expressly direct, that no man shall be taken or imprisoned by suggestion or petition to the king or his council, unless it be by legal indictment, or by the process of the common law. By the petition of right, 3 Car. 1, it is enacted, that no freeman shall be imprisoned or detained without cause shown, to which he may make answer according to law. By 16 Car. I., c. 10, if any person be restrained of his liberty by order or decree of any illegal court or by command of the king's majesty in person, or by warrant of the council board, or of any of the privy council; he shall, upon demand of his counsel, have a writ of habeas corpus, to bring his body before the court of king's bench or common pleas; who shall determine whether the cause of his commitment be just, and thereupon do as to justice shall appertain. And by 31 Car. 2, c. 2, commonly called the habeas corpus act, the methods of obtaining this writ are so plainly pointed out and enforced, that, so long as this statute remains unimpeached, no subject of England can be long detained in prison, except in those cases in which the law requires and justifies such detainer.(60) And, lest this act Woodward, 4 Wheat. 519; Works of Webster, vol. v, p. 487; See Taylor v. Porter, 4 Hill, 140, 145, 146; Rockwell v. Nearing, 35 N. Y. (8 Tiff.) 302, 306; Cook v. Gregg, 46 N. Y. (1 Sick.) 439, 442; Campbell v. Evans, 45 N. Y. (6 Hand) 356, 358. The words "due process of law," in the New York constitution, cannot mean less than a prosecution or suit instituted and conducted according to the prescribed forms and solemnities for ascertaining guilt, or determining the title to property. Taylor v. Porter, 4 Hill, 140, 147; Burch v. Newbury, 10 N. Y. (6 Seld.) 374, 397; Westervelt v. Gregg, 12 N. Y. (2 Kern.) 202, 209, 212; Wynehamer v. People, 13 N. Y. (3 Kern.) 378, 417; People v. Draper, 15 N. Y. (1 Smith) 532, 563; Rockwell v. Nearing, 35 N. Y. (8 Tiff.) 302, 306; Cook v. Gregg, 46 N. Y. (1 Sick.) 439, 442; Campbell v. Evans, 45 N. Y. (6 Hand) 356, 358; Reed v. Wright, 2 Greene (Iowa), 15; Lane v. Dorman, 3 Scam. 238; Arrowsmith v. Burlingim, 4 McLean, 489; Jones v. Perry, 10 Yerg. 59; Ervine's Appeal, 16 Penn. St. 256; Kinney v. Beverly, 2 H. & M. 318, 536; Hoke v. Henderson, 4 Dev. 15; James v. Reynolds, 2 Tex. 251. (60) No person can be unlawfully restrained in the exercise of his liberties; and whenever such liberty is abridged or taken from him, he may be relieved upon habeas corpus. The cases in which there may be an illegal restraint of one's liberty are so numerous and so varied in circumstances, that an enumeration will not be attempted. See Cooley's Const. Lim. 339 to 348. The United States courts and judges have power to issue the writ of habeas corpus in certain specified cases. 1 U. S. Statutes at Large, 81; 4 id. 634; 14 id. 385. But neither the supreme court nor any other court of the United States, nor any judge thereof, can issue a habeas corpus to bring up a prisoner who is in custody under a sentence of execution of a state court, for any other purpose than to be used as a witness. Ex parte Dorr, 3 How (U. S.) 103; 1 U. S. Stat. at Large, 81. Persons imprisoned by authority of a state, for acts done or omitted, in pursuance of a law of the United States, may be discharged on a habeas corpus issued by a judge of the United States courts. 4 U. S. Stat. at Large, 634; Ex parte Robinson, 6 McLean, 355. So persons imprisoned for acts done or omitted under the order or sanction of any foreign state or sovereignty, and where the validity or the effect whereof depends upon the law of nations, or under color thereof, may be discharged by the courts or judges of the United States. 5 Stat. at Large, 539. See McLeod's case, 25 Wend. 483; 26 id. 663; 3 Hill, 635. So the same courts or judges may issue the writ in all cases where any person is restrained of his or her liberty in violation of the constitution or of any treaty or law of the United States. 14 U. S. Stat. at Large, 385. But in most cases the remedy is sought in the courts of the several states. Ex parte Dorr, 3 How. (U. S.) 103; Barry v. Mercein, 5 id. 103; De Krafft v. Barney, 2 Black. (U. S.) 704. In relation to the state courts and judges, it may be said, that there is scarcely a case in which they may not issue a writ of habeas corpus, and in a proper case, where the restraint is illegal, grant full relief by setting the injured party at liberty. should be evaded by demanding unreasonable bail, or sureties for *the prisoner's appearance, it is declared by 1 Will. & M. st. 2, c. 2, that excessive bail ought not to be required. [*160] The statute 56 Geo. 3, c. 100, “An act for more effectually securing the liberty of the subject," extends to the case where a person is restrained of his liberty for some matter otherwise than criminal provisions for ensuring due enquiry into the grounds of detention by writ of habeas corpus. And the right of personal liberty has been further protected by the abolition of arrest for debt on mesne process(s), except in certain cases; and on final process, where the judgment debt does not, exclusive of costs, exceed the sum of 201.(t). The policy of the recent bankrupt acts had tended in the same direction. Of great importance to the public is the preservation of personal liberty for if once it were left in the power of any, the highest, magistrate to imprison (8) 1 & 2 Vict. c. 110, s. 1. As from January 1, 1870, imprisonment for debt is abol ished, except in certain cases, by 32 & 33 Vict. c. 62. (t) 7 & 8 Vict. c. 96, s. 57. There has been much discussion in relation to the authority of a state court in a case where the imprisoned party was claimed to be held under the authority of the United States; and it has been frequently held that a state court or judge may issue the writ, and decide upon the legality or the illegality of the imprisonment, in any case in which a United States court or judge could do so. Matter of Reynolds, 6 Park. Crim. Cas. 276, U. S. Dist. Court, 1867, and McConolouge's Case, 107 Mass. 154, in which the cases are fully and carefully reviewed. Such a rule does not interfere with the full authority of the United States, since the state court or judge would be bound to remand the prisoner in all cases in which it appeared that he was held by legal authority. The duty of a state court or judge would be precisely that of a court or judge of the United States, because either of them ought to discharge or remand the prisoner as the facts and the law require. Such a rule observes and submits to the due authority of the federal government or courts, while at the same time it secures the prompt and efficient relief of the citizen in case of his illegal imprisonment. But, in a recent case, the supreme court of the United States held, that a state judge has no jurisdiction to issue a writ of habeas corpus, or to continue proceedings under the writ when issued, for the discharge of a person held under the authority, or claim and color of the authority, of the United States by an officer of that government. If, upon the application for the writ, it appears that the party alleged to be illegally restrained of his liberty, is held under the authority, or claim and color of authority, of the United States, by an officer of that government, the writ should be refused. If this fact do not thus appear, the state judge has the right to inquire into the cause of imprisonment, and ascertain by what authority the person is held within the limits of the state; and it is the duty of the marshal, or other officer having the custody of the prisoner, to give, by a proper return, information in this respect. But after he is fully apprised by the return that the party is held by an officer of the United States, under the authority, or claim and color of the authority, of the United States, he can proceed no further. Turble's Case, 13 Wall. 397. See Ableman v. Booth, 21 How. (U. S.) 506. Where a person is in custody on a criminal charge under state authority, the circuit court of the United States has no power to take the accused from such custody, nor has a state court power to remove by habeas corpus a defendant from the custody of a court of the United States. United States v. Rector, 5 McLean, 174. By section 9, article I, of the constitution of the United States, it is declared, that "The privilege of the writ of habeas corpus shall not be suspended unless when, in cases of rebellion or invasion, the public safety may require it." Congress is the only power which can authorize such suspension; and neither the presi dent of the United States, nor any of the military officers thereof, can do so. Ex parte Merryman, Taney, 246; McCall v. McDowell, 1 Abb. (U. S.) 212. In 1863 congress passed a law authorizing the president to suspend the writ in certain cases. 12 U. S. Stat. at Large, 755. See also Ex parte Milligan, 4 Wall. (U. S.) 2. VOL. I.-15 arbitrarily whomever he or his officers thought proper, there would soon be an end of all other rights and immunities. Unjust attacks, even upon life, or property, at the arbitrary will of the magistrate, are less dangerous to the commonwealth than such as are made upon the personal liberty of the subject. To bereave a man of life, or by violence to confiscate his estate, without accusation or trial, would be so gross and notorious an act of despotism, as must at once convey the alarm of tyranny throughout the whole kingdom; but confinement of the person, by secretly hurrying a man to a gaol, where his sufferings are unknown or forgotten, is a less public, a less striking, and therefore a more dangerous engine of arbitrary government. And yet sometimes, when the state is in real danger, even this may be a necessary measure. But the happiness of our constitution is, that it is not left to the executive power to determine when the danger of the state is so great, as to render this measure expedient: for it is the [*161] parliament only, or legislative power, that whenever it sees proper, *can authorize the crown, by suspending the habeas corpus act for a short and limited time, to imprison suspected persons, and to cause them to be detained in prison without bail or trial during the time of its suspension (u); as the senate of Rome was wont to have recourse to a dictator, a magistrate of absolute authority, when they judged the republic in any imminent danger. The decree of the senate, which usually preceded the nomination of this magistrate, "dent operam consules, ne quid respublica detrimenti capiat,” was called the senatus consultum ultimæ necessitatis. In like manner this experiment ought only to be tried in cases of extreme emergency; and in these the nation parts with its liberty for a while, in order to preserve it for ever. The confinement of the person, in any wise, is an imprisonment. So that the keeping a man against his will in a private house, putting him in the stocks, arresting or forcibly detaining him in the street, is an imprisonment(x). And the law so much discourages unlawful confinement, that if a man is under duress of imprisonment, which was before explained to mean compulsion by an illegal restraint of liberty, until he seals a bond or the like; he may allege this duress, and avoid the extorted bond. But if a man be lawfully imprisoned, and either to procure his discharge, or on any other fair account, seals a bond or a deed, this is not by duress of imprisonment, and he is not at liberty to avoid it(y). To make imprisonment lawful, it must be, subject to some peculiar exceptions(2), either by process from the *courts of judicature, or by [*162] warrant from some legal officer having authority to commit to prison; which warrant must be in writing, under the hand and seal of the magistrate, and express the cause of the commitment in order to be examined into (if necessary) upon a habeas corpus. If there be no cause expressed, the gaoler is not bound to detain the prisoner(a). For the law judges in this respect, says sir Edward Coke, like Festus the Roman governor, that it is unreasonable to send a person prisoner, and not to signify withal the crimes alleged against him. A natural and regular consequence of this personal liberty is, that every (u) Acts of indemnity may subsequently be passed, for the protection of those who either could not defend themselves in an action for false imprisonment without making improper disclosures of the information on which they had acted, or who have done acts not strictly defensible at law, though justified by the necessity of the moment. (See 29 & 30 Vict. c. 1, and c. 119; 57 Geo. 3, c. 3, and c. 55, for instances of suspending acts; and 58 Geo. 3, c. 6, as an instance of an indemnifying act.) (x) 2 Inst. 589. Englishman may claim a right to abide in his own country so long as he pleases; and not to be driven from it unless by the sentence of the law. The king indeed, by his royal prerogative, may issue out his writ ne exeat regno(b), and prohibit any of his subjects from going into foreign parts without licence (c). This was formerly deemed necessary for the public service and safeguard of the commonwealth, though now the writ in question issues only under special circumstances from the Court of Chancery. But no power on earth, except the authority of parliament, can send any subject of England out of the land against his will; no, not even a criminal. For exile, and transportation, are punishments at present unknown to the customary law; and whenever the latter is now inflicted, it is either by the choice of the criminal himself to escape a capital punishment, or else by the express direction of some modern act of parliament.(61) To this purpose the great charter(d) declares that no freeman shall be banished, unless by the judgment of his peers, or by the law of the land. And by the habeas corpus act 31 Car. 2, c. 2, it is enacted, that no subject of this realm, who is an *inhabitant of England, Wales, [*163] or Berwick, shall be sent prisoner into Scotland, Ireland, Jersey, Guernsey, or places beyond the seas (where he cannot have the full benefit and protection of the common law); but that all such imprisonment shall be illegal; that the person who shall dare to commit another contrary to this law, shall be disabled from bearing any office, shall incur the penalty of a pramunire, and be incapable of receiving the king's pardon: and the party suffering shall also have his private action against the person committing, and all his aiders, advisers, and abettors, and shall recover treble costs; besides his damages, which no jury shall assess at less than 5007. The law is in this respect so benignly and liberally construed for the benefit of the subject, that, though within the realm the king may command the attendance and service of all his liegemen, yet he cannot send any man out of the realm, even upon the public service; excepting sailors and soldiers, the nature of whose employment necessarily implies an exception: he cannot even constitute a man lord lieutenant of Ireland against his will, nor make him a foreign ambassador(e). For this might in reality be no more than an honourable exile. (61) In this country, banishment is no part of the sentence or judgment. But a party who has been convicted of a felony may be pardoned upon condition that he leave the country, and such condition will be valid. People v. Potter, 1 Park. C. C. 47; 4 N. Y. Leg. Obs. 177; 1 Edm. 235; People v. James, 2 Caines, 57; Pease's Case, 3 Johns. Cas. 333; State v. Smith, 1 Bailey (S. C.), 283; Flavell's Case, 8 Watts & Serg. 197; State v. Addington, 2 Bailey (S. C.), 516; State v. Fuller, 1 McCord, 178; State v. Twitty, 4 Hawks (N. C.), 193; United States v. Wilson, 7 Pet. 150, 161. If the party so pardoned upon condition does not leave the state, or afterward returns to it, he may be arrested and remanded to suffer the original sentence. Ib. A pardon may be upon condition that the convict shall pay, or secure the payment of a specified sum of money. Rood v. Winslow, 2 Doug. (Mich.) 68. As to the return of a convict, who was pardoned upon condition of leaving the state, see Hunt, Ex parte, 5 Eng. (Ark.) 284. In an early case in Virginia, the power to grant a pardon upon a condition was denied. Commonrealth v. Fowler, 4 Call. 35: and see Commonwealth v. Hatsfield, 1 Pa. Law Jour. Rep. 177. When a pardon has once been tendered and accepted, no subsequent action of the exec ative, or of the legislature can revoke it. State v. Nichols, 26 Ark. 74. vate property. III. The third absolute right, inherent in every Englishman, is that of property; which consists in the free use, enjoyment, and disposal of all his acquisiIII. Right to pri- tions, without any control or diminution, save only by the laws of the land. The origin of private property is probably found in nature, as will be more fully explained in the second book of the ensuing Commentaries: but certainly the modifications under which we at present find it, the method of conserving it in the present owner, and of translating it from man to man, are entirely derived from society: and are some of those civil advantages, in exchange for which every individual has resigned a part of his natural liberty. The laws of England are therefore, *in point of [ *164] honour and justice, extremely watchful in ascertaining and protecting this right. Upon this principle the great charter(ƒ) has declared that no freeman shall be disseised, or divested, of his freehold or of his liberties, or free customs, but by the judgment of his peers, or by the law of the land. And by a variety of ancient statutes(g) it is enacted, that no man's lands or goods shall be seized into the king's hands, against the great charter, and the law of the land; and that no man shall be disinherited, nor put out of his franchises or freehold, unless he be duly brought to answer, and be forejudged by course of law; and if any thing be done to the contrary, it shall be redressed, and holden for nought. So great moreover is the regard of the law for private property, that it will not authorize the least violation of it. By the laws of England, said Lord Infringements Camden (h), every invasion of private property, be it ever so of this right. minute, is a trespass. No man can set his foot upon my ground without my licence, but he is liable to an action, though the damage be nothing, which is proved by every declaration in trespass, where the defendant is called upon to answer for bruising the grass, and even treading upon the soil. If he admits the fact he is bound to show by way of justification that some positive law has empowered or excused him. This justification is submitted to the judges, who are to enquire whether it can be maintained by the text of the statute or by the principles of the common law. If no such excuse can be found or produced, the silence of the books is an authority against the defendant, and the plaintiff will be entitled to judgment. Even where the object proposed to be effected by the invasion or appropriation of private property is for the *general good of the community, it [*165] cannot, except on such conditions as the law deems equitable, be accomplished. If, for instance, a new road or line of railway were to be made through the grounds of a private person, it might be beneficial to the public, but yet the law allows no man or corporate body to make the road or line of railway in question without consent of the owner of the land, or at all events without compensation being in some way or other made to him for the infringement of his rights of property thus caused (i). In this and similar cases the legislature alone can, and frequently does, interpose, and compel the individual to acquiesce. But how does it interpose and compel? Not by absolutely stripping the subject of his property in an arbitrary manner; but by giving him an indemnification and equivalent for the injury thereby sustained. All (f) C. 29. (g) 5 Edw. 3, c. 9; 25 Edw. 3, t. 5, c. 4; 28 Edw. 3, c. 3. (h) Entick v. Carrington, 19 St. Tr. 1066. (i) Judgm. Reg. v. Eastern Counties Railway Company, 2 Q. B. 359; Blakemore v. Glamorganshire Canal Company, 1 My. & K. 162. |