it is which induces the absolute necessity of expressing upon every commitment, the reason for which it is made, that the court, upon an habeas corpus, may examine into its validity; and, according to the circumstances of the case, may discharge, admit to bail, or remand the prisoner. 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 birth to the famous habeas corpus act, 31 Car. 2, gave c. 2, which is frequently considered as another Magna Charta of the kingdom; and by consequence and analogy, has also, in subsequent times, reduced the general method of proceeding on these writs (though not within the reach of the statute, but issuing merely at common law) to the true standard of law and liberty. The statute itself enacts, 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, (k) and upon return made shall discharge the party, if bailable, upon giving security to appear and answer the accusation in the proper court of judicature. That such writs shall be indorsed as granted in pursuance of this act, and signed by the person awarding them. 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. 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 (k) See the last note. reason or authority (specified in the act), shall for the first offence forfeit 100%., and for the second offence 2007., to the party grieved, and be disabled to hold his office. That no person once delivered by habeas corpus shall be recommitted for the same offence, on penalty of 500l. That every person committed for treason or felony shall, if he requires it, the first week of the next term, or the first day of the next session of oyer and terminer, be indicted in that term or session, or else admitted to bail, unless the king's witnesses cannot be produced at that time; and if acquitted, or if not indicted and tried in the second term or session, he shall be discharged from his imprisonment for such imputed 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. 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 the sum of 500%. That the writ of habeas corpus shall run into the counties palatine, cinque ports, and other privileged places, and the islands of Guernsey and Jersey. 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 grieved a sum not less than 500%., to be recovered with treble costs; be disabled to bear any office of trust or profit; incur the penalties of prænumire; and be incapable of the king's pardon. This is the substance of that great and important statute, which extends 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 (1). But even upon the writ at the (1) By 56 Geo. 3, c. 100, any judge may in vacation issue this writ, returnable immediately, or at a day certain in the ensuing term, to bring up the body of any person confined otherwise than for some criminal or supposed criminal matter, and except a person imprisoned for debt, or by process in any civil suit, who complains that he is unjustly restrained of his liberty upon a charge not criminal, and who, by affidavit, makes it appear that there is probable ground for relief. The court may also issue it in Of the right of private property. Injuries to a person as husband. Abduction. F. N. B. 89. 2 Inst. 434. Ibid. Law of Nisi Law of Nisi common law it must now be obeyed without any alias or pluries, or an attachment will issue. The satisfactory remedy for the injury of false imprisonment is by an action of trespass vi et armis, usually called an action for imprisonment: which is generally and almost unavoidably, accompanied with a charge of assault and battery also: wherein the party may 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. The injuries which affect the relative rights of individuals, or which may be done to persons as members of society, may be considered under the following relations; husband and wife (m), parent and child (n), guardian and ward (o), master and servant (p). Injuries that may be offered to a person considered as a husband are principally: abduction, or taking away a man's wife; adultery, or criminal conversation with her; and beating or otherwise abusing her. Abduction may be either 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. This action lay at the common law; and thereby the husband shall recover not the possession of his wife, but damages for taking her away: and by 3 Edw. 1, 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; 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. 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, the law gives a satisfaction to the husband for it in damages, the amount of which is regulated by the circumstances of the case and the condition of the parties by action of trespass vi et armis against the adulterer. In this case and upon indictment for polygamy banco, and make it returnable before a single judge at a day certain in the following vacation. The judges may, in such cases, though the return be legal, examine into its truth, and if they doubt it, bail the prisoner. See the case of the Canadian prisoners, ante, 360, note (j). (m) See ante, p. 83. (0) See ante, p. 90. a marriage in fact must be proved; though generally in other cases reputation and cohabitation are sufficient evidence of Burr. 2057. marriage. Another injury is that of beating a man's wife or Beating a wife. otherwise ill using her: for which if it be a common assault, battery or imprisonment, the law gives the usual remedy to recover damages by action of trespass vi et armis, which must be brought in the names of the husband and wife jointly; but if the beating or other maltreatment be very enormous, so that thereby the husband is deprived for a 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. son Cro. Jac. 501, 538. Injuries to a Injuries to a person considered in the relation of parent are, abduction, or taking his children away, and marrying his person as and heir without the father's consent; these injuries are parent. remediable by a writ of ravishment or action of trespass, vi et F. N. B. 90. armis, de filio, vel filia, rapto vel abducto, in the same manner as the husband may have it on account of the abduction of his wife. guardian and The same actions mutatis mutandis, as are given to fathers, To persons in the guardian also has for recovery of damages when his ward relation of is stolen or ravished away from him. But there is a summary ward. method of redressing complaints relative to wards and guardians by application to the court of chancery; which has the super- F. N. B. 90. intendant jurisdiction of all infants. And by 12 Car. 2, c. 24, testamentary guardians may maintain an action of ravishment or trespass for recovery of their wards, and for damages to be 2 P.Wms. 108. applied to their use. Injuries to rights as be tween master and servant. 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. The first is an injury to the master, who has by his contract purchased for a valuable consideration the services of his domestics for a limited time, for which the law has given a remedy by a special action on the case; and an action against the servant for the non-performance of his agreement. But if the new master was F. N. B. 167. not apprized of the former contract no action lies againt him, Ibid. unless he refuses to restore the servant on demand. Another injury is that of beating, confining, or disabling a man's servant, which depends upon the same principle as the last; viz. the Winch. 51. 9 Rep. 113. 10 Rep. 310. property which the master has by his contract acquired in the labour of his 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 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. CHAPTER IX. Of injuries to personal property and their remedies. in To personal property possession. Remedy. Replevin. OF INJURIES TO PERSONAL PROPERTY. We are here to consider the injuries that may be offered to the rights of personal property in possession, and to those that are only in action. The rights of personal property in possession are liable to two species of injuries; the amotion, or deprivation of that possession, and the abuse or damage of the chattels while the possession continues in the legal owner. The former, or deprivation of possession, is also divisible into two branches; the unjust and unlawful taking them away, and the unjust detaining them, though the original taking might be lawful. The wrongful taking of goods being clearly an injury, the remedy which the law has given for it is, first, the restitution of the goods, with damages for the loss sustained, which is effected by an action of replevin; but this obtains only in one instance of an unlawful taking, that of a wrongful distress; and this, and the action of detinue, are almost the only actions in which the specific chattel is restored. In the case of a distress, the goods being in the custody of the law, the taking them back by force is looked upon as an atrocious injury, and denominated a rescous, for which the distrainer has a remedy in damages, either by writ of rescous, in case they were going to the pound, or by writ de parco fracto, or pound breach, in case they were actually impounded. He may also, at his option, bring an action on the case for this injury; and shall therein, if the distress were taken for rent, recover treble 2 Wm. & M. damages. The term rescous is also applied to the forcible delivery of a defendant, when arrested from the officer who is Rescous. Writ de parco fracto. F. N. B. 101. sess. 1, c. 5. |