HABEAS corpus, a writ of various uses, and of different imp6rtance. It was ori ginally a writ, which a man indicted of a trespass before justices of the peace, or in a court of franchise, and being ap prehended for it, may have out of the King's Bench, to remove himself thither at his own costs, and to answer the cause there. In its more usual sense, it is the most celebrated writ in the English law. The most efficacious kind, in all manner of illegal confinement, is that of habeas corpus ad subjiciendum, which is the subject's writ of right, in cases where he is aggrieved by illegal impri sonment, or any unwarrantable exercise of power.
This writ is founded upon common law, and has been secured by various statutes, of which the last, and most ef ficacious, was the 31 Charles H. c. 2, which is emphatically termed the habeas act, and may justly be deemed a se cond magna charta, and as relates to modern times is ffir more efficacious, for It is the grand protection of the sub• ject against unlawful imprisonment.
By this important statute it is enacted, that on complaint, in writing, by or on behalf of any person committed and charged with any crime (unless commit ted for felony or treason expressed in the warrant, or as accessary, or on suspicion of being accessary before the fact, to any petit treason or felony plainly expressed in the warrant, or unless lie be convict ed or charged in execution by legal pro cess), the Lord Chancellor, or any other of the twelve judges, in vacation, upon viewing a copy of the warrant, or affidavit that the copy is denied, shall (unless the party have neglected for two terms to apply to any court for his enlarge ment) award an habeas corpus for such prisoner, returnable immediately before himself, or any other of the judges, and, upon return made, shall discharge the party, if' bailable, upon giving security to appear, and answer to the accusation in the proper court of judicature.
That such writs shall be indorsed, as granted in pursuance of the act, and sign ed by the person awarding them. That the writ shall be returned, and the pri soner brought up within a limited time according to the distance, not exceeding in any case twenty days. That the offi cers and keepers neglecting to make due returns, or not delivering to the prisoner, or his agent, within six hours after de mand, a copy of the warrant of commit ment, or shifting the custody of a -prison er from one to another, without sufficient reason or authority (specified in the act), shall, for the first offence, forfeit one hun dred pounds, and for the second offence two hundred pounds, to the party griev ed, and be disabled to hold his office.
That no person, once delivered by ha beas corpus, shall be recommitted for the same offence, on penalty of five hundred pounds.
That every person committing treason or felony shall, if he require it, the first week of the next term, or the first day of the sessions of oyer and terminer, be in dicted in that term or session, or else be admitted to bail, unless the king's wit nesses 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 imprison ment for such imputed offence ; but no person, after the assize 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. That any such prisoner may move for and obtain his habeas corpus, as well out of the Chance ry or Exchequer, as out of the King's Bench or Common Pleas ; and the Lord Chancellor, or judges, denying the same on sight of the warrant, or oath that the same is refused, shall forfeit severally, to the party grieved, the sum of five hun dred pounds. That this writ of habeas corpus shall run into the counties pala tine, cinque ports, and other privileged places, and the islands of Jersey, Guern sey, &c. That no inhabitants of England (except persons contracting, or convicts praying to be transported, or having com mitted some capital offence in the place to which they are sent) shall be sent pri soners to Scotland, Ireland, Jersey,Guern sey, or any places beyond the seas, with in or without the king's dominions, on pain that the party committing, his advis ers, aiders, and assistants, shall forfeit to the party grieved a sum not less than five hundred pounds, to be recovered with treble costs, shall be disabled to bear any office of trust or profit, shall incur the penalties of premunire, and shall be inca pable of the king's pardon.