(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.1

averment in the declaration, of his general good credit and character, the defendant cannot go into proof of his general bad character, by way of mitigation of damages, or in support of averments in his plea to that effect. Nor can the plaintiff, in order to rebut the defence, go into evidence of his general good character, when the same is not impeached. Cornwall v. Richardson, Ryan & Moody, 305; Stow v. Converse, 3 Conn. 326; Matthews v. Huntley, 9 N. Hamp. 146. A plaintiff cannot be expected, and ought not to be required, to go into proof of so general a nature, and his good character is always presumed in law, unless by evidence of particular facts, fairly and specifically put in issue, that presumption be negatived. Baron Wood vindicated

this rule with great energy and effect, in Jones v. Stevens, 11 Price, 235; and the case of the Earl of Leicester v. Walter, 2 Campb. N. P. 251, was overruled by the Court of Exchequer.

In England, the defendant in an action of slander may give in evidence, under the general issue, any defence except that which amounts to a justification of the charge, as, for instance, the truth of it, and the statute of limitations. Introduction, pp. 26, 27, to 1 Starkie on Slander and Libel, and the notes to vol. i. pp. 402 to 406, by Mr. Wendell, the learned editor of the American edition. The defence of privileged communications may be given in evidence, and need not be specially pleaded when it goes to show no malice, and the question of malice is a question of fact for a jury. Lillie v. Price, 5 Adol. & Ell. 645. The facts ought not to be specially pleaded in bar as a justification, when they do not amount to it on the face of the plea; for whether the libel was with or without malice cannot appear in the pleadings, and is matter for a jury. Turrill v. Dolloway, 17 Wendell, 426; S. C. 26 Id. 383. See 1 Starkie, Int. pp. 27-35, 38-49. The cases of Cooper v. Barber, 24 Wendell, 105, and Cooper v. Weed and 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 Vic. 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, tha the publication was for the public benefit, and that the defendant might give his apology in evidence in mitigation of damages.

1 As to the writ of habeas corpus to determine the custody of infant children, and the practice under the writ, see Mercein v. The People, 25 Wendell, 64; People v. Mercein, 3 Hill, 399; The People v. 19 Wendell, 16; People v. Chegaray, 18 Id. 637; People v. Humphrey, 24 Barb. (N. Y.) 521.

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. (b) 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 justicia; (c) but the benefit of it was, in 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. (d)2 The explicit and peremptory provisions of the statute of 31 Charles II. c. 2, re- *27 stored 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 reenacted or adopted, if not in terms, yet in substance and effect, in all the United States. (a) The privilege of this writ is also made

(b) 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 N. P. 62; Pike v. Hanson, 9 N. Hamp. 491.

(c) 4 Inst. 290.

(d) 3 Bulst. 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. pp. 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 the 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.

(a) See, for instance, the Habeas Corpus Act in Massachusetts of 16th March, 1785, and Massachusetts Revised Statutes, 1836, part 3, tit. 4, ch. 111; the Habeas Corpus Act of South Carolina of 1712, and referred to in 2 Bay, 563, and S. C. Rep. p. 698; the Habeas Corpus Act of North Carolina, R. S. 1837, vol. i. p. 314; the Habeas Corpus Act of Pennsylvania of 18th Feb. 1785, and referred to in 1 Binney, 374; the Habeas

2 The writ of habeas corpus is not so far a writ of right that the court may not refuse to issue it, when it appears, upon the face of the petition, that the party detained will not be entitled to a discharge, if brought before the court. Sims's case, 7 Cush. 285; Passmore Williamson's case, 26 Penn. 1.

require the petition to be verified by the oath of the applicant. The penalty of $1,000 is given in favor 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. (c) 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, sitting and acting, not in a ministerial but in a judicial

capacity, are made responsible, in actions by private suitors, *30 for the exercise of their discretion, according to * their judgment in term time. (a) If the person to whom the writ is

(c) 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 aggrieved. R. C. of Virginia, p. 328; N. C. R. S. vol. i. 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 $1,000 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. The granting of a writ of habeas corpus is not a matter of course in Texas. The court, to which application is made, must have "probable cause to believe" that the party applying for the writ "is detained in custody without lawful authority." Jordan v. State, 14 Texas, 436.

(a) See Yates v. Lansing, 5 Johns. 282; 6 Ibid. 387, S. C., where the principle of the English law on this subject is considered and recognized. The Massachusetts Habeas Corpus Act, in their Revised Statutes of 1835, does not contain degrading penalties hanging over the courts and judges. It does not presume that they will, in such particular cases, more than in any other, be wanting in their duty.

habeas corpus, in the case of a wife separated from her husband, applying for the custody of her minor child, is vested in the Supreme Court only, and a single judge of the court, or a county judge, has no jurisdiction. People v. Humphrey, 24 Barb. (N. Y.) 521.

directed, or on whom it is served, shall not promptly obey the writ, by making a full and explicit return, and shall fail to produce the party without a sufficient excuse, he is liable to be forthwith attached and committed, by the person granting the writ, to close custody, until he shall have obeyed the writ. (b) The former statute, instead of this summary remedy, gave a penalty to the party aggrieved, recoverable by suit. The party suing out the writ is to be remanded, if detained: (1.) By process from any court of the United States having exclusive jurisdiction. (2.) Or by virtue of a final decree, or judgment, or process thereon, of any competent court of civil or criminal jurisdiction. (3.) Or for any contempt specially and plainly charged, by some court or person having authority to commit on such a charge, and when the time. for which the party may be legally detained has not expired. (c) If the party be in custody by civil process from a competent power, he may be discharged when the jurisdiction has been exceeded, or the party has become entitled to his discharge, or the process was unduly issued, or was not legally authorized. But no inquiry is to be made into the legality of any process, judgment, or decree, or the justice or propriety of the commitment in the case of persons detained under process of the United States, where the court or officer has exclusive jurisdiction; nor where the party is detained under the final decree or judgment of a competent court; nor where the commitment, made by any court, officer, or body, according to law, is for a contempt, and duly charged. The remedy, if the case admits of one, is by certiorari, or writ of error. (d) The

(b) New York Revised Statutes, vol. ii. p. 566, sec. 34.

(c) Ibid. 567, sec. 40.

In the case

(d) Ibid. 568, sec. 41; The People v. Cassels, 5 Hill (N. Y.) 164. of The Commonwealth v. Keeper of Debtor's Apartment, 1 Ash. (Penn.) 10, it was declared not to be competent, upon habeas corpus, to inquire into the regularity of the proceedings of another competent court, nor for a single judge to revise the judg ment of any other court. The opinion of the Supreme Court of New York, in the case of J. V. N. Yates, 4 Johns. 317, was to the same effect, and that opinion is supported by the Chief Justice of Pennsylvania, in the case of the Commonwealth v. Lecky, 1 Watts, 68;1 N. Y. Revised Statutes, vol. ii. p. 568, sec. 42. If it appears plainly, on

1 It has been held that the court cannot look beyond the colorable authority of the judge who issued the warrant; and if it be found that that officer had jurisdiction of the process, and took proof which he deemed to be sufficient, his judgment cannot be reviewed. The writ of habeas corpus is not in its nature a writ of error or review.

In the matter of Prime, 1 Barb. (N. Y.) 340; Bennac v. The People, 4 Barb. (N. Y.)

court or officer awarding the writ may, in other cases, ex31 amine into the merits of the commitment, and hear the allegations and proof arising thereon in a summary way, and dispose of the party as justice may require. (a) A person discharged upon habeas corpus is not to be reimprisoned for the same cause; but it is not to be deemed the same cause if he be afterwards committed for the same cause by the legal order of the court in which he was bound to appear, or in which he may be indicted and convicted; or if the discharge was for defect of proof, or defect in the commitment in a criminal case, and he be again arrested on sufficient proof and legal process; or if in a civil case, or discharge on mesne process, he be arrested on execution, or on mesne process in another suit, after the first suit is discontinued. (b) And finally, if any person solely, or as a member of any court, or in execution of any order, knowingly reimprisons such party, he forfeits a penalty of $1,250 to the party aggrieved, and is to be deemed guilty of a misdemeanor, and liable to fine and imprisonment. (c) This last provision is distinguished from that in any former statute on the subject, by applying the penal sanc

the return of the writ of habeas corpus, that the prisoner stands committed for a contempt adjudged against him by the British House of Commons, or by any tribunal or court of competent jurisdiction, the party awarding the writ, or before whom it is brought, cannot judge of the contempt, or bail the prisoner, but must immediately remand him. The adjudication is a conviction, and the commitment an execution. Murray's case, 1 Wils. 299; Crosby's case, 3 Wils. 188; Hobhouse's case, 3 B. & Ald. 420.1

(a) Ibid. sec. 43-48. The Massachusetts and Connecticut Revised Statutes give the like power of examination and trial on the return of the writ of habeas corpus. Massachusetts Revised Statutes, 1835, part 3, tit. 4, ch. 111; Revised Statutes of Connecticut, 1821, p. 264, and of 1838, p. 337.

(b) N. Y. Revised Statutes, vol. ii. 571, sec. 59.

(c) Ibid. 571, 572, sec. 60, 64.

31. See the elaborate note, 3 Hill (N. Y.) 647, et seq. But the U. S. District Court held, In re Keeler, 1 Hemp. 306, that the writ of habeas corpus is in the nature of a writ of error, to test the legality of the commitment. A court before which the writ is pending, may go behind the warrant issued by a police justice, and inquire into the legality of the commitment. People v. Tompkins, 1 Parker C. R. 224; and see People v. Martin, Id. 187. If the magistrate's want of jurisdiction appear on the face of the proceedings, the prisoner will be discharged. Herrick v. Smith, 1 Gray, 1. See, also, People v. Sheriff, 29 Barb. (N. Y.) 622; People v. Spalding, 10 Paige, 28.

1 A state court refused to issue a writ of habeas corpus, upon the petition of a party who had been committed for a contempt by the sentence of a court of the United States. Passmore Williamson's case, 26 Penn. 1. See, also, Williamson v. Lewis, 39 Penn. St. 9.