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(3.) Of personal liberty and security.

1. Writ of habeas corpus. The right of personal liberty is another absolute right of individuals, which has long been a favorite object of the English law. It is not only a constitutional principle, as we have already seen, that no person shall be deprived of his liberty without due process of law, but effectual provision is made against the continuance of all unlawful restraint or imprisonment, by the security of the privilege of the writ of habeas corpus.

Every restraint upon a man's liberty is, in the eye of the law, an imprisonment, wherever may be the place, or whatever may be the manner in which the restraint is effected. Whenever any person is detained with or without due process of law, unless for treason or felony, plainly and specially expressed in the warrant of commitment, or unless such person be a convict, or legally charged in execution, he is entitled to his writ of habeas corpus. It is a writ of right, which every person is entitled to, ex merito justiciæ ; b but the benefit of it was, in

others, cited by Mr. Wendell in his interesting Introduction to his edition of Starkie, I apprehend were not correctly decided, so far as evidence of the matters contained in the notice annexed to the pleas, was not permitted to go to the jury to explain, mitigate and repel the inference of malice. The observations of Mr. Wendell on those cases appear to be well founded, and unless the jury are permitted to take cognizance of the question of malice, and of all the circumstances attending the publication, grievous injustice may be inflicted upon a defendant.

In 1843 the statute of 6 and 7 Vict. c. 96, was passed, for the amendment of the law of defamation and libel It provided that in actions for defamation the truth of the matters charged should not be a defence, unless it were proved also that the publication was for the public benefit, and that the defendant might give his apology in evidence in mitigation of damages.

2 Inst. 589. Words may constitute an imprisonment, if they impose a restraint upon the person, and he be accordingly restrained and submits. Homer v. Battyn, Buller's N. P. 62. Pike v. Hanson, 9 N. H. Rep. 491.

b4 Inst. 290.

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a great degree, eluded in England, prior to the statute of Charles II., as the judges only awarded it in term time, and they assumed a discretionary power of awarding or refusing it. The explicit and peremptory *provisions of the statute of 31 Charles II., c. 2, *27 restored the writ of habeas corpus to all the efficacy to which it was entitled at common law, and which was requisite for the due protection of the liberty of the subject. That statute has been re-enacted or adopted, if not in terms, yet in substance and effect, in all these United States.b The privilege of this writ is also made an express constitutional right at all times, except in cases of

23 Bulst. Rep. 27. The writ of habeas corpus had been, in England, from the time of magna charta, a matter of right, but generally and fatally disregarded in cases relating to the government. The illegal and arbitrary imprisonments by the privy council and crown officers under Elizabeth gave rise to an impressive address from the common law judges, in 1591, to Chancellor Hatton and Lord Burleigh, complaining of them in just and manly terms. Anderson's Rep. vol. i. p. 297. Mr. Hallam, in his Constitutional History of England, vol. i. p. 317–320, gives, from an original manuscript in the British museum, a more full and correct copy of this remarkable document, so honorable to the judges of the common law courts. But afterwards, in 1627, when certain knights were imprisoned by the special command of tho king, for not yielding to the forced loan, the court of K. B. refused to bail or discharge them upon habeas corpus, though no cause, other than the king's command, was returned.

• See, for instance, the habeas corpus act in Massachusetts of 16th March, 1785, and Massachusetts Revised Statutes, 1835, part 3, tit. 4, ch. iii.; the habeas corpus act of South Carolina of 1712, and referred to in 2 Bay, 563, and 2 Const. Rep. p. 698; the habeas corpus of North Carolina, R. S. 1837, vol. 1, p. 314; the habeas corpus act of Pennsylvania of 18th February, 1785, and referred to in 1 Binney, 374; the habeas corpus act of New York of 1787 and 1801 ; the habeas corpus act of New Jersey of 1795; the habeas corpus act of Ohio, statute laws of Ohio, 1831, and of Connecticut, Revised Statutes of Connecticut, 1821, and Statutes of Connecticut, 1838, p. 336; ordinance of congress of July 13, 1787, for the gooernment of the territory of the United States northwest of the river Ohio. Territorial act of Michigan of April 12, 1827. The habeas corpus act of Indiana, 1838. The habeas corpus act of Arkansas, R. Statutes, p. 434.

invasion or rebellion, by the constitution of the United States, and by the constitutions of most of the states in the Union. The citizens are declared, in some of these constitutions, to be entitled to enjoy the privilege of this writ in the most "free, easy, cheap, expeditious, and ample manner;" and the right is equally perfect in those states where such a declaration is wanting. The right of deliverance from all unlawful imprisonment, to the full extent of the remedy provided by the habeas corpus act, is a common law right; and it is undoubtedly true, as has been already observed, that the common law of England, so far as it was applicable to our circumstances, was brought over by our ancestors, upon their emigration to this country. The revolution did not involve in it any abolition of the common law. It was rather calculated to strengthen and invigorate all the just principles of that law, suitable to our state of society and jurisprudence.

It has been adopted or declared in force, by *28. *the constitutions of some of the states,b and by

statute in others;c and where it has not been so explicitly adopted, it is nevertheless to be considered as the law of the land, subject to the modifications which have been suggested, and to express legislative repeal.d We shall, accordingly, in the course of these lectures, take it for granted, that the common law of England, applicable to our situation and governments, is the law of this country, in all cases in which it has not been altered or rejected by statute, or varied by local usages, under the sanction of judicial decisions.

The substance of the provisions on the subject of the

* See vol. i. p. 342.
b Constitutions of New York and New Jersey.
e Pennsylvania and Virginia. See also supra, vol. 1, 472.

d 2 N. Hamp. Rep. 44. Marshall, Ch. J., in Livingston v. Jefferson, 4 Hall's L. J. 78.

writ of habeas corpus, may be found in the statute of 31 Charles II., c. 2, which is the basis of all the American statutes on the subject. The statute of New York, of 1787, was a literal transcript of the English statute, and the habeas corpus act, in the subsequent revisions of the New-York statute code in 1801, and 1813, was essentially the same. But the New York statute, of 1818, enlarged the extent of the application of the writ, and this had been the case also in Pennsylvania.b It gave to the officer before whom the writ was returned, authority to revise the cause of commitment, and to examine into the truth of the facts alleged in the return. The English statute of 56 Geo. III., c. 100, conferred the like power. By the New York Revised Statutes, which went into operation on 1st January, 1830, all the statute provisions on the subject of the writ of habeas corpus were redigested and some material amendments and more specific directions added. Instead of referring to the English statute of Charles II., we will take notice of the substance of the revised statute *of New- *29 York, and which, no doubt, contains equally the substance of the statute provisions on the subject in every state of the Union, (for they are all taken from the same source,) with the remedy, and the sanctions somewhat extended

All persons restrained of their liberty, under any pretence whatsoever, are entitled to prosecute the writ, unless they be persons detained : (1.) By process from any court or judge of the United States having exclusive jurisdiction in the case. (2.) Or by final judgment or decree, or execution thereon, of any competent tribunal of civil or criminal jurisdiction, other than in the case of a commitment for any alleged contempt. The appli

& Sess. 41, ch. 277.
• 1 Binney, 736.
« New York Revised Statutes, vol. ii. p. 563, sec. 21, 22.

cation for the writ must be to the supreme court, or chancellor, or a judge of the court, or other officer having the powers of a judge at chambers; and it must be by petition in writing, signed by or on behalf of the party; and it must state the grounds of the application, and the facts must be sworn to. The English statute did not require the petition to be verified by the oath of the applicant. The penalty of $1000 is given in favour of the party aggrieved, against every officer, and every member of the court assenting to the refusal, if any court or officer authorized to grant the writ, shall refuse it when legally applied for.b The penalty for refusal to grant the writ was, by the English statute, confined to the default of the chancellor or judge in vacation time ; whereas the penalty and suit for refusal to grant the writ, applies, under the New York statute, to the judges of the supreme court, sitting in court in term time. This is the first instance, in the history of the English law, that the judges of the highest common law tribunal, sit

a Ibid. sec. 23, 25.

Ibid. sec. 31. The habeas corpus act in Illinois confines the liability of the judge to a penalty for refusing to issue a writ of habeas corpus when legally applied for, to a “corrupt refusal.” Revised Laws of Illinois, edit. 1833, p. 327. The statute law of Connecticut is silent as to any penalty upon any court or judge who does not grant the writ. It only declares it to be the duty of the court or chief justice on due application and affidavits to allow the writ. Statutes of Connecticut, 1838, p. 336. The habeas corpus act of Virginia and of North Carolina, is a transcript of the English statute, and confines the remedy for a refusal by the judge of the writ in vacation time, to an action by the party grieved. R. C. of Virginia, vol. p. 328. N. C. R. S. vol. 1, 315. So does the statute of New-Jersey of 1847, p. 290. The habeas corpus act of Mississippi, makes the refusal or neglect of any judge or judges to grant the writ, a high misdemeanor and an impeachable offence. R. C. of Mississippi, 1824, p. 224. The Revised System, reported by Mr. Pray, reduces the penal part of this provision to a penalty of $1000 to the party aggrieved, but it makes the court, or every judge thereof assenting, liable to it. So, the R. L. of Missouri, 1835, p. 307, applies the penalty to any court or magistrate refusing the writ.

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