LECTURE XLI.

Continuation of the commentary on Magna Charta.

Having explained the import of the words per legale judicium parium suorum, vel per legem terræ, which refer to, and qualify all the preceeding parts, it will be proper to mention those preceeding articles, and to make some observations upon them. They then consist of six different heads. The first relates to the personal liberty of the subject; the second to the preservation of his landed property; the third is intended to defend him from unjust outlawry; the fourth to prevent unjust banishment; the fifth prohibits all manner of destruction; and the design of the sixth is to regulate criminal prosecutions at the suit of the king. I shall briefly treat of all these particulars in the order in which they stand.

The first clause tending to secure personal liberty, runs in these words; Nullus liber homo capiatur vel imprisonetur. Liber homo, as I before observed, here extends to all the subjects, and is not to be taken in its more restrained sense, of a freeholder. We see the words are not barely against wrongful imprisonment, but extend to arresting, or taking, nullus capiatur. This act extends not only to prevent private persons, particularly the great men, from arresting and imprisoning the subjects, but extends also to those from whom, on account of their extraordinary power, the greatest danger might be apprehended, I mean the king’s ministerial officers, his council, nay himself, acting in person. “No man,” (says my Lord Coke, commenting on this point,) “shall be taken, that is restrained of liberty, by petition or suggestion to the king, or his council; unless it be by indictment, or presentment of good and lawful men, where such deeds be done.” For in that case it is per legale judicium parium; though an indictment found, or a presentment made by a grand jury, in one sense, cannot properly be called judicium, as it is not conclusive; but the fact must be after tried by a petty jury; yet for the purpose of restraining and securing a person accused upon record, that he may be forthcoming on his trial, it is judicium parium. Otherwise the most flagrant offenders might escape being tried and convicted[404].

In the fifteenth chapter of Westminster the first, enacted in the third year of Edward the First, and ordained to ascertain for what offences a man might be detained in prison, and to make effectual provision for the bailing out persons upon their giving security to abide a trial, those accused of the slighter offences, persons detained per maundement de roy by the command of the king, are mentioned as not bailable; and this may seem to contradict the law I have now laid down. Yet, when rightly understood, it doth not. For as judge Gascoigne rightly said, the king hath committed all his power judicial to divers courts, some to one, some to another; and it is a rule in the construction of statutes, that when any judicial act is referred to the king, it is to be understood to be done in some court of justice, according to law. The command of the king, therefore, doth not mean the king’s private will, but a legal command, issued in his name, by his judges, to whom his judicial power is intrusted. Accordingly, Sir John Markham, chief justice, told Edward the Fourth, that the king could not arrest any man for suspicion of treason, or felony, as any of his subjects might; and he gave a most excellent reason for it: Because, says he, if the king did wrong, the party could not have his action. In the sixteenth of Henry the Sixth, it was resolved by the whole court, That if the king command me to arrest a man, and I do arrest him, he shall have his action of false imprisonment against me, although I did it in the king’s presence.

The maxim, then, is, that no man shall be taken and committed to prison, but by judicium parium, vel per legem terræ, that is, by due process of law. Now to understand this, it is necessary to see in what cases a man may be taken before presentment or indictment by a jury; and in the enquiry it is to be considered, that process of law, for this purpose, is two-fold, either by the king’s writ, to bring him into a court of justice, to answer, or by what is called a warrant in law. And this is, again, two-fold, indeed, by the authority of a legal magistrate, as a Justice of Peace’s mittimus, or that which each private person is invested with, and may exercise.

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.

To see what is meant by libertatibus. It comprehendeth, in the first place, the laws of the realm, that every man should freely enjoy such advantages and privileges as these laws give him. Secondly, it signifies the privileges that some of the subjects, whether single persons, or bodies corporate, have above others, by the lawful grant of the king; as the chattels of felons or outlaws, and the lands and privileges of corporations. Hence any grant of the king, by letters patent to any person, which deprives another subject of his natural right and free liberties, is against this branch of Magna Charta, as are all monopolies, which were so plentifully and so oppressively granted in the reigns of Elizabeth and James the First, and here in Ireland, in that of Charles the First. We must, however, except such monopolies as are erected by act of parliament, or by the king’s patents, pursuing the directions of an act made for that purpose[406].

Lastly, Consuetudinibus takes in and preserves those local customs in many parts of England, which, though they derogate from the common law, are yet countenanced and acknowledged as part of the general system of law. It also extends to any privileges which a subject claims by prescription, as wreck, waif, stray, and the like[407].

The next clause is, aut utlagetur; of which having spoken already, I shall pass on to the fourth, aut exuletur. No man shall be banished out of the realm, nisi per legem terræ; for the judicium parium is out of this clause, there being no crime of which a man is convicted, whose sentence is banishment. The transportation now commonly used for slighter felonies is not like it; for that is by the free consent of the criminal, who desires to commute a heavier punishment for a slighter. Now per legem terræ a man may be exiled two ways, either by act of parliament, as some wicked minions of our former kings were, and particularly Richard the Second’s corrupt judges into Ireland; or by a man’s abjuring the realm when accused of felony, that is, swearing to depart out of the kingdom, never to return; which latter is long since fallen into disuse. Coke says, that the king cannot send any subject against his will to serve him out of the realm, and the reason is strong; for if he could under pretence of service, he might tear him from his family and country, and transport him to the remotest corner of the earth, there to remain during the whole of his life[408]. But what shall we say as to the military tenants, who by the very tenure of their grants were obliged to serve the king in his wars out of the realm? Certainly, whilst the feudal system retained its pristine vigour, and personal service was required, they were an exception to this rule; but when the commutation of escuage was established, they were considered as under it. Indeed their general readiness to attend their king’s service in person, gave no occasion for this question’s ever being decided. The famous case on this point was in Edward the Third’s reign; that prince had made many grants to Sir Richard Pembrige, some for servitio impenso, others for servitio impendendo. The king commanded him to serve in Ireland, as his Lord-deputy, which he positively refused to do, looking upon the appointment as no better than an exile; and for this refusal the king seized all that had been granted to him pro servitio impendendo; and the question came on in court, whether the seizure was lawful. The judges clearly held the refusal lawful, and therefore would not commit him to prison; but as to the seizure, in consequence of the words pro servitio impendendo, without specifying where, they thought it justified. But Coke says, “it seemeth to me that the seizure was unlawful.” For pro servitio impenso, and impendendo, must be intended of lawful service within the realm. The last time this act was violated was in the reign of the misguided James the First, in the case of the unfortunate Sir Thomas Overbury; who for refusing to go ambassador to Muscovy, was by that prince sent to the Tower, in which place he was afterwards barbarously poisoned; and for his murder the favourite Somerset and his countess were both condemned to die[409].