HABEAS CORPUS. 



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the first object is, to secure one subject from the 

 seizure of liis person, or the violation of his rights, 

 whether of person or property, by another ; for in a 

 community of men, where every member should be 

 left at liberty to seize upon and imprison any other, il 

 he had the physical power to do so, there would be, 

 substantially, and to practical purposes, no govern- 

 ment at all. There might be an association of me 

 acting under the orders of the prince, and in concert 

 with each other, who should have more power than 

 any other association in the community, and who 

 might, accordingly, by the right of the strongest, 

 seue persons amf property at their own will and plea- 

 sure ; but such an association would hardly deserve 

 Uie name of civil polity or government, which signi- 

 fies not merely physical power and superiority of 

 force, which exists among brutes as well as men, but 

 a body of laws more or less extensive, whereby the 

 liberty and rights of the subjects are secured more or 

 less effectually, according to the degree of improve- 

 ment and perfection in the constitution and laws of 

 the state. In every government, therefore, whether 

 arbitrary or free, or occupying any one of the various 

 degrees in the scale of freedom, one of the first and 

 most important objects, is the security of the persons 

 from violence or detention, not authorized by law. 

 There is, then, this essential difference, in this re- 

 spect, between different governments ; in those 

 which are arbitrary, the present will of the sovereign, 

 and, accordingly, of those representing him in civil 

 and military capacities, is the law ; whereas, in 

 others, the law is a fixed rule, which every citizen or 

 subject may know and conform to, if he chooses ; the 

 sovereign and the magistrates being bound by this 

 law no less than the other members of the society. 

 This fixed law settles, beforehand, all the cases in 

 which any person may be detained or imprisoned ; 

 and the term imprisonment, in this application, does 

 not signify merely shutting up in a gaol, since the 

 voluntary detention of a person in a private house or 

 in the streets, says Sir William Blackstone, is an 

 imprisonment. The cases, in which imprisonment is 

 lawful, being thus ascertained by the law, the great 

 provision of magna charta intervenes, namely, 

 " That no freeman shall be seized or imprisoned, but 

 by the judgment of his equals or the law of the land." 

 The term equals or peers, here, has reference to an 

 indictment or trial by jury, or other body, of which 

 the office and functions are equivalent to those of 

 jurors, as is the case in regard to the house of lords, 

 in respect to certain parties and offences. This par- 

 ticular mode of accusation or trial might as well be 

 omitted, and the rule would then stand, that no man 

 .should be imprisoned but by the law of the land. It 

 is the law alone that can imprison, and not the sove- 

 reign, or any representative of the sovereign, whe- 

 ther the sovereignty resides in one individual or a 

 body, or more than one body of men. 



This principle constitutes the leading feature of 

 viagna charta, and lies at the foundation of every 

 free government. In order to secure personal liber- 

 ty, and, at the same time, to maintain government, 

 which requires, in the case of crimes and some others, 

 the restraint of the person, it is absolutely essential 

 that the law should not only specify, explicitly, the 

 cases in which the citizen may be seized or imprison- 

 ed, but also provide that he shall not be arrested, or 

 restrained of his liberty, in any other case whatever ; 

 and such is the law in England. Nor is this princi- 

 ple confined to the person, it being no less the law 

 that a man's goods, than that his person shall not be 

 seized and detained, otherwise than by order of the 

 law. 



Such being the rules that lie at the foundation of 

 civil society, the very important question occurs, How 



these rules are to be enforced ; how is the law. mot 

 effectually, to guarantee to every one of its subjects, 

 the inviolability of his person and property ? The 

 first and most obvious security is that derived directly 

 from the law of nature, and not surrendered among 

 the other sacrifices made by the members of a com- 

 munity to each other, as a condition precedent to the 

 forming of civil society. The law permfflfe every 

 man to defend his person and property, and to repel, 

 by force, any unlawful invasion of either. It will 

 not justify him in using extreme force, and commit- 

 ting any outrageous, disproportionate or wanton in- 

 jury, in resisting and repelling even an unlawful 

 injury of his person or property ; but it will justify 

 him in using a reasonable degree of force, propor- 

 tioned to the injuriousness or atrocity of the violence 

 attempted by the assailing party. But the law of 

 nature affords but a feeble protection, and men unite 

 in communities, for the purpose of obtaining more 

 effectual defences against wrong, and reparations for 

 injuries when committed ; and the very first provi- 

 sion of the law is to inflict punishment for any wrongs 

 and violence, whereby the public is disturbed, and 

 also to make reparation to a party injured. If one 

 man unlawfully seizes the property, or imprisons the 

 person of another, he is, by the laws of every com- 

 munity, liable to make amends in damages. As far, 

 therefore, as an injury is such that it can be repaired 

 by a pecuniary compensation, and as far as the tres- 

 passer is able to make such reparation, the remedy 

 is complete. But since trespassers are not always 

 able to make reparation for injuries, and some in- 

 juries are such that pecuniary damages are not an 

 adequate reparation, and, also, because the law in- 

 tends to prevent wrongs, as well as to provide for 

 punishments and compensations where they have 

 been committed, it provides certain processes for 

 immediate prevention, in case of a violent and unau- 

 thorized invasion of property or person. Of this 

 character are the processes on complaint for forcible 

 entry on real estate, the action of replevin in respect 

 to goods and chattels, and the writ de komine reple- 

 giando, or writ of habeas corpus, in respect to the 

 person. The writ de homine replegiando is similar 

 to that of replevin, and is, in fact, as its name im- 

 ports, the replevying of a man. When a man's per- 

 son has been carried out of the country, so that he 

 cannot be found, then a process takes place some- 

 what similar to that adopted when goods are carried 

 off, so as not to be repleviable. In the case of the 

 goods, a process in withernam issues, by which other 

 goods are taken. So in the case of the man ; the 

 person who thus conveyed him away, is himself taken 

 in a process in withernam, as a pledge for the resto- 

 ration of the person sought to be replevied. 



This process of replevying a man is very ancient in 

 the English law; forms of the writ being given by 

 Fitzherbert, and also found in the Register of Writs. 

 But it was not until more than 400 years after the 

 date of magna charta, that an adequate remedy was 

 adopted, whereby the great privilege, provided for 

 in that charter, was effectually secured. This secu- 

 rity was effected by the habeas corpus act, passed in 

 the thirty-first year of Charles II., c. 2. The right 

 is liable to be suspended ; it being sometimes neces- 

 sary to clothe the executive with an extraordinary 

 power, as the Romans were in the habit of choosing 

 a dictator in emergencies, when the public was in 

 danger. This, as Sir William Blackstone says, is 

 the sacrifice of the security of personal liberty for a 

 time, the more effectually to secure it in future. At 

 all times, when the privilege is not suspended by 

 law, every citizen has a right to this writ. The laws 

 )f England provide, that, if the chancellor or any of 

 the twelve judges refuses the writ when the party is 



