Lectures on the constitution and laws of England / With a commentary on Magna Charta, and illustrations of many of the English statutes

by Francis Stoughton Sullivan

First then, for making a mittimus a good warrant, it is previously necessary, that there should be an information on oath, before a magistrate having lawful authority, that the party hath committed an offence; or at least of some positive fact, that carries with it a strong and violent presumption that he hath so done: Next, then, the mittimus must contain the offence in certain, that it may appear whether the offence charged is such an one as justifies the taking; whether it is bailable, or such as the law requires the detention in prison. A warrant without the cause expressed, is a void one, and imprisonment on it illegal, and so it was adjudged in Charles the First’s reign, though done by the secretaries of state, by the king’s authority, with the advice of his council; thirdly, the warrant must not only contain a lawful cause, but have a legal conclusion, and him safely to keep until delivered by law; not until the party committing doth farther order, for that would be to make the magistrate, who is only ministerial, judicial, as to the point of the liberty of the subject; from whence might redound great mischief to the party on one hand, or to the king and public on the other, by letting an offender escape.

Let us see how far the law warrants a private person to take another, and commit him to prison. First, then, if a man is present when another commits treason, felony, or notorious breach of the peace, he hath a right instantly to arrest and commit him, lest he should escape if any affray be made, to the breach of the peace, any man present may, during the continuance of the affray, by a warrant in law, in order to prevent imminent mischief, restrain any of the offenders; but if the affray is over, so that the danger is perfectly past, there is a necessity of an information, and an express warrant; so, if one man wounds another dangerously, any person may arrest him, that he be safely kept, until it be known whether the party wounded shall die or not. Suspicion, also, where it is violent and strong, is, in many cases, a good cause of imprisonment. Suppose a felony done, and the hue and cry of the country is raised, to pursue and take the offender, any man may arrest another whom he finds flying; for what greater presumption of guilt can there be, than for a person, instead of joining the hue and cry as his duty prompts him, to fly from it? His good character or his innocence, how clear it may after appear, shall not avail him. His imprisonment is lawful.

Another lawful cause of arresting and imprisoning upon suspicion is, if a treason or felony is certainly done; and though there is no certain evidence against any person as the perpetrator, yet if the public voice and fame is, that A is guilty, it is lawful for any man to arrest and detain him. So, if a treason or felony be done, and though there be no public fame, any one that suspects another for the author of the fact may arrest him. But let him that so doth, take care his cause of suspicion will be such as will bear the test; for otherwise he may be punishable for false imprisonment. The frequent keeping company with a notorious thief, that is, one that had been convicted, or outlawed, or proclaimed as such, was a good cause of imprisonment. Lastly, a watchman may arrest a night-walker at unseasonable hours by the common law, however peaceably he might demean himself; for strolling at unusual hours was a just cause of suspicion of an ill intent. With respect to persons arrested by private authority, I must observe, that the law of England so abhors imprisonment, without a certain cause shewn, that if there is not an information on oath sworn before a magistrate, and his commitment thereon in a competent time, which is esteemed twenty-four hours, the person is no longer to be detained[405].

Such is the law of England with respect to the personal liberty of the subject. Let us now see the remedies the law provides for those that suffer by its being infringed: the writ of odio & atia I have already mentioned, and that it is long since out of use: the most usual way then to remedy this, and to deliver the party, is the writ of habeas corpus, in obedience to which, the person imprisoned is brought into court by the sheriff, who is the keeper of the prison, together with the cause of his caption and detention, that the court may judge whether the first taking was lawful; and if it was, whether the continuance of the imprisonment is such; and this is brought in the name of the party himself imprisoned.

The next is the writ de homine replegiando, of replevying a man, that is, delivering him out upon security, to answer what may be objected against him. This is most commonly used when a person is not in the legal prison, but perhaps carried off by private violence, and secreted from his friends, and therefore may be brought by a near friend having interest in the person’s liberty, as by a father, or mother, for their child, or a husband for his wife. These are the remedies for restoring a person unjustly deprived of liberty, to the enjoyment of that invaluable blessing. But very deficient would these remedies be, if there were no provisions made for the punishment of a person offending against his natural right, nor any relief for the person unjustly aggrieved.

For the point of punishment, an indictment will lie at the king’s suit, against the false imprisoner, grounded on this statute, for the vindication of the public justice of the nation; and the party, if found guilty, shall be punished by fine and imprisonment. For the relief of the person injured, he may have an action of false imprisonment, wherein he shall recover damages; or an action on the case grounded on this statute, wherein he shall have the same remedy. For Coke observes on this statute, that it is a general rule, where an act of parliament is made against any public mischief or grievance, there is either given expressly, or else implied by the law, an action to the party injured.

Such is the antient original law of England with respect to liberty; and so different from that of other nations of Europe, at least, as their laws are understood and practised at present, where a man may be imprisoned without knowing his crime or accuser, or having any means, except of humble petition, to be brought to his trial. It is therefore no wonder that the people on the continent envy much the situation of the subjects of these islands, when they contemplate their own.

The next branch of the statute is, Nullus liber homo disseizetur de libero tenemento suo, vel libertatibus, vel liberis consuetudinibus suis. Here it may be thought the word liber homo should be restrained to freeholders, because none others can be disseized; but the following words, libertatibus and consuetudinibus, lead, by their import, to a more enlarged construction, and take in all the subjects; so that disseizetur must not be taken in its limited peculiar sense, but rather in general for deprivetur. First, then, no freeholder shall be disseized of his freehold, but by verdict of a jury, or by the law of the land, as upon default, not pleading, or being outlawed. It was made to prevent wrongful entries, by such as had right or pretended right to the land, in order to avoid breaches of the peace and bloodshed, which often ensued thereon; but it was not intended to take away the entry of a person who had a right to enter given him by law, for that the law could never construe a disseizen, which is a wrongful diverting of the freehold.

To understand this, it is necessary to observe, that a man may have right to the lands, and yet no right to enter upon them; or he may have both; and in the last case it is no disseizen. If A disseizes B, he shall never, by his own wrongful act, deprive B of the right of possession; but he may of his own authority enter at any time, during A’s life, provided he doth it without breach of the peace. But if A is dead, now the lands being thrown by the law upon A’s heir, who had no hand in the wrong, and who is answerable to the Lord Paramount for the services due from the land, B has, by his own negligence, in not entring, or if he could not enter, claiming, during A’s life, lost the right of possession; it is transferred to A’s heir, and B must recover his right by a suit at law.