDIES, RESPECTING THE RIGHTS OF PERSONS. - Sir William Blackstone, Commentaries on the Laws of England in Four Books, vol. 2 
Commentaries on the Laws of England in Four Books. Notes selected from the editions of Archibold, Christian, Coleridge, Chitty, Stewart, Kerr, and others, Barron Field’s Analysis, and Additional Notes, and a Life of the Author by George Sharswood. In Two Volumes. (Philadelphia: J.B. Lippincott Co., 1893).
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OF WRONGS, AND THEIR REMEDIES, RESPECTING THE RIGHTS OF PERSONS.
*[*115The 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, not 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 to redress in the ordinary forms of law: reserving such *[*116injuries 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 eccentrical nature.
Now, since all wrongs may be considered as merely a privation of right, the plain 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, &c.: to which damages the party injured has acquired an incomplete or inchoate right the instant he receives the injury,(a) 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 Mirror(b) to be “the lawful demand of one’s right;” or, as Bracton and Fleta express it, in the words of Justinian,(c)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, “compositæ sunt, quibus inter se homines disceptarent: quas actiones, ne populus prout vellet institueret, certas solennesque esse voluerunt.”(d) 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.(e) The *[*117concealment was ridiculous; but the establishment of some standard was undoubtedly necessary, to fix the true state of a 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,(f) “sunt jura, sunt formulæ, de omnibus rebus constitutæ, ne quis aut in genere injuriæ, aut in ratione actionis, errare possit. Expressæ enim sunt ex uniuscujusque damno, dolore, incommodo, calamitate, injuria, publicæ a prætore formulæ, 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.(g) 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, quæ adversus eum intenduntur, qui ex contractu vel delicto obligatus est aliquid dare vel concedere.”(h) 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,(i)feodal 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 **118]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 hath the inheritance in remainder or reversion, against the tenant for life who hath 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,(k) which is a personal recompense; and so both, being joined together, denominate it a mixed action.1
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 nature, 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.(l) Which latter species savour 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 **119]well as a private satisfaction to the party injured.(m) 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 divide(n) 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 corresponding 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
*[*1202, 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.(o) The remedy for this is in pecuniary damages, to be recovered by action of trespass vi et armis;(p) this being an inchoate, though not an absolute, violence.3 2. By assault; which is an attempt or offer to beat another, without touching him: as if one lifts 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 Finch(q) describes 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.4 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.5 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.(r) But battery is, in some cases, justifiable or lawful; as where one who hath authority, a parent, or master, gives moderate correction to his child, his scholar, or his apprentice. So also on the principle of self-defence: for if one strikes me first, or even only assaults me, I may strike in my own defence; and, if sued for it, may plead son assault demesne, or that it was the plaintiff’s **121]own original assault that occasioned it. So likewise in defence of my goods or possession, if a man endeavours 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.(s) 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 congregation.(t) 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 wounding; which consists in giving another some dangerous hurt, and is only an aggravated species of battery. 5. By mayhem; which is an injury still more atrocious, and consists in violently depriving another of the use of a member proper for his defence in fight. This is a battery attended with this aggravating circumstance, that thereby the party injured is forever disabled from making so good a defence 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 foretooth,(u) and also some others.(v) 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.6 If the ear be cut off, treble damages are given by statute 37 Hen. VIII. c. 6, though this is not mayhem at common law. And here I must observe that for these four last injuries, assault, battery, wounding, 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 *[*122other at the suit of the party injured, to make him a reparation in damages.7
4. Injuries affecting a man’s health are where, by any unwholesome practices of another, a man sustains any apparent damage in his vigour or constitution. As by selling him bad provisions, or wine;(w) by the exercise of a noisome trade, which infects the air in his neighbourhood;(x) or by the neglect or unskilful management of his physician, surgeon, or apothecary. For it hath been solemnly resolved,(y) that mala praxis is a great misdemeanour and offence 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.8 Thus, also, in the civil law,(z) neglect or want of skill in physicians or surgeons, “culpæ adnumerantur, veluti si medicus curationem dereliquerit, male quempian secuerit, aut perperam ei medicamentum dederit.” These 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 a 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.(a) For though in general there are methods prescribed, and forms of actions 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 *[*123any 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.(b) For wherever the common law gives a right or prohibits an injury, it also gives a remedy by action;(c) and, therefore, wherever a new injury is done, a new method of remedy must be pursued.(d) And it is a settled distinction,(e) 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.9
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 hath poisoned another, or is perjured;(f) 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.(g) 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:(h) 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: *[*124which is redressed by an action on the case founded on many antient statutes,(i) 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.10 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.(k) 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.(l) 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 by subjecting him to the penalties of the 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.(m) 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 hath 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.(n) 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 **125]man heretic or adulterer, are cognizable only in the ecclesiastical court;(o) unless any temporal damage ensues, which may be a foundation for a per quod. Words of heat and passion, as to call a man a 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.(p) Neither (as was formerly hinted)(q) are any reflecting words made use of in legal proceedings, and pertinent to the cause in hand, a sufficient cause of action for slander.(r)11 Also, if the defendant be able to justify, and prove the words to be true, no action will lie,(s) even though special damage hath 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:(t) “eum qui nocentem infamat, non est æquum 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 ridiculous(u) 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 the other by action. The former for the public offence; for every libel has a tendency to the breach of the peace, by provoking the person libelled to break it: which offence is the same (in point of law) whether *[*126the 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.(w)12 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.(x) 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 innuendoes 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 levelled at the plaintiff, or that it was attended with any actionable consequences.13
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.(z) 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 **127]But an action on the case for a malicious prosecution 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,14 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)15 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 wagoners for misbehaviour in the public highways.(e) False imprisonment also may arise by executing a lawful warrant or process at an **128]unlawful time, as on a Sunday;(f) for the statute hath declared that such service or process shall be void.16 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.17 3. By writ de homine replegiando. 4. By writ of habeas corpus.
1. The writ of mainprize, manucaptio, is a writ directed to the sheriff, (either generally, when any man is imprisoned for a bailable offence and bail has been refused; or specially, when the offence or cause of commitment is not properly bailable below,) commanding him to take sureties for the prisoner’s appearance, usually called mainpernors, and to set him at large.(g) Mainpernors differ from bail, in that a man’s bail may imprison or surrender him up before the stipulated day of appearance; mainpernors can do neither, but are barely sureties for his appearance at the day: bail are only sureties that the party be answerable for the special matter for which they stipulate; mainpernors are bound to produce him to answer all charges whatsoever.(h)
2. The writ de odio et atia was antiently used to be directed to the sheriff, commanding him to inquire whether a prisoner charged with murder was committed upon just cause of suspicion, or merely propter odium et atiam, for hatred and ill will; and if upon the inquisition due cause of suspicion did not appear, then there issued another writ for the sheriff to admit him to bail. This writ, according to Bracton,(i) ought not to be denied to any man, it being expressly ordered to be made out gratis, without any denial, by magna carta, c. 26, and statute Westm. 2, 13 Edw. I. c. 29. But the statute *[*129of Gloucester, 6 Edw. I. c. 9, restrained it in the case of killing by misadventure 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(l) 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 *[*130had judgment against him in an action, and the plaintiff is desirous to bring him up to some superior court to charge him with process of execution.(p) Such also are those ad prosequendum, testificandum, deliberandum, &c.; which issue when it is necessary to remove a prisoner, in order to prosecute or bear testimony in any court, or to be tried in the proper jurisdiction wherein the fact was committed.18 Such is, lastly, the common writ ad faciendum et recipiendum, which issues out of any of the courts of Westminster hall, when a person is sued in some inferior jurisdiction, and is desirous to remove the action into the superior court; commanding the inferior judges to produce the body of the defendant, together with the day and cause of his caption and detainer, (whence the writ is frequently denominated an habeas corpus cum causa,) to do and receive whatsoever the king’s court shall consider in that behalf. This is a writ grantable of common right, without any motion in court,(q) and it instantly supersedes all proceedings in the court below. But in order to prevent the surreptitious discharge of prisoners, it is ordered by statute 1 & 2 P. and M. c. 13 that no habeas corpus shall issue to remove any prisoner out of any gaol, unless signed by some judge of the court out of which it is awarded. And to avoid vexatious delays by removal of frivolous causes, it is enacted by statute 21 Jac. I. c. 23 that, where the judge of an inferior court of record is a barrister of three years’ standing no cause shall be removed from thence by habeas corpus or other writ, after issue or demurrer deliberately joined; that no cause, if once remanded to the inferior court by writ of procedendo or otherwise, shall ever afterwards be again removed; and that no cause shall be removed at all, if the debt or damages laid in the 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 **131]court may proceed in such actions as are under the value of five pounds, notwithstanding other actions may be brought against the same defendant to a greater amount. And by statute 19 Geo. III. c. 70, no cause under the value of ten pounds19 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) by a fiat from the chief justice or any other of the judges, and running into all parts of the king’s dominions; for the king is at all times entitled to have an account why the liberty of any of his subjects is restrained,(u) wherever that restraint may be inflicted. If it issues in vacation, it is usually returnable before the judge himself who awarded it, and he proceeds by himself thereon;(v) unless the term shall intervene, and then it may be returned in court.(w) Indeed, if the party were privileged in the courts of common pleas and exchequer, as being (or supposed to be) an officer or suitor of the court, an habeas corpus ad subjiciendum might also by common law have been awarded from thence;(x) and, if the cause of imprisonment were palpably illegal, they might have discharged him:(y) but, if he were committed for any criminal matter, they could only have remanded him, or taken bail for his appearance in the court of king’s bench,(z) which *[*132occasioned the common pleas for some time to discountenance such applications. But since the mention of the king’s bench and common pleas, as co-ordinate in this jurisdiction, by statute 16 Car. I. c. 10, it hath been holden, that every subject of the kingdom is equally entitled to the benefit of the common-law writ, in either of those courts, at his option.(a) It hath also been said, and by very respectable authorities,(b) that the like habeas corpus may issue out of the court of chancery in vacation; but upon the famous application to lord Nottingham by Jenks, notwithstanding the most diligent searches, no precedent could be found where the chancellor had issued such a writ in vacation;(c) and therefore his lordship refused it.20
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 **133]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 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 *[*134imprisonment 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 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.21
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(l) 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 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,(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 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 frequently **136]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 petit-treason 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 100l., and for the second offence 200l., to the party grieved, and be disabled to hold his office. 5. That no person once delivered by habeas corpus shall be recommitted for the same offence, on penalty of 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 *[*137oyer and terminer, be indicted in that term or session, or else admitted to bail: unless the king’s witnesses cannot be produced at that time: and if acquitted, or if not indicted and tried in the second term or session, he shall be discharged from his imprisonment for such imputed offence: but that no person, after the assizes shall be open for the county in which he is detained, shall be 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 *[*138alias 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 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 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.23
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 **139]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 separate 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 **140]very large and exemplary. But these are properly 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 marriage.(b) 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 mal-treatment 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 of trespass, in nature of an action upon the case, for this ill usage, per quod consortium amisit; in which he shall recover a satisfaction in damages.(c)
II. Injuries that may be offered to a person considered in the relation of a parent24 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 *[*141any 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 hath an interest in them all, to provide for their education.(d) 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 writ of ravishment or action of trespassvi et armis, de filio, vel filia, rapto vel abducto;(e) 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.(f) 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 always(g) 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.(h) And, as a guardian in socage was also entitled at common law to a writ of right of ward, de custodia terræ et hæredis, in order to recover the possession and custody of the infant,(i) so I apprehend that he is still entitled to sue out this antiquated right. But a more speedy and summary method of redressing all complaints relative to wards and guardians hath 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 **142]any of their wards, and also for damages to be applied to the use and benefit of the infants.(k)
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 is, 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.(l) But, if the new master was not apprized of the former contract, no action lies against him,(m) unless he refuses 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 labour 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;(n) and then the jury will make him a proportionable pecuniary satisfaction.25 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.(o)26
*[*143We 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 hath 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 hath no separate interest in any thing during her coverture. The child hath 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,27 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.28
[(a) ] See book ii. ch. 29.
[(b) ] C. 2, 1.
[(c) ] Inst. 4, 6, pr.
[(d) ]Ff. 1, 2, 2, 6.
[(e) ]Cic. pro Muræna, 11, de orat. l, c. 41.
[(f) ]Pro. Qu. Roscio. 8.
[(g) ]Sunt quædam brevia formata super certis casilius de cursu, et de communi consilio totius regni approbata et concessa, quæ quidem nullatenus mutari poterint absque consensu et voluntate eorum. L. 5, de exceptionibus, c. 17, 2.
[(h) ] Inst. 4, 6, 15.
[(i) ] C. 2, 6.
[(k) ] 6 Edw. I. c. 5.
[1 ] Real actions, with the exception of three,—dower, right of dower, and quare impedit,—were entirely abolished by stat. 3 & 4 W. IV. c. 27, s. 36. All mixed actions, with one exception,—the action of ejectment,—were abolished by the same statute. The action of ejectment thus preserved has now, by the Common-Law Procedure Act. 1852, been also swept away, and a new procedure or action of ejectment substituted in its place.—Stewart.
[(l) ] Finch, L. 184.
[(m) ] Finch, L. 198. Jenk. Cent. 185.
[(n) ] See book i. ch. 1.
[2 ] For injury to life, in general, cannot be the subject of a civil action, the civil remedy being merged in the offence to the public. Therefore an action will not lie for battery of wife or servant, whereby death ensued. Styles, 347. 1 Lev. 247. Yelv. 89, 90. 1 Lord 339. The remedy is by indictment for murder, or, formerly, by appeal, which the wife might have for killing her husband, provided she married not again before or pending her appeal; or the heir male for the death of his ancestor, and which differed principally from an indictment in respect of its not being in the power of the king to pardon the offender without the appellor’s consent. See post, 4 book, 312, 6. 5 Burr 2643. But appeals of murder, treason, felony, and other offences were abolished by 59 Geo. III. c. 46, s. 1. In general, all felonies suspend the civil remedies, (Styles, 346, 347;) and before conviction of the offender there is no remedy against him at law or in equity, (id. ibid. 17 Ves. 331;) but after conviction and punishment on an indictment of the party for stealing, the party robbed may support trespass or trover against the offender. Styles, 347. Latch. 144. Sir Wm. Jones, 147. 1 Lev. 247. Bro. Abr. tit. Trespass. And after an acquittal of the defendant upon an indictment for a felonious assault upon a party by stabbing him, the latter may maintain trespass to recover damages for the civil injury, if it be not shown that he colluded in procuring such acquittal. 12 East, 409. In some cases, by express enactment, the civil remedy is not affected by the criminality of the offender. Thus it is provided by 52 Geo. III. c. 63, s. 5, that where bankers, &c. have been guilty of embezzlement, they may be prosecuted, but the civil remedy shall not be affected. The 21 Hen. VIII. c. 11 directs that goods stolen shall be restored to the owner upon certain conditions,—namely, that he shall give or produce evidence against the felons, and that the felon be prosecuted to conviction thereon. Upon performance of these, the right of the owner, which was before suspended, becomes perfect and absolute; but he cannot recover the value from a person who purchased them in market overt and sold them again before the conviction of the felon, notwithstanding the owner gave such person notice of the robbery while they were in his possession; but he must proceed against the original felon, or against the person who has the chattel in his possession at the time of the conviction. 2 T. R. 750. And the above act does not extend to goods obtained by false pretences. 5 T. R. 175. See, further, 1 Chitty’s Crim. L. 5.—Chitty.
By the common law, the wife or husband, parent or child, of the party killed, cannot recover any pecuniary compensation for the injury sustained by the death of the relative, (Baker vs. Bolton, 1 Camp. 493;) and this was the law till the stat. 9 & 10 Vict. c. 93 enacted that whenever the death of a person shall be caused by such wrongful act, neglect, or default as would, if death had not ensued, have entitled the party injured to maintain an action for damages, the person who would have been liable to such action may be sued by the executor or administrator for the benefit of the wife, husband, parent, or child of the person deceased. The jury, in any such action, may give damages proportionable to the injury resulting from the death, to be divided among the parties for whose benefit the action is brought, in shares as the jury shall direct. Blake vs. Midland Railway Company, 21 L. J. R. 233, Q. B. S. C. 18 Ad. & El. 93.—Stewart.
[(o) ] Finch, L. 202.
[(p) ] Regist 104. 27 Ass. 11. 7 Edw. IV. 24.
[3 ] If the menace be not actionable alone, but only in conjunction with the injurious consequence, it seems contrary to principle that the remedy should be by trespass vi et armis, and not by trespass on the case. On examination, none of the authorities cited for the position satisfactorily bear it out; and, in the same book of Edw. IV. 21, one of the same judges (Choke) says, Si home fait a moy manace en ma person come d’emprisoner ou de maimer, jeo avera action sur mon case.—Coleridge.
[(q) ] Finch, L. 202.
[4 ] See, in general, Com. Dig. Battery, C. Bac. Abr. Assault and Battery, A. An assault is an attempt or offer, accompanied by a degree of violence, to commit some bodily harm, by any means calculated to produce the end if carried into execution. Levelling a gun at another within a distance from which, supposing it to have been loaded, the contents might wound, is an assault. Bac. Abr. Assault, A. Abusive words alone cannot constitute an assault, and indeed may sometimes so explain the aggressor’s intent as to prevent an act prima facie an assault from amounting to such an injury; as where a man, during assize-time, in a threatening posture, half drew his sword from its scabbard, and said, “If it were not that it is assize-time, I would run you through the body,” this was held to be no assault, the words explaining that the party did not mean any immediate injury. 1 Mod. 3. 3 Bul. N. P. 15. Vin. Abr. Trespass, A. 2. The intention as well as the act constitute an assault. 1 Mod. 3, case 13. Assault for money won at play is particularly punishable by 9 Anne, c. 14. 4 East, 174.—Chitty.
[5 ] Com. Dig. Battery, A. Bac. Abr. Assault and Battery, B. A battery is any unlawful touching the person of another by the aggressor himself, or any other substance put in motion by him. 1 Saund. 29, b., n. 1. Id. 13 and 14, n. 3. Taking a hat off the head of another is no battery. 1 Saund. 14. It must be either wilfully committed, or proceed from want of due care, (Stra. 596. Hob. 134. Plowd. 19,) otherwise it is damnum absque injuriâ, and the party aggrieved is without remedy, (3 Wils. 303. Bac. Abr. Assault and Battery, B.;) but the absence of intention to commit the injury constitutes no excuse where there has been a want of due care. Stra. 596. Hob. 134. Plowd. 19. But if a person unintentionally push against a person in the street, or if without any default in the rider a horse runs away and goes against another, no action lies. 4 Mod. 405. Every battery includes an assault, (Co. Litt. 253;) and the plaintiff may recover for the assault only, though he declares for an assault and battery. 4 Mod. 405.—Chitty.
[(r) ]F f 47, 10, 5.
[(s) ] 1 Finch, L. 203.
[(t) ] 1 Sid. 301.
[(u) ] Finch, L. 204.
[(v) ] 1 Hawk. P. C. 111.
[6 ] This is expressed with great correctness and caution: it is not intended to convey the notion that no mayhem can be justified under the plea of son assault demesne, except where that assault threatened the life of the party, but that no mayhem can be justified except under such circumstances, if it was wilful and deliberate. In the case of Cockroft vs. Smith, stated in 1 Lord Raym. 177, and reported in Salkeld, 642, and 11 Mod. 43, the plaintiff had either tilted up the form on which the defendant was sitting, or run his finger towards his eye, and the defendant immediately bit off his finger: son assault demesne was held to be a good plea; and lord Holt there laid down the principle thus:—“If A. strike B. and B. strike again, and they close immediately, and in the scuffle B. mayhems A., that is son assault; but if, upon a little blow given by A. to B., B. gives him a blow that mayhems him, that is not son assault demesne.” To this Powell, J., agreed. It seems that the party must always intend to act in self-defence, which intention is to be collected from the circumstances, in the blow which he gives to the plaintiff.—Coleridge.
Son assault demesne is a good defence to an indictment for mayhem; but the defence can only be sustained by proof that the resistance was in proportion to the injury offered. Hayden vs. The State, 4 Blackford, 546.
Any thing attached to the person partakes of its inviolability. A blow on the skirt of one’s coat, when upon his person, is an assault and battery. So of striking one’s cane while in his hand. Respublica vs. Longchamps, 1 Dall. 114. State vs. Davis, 1 Hill, 46. So to strike the horse which a person is riding or driving is an assault. De Marentille vs. Oliver, 1 Pennington, 380. No words of provocation will justify an assault, although they may constitute a ground for the reduction of damages. Cushman vs. Ryan, 1 Story, 91.—Sharswood.
One remarkable property is peculiar to the action for a mayhem,—viz., that the court in which the action is brought have a discretionary power to increase the damages, if they think the jury at the trial have not been sufficiently liberal to the plaintiff; but this must be done super visum vulneris, and upon proof that it is the same wound concerning which evidence was given to the jury. 1 Wils. 5. Barnes, 106, 153. 3 Salkeld, 115. 1 Ld. Raym. 176, 339.—Christian.
[7 ] The party injured may proceed by indictment and by action at the same time, and the court will not compel him to stay proceedings in either. 1 Bos. & P. 191. But in general the adoption of both proceedings is considered vexatious, and will induce the jury to give smaller damages in the action. The legislature has discouraged actions for trifling injuries of this nature, by enacting that in all actions of trespass for assault and battery, in case the jury should find a verdict for damages under forty shillings, the plaintiff shall have no more costs than damages, unless the judge at the trial shall certify that an assault and battery was sufficiently proved. See constructions on the statute, Tidd’s Prac. 8 ed. 998.—Chitty.
The injuries affecting the person above mentioned are all in their nature direct. There are others which do not come within any of the above definitions, and which may in contradistinction be termed consequential, as resulting occasionally, although not necessarily, from wrongful acts or neglects.
The personal injuries which may be considered consequential only are such generally as arise from the neglect or default of others in the performance of the duties they have undertaken to discharge. Thus, if a passenger is injured by the want of care of the driver of a coach, or a person sustains an injury owing to the negligence of a carman, (Lynch vs. Hurdin, 1 2 B. 29,) the owner of the coach in the first case, the carman’s master in the second, will be liable in an action for damages; for it was the duty of the owner and master in each case to employ careful servants. If, on the other hand, the driver or the carman did the injury wilfully, even if in the master’s service, he, and not the owner or master, will be liable. Gordon vs. Rolt, 4 Exc. 365. Consequential injuries may also be sustained from a bull, ram, monkey, or other animal being left at large or not properly taken care of, (Jackson vs. Smithson, 15 M. & W. 563. May vs. Burdett, 9 Q. B. 101,) and the owner will in such case be liable to the party injured. The owner must, however, be shown to have been aware of the mischievous propensities of the animal before he can be made liable, (Hudson vs. Roberts, 6 Exc. 497;) and if the party injured have imprudently exposed himself, he cannot maintain an action. Cattlin vs. Hills, 8 C. B. 115.—Kerr.
[(w) ] 1 Roll. Abr 90.
[(x) ] 9 Rep 32. Hutt. 135.
[(y) ] Lord Raym. 214.
[8 ] The law implies a contract on the part of a medical man, as well as those of other professions, to discharge their duty in a skilful and attentive manner; and the law will grant redress to the party injured by their neglect or ignorance, by an action on the case, as for a tortious misconduct. 1 Saund. 312, n. 2. 1 Ld. Raym. 213, 214. Reg. Brevium, 205, 206. 2 Wils. 359. 8 East, 348. And in that case the surgeon could not recover any fees. Peake, C. N. P. 59. See 2 New Rep. 136. But in the case of a physician whose profession is honorary, he is not liable to an action, (Peake, C. N. P. 96, 123. 4 T. R. 317,) though he may be punished by the college of physicians. Com. Dig. tit. Physician. Vin. Abr. tit. Physician. According to Hawkins, P. C., if any person, not duly authorized to practise, undertake to cure, and should kill his patient, he is guilty of felony, though clergyable. And such person so employed cannot recover in an action for the medicines supplied. See 55 Geo. III, c. 194. However, if the party employ a person as surgeon, knowing him not to be one, he has no civil remedy. 1 Hen. B. 161. Bac. Abr. Action on the Case, F. 2 Wils. 359. Reg. Brev. 105. 8 East, 348.
Though the law does not in general imply a warranty as to the goodness and quality of any personal chattel, it is otherwise with regard to food and liquors, in which, especially in the case of a publican, the law implies a warranty. 1 Roll. Abr. 90, pl. 1, 2. 2 East, 314.
With regard to private nuisances, it is particularly observable that the law regards the health of the individual, though it will not afford a remedy for malicious and ill-natured acts tending to destroy the beauty of situation, such as stopping a prospect, &c. 9 Co. 58, b. In complaining of a nuisance in stopping ancient lights, &c., the consequent injury must be stated to have been the deprivation of light and air, which are considered as conducive to health. Peake, 91. Com. Dig. tit. Action on the Case for a Nuisance. As to ancient lights in general, see ante.
Public Nuisance.—With respect to the injuries to health, as a consequence of a public nuisance, it seems that if the injury be attributable to the inhabitants of a county, no action is sustainable. 2 T. R. 667. 9 Co. 112, b., 117, a. But if the special injury be occasioned by an individual, an action lies. Bac. Abr. Action on the Case. 1 Salk. 15, 16.—Chitty.
[(z) ] Inst. 4, 3, 6, 7.
[(a) ] 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 dextium oculum ipsius A. casualiter læ bene et competenter curandum apud S. pro quodam pecuniæ sunima præ manibus soluta assumpsisset, idem B. curam suam circa oculum prædictum tam negligenter et improvide apposuit, quod idem A. defectu ipsius B. visum [Editor: illegible word] præduti totaliter amisit, ad damnum ipsius A. viginti librarum, ut dicit. Et habeas ibi nomina plegiorum et hoc breve. Teste meipso apud Westmonasterium,” &c. Begistr Brev. 105.
[(b) ] See page 52.
[(c) ] 1 Salk. 20. 6 Mod. 54.
[(d) ] Cro. Jac. 478.
[(e) ] 11 Mod. 130. Lord Raym. 1402. Stra. 635.
[9 ] See the author’s celebrated judgment in the case of Scott vs. Shepherd, 2 Bl. Rep. 892, the principle of which has been since repeatedly recognised. No distinction arises from the lawfulness or unlawfulness of the act. If one turning round suddenly were to knock another down, whom he did not see, without intending it, no doubt, said Mr. J. Lawrence, the action must be trespass vi et armis. Neither will it vary the case that besides the immediate injury there is an ulterior consequential injury; for it is the former on which the action is supported: the latter is merely in aggravation of the damages. Leame vs. Bray, 3 East’s Rep. 593.—Coleridge.
[(f) ] Finch, L. 185.
[(g) ] Finch, L. 186.
[(h) ] 1 Ventr. 60.
[(i) ] Westm. 1. 3 Edw. I. c. 34. 2 Ric. II. c. 5. [Editor: illegible character] Ric. L. c. 11.
[10 ] This action or public prosecution (for it partakes of both) for scandalum magnatum is totally different from the action of slander in the case of common persons. The scandalum magnatum is reduced to no rule or certain definition, but it may be whatever the courts in their discretion shall judge to be derogatory to the high character of the person of whom it was spoken: as it was held to be scandalum magnatum to say of a peer, “he was no more to be valued than a dog;” which words would have been perfectly harmless if uttered of any inferior person. Bull. N. P. 4. This action is now seldom resorted to. By the two first statutes upon which it is founded, (3 Edw. I. c. 34 and 2 Ric. II. st. 2, c. 5,) the defendant may be imprisoned till he produces the first author of the scandal. Hence probably is the origin of the vulgar notion that a person who has propagated slander may be compelled to give up his author.—Chitty.
[(k) ] Lord Raym. 1369.
[(l) ] 2 Ventr. 28.
[(m) ] 4 Rep. 17. 1 Lev. 248.
[(n) ] Cro. Jac. 213. Cro. Eliz. 197.
[(o) ] Noy. 64. 1 Freem. 277.
[(p) ] Finch, L. 186. 1 Lev. 82. Cro. Jac. 91.
[(q) ] Page 29.
[(r) ] Dyer, 285. Cro. Jac. 90.
[11 ] And now, by stat. 6 & 7 Vict. c. 96, (amended by stat. 8 & 9 Vict. c. 75,) in any action for defamation, the offer of an apology is admissible in evidence in mitigation of damages, and in an action against a newspaper for libel the defendant may plead that it was inserted without malice.—Stewart.
It seems that in this country evidence of this nature has been deemed by the courts admissible in mitigation of damages without waiting for the interference of the legislature. See the language of the court in Larned vs. Buffinton, 3 Mass. R. 546, as qualified in Alderman vs. French, 1 Pick. 19. See, also, what was said by Chief-Justice Savage in Mapes vs. Weeks, 4 Wendell, 663, and the intimation of Nelson, C. J., in Hotchkiss vs. Oliphant, 2 Hill, 515, that a withdrawal or recantation of the charges by way of atonement would be admissible in evidence in mitigation of damages. See, also, Starkie on Slander, vol. ii. p. 99, n. a. and n. 1, American edition of 1843.—Wendell.
[(s) ] 4 Rep. 13.
[(t) ]Ff. 47, 10, 18.
[(u) ] 2 Show. 314. 11 Mod. 99.
[(w) ] 5 Rep. 125.
[12 ] But now, by stat. 6 & 7 Vict. c. 96, s. 6, on the trial of any indictment or information for a libel, the defendant having pleaded such plea as therein mentioned, the truth of the matter charged may be inquired into, but shall not amount to a defence unless it was for the public benefit that the matter charged should be published. To entitle the defendant to give evidence of the truth of the matters charged as a defence to such indictment or information, it is necessary for the defendant, in pleading to the indictment or information, to allege the truth of the said matters, and also that it was for the public benefit that the matters charged should be published,—to which plea the prosecutor may reply generally; and if after such plea the defendant is convicted, the court may, in pronouncing sentence, consider whether the guilt of the defendant is aggravated or mitigated by the plea.—Stewart.
In an action of slander, the defendant was not allowed to give in evidence, in mitigation of damages, facts and circumstances which induced him to believe that the charges which he made were true, when such facts and circumstances tended to prove the charges or formed a link in the chain of evidence to establish a justification, though the defendant expressly disavowed a justification and fully admitted the falsity of the charges. Purple vs. Horton, 13 Wend. 9. Petrie vs. Rose, 5 Watts & Serg. 364. Regnier vs. Cabot, 2 Gilman, 34. Watson vs. Moore, 2 Cushing, 133. It has been since held, however, that the defendant may prove, in mitigation of damages, circumstances which induced him erroneously to make the charge complained of, and thereby rebut the presumption of malice, provided the evidence do not necessarily imply the truth of the charge or tend to prove it true. Minesinger vs. Kerr, 9 Barr. 312.—Sharswood.
[(x) ] Hob. 53. 11 Mod. 99.
[13 ] The printer or publisher, as well as the writer, is liable in an action for damages. It is no defence that the printer did not know, or had no personal malice against, the party libelled, nor that he did not know of the publication, nor that the libel was accompanied with the name of the author. Rundle vs. Meyer, 3 Yeates, 518. Dexter vs. Spear, 4 Mason, 115. Andre vs. Wells, 7 Johns. 260. Dole vs. Lyon, 10 Johns. 447. The publication in a newspaper of rumours is not justified by the fact that such rumours existed; but such fact is admissible in mitigation of damages. Skinner vs. Powers, 1 Wend. 451.—Sharswood.
[(y) ] Finch, L. 305.
[(z) ] F. N. B. 116.
[(a) ] Carth. 421. Lord. Raym. 253.
[(b) ] 10 Mod. 219, 220. Stra. 691.
[14 ] But the merely giving charge of a person to a peace-officer, not followed by any actual apprehension of the person, does not amount to an imprisonment, though the party to avoid it attend at a police-office, (1 Esp. Rep. 431. 2 New Rep. 211;) and in Gardner vs. Wedd and others, Easter Term, 1825, on a motion for a new trial, the court of Common Pleas held that the lifting up a person in his chair and carrying him out of the room in which he was sitting with others, and excluding him from the room, was not a false imprisonment so as to entitle the plaintiff to a verdict on a count for false imprisonment. The circumstance of an imprisonment being committed under a mistake constitutes no excuse. 3 Wils. 309. And it has been decided that if A. tell an officer who has a warrant against B. that his (A.’s) name is B., and thereupon the officer arrests A., it is false imprisonment, (Moore, 457. Hardr. 323; but see 3 Camp. 108;) and this doctrine was overruled in a late case on the western circuit, on the principle volenti non fit injuriam, and that such a fraud upon legal proceedings cannot give a right of action.—Chitty.
[(c) ] 2 Inst. 589.
[15 ] To constitute false imprisonment, it is not necessary that the person should be arrested or assaulted: if he is detained by threats of violence and prevented from going where he wishes by a reasonable apprehension of personal danger, it is sufficient. Johnson vs. Tompkins, 1 Baldwin, 571. Pike vs. Hanson, 9 New Hamp. 491. Smith vs. The State, 7 Humph. 43.—Sharswood.
[(d) ] Ibid. 46.
[(e) ] Stat. Geo. III. c. 78.
[(f) ] Stat. Car. II. c. 7. Salk. 78. 5 Mod. 95.
[16 ] But the statute has excepted cases of treason, felony, and breach of the peace, in which the execution of a lawful warrant or process is allowed upon a Sunday.—Chitty.
[17 ] Of the two first-mentioned writs nothing is now known in practice, their use and application being entirely superseded by summary resort to magistrates, or, upon their refusal, to a judge of the court, as the case may require.—Chitty.
[(g) ] F. N. B. 250. 1 Hal. P. C. 141. Coke on Bail and Mainp. ch. 10.
[(h) ] Coke on Bail and Mainp. ch. 3. 4 Inst. 197.
[(i) ]L. 3, tr. 2, c. 8.
[(k) ] 2 Inst. 43, 55, 315.
[(l) ] F. N. B. 66.
[(m) ] Raym. 474.
[(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.
[(o) ] 2 Mod. 198.
[(p) ] 2 Lilly Prac. Reg. 4.
[18 ] By 44 Geo. III. c. 102, any of the judges of England or Ireland may award a writ of habeas corpus ad testificandum to bring a prisoner detained in any gaol to be examined as a witness in any court of record or sitting at nisi prius.—Chitty.
[(q) ] 2 Mod. 306.
[(r) ] Bohun. Instit. Legal. 85, edit. 1708.
[19 ] By statute 57 Geo. III. c. 124, extended to 15l., and by statute 7 & 8 Geo. IV. c. 71, 6, extended to 20l.—Chitty.
[(s) ] St. Trials. viii. 142.
[(t) ] The pluries hapeus corpus directed to Berwick in 43 Eliz. (cited 4 Burr. 856) was teste’d dic 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.
[(u) ] Cro. Jac. 543.
[(v) ] 4 Buri. 856.
[(w) ] Ibid. 460, 542, 606.
[(x) ] 2 Inst. 55. 4 Inst. 290. 2 Hal. P. C. 141. 2 Ventr. 24.
[(y) ] Vaugh. 155.
[(z) ] Carter, 221. 2 Jon. 13.
[(a) ] 2 Mod. 198. Wood’s Case, C. B. Hill. 11 Geo. III.
[(b) ] 4 Inst. 182. 2 Hal. P. C. 47.
[(c) ] Lord Nott. MSS. Rep. July, 1676.
[20 ] It was determined, after a very elaborate investigation of all the authorities by lord Eldon in Crowley’s case, that the lord chancellor can issue the writ of habeas corpus at common law in vacation, overruling the decision in Jenks’s case. See 2 Swanst. I.
By two modern statutes, the 43 Geo. III. c. 140 and 44 Geo. III. c. 102, the habeas corpus ad testificandum has been rendered more efficient. By the first, a judge may award the writ for the purpose of bringing any prisoner from any gaol in England or Ireland as a witness, before any court-martial, commissioners of bankrupt or for auditing public accounts, or other commissioners, under any commission or warrant from his majesty: (the statute has the same application to the habeas corpus ad deliberandum.) By the other statute, a similar power is given for bringing up any prisoner as a witness before any of the courts, or any justice of oyer and terminer, or gaol-delivery, or sitting at nisi prius, in England or Ireland.
The benefit of the writ of habeas corpus, which was limited by the former acts to cases of commitment or detainer for criminal, or supposed criminal, matter, has been still further extended by the 59 Geo. III. c. 100, which enacts that any one of the judges may issue a writ of habeas corpus in vacation, returnable immediately, before himself or any other judge of the same court, in cases other than for criminal matter or for debt; and the non-observance of such writ is to be deemed a contempt of court. But if the writ be awarded so late in the vacation that the return cannot be conveniently made before term, then it is to be made returnable in court at a day certain. And if the writ be awarded late in term, it may be made returnable in vacation in like manner. The act applies to Ireland as well as England, and the writ may run into counties palatine, cinque ports, and privileged places, &c., Berwick-upon-Tweed, and the isles of Guernsey, Jersey, or Man.
The writ of habeas corpus is the privilege of the British subject only, and therefore cannot be obtained by an alien enemy or a prisoner of war. See the case of the three Spanish sailors, 2 Blk. 1324. 2 Burr. 765. The relief in such cases is by application to the secretary at war. On a commitment by either house of parliament for contempt or breach of privilege, the courts at Westminster cannot discharge on a habeas corpus, although, on the return of the writ, such commitment should appear illegal; for they have no power to control the privileges of parliament. 2 Hawk. c. 15. s. 73. 8 T. R. 314.
The writ of habeas corpus, whether at common law or under 31 Car. II. c. 2, does not issue, as a matter of course, upon application in the first instance, but must be grounded on an affidavit, upon which the court are to exercise their discretion whether the writ shall issue or not. 3 B. & A. 420. 2 Chitty R. 207. A habeas corpus cum causa does not lie to remove proceedings from an inferior jurisdiction into the court of King’s Bench, unless it appears that the defendant is actually or virtually in the custody of the court below. 1 B. & C. 513. 2 Dowl. & R. 722. The court of King’s Bench will grant a habeas corpus to the warden of the Fleet, to take a prisoner confined there for debt before a magistrate, to be examined from day to day respecting a charge of felony or misdemeanour. 5 B. & A. 730. The court of exchequer will not grant a habeas corpus to enable the defendant in an information, who is confined in a county gaol for a libel under the sentence of another court, to attend at Westminster to conduct his defence in person: the application should be made to the court by whom the defendant was sentenced. 9 Price, 147. Nor will the court of King’s Bench grant a writ of habeas corpus to bring up a defendant under sentence of imprisonment for a misdemeanour, to enable him to show cause in person against a rule for a criminal information. 3 B. & A. 679. n. Where there are articles of separation between the husband and wife, if the husband afterwards confine her, she may have a habeas corpus and be set at liberty. 13 East, 173, n. A habeas corpus will be granted in the first instance, to bring up an infant who had absconded from his father and was detained by a third person without his consent. 4 Moore, 366. The court will not grant a habeas corpus to bring up the body of a feme-covert on an 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 court-martial 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.
[(d) ] 2 Mod. 306. 1 Lev. 1.
[(e) ] Bushel’s case, 2 Jon. 13.
[(f) ] Cro. Jac. 543.
[(g) ] 3 Bulstr. 27. See also 2 Roll. Rep. 138.
[(h) ] 2 Inst. 615.
[(i) ] Com. Jour. 1 Apr. 1628.
[(k) ] Book i. ch. 1.
[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, 368 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.
[(l) ] State Tr. vii. 136.
[(m) ] Ibid. 240.
[(n) ] “Etiam judicum tunc primarius, nisi illud faceremus, rescripti illius forensis, qui libertatis personalis omnimodæ vindex legitimus est fere solus, usum omnimodum palam pronuntiavit (sui semper similis) nobis perpetuo in posterum [Editor: illegible character]energandum. Quod, ut odiosissimum juris prodigium, scientioribus hic universis censitum.” Vindic Mar. claus edit.ad 1653.
[(o) ] Page 132.
[(p) ] State Tr. vii. 471.
[(q) ] See book i. ch. 1.
[(r) ] 4 Burr. 856.
[(s) ] See book i. page 136.
[22 ] 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.
[23 ] 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.
[(t) ] F. N. B. 89.
[(u) ] 2 Inst. 434.
[(w) ] Ibid.
[(x) ] Law of Nisi Prius, 74.
[(y) ] Bro. Abr. tit. Trespass, 213.
[(z) ] Bro. Abr. 207, 440.
[(a) ] Law of Nisi Prius, 26.
[(b) ] Burr. 2057.
[(c) ] Cro. Jac. 501, 538.
[24 ] See in general, Bac. Abr. Master & Servant, O. Selw. N. P. Master & Servant. It has been disputed, but the better opinion is, that the father has an interest in his legitimate child, sufficient to enable him to support an action in that character, for taking the child away, he being entitled to the custody of it. Cro. Eliz. 770. 23 Vin 451. 2 P. Wms. 116. 3 Co. 38. 5 East, 221. No modern instance, however, of such action can be adduced; and it is now usual for the father to bring his action for any injury done to his child, as for debauching her, or beating him or her, in the character of master, per quod scrvitium amisit, in which case some evidence must be adduced of service. 5 T. R. 360, 361.
In an action for debauching plaintiff’s daughter, as his servant, it is necessary to prove her residence with him; and some acts of service, though the most trifling, are sufficient. See 2 T. R. 167. 2 N. R. 476. 6 East, 387. It is unnecessary to prove any contract of service. Peake’s R. 253. But if the seduction take place while she is residing elsewhere, and she in consequence return to her father, he cannot maintain the action, (5 East, 45,) unless she be absent with his consent, and with the intention of returning, although she be of age, (ib. 47, n;) or if the defendant engaged her as his servant, and induced her to live in his house as such, with intent to seduce her. 2 Starkie Rep. 493. If she live in another family, the person with whom she resides may maintain the action, (11 East, 24. 5 East, 45. 2 T. R. 4;) and the jury are not limited in their verdict to the mere loss of service. 11 East, 24. The daughter is a competent witness, (2 Stra. 1064,) and, though not essential, the omission to call her would be open to observation. Holt’s R. 451. Expenses actually incurred should be proved, and a physician’s fee, unless actually paid, cannot be recovered. 1 Starkie R. 287. The state and situation of the family at the time should be proved in aggravation of damages, (3 Esp. R. 119;) and, if so, that the defendant professed to visit the family and was received as the suitor of the daughter. 5 Price, 641. It has been said that evidence to prove that defendant prevailed by a promise of marriage is inadmissible. 3 Camp. 519. Peake L. E. 355. See 5 Price, 641. And no evidence of the daughter’s general character for chastity is admissible, unless it is impugned. 1 Camp. 460. 3 Camp. 519. The defendant may, in mitigation of damages, adduce any evidence of the improper, negligent, and imprudent conduct of the plaintiff himself; as where he knew that defendant was a married man, and allowed his visits in the probability of a divorce, lord Kenyon held the action could not be maintained. Peake R. 240. And evidence may be given, on an inquisition of damages in an action for seduction, that the defendant visited at the plaintiff’s house for the purpose of paying his addresses to the daughter, with an intention of marriage. 5 Price, 641.—Chitty.
[(d) ] Cro. Eliz. 770.
[(e) ] F. N. B. 90.
[(f) ] F. N. B. 139.
[(g) ] Ibid.
[(h) ] Hale on F. N. B. 139.
[(i) ] F. N. B. 139.
[(k) ] 2 P. Wms. 108.
[(l) ] F. N. B. 167.
[(m) ] Ibid. Winch. 51.
[(n) ] 9 Rep. 113. 10 Rep. 330.
[25 ] Even in case of debauching, beating, or injuring a child, the father cannot sue without alleging and proving that he sustained some loss of service, or at least that he was obliged to incur expense in endeavouring to cure his child. 5 East, 45. 6 East, 391. 11 East, 23. Sir T. Raym. 259. And if it appear in evidence that the child was of such tender years as to be incapable of affording any assistance, then he cannot sustain any action. The rules and principles in support of this doctrine were elucidated in the recent case of Hall vs. Hollander, decided 14th November, 1825, M. T., and in which the plaintiff declared in trespass for driving a chaise on the highway against plaintiff’s son and servant, by means whereof he was thrown down and his skull fractured.
The lord chief-justice was of opinion that the action could not be maintained in this form, inasmuch as the declaration was founded upon the loss of the services of a child who, from his tender years, (being only two years of age,) was incapable of performing any acts of service, and therefore directed a nonsuit; which was confirmed by the court.—Chitty.
[(o) ] Pott. Antiq. b. i. c. 26.
[26 ] It appears to be a remarkable omission in the law of England, which with such scrupulous solicitude guards the rights of individuals and secures the morals and good order of the community, that it should have afforded so little protection to female chastity. It is true that it has defended it by the punishment of death, from force and violence, but has left it exposed to perhaps greater danger from the artifices and solicitations of seduction. In no case whatever, unless she has had a promise of marriage, can a woman herself obtain any reparation for the injury she has sustained from the seducer of her virtue. And even where her weakness and credulity have been imposed upon by the most solemn promises of marriage, unless they have been overheard or made in writing, she cannot recover any compensation, being incapable of giving evidence in her own cause. Nor can a parent maintain any action in the temporal courts against the person who has done this wrong to his family, and to his honour and happiness, but by stating and proving that from the consequences of the seduction his daughter is less able to assist him as a servant, or that the seducer, in the pursuit of his daughter, was a trespasser upon his premises. Hence no action can be maintained for the seduction of a daughter, which is not attended with a loss of service or an injury to property. Therefore, in that action for seduction which is in most general use, viz., a per quod servitium amisit, the father must prove that his daughter, when seduced, actually assisted in some degree, however inconsiderable, in the housewifery of his family; and that she has been rendered less serviceable to him by her pregnancy; or the action would probably be sustained upon the evidence of a consumption, or any other disorder, contracted by the daughter, in consequence of her seduction, or of her shame and sorrow for the violation of her honour. It is immaterial what is the age of the daughter; but it is necessary that at the time of the seduction she should be living in, or be considered part of, her father’s family. 4 Burr. 1878. 3 Wils. 18. It should seem that this action may be brought by a grandfather, brother, uncle, aunt, or any relation under the protection of whom, in loco parentis, a woman resides, especially if the case be such that she can bring no action herself; but the courts would not permit a person to be punished twice by exemplary damages for the same injury. 2 T. R. 4.
Another action for seduction is a common action for trespass, which may be brought when the seducer has illegally entered the father’s house; in which action the debauching his daughter may be stated and proved as an aggravation of the trespass. 2 T. R. 166. Or where the seducer carries off the daughter from the father’s house, an action might be brought for enticing away his servant,—though I have never known an instance of an action of this nature.
In the two last-mentioned actions the seduction may be proved, though it may not have been followed by the consequences of pregnancy.
These are the only actions which have been extended by the modern ingenuity of the courts to enable an unhappy parent to recover a recompense, under certain circumstances, for the injury he has sustained by the seduction of his daughter.—Christian.
[27 ] Now abolished, by statute 59 Geo. III. c. 46.—Chitty.
[28 ] The wife or the child, if the husband or parent were slain, had, indeed, until lately, a peculiar species of criminal prosecution allowed them, in the nature of a civil satisfaction, which was called an appeal. See Public Wrongs, vol. iv. c. 27. Ashford vs. Thornton, 1 B. & A. 405.
This is now abolished, (59 Geo. III. c. 46;) but they can recover damages for the injury sustained by the death of the husband or parent, under the 9 & 10 Vict. c. 93.—Stewart.