*The statute itself enacts, 1. That on complaint and request in writ[*136] ing by or on behalf of any person committed and charged with any crime, (unless committed for treason or felony expressed in the warrant; or as accessory, or on suspicion of being accessory, before the fact, to any petittreason or felony: or any suspicion of such petit-treason or felony, plainly expressed in the warrant; or unless he is convicted or charged in execution by legal process), the lord chancellor or any of the twelve judges, in vacation, upon viewing a copy of the warrant, or affidavit that a copy is denied, shall (unless the party has neglected for two terms to apply to any court for his enlargement) award a habeas corpus for such prisoner, returnable immediately before himself or any other of the judges; and upon the return made shall discharge the party, if bailable, upon giving security to appear and answer to the accusation in the proper court of judicature. 2. That such writs shall be indorsed, as granted in pursuance of this act, and signed by the person awarding them. 3. That the writ shall be returned and the prisoner brought up, within a limited time according to the distance, not exceeding in any case twenty days. 4. That officers and keepers neglecting to make due returns, or not delivering to the prisoner or his agent within six hours after demand a copy of the warrant of commitment, or shifting the custody of a prisoner from one to another, without sufficient reason or authority (specified in the act), shall for the first offence forfeit 1007., and for the second offence 2007., to the party grieved, and be disabled to hold his office. 5. That no person once delivered by habeas corpus, shall be recommitted for the same offence, on penalty of 500%. 6. That every person committed for treason or felony shall, if he requires it the first week of the next term, or the first day of the next session of oyer and terminer, be indicted in that term or session, or else admitted to bail: unless the king's witnesses cannot be produced at that time: and if acquitted, or if not indicted and tried in the second term, or session, he shall be discharged from his imprisonment for such imputed offence: but that no person, after the assizes shall be *open for the county in which he is detained, shall be removed by habeas corpus, till after the assizes are ended; but [*137] shall be left to the justice of the judges of assize. 7. That any such prisoner may move for and obtain his habeas corpus, as well out of the chancery or exchequer, as out of the king's bench or common pleas; and the lord chancellor or judges denying the same, on sight of the warrant, or oath that the same is refused, forfeit severally to the party grieved the sum of 500l. 8. That this writ of habeas corpus shall run into the counties palatine, cinque ports, and other privileged places, and the islands of Jersey and Guernsey. 9. That no inhabitant of England (except persons contracting, or convicts praying to be transported; or, having committed some capital offence in the place to which they are sent), shall be sent prisoner to Scotland, Ireland, Jersey, Guernsey, or any places beyond the seas, within or without the king's dominions; on pain that the party committing, his advisers, aiders, and assistants, shall forfeit to the party aggrieved a sum not less than 500l., to be recovered with treble costs; shall be disabled to bear any office of trust or profit; shall incur the penalties of præmunire; and shall be incapable of the king's pardon.

This is the substance of that great and important statute which extends (we may observe) only to the case of commitments for such criminal charge, as can produce no inconvenience to public justice by a temporary enlargement of the prisoner: all other cases of unjust imprisonment being left to the habeas corpus at common law. But even upon writs at the common law it is now expected by the court, agreeable to ancient precedents (r) and the spirit of the act of parliament, that the writ should be immediately obeyed, without waiting for any alias or pluries; otherwise an attachment will issue. By which admirable regulations, judicial as well as parliamentary, the remedy is now complete for removing the injury of unjust and illegal confinement. A

(r) Burr. 683,

remedy the more necessary, because the oppression does not always arise from the ill-nature, but sometimes from the mere inattention of *government. [*138] For it frequently happens in foreign countries (and has happened in England during temporary suspensions (s) of the statute), that persons apprehended upon suspicion have suffered a long imprisonment, merely because they were forgotten. (13)

The satisfactory remedy for this injury of false imprisonment is by an action of trespass vi et armis, usually called an action of false imprisonment: which is generally, and almost unavoidably, accompanied with a charge of assault and battery also: and therein the party shall recover damages for the injury he has received; and also the defendant is, as for all other injuries committed with force, or vi et armis, liable to pay a fine to the king for the violation of the public peace.

III. With regard to the third absolute right of individuals, or that of private property, though the enjoyment of it, when acquired, is strictly a personal right, yet as its nature and original, and the means of its acquisition or loss, fell more directly under our second general division, of the rights of things; and as, of course, the wrongs that affect these rights must be referred to the corresponding division in the present book of our commentaries; I conceive it will be more commodious and easy to consider together, rather than in a separate view, the injuries that may be offered to the enjoyment, as well as to the rights of property. And therefore I shall here conclude the head of injuries affecting the absolute rights of individuals.

We are next to contemplate those which affect their relative rights or such as are incident to persons considered as members of society, and connected to each other by various ties and relations; and, in particular, such injuries as may be done to persons under the four following relations, husband and wife, parent and child, guardian and ward, master and servant.

[*139] *I. Injuries that may be offered to a person, considered as a husband, are principally three: abduction, or taking away a man's wife; adul tery, or criminal conversation with her; and beating or otherwise abusing her. 1. As to the first sort, abduction, or taking her away, this may either be by fraud and persuasion, or open violence: though the law in both cases supposes force and constraint, the wife having no power to consent; and therefore gives a remedy by writ of ravishment, or action of trespass vi et armis, de uxore rapta et abducta. (t) This action lay at the common law; and thereby the husband shall recover, not the possession (u) of his wife, but damages for taking her away: and by statute Westm. 1, 3 Edw. I, c. 13, the offender shall also be (8) See book I, page 138.

(t) F. N. B. 89.

(u) 2 Inst. 434.

(13) As a general rule the protection of personal liberty in the United States is left to state jurisdictions, and the highest court in each state, and the judges thereof, and generally some other courts and judicial officers, are empowered to issue the writ of habeas corpus for that purpose. But the supreme court of the United States and the circuit and district courts, as well as their respective justices and judges, have also by statute the authority to issue the writ in certain cases. But in no case does the writ extend to a prisoner in jail unless where he is in custody under or by color of the authority of the United States, or is committed for trial before some court thereof, or is in custody for an act done or omitted in pursuance of a law of the United States, or of an order, process or decree of a court or judge thereof, or is in custody in violation of the constitution or of a law or treaty of the United States; or, being a subject or citizen of a foreign state and domiciled therein, is in custody for an act done or omitted under any alleged right, title; authority, privilege, protection or exemption claimed under the commission or order or sanction of any foreign state, or under color thereof, the validity or effect whereof depends upon the law of nations; or unless it is necessary to bring the prisoner into court to testify. As to when the jurisdiction of the federal courts is exclusive, see Tarble's Case, 13 Wall., 397. The federal supreme court may also issue the writ in the exercise of its appellate jurisdiction. But the court in reviewing a criminal case on a writ of habeas corpus will inquire only into the jurisdiction of the court that sentenced. Ex parte Rowland, 104 U. S., 604; Ex parte Carll, 106 U. S., 521.

imprisoned two years, and be fined at the pleasure of the king. Both the king and the husband may therefore have this action; (w) and the husband is also entitled to recover damages in an action on the case against such as persuade and entice the wife to live separate from him without a sufficient cause. (x) The old law was so strict in this point, that if one's wife missed her way upon the road, it was not lawful for another man to take her into his house unless she was benighted and in danger of being lost or drowned: (y) but a stranger might carry her behind him on horseback to market to a justice of the peace for a warrant against her husband, or to the spiritual court to sue for a divorce. (2) 2. Adultery, or criminal conversation with a man's wife, though it is, as a public crime, left by our laws to the coercion of the spiritual courts; yet, considered as a civil injury (and surely there can be no greater), the law gives a satisfaction to the husband for it by action of trespass vi et armis against the adulterer, wherein the damages recovered are usually very large and exemplary. (14) But these are properly increased and diminished by circumstances; (a) as the rank and fortune of the plaintiff and defendant; the relation or *connexion between them; the seduction or otherwise of the wife, founded on her previous behaviour and character, and the [*140] husband's obligation by settlement or otherwise to provide for those children, which he cannot but suspect to be spurious. In this case, and upon indictments for polygamy, a marriage in fact must be proved; though generally, in other cases, reputation and cohabitation are sufficient evidence of marriage. (b) 3. The third injury is that of beating a man's wife, or otherwise ill-using her; for which, if it be a common assault, battery, or imprisonment, the law gives the usual remedy to recover damages, by action of trespass vi et armis, which must be brought in the names of the husband and wife jointly: but if the beating or other maltreatment be very enormous, so that thereby the husband is deprived for any time of the company and assistance of his wife, the law then gives him a separate remedy by an action of trespass in nature of an action upon the case for this ill-usage, per quod consortium amisit; in which he shall recover a satisfaction in damages. (c)

II. Injuries that may be offered to a person considered in the relation of a parent (15) were likewise of two kinds: 1. Abduction, or taking his children

(w) Ibid.

(x) Law of nisi prius, 78. (y) Bro. Abr. t. trespass, 213. (z) Bro. Abr. 207, 440. (b) Burr. 2057. (c) Cro. Jac. 501, 538.

(a) Law of nisi prius, 26.

(14) Trespass on the case may be brought at the election of the husband.

(15) The American authorities follow the English in holding that, in an action for debauching the plaintiff's daughter, it is necessary to declare upon an injury to the plaintiff in the relation of master and servant, and to give some evidence from which a loss of service may be implied. Lee v. Hodges, 13 Grat., 726; McDaniel v. Edwards, 7 Ired., 408. If, therefore, the daughter at the time of the seduction was actually in the service of another as his indentured apprentice or otherwise, the parent cannot maintain this action: South v. Denniston, 2 Watts, 474; Dain v. Wyckoff, 7 N. Y., 191; Parker v. Meek, 3 Sneed, 29; unless the daughter was under age, and was absent from home at the time with the consent of the parent, and with the right on his part to recall her at any time. Martin v. Payne, 9 Johns., 387; S. C., 6 Am. Dec., 288; Clark v. Fitch, 2 Wend., 459; S. C., 20 Am. Dec., 639; Mulvehall v. Millward, 11 N. Y., 343; Boyd v. Byrd, 8 Blackf., 113; Bolton v. Miller, 6 Ind., 262; Hornketh v. Barr, 8 S and R., 36; S. C., 11 Am. Dec., 568. Or unless she was in the service of the defendant, who had employed her with the fraudulent purpose of seduction. Dain v. Wyckoff, 18 N. Y., 45. It is no importance that the daughter is over twentyone if she actually resides with her father: Kelley v. Donnelly, 5 Md., 211; Vossel v. Cole, 10 Mo., 634; but if, being over age, she is also not living with her father when the seduction takes place, he cannot bring the suit, notwithstanding she returns to his house before her confinement. Nickleson v. Stryker, 10 Johns., 115. The recovery is therefore nominally based upon loss of services; but proof of the slightest loss is sufficient: Kendrick v. McCrary, 11 Ga., 603; and a loss of services will be presumed if the plaintiff had a right to require them: Anderson v. Ryan, 4 Ill., 583; and the jury may give substantial damages to compensate for the parent's anxiety and sense of disgrace: Kendrick v. McCrary, 11 Ga., 603; Travis v. Barger, 24 Barb., 614; Dain v. Wyckoff, 7 N. Y., 191; though these alone, will not support the action. See Knight v. Wilcox, 14 N. Y., 413.

away; and, 2. Marrying his son and heir without the father's consent, whereby during the continuance of the military tenures he lost the value of his marriage. But this last injury is now ceased, together with the right upon which it was grounded; for, the father being no longer entitled to the value of the marriage, the marrying his heir does him no sort of injury for which a civil action will lie. As to the other, of abduction, or taking away the children from the father, that is also a matter of doubt whether it be a civil injury or no; for, before the abolition of the tenure in chivalry, it was equally a doubt whether an action would lie for taking and carrying away any other child besides the heir; some holding that it would not, upon the supposition that the only ground or cause of action was losing the value of the heir's marriage; and others holding that an action would lie for taking away any of the children, for that the parent hath an interest in them all, to provide for their education. (d) If, therefore, before the abolition of these tenures it was an injury to the father to take away the rest of his children, as well as his heir (as I [*141] am inclined to think it was), it still remains an injury, and is remediable by writ of ravishment, or action of trespass vi et armis, de filio, vel filia, rapto vel abducto; (e) in the same manner as the husband may have it, on account of the abduction of his wife.

III. Of a similar nature to the last is the relation of guardian and ward, and the like actions mutatis mutandis, as are given to fathers, the guardian also has for recovery of damages, when his ward is stolen or ravished away from him. (f) And though guardianship in chivalry is now totally abolished, which was the only beneficial kind of guardianship to the guardian, yet the guardian in socage was always (g) and is still entitled to an action of ravishment, if his ward or pupil be taken from him: but then he must account to his pupil for the damages which he so recovers. (h) And, as guardian in socage was also entitled at common law to a writ of right of ward, de custodia terræ et hæredis, in order to recover the possession and custody of the infant, (i) so I apprehend that he is still entitled to sue out this antiquated writ. But a more speedy and summary method of redressing all complaints relative to wards and guardians hath of late obtained by an application to the court of chancery; which is the supreme guardian, and has the superintendent jurisdiction of all the infants in the kingdom. And it is expressly provided by statute 12 Car. II, c. 24, that testamentary guardians may maintain an action of ravishment or trespass, for recovery of any of their wards, and also for damages to be applied to the use and benefit of the infants. (k)

IV. To the relation between master and servant, and the rights accruing therefrom, there are two species of injuries incident. The one is, retaining a man's hired servant before his time is expired; the other is beating or confining him in such a manner that he is not able to perform his work. As *to

[*142] the first, the retaining another person's servant during the time he has

(d) Cro. Eliz. 770. (i) F. N. B. 189.

(e) F. N. B. 90. (f) Ibid. 139.
(k) 2 P. Wms. 108.

(g) Ibid.

(h) Hale on F. N. B. 189.

Thus it will be seen that the action is nominally for one thing, and the recovery in fact for another; and the anomaly is so great that it has often been made the subject of comment by courts. The New York cases upon this subject are particularly instructive. Compare especially Clark v. Fitch, 2 Wend., 459; S. C., 20 Am. Dec., 639; with Bartley v. Richtmyer, 4 N. Y., 38. The legislation of several of the states has relieved the law of some odium by authorizing suit to be brought in these cases by the father, mother, or some other person for the benefit of the woman, and without averment or proof of loss of service.

It follows, from what is above stated, that any one who at the time holds the legal relation of master to the person seduced—whether parent, guardian or employer-or with whom she lives, and for whom she performs services, whether for compensation agreed upon or not, may maintain the action.

Under a somewhat peculiar statute in Michigan it has been held that the woman may institute the suit in her own name. Watson v. Watson, 49 Mich., 540.

agreed to serve his present master; this, as it is ungentlemanlike, so it is also an illegal act. For every master has by his contract purchased for a valuable consideration the service of his domestics for a limited time; the inveigling or hiring his servant, which induces a breach of this contract, is therefore an injury to the master; and for that injury the law has given him a remedy by a special action on the case; and he may also have an action against the servant for the non-performance of his agreement. (1) But, if the new master was not apprised of the former contract, no action lies against him, (m) unless he refuses to restore the servant upon demand. The other point of injury, is that of beating, confining, or disabling a man's servant, which depends upon the same principle as the last; viz.: the property which the master has by his contract acquired in the labor of the servant. In this case, besides the remedy of an action of battery or imprisonment, which the servant himself as an individual may have against the agressor, the master also, as a recompense for his immediate loss, may maintain an action of trespass vi et armis; in which he must allege and prove the special damage he has sustained by the beating of his servant, per quod servitium amisit; (n) and then the jury will make him a proportionable pecuniary satisfaction. A similar practice to which, we find also to have obtained among the Athenians; where masters were entitled to an action against such as beat or ill-treated their servants. (0)

We may observe that in these relative injuries, notice is only taken of the wrong done to the superior of the parties related, by the breach and dissolution of either the relation itself, or at least the advantages accruing therefrom: while the loss of the inferior by such injuries is totally unregarded. One reason for which may be this: that the inferior hath no kind of property in the company, care, or assistance of the superior, as the *superior is held to [*143] have in those of the inferior; and therefore the inferior can suffer no loss or injury. The wife cannot recover damages for beating her husband, for she hath no separate interest in anything during her coverture. The child hath no property in his father or guardian; as they have in him, for the sake of giving him education and nurture. Yet the wife or the child, if the husband or parent be slain, have a peculiar species of criminal prosecution allowed them, in the nature of a civil satisfaction; which is called an appeal, (16) and which will be considered in the next book. And so the servant, whose master is disabled, does not thereby lose his maintenance or wages. He had no property in his master; and if he receives his part of the stipulated contract, he suffers no injury, and is therefore entitled to no action, for any battery or imprisonment which such master may happen to endure.

CHAPTER IX.

OF INJURIES TO PERSONAL PROPERTY.

In the preceding chapter we considered the wrongs or injuries that affected. the rights of persons, either considered as individuals, or as related to each other; and are at present to enter upon the discussion of such injuries as affect the rights of property, together with the remedies which the law has given to repair or redress them.

(1) F. N. B. 167.

(m) Ibid. 158. Winch. 51. (n) 9 Rep. 113. 10 Rep. 180. (0) Pott. Antiq. b. 1, c. 98.

(16) This proceeding has been abolished by statute. VOL. II.-11

81