The writ of habeas corpus, being an high prerogative writ, issues out of the King's Bench or Common Pleas, not only in term, but in vacation, by a fiat from the chief justice, or any other judge ; and runs into all parts of the king's domi nions. If it issues in vacation, it is usual ly returnable before the judge himself who awarded it, and he proceeds by him self thereon, unless the term should in tervene, when it may be returned in court.
To obtain this writ, application must be made to the court by motion, as in the case of all other prerogative writs. This writ may also be obtained, to remove every unjust restraint on personal freedom in private life, though imposed by an hus band, or a father ; but when women or infants are brought up by the habeas cor pus, the court will set them free from an unmerited or unreasonable confinement, and will leave them at Liberty to choose where they will go.
The habeas corbus ad subjiciendum is a prerogative writ, and also, in regard to the subject, is his writ of right, to which he is entitled to ex debit° justicice, being in nature of writ of error to examine the le gality of the commitment, and command ing the day, the caption, and cause of de tention, to be returned.
The habeas corpus ad faciendum et reci piendum issues only in civil cases, and lies where a person is sued, and in gaol, in some inferior jurisdiction, and is willing to have the cause determined in some su perior court ; in this case the body is to be removed by habeas corpus, but the pro ceedings must be removed by certiorari. This writ suspends the power of the court below ; so that if it proceeds after, the proceedings are void, and deemed coram non judice. The proceedings in the infe rior court are, in fact, at an end ; for the person of the being removed to the superior court, they have lost their jurisdiction over him, and all the proceed ings in the superior court are de novo, so that bail de novo must be put in, in the superior court.
Habeas corpus ad respondendum, is where a man hath a cause of action against one who is confined by the process of some inferior court r• in which case, this writ is granted to remove the prisoner to answer this new action in the court above, which is often done, to remove a prisoner from the prison of the Fleet into the King's Bench, and vice versa.
Habeas corpus ad deliberandum et reci piendum, is a writ which lies to remove a person to the proper place or county where he committed some criminal of fence.
Habeas corpus ad satisfaciendam, lies af ter a judgment, when the party wishes to bring up a prisoner to charge him in exe cution in the inferior court.
Habeas corpus upon a cepi, lies where the party is taken in execution in the court below.
Habeas corpus ad testificandum, lies to remove a person in confinement, in or der to give his testimony in a cause de pending.
These are all writs, in civil cases, to bring the party into court for a special purpose, and are mere ordinary processes; but the grand writ, by which the liberty of the subject is secured, is that of the habeas COITUS mentioned first, which is justly deemed a pal adium or British li berty. Its efficacy consists in the right thai every man has to have his cause of commitment publicly stated and inquired into by the lawful judges of the land, ac cording to the ordinary rules of law, and it provides not only against the oppres sion and cruelty, but also against the indolence and ignorance, of a govern ment ; for it it is well observed by Black stone, that under a despotic authority, and when the habeas corpus act has been sus pended, the unfortunate persons who have been confined have been too often suffered to linger, because they were for gotten. One important use of the habeas corpus, to which it is now daily applied, is in bringing up seamen who have been impressed, to ascertain whether they are subject to that rigorous authority, In times of partictilar alarm, it has been the prac tice to suspend the operation of the habe as corpus act, and it is to be feared that ministers have rather sought and made, than properly found, a just occasion for this measure. It is easy to cry that the church and state are in danger, and there are enough ready to take or to feign an alarm ; the habeas corpus act is suspend ed, and men are taken up by warrants from the Secretary of State, upon mere charges of libel, or what is indefinitely called sedition, to give a colour to the harsh usurpation of power. Instances have been known where men so confined have been afterwards released without trial ; because, in reality, no charge could be supported against them. In the ordi nary course of law, these men would be entitled to indemnity ; but the minister, who has the address to procure an indem nity bill, avoids the just compensation due to injured innocence, and the man who has been ruined by an unjust charge is without redress. Surely, when these are the possible consequences of a sus pension of the habeas corpus act, every Briton ought to resist it. If crimes are committed, the law has vigour to punish. The habeas corpus is the protection only of the innocent, and they should never be deprived of it.
With respect to removing civil causes out of inferior courts by habeas corpus, there are some useful restrictions, such as that they shall not be removed, if the debt or damages be less than 51. &c.