HABEAS CORPUS, in law, a writ issued by a judge or court of justice, commanding the person to whom it is directed to bring the body of a person in his custody before that or some other court for a specified purpose.
There are various forms of the writ, of which the most famous is that known as habeas corpus ad subiiciendum, the well-estab lished remedy for violation of personal liberty. This is now the only important form of writ though there were originally many others. From the earliest records of the English law no free man could be detained in custody except on a criminal charge or con viction or for a civil debt. While the writ is a remedial mandatory writ—"of right," it is not "of course," and is granted only on application to the High Court or a judge thereof, supported by a sworn statement of facts setting up at least a probable case of illegal confinement. It is addressed to the person in whose custody another is detained, and commands him to bring his prisoner before the court immediately after the receipt of the writ, together with the day and cause of his being taken and detained, to undergo and receive (ad subiiciendum et recipien dum) whatsoever the court awarding the writ "may consider of concerning him in that behalf." Writs of habeas corpus were issued before the Great Charter. The writ de odio et atia was used as early as the 12th century to prevent imprisonment on vexatious appeals of felony, and this writ is specifically mentioned in Article 36 of Magna Carta which provides that it shall issue gratuitously, and "not be refused." It played an important part in enabling a person to avoid trial by battle and obtain trial by jury. In the case of imprisonment on accusation of crime the writ issued from the court of king's bench (or from the chancery), and on its return the court judged of the legality of the imprisonment, and discharged the prisoner or admitted him to bail or remanded him to his former custody according to the result of the examination.
By the time of Charles I. the writ was fully established as the appropriate process for checking illegal imprisonment by inferior courts or by public officials. But it acquired its full and present constitutional importance by legislation.
In Darnel's case (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 (1627, 3 Car. I. c. i which, inter alia, recited (s. 5) that, contrary to the Great Charter and the good laws and statutes of the realm, divers of the king's subjects had of late been imprisoned without any cause shown, and when they were brought up on habeas corpus ad subiicien dum, and no cause was shown other than the special command of the king signified by the privy council, were nevertheless remanded to prison, and enacted "that no freeman in any such manner as is before mentioned be imprisoned or detained." By the Act of 1641 abolishing the Star Chamber, the right to a habeas corpus was given to test the legality of commitments by command or warrant of the king or the privy council.
Though the authority of the courts had been strengthened it was still rendered insufficient by reason of the insecurity of judicial tenure, the fact that only the chancellor (a political as well as a legal officer) and the court of king's bench had undoubted right to issue the writ, and the inability or hesitation of the competent judges to issue the writ except during the legal term, which did not cover more than half the year. A series of bills was passed through the Commons between 1668 and only to be rejected by the other House. In Jenkes's case (1676), Lord Chancellor Nottingham refused to issue the writ in vacation in a case in which a man had been committed by the king in council for a speech at Guildhall, and could get neither bail nor trial. In 1679, but rather in consequence of Lord Clarendon's arbitrary proceedings than of Jenkes's case, a fresh bill was introduced which passed both Houses and became the famous Habeas Corpus Act of 1679 (31 Car. II. c. 2) . The passing of the act was largely due to the experience and energy of Lord Shaftesbury, after whom it was for some time called. The act, while a most important landmark in the constitutional history of England, in no sense creates any right to personal freedom, but is essentially a procedure act for improving the legal mechanism by means of which that acknowledged right may be enforced. It declares no principles and defines no rights, but is for prac tical purposes worth too articles guaranteeing constitutional liberty.
In the manner characteristic of English legislation the act is limited to the particular grievances immediately in view and is limited to imprisonment for criminal or supposed, criminal mat ters, leaving untouched imprisonment on civil process or by private persons. It enacts in substance as follows: (I) When a writ of habeas corpus is directed to a sheriff or other person in charge of a prisoner, he must within 3, io 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 imprisonment—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 lawful for such person or persons (other than persons convicted or in execution by legal process) in time of vacation, to appeal to the lord chan cellor as a judge, who shall issue a habeas corpus returnable immediatejy, 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 cognizance 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 day 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, etc., or any place beyond the seas. Stringent penalties are provided for offences against the act.
A judge delaying habeas corpus forfeits £5oo to the party aggrieved. Illegal imprisonment beyond seas renders the offender liable in an action by the injured party to treble costs and dam ages to the extent of not less than f 500, besides subjecting him to the penalties of praemunire and to other disabilities. "The great rank of those who were likely to offend against this part of the statute was," says Hallam, "the cause of this unusual sever ity." Indeed as early as 1591 the judges had complained of the difficulty of enforcing the writ in the case of imprisonment at the instance of magnates of the realm. The effect of the act was to impose upon the judges under severe sanction the duty of protecting personal liberty in the case of criminal charges and of securing speedy trial upon such charges when legally framed; and the improvement of their tenure of office at the revolution, coupled with the veto put by the Bill of Rights on excessive bail, gave the judicature the independence and authority necessary to enable them to keep the executive within the law and to restrain administrative development of the scope or penalties of the criminal law; and this power of the judiciary to control the executive, coupled with the limitations on the right to set up "Act of State" as an excuse for infringing individual liberty is the special characteristic of English constitutional law.
The habeas corpus ad subiiciendum was sometimes used in cases of illegal detention in private custody. In 1758 questions arose as to its application to persons in naval or military custody, including pressed men, which led to the introduction of a bill in parliament and to the consultation by the House of Lords of the judges. (See Wilmot's Opinions, p. 77.) In the same year the writ was used to release the wife of Earl Ferrers from his custody and maltreatment. But perhaps the most interesting instance of that period is the case of the negro Somerset (1771), who was released from a claim to hold him as a slave in England.
The Act of 1816 (56 Geo. III. c. Ioo), does not touch cases covered by the Act of 1679. The object of it was to deal with cases of persons unlawfully detained in private custody. It enacts (I) that a writ of habeas corpus shall be issued in vacation time in favour of a person restrained of his liberty otherwise than for some criminal or supposed criminal matter (except persons imprisoned for debt or by civil process) ; (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) chat the writ shall run to any port, harbour, road, creek or bay 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.
It will appear from the foregoing statement that the issue and enforcement of the writ rests on the common law as strengthened by the acts of 1627, 1640, 1679 and 1816, and subject also to the regulations as to procedure contained in the Crown Office Rules, 1906. The effect of the statutes is to keep the courts always open for the issue of the writ. It is available to put an end to all forms of illegal detention in public or private custody. In the case of the Canadian prisoners (1839) it was used to obtain the release of persons sentenced in Canada for participating in the rebellion of 1837, who were being conveyed throughout England in custody on their way to imprisonment in another part of the empire, and it is matter of frequent experience for the courts to review the legality of commitments under the Extradition Acts and the Fugitive Offenders Act 1881, of fugitives from the justice of a foreign State or parts of the king's dominions outside the British Isles.
British Possessions.—The Act of 1679 expressly applies to Wales, Berwick-on-Tweed, Jersey and Guernsey, and the Act of 1816 also extends to the Isle of Man. The court of king's bench has also issued the writ to the king's foreign dominions beyond seas, e.g., to St. Helena, and so late as 1861 to Canada (Anderson's case 1861, 3o L.J.Q.B. 129). In consequence of the last decision it was provided by the Habeas Corpus Act 1862 that no writ of habeas corpus should issue out of England by authority of any court or judge "into any colony or foreign dominion of the Crown where the Crown has a lawfully established court of justice having authority to grant or issue the writ and to ensure its due execution in the `colony' or dominion" (25 and 26 V. c. 2o). The expression "foreign dominion" is meant to apply to places outside the British Isles, and does not include the Isle of Man or the Channel islands. (See re Brown, 33 L.J.Q.B. 193.) It does not apply to British protectorates because they are not "dominions" of the Crown (R. v. Crewe, 1910, 2 K.B. 576). But the writ runs everywhere within the king's territorial domin ions. Wherever, as is usually the case, the High Court of a colony or of a province of British India is vested with the same jurisdiction as the king's bench, that court has power to issue the writ. An appeal from a refusal of the writ may be made to the judicial committee of the privy council. (W. F. C.; X.) United States.—The common law of habeas corpus was in herited as part of the common law of the American States. The Federal Government as well as the States have founded their procedure upon the principles set forth in the Act of 1679, most States specifically adopting its features by statutory enactment. The writ, as under the English system, is available to contest de tention by public or private authority. The power of the court issuing it extends only to inquire into the jurisdiction of the court, administrative tribunal, or person detaining the prisoner, the legal sufficiency of the proceedings taken against him, or the validity of the judgment or order of commitment. No State or Federal court can issue the writ beyond the territorial limits of its jurisdiction. The esteem with which the writ is regarded is illustrated by the embodiment of the provision in the Federal Constitution as well as in the Constitutions of most States that the privilege of the writ "shall not be suspended unless when in cases of rebellion or invasion the public safety may require it." It is generally thought that the power to suspend the writ is vested in the legislative rather than the executive department of govern ment. Acting under such a theory during the Civil War, Congress in 1863 granted the president the power of suspension whenever in his judgment the public safety demanded it. The proper exer cise of such judgment by the president was held by the Supreme Court in Milligan's Case (4 Wall. 2) to be subject to judicial re view. In instances State supreme courts have regarded the privi lege suspended by the State executives' proclamation that an insur rection existed in specified territory.
State courts have no power to issue the writ for the discharge of persons held under claim or colour of authority of any officer or court of the United States inasmuch as the Federal Govern ment when acting within its sphere is supreme. Originally U.S. courts could not issue the writ to inquire into the cause of corn mitment by State courts. In 1833, however, due to the nullifica tion movement in South Carolina resulting in resistance to the enforcement of Federal revenue laws, Congress extended the authority of the Federal courts to inquire into any commitment for an act done in pursuance of a law of or authority under the United States. During the controversy over the Canadian boundary in 1842 this power was extended to authorize inquiry into the corn mitment of any foreign citizen for an act done under authority of a foreign State whose validity depended upon international law. In 1847 the power was again extended to all cases where a person was restrained of liberty in violation of the Constitution, laws or treaties of the United States. This, however, does not permit the Federal courts to obstruct the administration of justice in State courts whenever the accused claims that he is restrained in viola tion of a Federal right. The State courts being themselves bound by the U.S. Constitution, laws and treaties as the "supreme law of the land" can ordinarily be entrusted to determine the Federal right, and in case the determination by contrary to the accused's contention he may resort by writ of error or certiorari to the U.S. Supreme Court. It is thus only in cases of peculiar urgency that the Federal court will interfere in the first instance by habeas corpus. Such interference being an extremely delicate matter the Supreme Court has limited the issuance of habeas corpus to cases that concerned the authority or operations of the Federal Gov ernment, its obligations under international law to other nations or the vindication of a fundamental right in danger of violation before resort may be had to usual methods of appeal.
The various States have divergent views as to the accused's right of appeal from an order denying the issuance of habeas cor pus. The right where denied by judicial decision has commonly been granted by statute. It is also customary to provide by statute for a similar right of appeal on the part of the State. The original jurisdiction of the U.S. Supreme Court being limited by the Con stitution, it cannot issue the writ as an original matter except in cases within that jurisdiction. But in exercise of its appellate jurisdiction it may issue the writ to inquire into the valdity of a detention under the authority of an inferior court to determine whether such court has acted without jurisdiction or exceeded its authority. (J. M. LA.)