as incident to the right of sanctuary, was abolished by Stat. 21 Jac. I, c 28. (1 Bl. Com. 133; 4 Bl. Com. 333.) It would seem, however, that abjuration might arise in other ways. (4 Bl. Com. 124; Id. 56.) And the books, since 21 Jac. I, seem to recognize it. (Bogget v. Frier & al., 11 East 301;* 2 Inst. 629.) It seems that banishment operates a civil death. (Bac. Abr. B. & F. (M).) 4. Existing state of the law in Virginia. Abjuration, banishment and monkish profession are unknown to the law of Virginia, and it is believed that there is no such thing with us as a Civil Death. (Branch v. Bowman, 2 Leigh, 170; Platner v. Sherwood, 6 Johns, (N. Y.) 127). A sentence to the penitentary does not of itself, independently of statute, involve such a consequence. [1 Bl. Com. 133, n. (15); Platner v. Sherwood, 6 John, 127]; but it does lead in Virginia by statutes to a commitment of the convict's estate to a Committee, to be managed very much as if he were dead, (V. C. 1873 c. 206, § 6 to 12); and such conviction is also ground of divorce a vinculo matrimonii. (V. C. 1873 c. 106, § 6.) If one once a resident of Virginia is absent therefrom for seven years successively, he is presumed to be dead, unless proved to have been alive within that time. (V. C. 1873 c. 170, § 47; Bac. Abr. Dower, &c., (C), 3; 1 Greenl. Evid. § 41.) 28. Natural Death; W. C. 1. Value set upon Life, as the gift of the Creator. Life is not to be destroyed by the person himself, or by any other, merely upon their own authority, but it may be forfeited for the breach of the laws of society, in very grave cases, for the preservation of society. (1 Bl. Com. 133-'4; Do. 11, 12, 14; Grot. de Jure, &c., B. II, c. 20, § 12, 2.) 2h. Protection to Life afforded by Magna Charta; Magna Charta condemns and forbids the arbitrary killing or maiming the subject, without express warrant of law. "Nullus liber homo aliquo modo destruatur, nisi per legale judicium parium suorum aut per legem terræ." (1 Bl. Com. 133; 1 Rap. Eng. 290, B. viii.) 3o. Security of Body. In respect to menaces, assaults, beating and wounding. *NOTE.—It was recognized in Bogget v. Frier & al., merely by a plea averring that the plaintiff was a married woman, whose husband was a native-born citizen, and had not abjured the realm, &c., and yet that plaintiff was suing alone as a feme sole. A demurrer to the plea was overruled, but no stress was laid on the abjuration. The same propositions are in the main true, as in respect of security of limbs. (1 Bl. Com. 134; 3 Bl. Com. 120, &c.) 4. Security of Health. In respect of practices which may annoy or injure it. (1 Bl. Com. 134; Synops. of Crim. Law, 178, &c.; 3 Bl. Com. 122.) 5. Security of Reputation. In respect of acts of detraction or slander. 24. The Right of Personal Liberty. In discussing the right of personal liberty it is proposed to advert (1), To the prohibition by the Great Charter of imprisonment, unwarranted by law; (2), The great importance of protecting the personal liberty of the subject; (3), The securities provided against the violation of personal liberty; (4), What confinement amounts to imprisonment; (5), Duress of imprisonment; (6), Requirements as to warrants of commitment; and (7), Involuntary exile. (1 Bl. Com. 134; 3 Bl. Com. 127 & seq. ; W. C. 1o. Prohibition by the Great Charter of Imprisonment, unwarranted by law. "Nullus liber homo capiatur, vel imprisonetur, nisi per legale judicium parium suorum, vel per legem terræ." ` (4 Bl. Com. 349-'50; 1 Rap. Eng. 290, B. viii.) 2o. Great importance of protecting the Personal Liberty of the Subject. No engine of tyranny is so oppressive as that of irresponsible and capricious imprisonment, nor any so dangerous, because it is less likely to create seasonable alarm amongst the people, as was formerly witnessed in France. (1 Bl. Com. 135-'6.) 3. Securities provided against the violation of Personal Liberty; W.C. 1. Securities provided in England. The writ of Habeas Corpus-the great citizens' Writ of Right, secured by many statutes, but especially by 31 Car. II, enforced by 56 Geo. III, c. 100. (1 Bl. Com. 135; 1 Steph. Com. 135-'6; 3 Bl. Com. 129 & seq.) By means of this writ, the lawfulness of the imprisonment alone is enquired into, not its justice. (Ex-parte Watkins, 3 Pet. 201. Exparte Kearney, 7 Wheat, 38.) 2. Securities provided in Virginia. The securities against the violation of personal liberty, provided in Virginia, relate as well to the Federal as to the State government, so that we may observe, (1), The constitutional guaranties to preserve the writ of habeas corpus; (2), The mode of prosecuting the writ of habeas corpus in the Virginia State courts; (3), The mode of prosecuting that writ in the courts of the United States; and (4), The doctrine as to the suspension of the writ of habeas corpus. 18. Constitutional guaranties to preserve the writ of Habeas Corpus. The Constitution of the United States (Art. I, § ix, 2), and that of Virginia (Art. V, § 14, Const. 1869), provide as to the two governments respectively, 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." 28. The mode of prosecuting the Writ of Habeas Corpus in the State Courts of Virginia. The mode of prosecuting the writ of habeas corpus in the State courts of Virginia may best be exhibited by noting, (1), The courts or judges which may by law grant the writ, and the terms on which it is granted; (2), To whom the writ is addressed, and on whom served; (3), Enforcement of prompt obedience; (4), The judgment upon the writ; the effect thereof, and mode of enforcement; (5), Writ of error to judgment; and (6), Instances of the application of a writ of habeas corpus. 1. The Courts or Judges which may grant the writ, and the terms on which granted. By Statute the circuit, corporation, or county courts, or judges thereof in vacation, upon petition, showing by affidavit, or other evidence, probable cause to believe that the party is detained without lawful authority, shall grant the writ, but may previously require bond with surety, in reasonable penalty, not to escape by the way, and to pay the costs and charges awarded against him. (V. Č. 1873, c. 153, § 1, 3.) And by the Constitution, power might be (although it has not been,) conferred on the Court of Appeals to grant the writ. (Art. VI, § 2.) But it must be observed that the State courts have no authority to award a writ of habeas corpus so as to obstruct the exercise of the powers of the United States government. The marshal, or other person having a prisoner in custody under the authority of the United States, should make return to such a writ issued by a State court or judge, that the prisoner is held by authority of the United States, without producing his body. (Ableman v. Booth, 21 How. 506, 523; Tarble's Case, 13 Wal. 397, 406.) 2h. To whom the Writ is addressed, and on whom served. Addressed to and served on the person who detains the party, or has him in immediate custody, and it is made returnable as soon as may be, before the same or some other court or judge. (V. C. 1873, c. 153, § 2, 4.) 3. Enforcement of prompt obedience. Three days after service of writ, or if the prisoner has to be brought more than twenty miles, one day more for every twenty miles of such further distance is allowed; and a failure within that time to produce him, with a statement of the cause of the detention, before the court or judge, is punished by a forfeiture of $300 to the petitioner. And the court or judge may proceed as courts are wont to do, to enforce obedience to the writ, to compel the attendance of witnesses, and to punish contempts. (V. C. 1873, c. 153, § 5, 9.) 4. The Judgment, effect thereof, and mode of enforce ment. The court or judge, upon the return, and any other evidence, (including the affidavits of witnesses, taken on reasonable notice), shall either discharge or remand the prisoner, or admit him to bail, as may be proper, and adjudge the costs, including that of transportation, to be paid as shall seem right. The facts, at the instance of either party, shall be recorded, and the record, if the proceeding is in vacation, shall be signed by the judge, and certified to the clerk of the circuit, corporation or county court for the county or corporation in which the judgment is rendered, as part of its records. The judgment is conclusive unless reversed, save in an action for false imprisonment, and is considered and enforced, even though rendered by the judge in vacation, as if it were a judgment of the court amongst whose records it is entered. (V. C. 1873, c. 153, § 6 7, 8, 9, 10.) 5. Writ of Error to Judgment. A writ of error lies as in any other case; and in the discretion of the governor, or of the president of the court, the court of appeals may be convened specially to consider the case. (V. C. 1873, c. 153, § 11, 12.) 6. Instances of Application of Writ of Habeas Corpus, See Ex-parte Pool & als., 2 Va. Cas. 276; McClintic v. Lockridge, 11 Leigh, 253; Armstrong v. Stone & ux. 9 Grat. 102; Elvira's Case, 16 Grat. 561; Leftwich's Case, 20 Grat. 716; Jones' Case, Id. 848; U. States v. Cottingham, 1 Rob. 615; U. States v. Blakeney, 3 Grat. 405; U. States v. Lipscomb, 4 Grat. 41; Cooley's Const'al Lim'ns, 339, &c. 3. Mode of prosecuting the writ of Habeas Corpus in the Courts of the United States; W. C. 1h. The Courts and Judges whence the writ may be obtained. From any Court of the United States but from the Supreme Court, only when in the exercise of its appellate jurisdiction. (In re Metzger, 5 How. 176; In re Kaine, 14 How. 103;), and also from any Justice of the Supreme Court, or Judge of any Circuit or District Court of the United States. (1 Bright. Dig. 301-2; 1 U. S. Stats. 81, § 14; 4 U. S. Stats. 634, § 7; 5 U.S. Stats. 539, § 1; 14 U. S. Stats. 385-'6, § 1; 15 U.S. Stats. 44; Rev. Stats. U. S. 143, § 763, & seq.; Exp. Yerger, 8 Wal. 97-'8, 105; McCardle's Case, 6 Wal. 324-5; S. C. 7 Wal. 515; Exp. Lange, 18 Wal. 166.) 2. Instances of the application of the writ of Habeas Corpus in the United States Courts. See Ex-parte Bollman, 4 Cr. 100; Ex-parte Watkins, 3 Pet. 193; S. C. 7 Pet. 568; Ex-parte Metzger, 5 How. 176; Ex-parte Kaine, 14 How. 103; Ex-parte Dorr, 3 How. 103; Ex-parte Randolph, 2 Brock. 488; Ableman v. Booth, 21 How. 506;* Ex-parte Milligan, 4 Wal. 3; Ex-parte Yerger, 8 Wal. 97-'8; Ex-parte Lange, 166.) 48. Doctrine as to Suspension of the writ of Habeas Corpus. Allowed only when, in cases of rebellion or invasion, the public safety may require it, which, it would seem, is to be judged of exclusively by the legislature. (U.S. Const. Art. I, § ix, 2; 2 Stor. Const. § 1342; 1 Tuck. Bl. App'x, 292; Va. Const. 1869, Art. V, § 14.) 4. What confinement amounts to Imprisonment. The confinement of the person in anywise; e. g., keeping one against his will in a private house, forcibly detaining him in the street, &c. (1 Bl. Com. 136.) 5o. Duress of Imprisonment. Duress of imprisonment avoids the most solemn acts and agreements thereby extorted, if the imprisonment be illegal; or if it be illegally perverted. (1 Bl. Com. 136'7; Cadaval v. Collins, 4 Ad. & El. (31 E. C. L.) 858. 6. Requirements as to Warrants of Commitment. Warrants of commitment to prison should be in *NOTE. The case of Ableman v. Booth, 21 How. 506, demonstrates with great force that a Habeas Corpus awarded by a State judge or court has no authority within the limits of the soveignty assigned by the Constitution to the United States. The marshal, or other person having the prisoner in custody under the authority of the United States, should make a return to such a writ awarded by a State judge or court, making known the authority by which he holds him, but ought not to obey the process (p. 523. S. P. Tarble's Case, 13 Wal. 396, 406, &c.). |