Imágenes de páginas

of the United Kingdom as by law established, or either house of parliament, or to excite his majesty's subjects to attempt the alteration of any matter in church or state as by law established, otherwise than by lawful means, the judge or court may order the seizure of all copies of the libel; and the officers are empowered to enter by force, in the day-time, any premises containing any copies of the same.

But in case judgment shall be arrested, or if, after judgment shall have been entered, the same shall be reversed upon writ of error, all copies so seized shall be forthwith returned, free of all charge and expence, and without the payment of any fees. § 2.

By the third section, the same provisions are made to extend to the justiciary court of Scotland.

Persons found guilty a second time of printing or publishing blasphemous or, seditious libels are liable to be banished from all parts of his majesty's dominions for any term of years the court shall think fit, besides being subject to the same punishment as may be inflicted in cases of high misdemeanor. § 4.

And any person being found in any part of his majesty's dominions forty days after sentence of banishment passed, shall be transported for any time not exceeding fourteen years. § 5.

By the 10th clause it is provided, that this act shall not alter the law or practice of Scotland regarding the punishment of persons convicted of composing, printing, publishing, or circulating any blasphemous or seditious libel.


Of Malicious Prosecutions.

ANOTHER injury affecting the persons of individuals is by preferring malicious indictments or prosecutions against them. For this the law has provided an adequate remedy in damages, either by an action of conspiracy, which must be brought against two persons at the least; or, which is the most usual way, by a special action on the case for a false and malicious prosecution. But it is not actionable, where a civil action is brought against a man, though there is no ground for it; because it is a claim of right. For suing a man in the ecclesiastical court for matters not cognizable there, an action will lie; and for prosecuting an indictment falsely it will lie, though the indictment were bad, or not found by the grand jury. And in all cases, it is necessary to prove that the prosecution was instituted from malice, and without any probable cause, and that the plaintiff sustained an injury by the malicious prosecution, either in his person by imprisonment, his reputation by the scandal, or in his property by the expence. It has also been held, that an action will lie for maliciously holding a party to bail, either where there is not any

debt due, or where the party is held to bail for a larger sum than is really due.

In the case Bishop v. Rice, at the Hereford assizes, March 25th, 1824, Mr. Justice Park said, that in order to support an action for malicious prosecution two circumstances must concur-malice, and want of probable cause; neither of which alone would suffice: for if a prosecutor were actuated by the most diabolical malice, and yet had reasonable grounds to warrant him, he was not liable; neither was he, if he had no sufficient grounds, and yet acted fairly, and without improper motives. It was not necessary, however, for the complainant to prove malice by express words or threats; but the jury would infer it from the total want of probable cause, if they considered the charge so groundless, that it must bave been malicious. The existence or non-existence of probable cause was a question of law for the judge; but it was a question arising on facts which the jury were to investigate.

An action will also lie for maliciously suing out a commission of bankruptcy against a person, which is afterwards superseded.

And it may be observed generally, that the action on the case for a malicious prosecution varies in its form as the circumstances of each particular grievance may require. Whatever engines of the law malice may employ to injure individuals, whether in the shape of indictment or information, which charge a party with crimes injurious to his fame and reputation, and tend to deprive him of his liberty; or, in short, whether such malice is shewn by malicious arrests, or by exhibiting groundless accusations; this action on the case will always afford an adequate remedy.

In an action for a malicious prosecution, where the plaintiff has been indicted for a felony, it is necessary to produce a copy of the record granted by the court before which he was acquitted; but it is otherwise in misdemeanors, where the action may be sustained by the production of the original record of the acquittal.


Of False Imprisonment.

THE next injury to the persons of individuals which we are to consider, is that of false imprisonment.

To constitute this injury, there are two points requisite:1. The detention of the person; and, 2. The unlawfulness of such detention. Every confinement of the person is an imprisonment, whether it be in a common prison, or in a private house, or in the stocks, or even by forcibly detaining one in the public streets. Unlawful or false imprisonment consists in such confinement or detention without sufficient authority: lawful authority may arise either from some process from the courts of justice; or from some warrant from a legal officer, having power to commit under his


hand and seal, and expressing the cause of such commitment: or from such other special cause, warranted from the necessity of the thing, either by common law, or act of parliament; such as the arresting of a felon by a private person without warrant, the impressing of mariners for the public service, or the apprehending of waggoners for misbehaviour in the public highways. False imprisonment may arise by executing a lawful warrant or process at an unlawful time, as on a Sunday; for the statute hath declared, that such service or process shall be void.

The means of removing the injury of false imprisonment is by the writ of habeas corpus, the most celebrated writ in the English laws, and of which there are various kinds made use of by the courts at Westminster, for removing prisoners from one court into another, for the more easy administration of justice. Such is the habeas corpus ad respondendum, when a man hath a cause of action against one who is confined by the process of some inferior court, in order to remove the prisoner, and charge him with this new action in the court above. Such is that ad satisfaciendum, when a prisoner hath judgment against him in an action; and the plaintiff is desirous to bring him up to some superior court to charge him with process of execution. Such also are those of ad prosequendum, testificandum, deliberandum, &c. which issue when it is necessary to remove a prisoner, in order to prosecute or bear testimony in any court, or to be tried in the proper jurisdiction wherein the fact was committed. Such is, lastly, the common writ of ad faciendium et recipiendum, which issues out of the courts at Westminster Hall, when a person is sued in some inferior jurisdiction, and is desirous to remove the action into the superior courts; commanding the inferior judges to produce the body of the defendant, together with the day and cause of his caption and detainer, whence the writ is frequently denominated an habeas corpus cum causâ, to do and receive whatsoever the king's court shall consider in that behalf. This is a writ grantable of common right without any motion in court; and it instantly supersedes all proceedings in the court below. But, in order to prevent the surreptitious discharge of prisoners, it is ordered by 1 & 2 W. & M. c. 13. that no habeas corpus shall issue to remove any prisoner out of any gaol, unless signed by some judge of the court out of which it is awarded. And by 11 Geo. III. c. 70. no cause under the value of ten pounds shall be removed by habeas corpus or otherwise into any superior court, unless the defendant removing the same shall give special bail for payment of the bill and costs.

But the great and efficacious writ, in all manner of illegal confinement, is that of habeas corpus ad subjiciendum; directed to the person detaining another, and commanding him to produce the body of the prisoner, with the day and cause of his caption and detention, ad faciendum, subjiciendum, et recipiendum, to do, submit to, and receive whatsoever the judge or court awarding such writ shall consider in that behalf.

In the King's Bench and Common Pleas, it is necessary to apply for this writ by motion to the court, as in the case of all other

prerogative writs (certiorari, prohibition, mandamus, &c.) which do not issue as of mere course, without shewing some probable cause why the extraordinary power of the crown is called in to the party's assistance. On the other hand, if a probable ground be shewn, that the party is imprisoned without just cause, and therefore hath a right to be delivered, the writ of habeas corpus is then a writ of right, "which may not be denied, but ought to be granted to every man that is committed, or detained in prison, or otherwise restrained, though it be by the command of the king, the privy council, or any other."

By 56 Geo. III. c. 90. it is provided, that where any person shall be confined (otherwise than for some criminal matter, and except persons imprisoned for debt, or by process in any civil suit) within England, Wales, or Berwick-upon-Tweed, or the isles of Jersey, Guernsey, or Man, it shall be lawful for one of the barons of the exchequer, as well as for any one of the justices of one bench or the other, in England or Ireland, to award in vacation time, a writ of habeas corpus ad subjiciendum, to be directed to the person in whose custody the person so confined shall be, returnable immediately before the person awarding the same, or any other judge of the court. § 1.

If the person to whom any writ of habeas corpus shall be directed, shall wilfully neglect or refuse to make a return, he shall be guilty of a contempt of court, and may be bound over to answer such contempt in the ensuing term: but if the writ shall be awarded so late in the vacation, that obedience thereto cannot be conveniently paid during such vacation, the same may be made returnable in court at a day certain in the next term; also, if the writ shall be awarded by the Court of King's Bench, Common Pleas, or Exchequer (which last court shall have like power to award such writs), but so late that, in the judgment of the court, obedience thereto cannot be conveniently paid during such term, the same shall, at the discretion of the court, be made returnable at a day certain in the then next vacation, before any justice or baron of the same court, who shall proceed thereupon, in such manner as by this act is directed concerning writs issuing during the vacation. § 2.

In all cases, although the return shall be good and sufficient in law, it shall be lawful for the justice or baron to proceed to examine into the truth of the facts set forth in such return; and if it shall appear doubtful to him whether the material facts set forth in the said return be true or not, he may let to bail the person so confined, upon his entering into recognizance with one or more sureties, or, in case of infancy or coverture, or other disability, upon security by recognizance, in a reasonable sum, to appear in court upon a day certain in the term following, and so from day to day as the court shall require, and to abide such order as it shall make. § 3.

The like proceeding may be had in the court for controverting the truth of the return, although such writ shall be awarded by the court itself, or be returnable therein. § 4.

A writ of habeas corpus, according to this act, may run into any

county palatine, or cinque-port, or other privileged place, within England, Wales, Berwick-upon-Tweed, Jersey, Guernsey, and Man, and also into any port, harbour, road, creek, or bay, upon the coast of England or Wales, although the same should lie out of the body of any county; and if in Ireland, the same may run into any port, harbour, road, creek, or bay, although the same should not be in the body of any county. § 5.

By the 31 Car. II. c. 2. (the Habeas Corpus Act) it is enacted1. That, on complaint and request in writing 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 accessary, or on suspicion of being accessary before the fact to any petit treason or felony; or upon 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 have 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.

[ocr errors]

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 2001. 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 5001.

6. That every person committed for treason or felony shall (if he require 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 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

« AnteriorContinuar »