In English law, attachment is a taking of the person, goods, or estate by virtue of a writ or precept. It is distinguished from an arrest by proceeding out of a higher court by precept or writ, whereas the latter proceeds out of an inferior court by precept only. An arrest lies only against the body of a man, whereas an attachment lies often against the goods only, and sometimes against the body and goods. It differs from a distress in that an attachment does not extend to lands, while a distress cannot touch the body. Foreign attachment answers to what in Scotland is termed arrestment, by means of which a creditor may obtain the security of the goods or other personal property of his debtor in the hands of a third person for the purpose of enforcing the appearance of the debtor to answer to an action, and afterwards, upon his continued default of obtaining the property absolutely in satisfaction of the demand. Research Attachment
In chivalry, the term attaint meant to strike the helmet and shield of an opponent so firmly with the lance held in a direct line, as either to break the lance or knock over the person struck.
In law, an attaint was formerly a writ at common law against a jury for a false verdict. It is now obsolete in England. Research Attaint
In old Scots law, a breve is a short, compendious writ issued from the crown to a judge, ordering him to try by jury the points outlined in the writ. Procedure by breve was introduced into Scotland by James I upon the model of the system in vogue in England. Research Breve
In law, a certiorari is a writ issuing out of a superior court to call up the records of an inferior court or remove a cause there depending, that it may be tried in the superior court. This writ is obtained upon the complaint of a party that he has not received justice, or that he cannot have an impartial trial in the inferior court. Research Certiorari
The Chickasaw Case was a famous American court case in the anti-slavery campaign. In 1836 a writ of habeas corpus was served against CaptainEldridge of the brig 'Chickasaw' for holding two black women with the intent of carrying them South. The women were ordered discharged on their presenting free papers. This action against Eldridge resulted from the efforts of Northern people in organizing vigilance committees against kidnapping. Research Chickasaw Case
Dartmouth College vs. Woodward was a celebrated American legal case brought to the Supreme Court of the United States upon writ of error from the Superior Court of the State of New Hampshire, and decided in 1819. WilliamWoodward had been appointed secretary and treasurer of the corporation of Dartmouth College by the trustees of the college, twelve in number, as designated by the ancient charter granted by George III. in 1769 to Governor Wentworth, Eleazar Wheelock and ten others. Woodward was removed from office by the trustees on August the 27th, 1816, and refused to give up certain goods, chattels and property then in his keeping, but belonging to Dartmouth College. On June the 27th 1816, the New Hampshire Legislature, under the influence of the Democrats, had passed an act amending the charter and enlarging and altering the (Federalist) corporation of Dartmouth College; that is, the number of trustees was increased to twenty-one, there were twenty-five special overseers appointed, and the State was to have a general supervision of the affairs of the college. This act, and a similar one, passed on December the 26th, 1816, to enforce the first, were wholly repugnant to the trustees, who refused to obey them. William Woodward had been appointed secretary and treasurer of the new board of twenty-one trustees selected by the State. Suit was brought against him by the old trustees to recover the property of the college then in his keeping. The Superior Court of New Hampshire gave a verdict for the defendant. The US Supreme Court reversed and annulled this decision, allowing the plaintiffs $20,000 damages. It was decided by the court that the charter of Dartmouth College is a contract within the meaning of that clause of the Constitution which prohibits the States from passing any law impairing the obligation of contracts. Hence the New Hampshire law was declared unconstitutional. Daniel Webster was chief counsel for the plaintiff. Research Dartmouth College Vs Woodward
Fletcher versus Peck was an American breach of covenant case brought before the Supreme Court in 1809 and 1810, by writ of error from the Circuit Court of Massachusetts. Peck had sold to Fletcher certain lands in the State of Georgia, which had been purchased from the State. The breach assigned was that the Legislature of Georgia had no authority to dispose of the lands. Peck had averred that the title was good and that by the Act of the Georgia Legislature of January the 7th, 1795, the State was empowered to dispose of unappropriated lands. But in 1796 this act was repealed. The Supreme Court decided that the grant of land by the State was a contract, and that the Act of 1796, impairing the obligation of this contract of 1795, was therefore unconstitutional and void. Research Fletcher Versus Peck
In law, habeas corpus is a writ ordering a person to be brought before a court or judge. The term is particularly applied to a writ so issued so that the court may ascertain whether the person's detention is lawful. From the time of the Magna Charta imprisonment at the discretion of any person has been unlawful in England, but for long the royal prerogative was so indefinite and the power of the crown so great that persons were frequently detained in custody at the discretion of the crown. It was not until the 17th century that the Habeas Corpus Act, passed in 1679 provided the great remedy for the violation of personal liberty by the writ of habeas corpus ad subjiciendum (that you have the body to answer).
The provisions of the act may be stated generally thus : 1. That on complaint or request in writing, by, or on behalf of, any person committed and charged with any crime (unless treason, felony, etc, expressed in the warrant), the lord-chancellor, or any of the judges shall award a habeas corpus for such prisoner, and shall discharge the party, if bailable, upon security being given to appear and answer to the accusation. 2. The writ shall be returned, and the prisoner brought up within a limited time, not exceeding twenty days. 3. No person once delivered by habeas corpus shall be recommitted for the same offence. 4. Every person committed for treason or felony may insist on being tried at the next assizes, or admitted to bail, and if not tried at the second assizes or sessions, he shall be discharged from the imprisonment. The writ may be applied for by persons confined in any part of England, or Jersey and Guernsey. As the writ originally had to do solely with crimes, the statute 56 George III. cap. c. was passed, which extended the writ to other than criminal cases.
The result was that no person could be illegally confined in England for any length of time, since some friend could always apply for a habeas corpus, which, on a good prima facie case, would be issued. If the party was confined under recognized authority, as a child by a parent, this fact had to be stated.
In times of great political excitement, and suspected treasonable conspiracies, the operation of the Habeas Corpus Act has been occasionally suspended, and during the early 21st century under the pretext of 'combatting terrorism' exceptions made to it. But such suspension does not enable any one to imprison without cause or valid pretext for so doing. It only prevents persons who are committed from being bailed, tried, or discharged during the suspension, leaving to the committing magistrate all the responsibility attending on illegal imprisonment.
In Scotland similar protection of the liberty of the subject was secured by the Wrongous Imprisonment Act of 1701. The English statute was copied in the United States without essential change.
In the United States habeas corpus was suspended on July the 5th, 1861. Attorney-GeneralBates gave an opinion in favour of the President's power to declare martial law and suspend the writ of habeas corpus. A special session of Congress approved this opinion. Thereafter many arbitrary arrests were made, arousing much indignation. On September the 24th, 1862, the suspension was made general by the President so far as it might affect persons arrested by military authority for disloyal practices. An act of Congress, on March the 3rd, 1863, again authorized the suspension of the writ by the President in cases of prisoners of war, deserters, those resisting drafts and offenders against the military or naval service. The arrest of Vallandigham, in Ohio, and of Milligan, in Indiana, caused great excitement. The case of the latter being brought before the Supreme Court of the Union, that body decided that Congress could not give to military commissions the power of trial and conviction, and that the suspension of the privilege of habeas corpus did not suspend the writ itself. In the case of the Ku-Klux rebellions there was a brief suspension of habeas corpus in 1871. Research Habeas Corpus
The Latimer Case of 1842 was the first of a series of famous fugitive slave trials
which took place in Boston, Massachusetts. George Latimer was seized without a warrant. A writ of habeas corpus was denied, and the defendant was kept in the custody of the city jailer pending the securing of evidence against him. A writ of personal replevin, under the Act of 1837, securing trial by jury, was denied, the act being held illegal under the Prigg decision. Great indignation was aroused in Boston, and Latimer was finally released by his jailer on the payment of $400. The State Act of 1843 followed, forbidding officers to aid in the capture of fugitive slaves, or to permit the use of State jails for their imprisonment. Research Latimer Case
The Probert Encyclopaedia was designed, edited and programed by
Matt and Leela Probert
Abbreviations
Research Attachment
