menu_book Chapter 16

Chapter 8, Part 2 of The Commentaries on the Laws of England, Book 3, by William Blackstone. For more information or to volunteer, please visit LibriVox.org. Recording by Roy Haynes. Of Wrongs and Their Remedies, Respecting the Rights of Persons, Part 2. 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 light and thereby diminish his reputation

with regard to libels in general there are as in many other cases two remedies one by indictment and another by action the former for the public offence for every libel has a tendency to break the piece or provoke others to break it which offence is the same whether the matter contained be true or false and therefore the defendant on an indictment for publishing a libel is not allowed to allege the truth of it by way of justification 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 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 thereon But as to signs or pictures, it seems necessary always to show, by proper innuendos and averments of the defendant's meaning, the import and application of the scandal, that some special damage has followed.

Otherwise, it cannot appear that such libel by picture was understood to be leveled at the plaintiff or that it was attended with any actionable consequences. A third way of destroying or injuring a man's reputation is by preferring malicious indictments or prosecutions against him, which, under the mask of justice and public spirit, are sometimes made the engines of private spite and enmity. For this, however, the law has given very adequate remedy in damages, either by an action of conspiracy, 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. 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.

for it would be a very great discouragement to the public justice of the kingdom if prosecutors who had a tolerable ground of suspicion were liable to be sued at law whenever their indictments miscarried but an action for a malicious prosecution may be founded on such indictment whereon no acquittal can be as if it be rejected by the grand jury or be coram non judis 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 however any probable cause for preferring it is sufficient to justify the defendant 2. We are next to consider the violation of the right of personal liberty. This is effected by the injury of false imprisonment, for which the law has not only decreed a punishment as a heinous public crime, but has also given a private reparation to the party, as well by removing the actual confinement for the present, as, after it is over, by subjecting the wrongdoer to a civil action. on account of the damage sustained by the loss of time and liberty.

To constitute the injury of false imprisonment, there are two points requisite. One, the detention of the person, and two, 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. 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, or from some other special cause warranted for the necessity of the thing, either by common law or act of parliament, such as arresting a felon by a private person without warrant, the impressing of mariners for the public

service, or the apprehending of wagoners for their misbehavior in the public highways. false imprisonment also may arise by executing a lawful warrant or process at an unlawful time as on a sunday or in a place privileged from arrests as in the verge of the king's court this is the injury let us next see the remedy which is of two sorts the one removing the injury the other making satisfaction for it The means of removing the actual injury of false imprisonment are fourfold. 1. By writ of main prize.

2. By writ de odio et datia. 3. By writ de omine replagiando. 4. By writ of habeas corpus. 1. The writ of main prize, manu capcio, is a writ directed to the sheriff, either generally when any man is imprisoned for a bailable offense and bail hath been refused, or specially when the offense or cause of commitment is not properly bailable below, commanding him to take sureties for the prisoner's appearance, usually called main perners, and to set him at large. Main perners differ from bail in that a man's bail may imprison or surrender him up before the stipulated day of appearance.

Main perners 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. Main perners are bound to produce him to answer all charges whatsoever. 2. The writ de odio et attia was anciently used to be directed to the sheriff, commanding him to inquire whether a prisoner charged with murder was committed upon just cause of suspicion or merely propter odium et attiam 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 ought not to be denied to any man

it being expressly ordered to be made out gratis without any denial by magna carta c twenty six and statute westminster two thirteen edward the first c twenty nine but the statute of gloucester six edward the first c nine restrained it in the case of killing by misadventure or self-defence and the statute twenty eight edward the third c nine abolished it in all cases whatsoever but as the statute forty two edward the third c one repealed all statutes then in being contrary to the great charter sir edward coke is of the opinion that the writ de otio et attia was thereby revived 3. The writ de homine replagiando lies to replevie 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 aloined, elongatus, upon which a process issues, called capias in viderinam, to imprison the defendant himself, without bail or main prize, till he produces the party.

But this writ is guarded with so many exceptions 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, or, 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 courts above. such is that ad satisfaciendum when a prisoner hath had judgment against them in an action

and the plaintiff is desirous to bring him up to some superior court to charge him with process of execution such also are those ad prosequendum, testificandum, deliberandum, etc. which issue when it is necessary to remove a prisoner in order to prosecute or bear testimony in any court or to be tried in the proper jurisdiction wherein the fact was committed. Such is, lastly, the common writ ad faciendum et recipientum, 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 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, and it instantly supersedes all proceedings in the court below. But in order to prevent the surreptitious discharge of prisoners, it is ordered by Statute 1 and 2, Peter and Mary, C.13, that no habeas corpus shall issue to remove any prisoner out of any jail unless signed by some judge of the court out of which it is awarded. And to avoid vexatious delays by removal of frivolous causes, it is enacted by Statute 21 James 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 remandered 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 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, George I, C. 29, that the inferior court may proceed in such actions as are under the value of five pounds, notwithstanding other actions may be brought against the same defendant to a greater amount. But the great and effectuous writ, in all manner of illegal confinement, is that of habeas corpus ad subgisiendum, 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, subgisiendum, et recipientum, to do, submit to, and receive, whatsoever the judge or court awarding such writ shall consider in that behalf. 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, 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 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, unless the term should intervene, then it may be returned in court. Indeed, if the party were privileged in the courts of common pleas and exchequer, as being an officer or suitor of the court, an ambius corpus ad subgitiendum might also have been

awarded from thence, and if the cause of imprisonment were palpably illegal, they might have discharged him, 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 the king's bench, which occasioned the common pleas to discountenance such applications. It hath also been said, and by very respectable authorities, 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, and therefore his lordship refused it. In the court of King's Bench it was, and is still, necessary to apply for it by motion to the court, as in the case of all other prerogative writs, certiori, prohibition, mandamus, etc., which do not issue as of mere course, without showing some

probable cause why the extraordinary power of the crown is called in to the party's assistance. For, as was argued by Lord Chief Justice Vaughan, 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. 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

service, a wife, a child, a relation, or a domestic, confined for insanity or other prudential reasons, might obtain a temporary enlargement by suing out an habeas corpus, though sure to be remanded, as soon as brought up to the court. And therefore, Sir Edward Coke, when Chief Justice, did not scruple, in 13 James 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. On the other

hand, if a probable ground be shown, that the party is imprisoned without just cause, 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. In a former part of these commentaries, we expatiated at large on

the personal liberty of the subject. It was shown to be a natural inherent right which could not be surrendered or forfeited unless by the commission of some great and atrocious crime, nor ought to be abridged in any case without the special permission of law. A doctrine co-evaled with the first rudiments of the English Constitution, and handed down to us from our Saxon ancestors, notwithstanding all their struggles with the Danes and the violence of the Norman conquest,

asserted afterwards and confirmed by the conqueror himself and his descendants, and though sometimes a little impaired by the ferocity of the times and the occasional despotism of jealous or usurping princes, yet established on the firmest basis by the provisions of Magna Carta and a long succession of statutes enacted under Edward III. To assert an absolute exemption from imprisonment in all cases is inconsistent with every idea of law and political society,

and in the end would destroy all civil liberty by rendering its protection impossible. But the glory of the English law consists in clearly defining the times, the causes, and the extent, when, wherefore, and to what degree the imprisonment of the subject may be lawful. This induces an absolute necessity of expressing upon every commitment the reason for which it is made, that the court, upon an habeas corpus, may examine into its validity, and according to the

circumstances of the case, may discharge, admit to bail, or remand the prisoner. And yet, early in the reign of Charles I, the court of King's Bench, relying on some arbitrary precedents, and those perhaps misunderstood, determined that they could not, upon an habeas corpus, either bail or deliver a prisoner, though committed without any cause assigned, in case he was committed by the special command of the king or by the lords of the privy council.

This drew on a parliamentary inquiry, and produced the petition of Wright III. Charles I, which recites this illegal judgment and enacts that no freeman hereafter shall be so imprisoned or detained. But when, in the following year, Mr. Selden and others were committed by the lords of the council, in pursuance of His Majesty's special command, under a general charge of notable contempts and stirring up sedition against the king and government, the judges delayed for two

terms, including also the long vacation, to deliver an opinion how far such a charge was bailable. And when at length they agreed that it was, they, however, annexed a condition of finding sureties for the good behavior which still protracted their imprisonment, the Chief Justice, Sir Nicholas Hyde, at the same time declaring 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 the indignation and astonishment by every lawyer present, according to Mr. Seldon's own account of the matter, whose resentment was not cooled at the distance of four and twenty years. These pitiful evasions gave rise to the Statute 16 Charles I C. 10, Section 8, whereby it was enacted that if any person be committed by the King himself in person, or by his privy council, or by any of the members thereof, he shall have

granted unto him, without any delay upon any pretense whatsoever, a writ of habeas corpus, upon demand or motion, made to the court of king's bench or common pleas, who shall thereupon, within three court days after the return is made, examine and determine the legality of such commitment, and do what to justice shall appertain in delivering, bailing, or remanding such prisoner. Yet still, in the case of Jenks before alluded to, who in 1676 was committed by the king in council for a turbulent speech at Guildhall, 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 subjusiendum in vacation, though at last he thought proper to award the usual writs ad deliberandum, etc., whereby the prisoner was discharged at the Old Bailey. Other abuses had also crept into daily practice, which had in some measure defeated the benefit of this great constitutional remedy. The party imprisoning was at liberty to delay his obedience to the first writ and might wait till a second and a third, called an alias and a pluris, were issued before he produced the party, and many other vexatious shifts were practiced to detain state prisoners in custody. But whoever will attentively consider the English history may observe that the flagrant abuse of any power by the crown or its ministers has always been productive of a struggle, which either discovers the exercise of that power to be contrary to law, or, if legal, restrains it for the future. This was the case in the present instance.

The oppression of an obscure individual gave birth to the famous Habeas Corpus Act 31 Charles II C.2, which is frequently considered as another Magna Carta of the kingdom, and by consequence has also in subsequent times reduced the method of proceeding on these writs, though not within the reach of that statute, but issuing merely at the common law, to the true standard of law and liberty. The statute itself enacts, 1. That the writ shall be returned and the prisoner brought up within a limited time according to the distance, not exceeding, in any case, twenty days. 2. That such writs shall be endorsed as granted in pursuance of this act and signed by the person awarding them. 3. That on complaint and request in writing, by or on behalf of any person committed and charged with any crime, unless committed for treason or felony expressed in the warrant, or for suspicion of the same, or as accessory thereto, before the fact, or convicted or charged in execution by legal process, the Lord Chancellor or any of the twelve judges in vacation, upon viewing a copy of the warrant or affidavit that a copy is denied, shall, unless the party

has neglected for two terms to apply to any court for his enlargement, award a habeas corpus for such prisoner, returnable immediately before himself or any other of the judges, and upon the return made, shall discharge the party, if bailable, upon giving security to appear and answer to the accusation in the proper court of judicature. 4. That officers and keepers neglecting to make due returns, or not delivering to the

prisoner or his agent within six hours after demand a copy of the warrant of commitment, or shifting the custody of the prisoner from one to another without sufficient reason or authority specified in the Act, shall, for the first offense, forfeit £100, and for the second offense, 200 to the party grieved, and be disabled to hold his office. 5.

That no person once delivered by habeas corpus shall be recommitted for the same offense on penalty of 500 pounds. 6. That every person committed for treason or felony shall, if he requires it, the first week of the next term or the first day of the next session of oyer and terminer be indicted

in that term or session, or else be admitted to bail, unless the king's witnesses cannot be produced at that time, and if acquitted, or if not indicted and tried in the second term or session, he shall be discharged from his imprisonment for such imputed offense, but that no person, after the assizes, shall be opened for the county in which he is detained, shall be removed by habeas corpus till after the assizes are ended, but shall be left to the justice of the judges of

assize. 7. That any such prisoner may move for and obtain his habeas corpus as well out of the chancery or exchequer as out of the king's bench or common pleas, and the lord chancellor or judges denying the same, on sight of the warrant or oath that the same is refused, forfeit severally to the party grieved the sum of five hundred pounds. 8. That this writ of habeas corpus shall run into the county's Palatine, Cinque ports, and other privileged places, and the islands of Jersey

and Guernsey. 9. That no inhabitant of England, except persons contracting or convicts praying to be transported, or having committed some capital offense in the place to which they are sent, shall be sent prisoner to Scotland, Ireland, Jersey, Guernsey, or any places beyond the seas, within or without the King's dominions, on pain that the party committing, his advisors, aiders, and assistants, shall forfeit to the party grieved, a sum not less than five hundred pounds,

to be recovered with treble costs, shall be disabled to bear any office of trust or profit, shall incur the penalties of praemunere, 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 the public justice by a temporary enlargement of the prisoner, all other cases of unjust

imprisonment being left to the habeas corpus at common law. But even upon writs at the common law, it is now expected by the court, agreeable to ancient precedents and the spirit of the Act of Parliament, that the writs should be immediately obeyed without waiting for any alias or plurias, otherwise an attachment will ensue. 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 of the statute, that persons apprehended upon suspicion have suffered a long imprisonment merely because they were forgotten. The satisfactory remedy for this injury of false imprisonment is by an action of trespass,

via 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. End of Chapter 8 Part 2