1902 Encyclopedia > Habeas Corpus

Habeas Corpus




HABEAS CORPUS, in English law, is a writ issuing out of one of the superior courts, commanding the body of a prisoner to be brought before the court. There are various forms of this writ, according to the purposes for which it is intended. Thus habeas corpus ad respondendum is to bring up a prisoner confined by the process of an inferior court in order to charge him with a fresh action in the court above. Other forms are ad satisfaciendum (when judgment has been had against a prisoner in the court below), ad faciendum et recipiendum, or cum causa (to remove the proceedings into the superior court, the de-fendant being under arrest), ad testificandum (when the prisoner is wanted as a witness), <&c. These forms are now of little or no importance. The most famous form of the writ is the habeas corpus ad subjiciendum,—the well-known remedy for the violation of personal liberty. It is addressed to the person in whose custody another is detained, and commands him to bring his prisoner before the court, with a statement of the day and cause of his capture and deten-tion,—_" ad faciendum, subjiciendum, et recipiendum, to do, submit to, and receive whatsoever the judge or courts awarding the writ may consider on that behalf." It is de-scribed as a high prerogative writ, i.e., it is one of a number of extraordinary remedies, such as mandamus, prohibition, and the like, which the courts may grant on proper cause being shown. The writ of habeas corpus issues only after /notion before the court or application to a judge, made on a sworn statement of facts setting up at least a probable case of illegal confinement. It is a common-law writ. " From the earliest records of the English law," says Hallam, "no freeman could be detained in prison except upon a criminal charge or conviction, or for a civil debt. In the former it was always in his power to demand of the Court of King's Bench a writ of habeas corpus ad subjiciendum, directed to the person detaining him in custody, by which he was enjoined to bring up the body of the prisoner with the warrant of commitment that the court might judge of its sufficiency and remand the party, admit him to bail, or discharge him, according to the nature of the charge. The writ issued of right, and could not be refused by the court." Habeas corpus is, in fact, the appropriate instrument for enforcing the law of personal liberty, as declared in the Great Charter,—that no " freeman may be taken or im-prisoned but by the lawful judgment of his peers or by the law of the land."

In Darnel's case (3 Car. I., 1627) the judges held that the command of the king was a sufficient answer to a writ of habeas corpus. The House of Commons thereupon passed resolutions to the contrary, and after a conference with the House of Lords the measure known as the Petition of Right was passed, which, inter alia, recited that, contrary to the Great Charter and other statutes, divers of the king's subjects had been imprisoned without any cause shown, and when they were brought up on habeas corpus, and no cause was shown other than the special command of the king signified by the privy council, were nevertheless remanded to prison, concluded " that no freeman in any such manner as is before mentioned be imprisoned or detained." In Jenkes's case, 1676, the lord chancellor (Lord Nottingham) refused to issue a habeas corpus in the vacation. Shortly afterwards was passed the famous Habeas Corpus Act (31 Car. II. c. 2), which is sometimes described as a consequence of the harsh if not illegal refusal of the writ in Jenkes's case, but which, as Hallam shows, was really due to the arbitrary proceedings of Lord Clarendon. The Act itself passed the Lords after many similar measures sent up by the Commons had been rejected.





The Habeas Corpus Act recites that great delays have been used by sheriffs and jailers in making returns oi writs of habeas corpus directed to them ; and for the preven-tion thereof, and the more speedy relief of all persons im prisoned for criminal or supposed criminal matters, it enacts in substance as follows, (1) When a writ of habeas corpus is directed to a sheriff or other person in charge of a prisoner, he must within 3, 10, or 20 days, according to the distance of the place of commitment, bring the body of his prisoner to the court, with the true cause of his detainer or imprison-ment—unless the commitment was for treason or felony plainly expressed in the warrant of commitment. (2) If any person be committed for any crime—unless for treason or felony plainly expressed in the warrant—it shall be law-ful for such person or persons (other than persons convicted or in execution by legal process) in time of vacation, to appeal to the lord chancellor as a judge, who shall issue a habeas corpus returnable immediately, and on the return thereof shall discharge the prisoner on giving security for his appearance before the proper court—unless the party so committed is detained upon a legal process or under a justice's warrant for a non-bailable offence. Persons neglecting for two terms to pray for a habeas corpus shall have none in vacation. (3) Persons set at large on habeas corpus shall not be recommitted for the same offence unless by the legal order and process of the court having cog-nizance of the case. (4) A person committed to prison for treason or felony shall, if he requires it, in the first week of the next term or the first clay of the next, session of oyer and terminer, be indicted in that term or session or else admitted to bail, unless it appears on affidavit that the witnesses for the crown are not ready; and if he is not indicted and tried in the second term or session after commitment, or if after trial he is acquitted, he shall be discharged from imprisonment. (5) No inhabitant of England (except persons contracting, or, after conviction for felony, electing to be transported) shall be sent prisoner to Scotland, Ireland, Jersey, &c, or any place beyond the seas. Stringent penalties are provided for offences against the Act. A judge delaying habeas corpus forfeits £500 to the party aggrieved. Illegal imprisonment beyond seas renders the offender liable in action by the injured party with treble costs and damages to the extent of not less than £500, besides subjecting him to the penalties of prosmunire and to other disabilities. " The great rank of those who were likely to offend against this part of the statute was," says Iiallam, " the cause of this unusual severity."

The Habeas Corpus Act, it will be seen, applies only to the case of persons imprisoned on criminal charges. In 1758 the question arose whether, in the case of an impress-ment for military service, a habeas corpus could be applied for under the Act, and other questions of some difficulty were raised as to its effect in particular cases. The judges who were consulted by the House of Lords differed in their opinions, and ultimately the Act 56 Geo. III. c. 100 was passed, " for more effectually securing the liberty of the subject." It enacts (1) that a writ of habeas corpus shall be issued in vacation time in favour of a person restrained of his liberty (except persons imprisoned for debt or by civil process)—a privilege granted by the Act of Charles [I. only in the case of commitments for criminal offences; (2) that though the return to the writ be good and sufficient in law, the judge shall examine into the truth of the facts set forth in such return, and if they appear doubtful the prisoner shall be bailed; (3) that the writ shall run to any harbour or road on the coast of England, although not within the body of any county. The last clause was intended to meet doubts on the applicability of habeas corpus in cases of illegal detention on board ship.

In Anderson's case, in 1861, the Court of Queen's Bench decided somewhat reluctantly that the writ runs to all the foreign dominions of the crown even when there are inde-pendent local judicatures. In consequence of this decision the Act 25 and 26 Vict. c. 20 was passed, enacting that "no writ of habeas corpus shall issue out of England, by authority of any judge or court of justice therein, into any colony or foreign dominion of the crown where her Majesty has a law-fully established court or courts of justice, having authority to grant and issue the said writ, and to ensure the due exe-cution thereof throughout such colony or dominion."

In times of public danger it has been found necessary to suspend the Habeas Corpus Act by a special statute. This was done in 1817 by the Act empowering the king to secure and detain such persons as his Majesty shall suspect are conspiring against his person and government. More recently this extreme measure has been judged necessary in the case of Ireland (see 29 Vict. c. 1, continued for a short period by annual acts).

In the United States of America the law of habeas corpus has been inherited from England, and has been generally made to apply to commitments and detentions of all kinds. Difficult questions, unknown to English law, have arisen from the peculiar features of the American State-system. Thus the constitution provides that " the privilege of the writ of habeas corpus shall not be suspended unless when, in cases of rebellion or invasions, the public safety may require it;" and it has been the subject of much dispute whether the power of suspension under this provision is vested in the president or the congress. The weight of opinion seems to lean to the latter alternative. Again, conflicts have arisen between the courts of individual States and the courts of the Union. It seems that a State court has no right to issue a habeas corpus for the discharge of a person held under the authority of the Federal Government. On the other hand, the courts of the Union issue the writ only in those cases in which the power is expressly con-ferred on them by the constitution.







Search the Encyclopedia:



About this EncyclopediaTop ContributorsAll ContributorsToday in History
Sitemaps
Terms of UsePrivacyContact Us



© 2005-17 1902 Encyclopedia. All Rights Reserved.

This website is the free online Encyclopedia Britannica (9th Edition and 10th Edition) with added expert translations and commentaries