Ii.—: False Imprisonment.

False imprisonment. Freedom of the person includes immunity not only from the actual application of force, but from every kind of detention and restraint not authorized by law. The infliction of such restraint is the wrong of false imprisonment; which, though generally coupled with assault, is nevertheless a distinct wrong. Laying on of hands or other actual constraint of the body is not a necessary element; and, if “stone walls do not a prison make” for the hero or the poet, the law none the less takes notice that there may be an effectual imprisonment without walls of any kind. “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”. And when a man is lawfully in a house, it is imprisonment to prevent him from leaving the room in which he is. The detainer, however, must be such as to limit the party’s freedom of motion in all directions. (It is not an imprisonment to obstruct a man’s passage in one direction only. “A prison may have its boundary large or narrow, invisible or tangible, actual or real, or indeed in conception only; it may in itself be moveable or fixed; but a boundary it must have, and from that boundary the party imprisoned must be prevented from escaping; he must be prevented from leaving that place within the limit of which the party imprisoned could be confined.” Otherwise every obstruction of the exercise of a right of way may be treated as an imprisonment. A man is not imprisoned who has an escape open to him; that is, we apprehend, a means of escape which a man of ordinary ability can use without peril of life or limb. The verge of a cliff, or the foot of an apparently impracticable wall of rock, would in law be a sufficient boundary, though peradventure not sufficient in fact to restrain an expert diver or mountaineer. So much as to what amounts to an imprisonment.

Justification of arrest and imprisonment. When an action for false imprisonment is brought and defended, the real question in dispute is mostly, though not always, whether the imprisonment was justified. One could not account for all possible justifications except by a full enumeration of all the causes for which one man may lawfully put constraint on the person of another: an undertaking not within our purpose in this work. We have considered, under the head of General Exceptions, the principles on which persons acting in the exercise of special duties and authorities are entitled to absolute or qualified immunity. With regard to the lawfulness of arrest and imprisonment in particular, there are divers and somewhat minute distinctions between the powers of a peace-officer and those of a private citizen: of which the chief is that an officer may without a warrant arrest on reasonable suspicion of felony, even though a felony has not in fact been committed, whereas a private person so arresting, or causing to be arrested, an alleged offender, must show not only that he had reasonable grounds of suspicion but that a felony had actually been committed. The modern policeman is a statutory constable having all the powers which a constable has by the common law, and special statutory powers for dealing with various particular offences.

Who is answerable. Every one is answerable for specifically directing the arrest or imprisonment of another, as for any other act that he specifically commands or ratifies; and a superior officer who finds a person taken into custody by a constable under his orders, and then continues the custody, is liable to an action if the original arrest was unlawful. Nor does it matter whether he acts in his own interest or another’s. But one is not answerable for acts done upon his information or suggestion by an officer of the law, if they are done not as merely ministerial acts, but in the exercise of the officer’s proper authority or discretion. Rather troublesome doubts may arise in particular cases as to the quality of the act complained of, whether in this sense discretionary, or ministerial only. The distinction between a servant and an “independent contractor” with regard to the employer’s responsibility is in some measure analogous. A party who sets the law in motion without making its act his own is not necessarily free from liability. He may be liable for malicious prosecution (of which hereafter); but he cannot be sued for false imprisonment, or in a court which has not jurisdiction over cases of malicious prosecution. “The distinction between false imprisonment and malicious prosecution is well illustrated by the case where, parties being before a magistrate, one makes a charge against another, whereupon the magistrate orders the person charged to be taken into custody and detained until the matter can be investigated. The party making the charge is not liable to an action for false imprisonment, because he does not set a ministerial officer in motion, but a judicial officer. The opinion and the judgment of a judicial officer are interposed between the charge and the imprisonment”. Where an officer has taken a supposed offender into custody of his own motion, a person who at his request signs the charge-sheet does not thereby make the act his own, any more than one who certifies work done under a contract thereby makes the contractor his servant. But where an officer consents to take a person into custody only upon a charge being distinctly made by the complainant, and the charge-sheet signed by him, there the person signing the charge-sheet must answer for the imprisonment as well as the officer.

Again, where a man is given into custody on a mistaken charge, and then brought before a magistrate who remands him, damages can be given against the prosecutor in an action for false imprisonment only for the trespass in arresting, not for the remand, which is the act of the magistrate.

Reasonable and probable cause. What is reasonable cause of suspicion to justify arrest may be said, paradoxical as the statement looks, to be neither a question of law nor of fact, at any rate in the common sense of the terms. Not of fact, because it is for the judge and not for the jury; not of law, because “no definite rule can be laid down for the exercise of the judge’s judgment”. It is a matter of judicial discretion such as is familiar enough in the classes of cases which are disposed of by a judge sitting alone; but this sort of discretion does not find a natural place in a system which assigns the decision of facts to the jury and the determination of the law to the judge. The anomalous character of the rule has been more than once pointed out and regretted by the highest judicial authority. The truth seems to be that the question was formerly held to be one of law, and has for some time been tending to become one of fact, but the change has never been formally recognized. The only thing which can be certainly affirmed in general terms about the meaning of “reasonable cause” in this connexion is that on the one hand a belief honestly entertained is not of itself enough; on the other hand, a man is not bound to wait until he is in possession of such evidence as would be admissible and sufficient for prosecuting the offence to conviction, or even of the best evidence which he might obtain by further inquiry. “It does not follow that because it would be very reasonable to make further inquiry, it is not reasonable to act without doing so”. It is obvious, also, that the existence or non-existence of reasonable cause must be judged, not by the event, but by the party’s means of knowledge at the time.

Although the judge ought not to leave the whole question of reasonable cause to the jury, there seems to be no objection to his asking the jury, as separate questions, whether the defendant acted on an honest belief, and whether he used reasonable care to inform himself of the facts.