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Habeas Corpus

writ, court, act, law, statute, person, judge, bench, acts and imprisoned

HABEAS CORPUS is a writ at the common law, used for various purposes. It derives its name, like other writs, from the formal words contained in it. When the writ of Habeas Corpus is spoken of without further explanation, it always means the important writ which will pre sently be described ; but it is also used for certain purposes in the courts of com mon law at Westminster, as for remov ing prisoners from one court into another, and for compelling the attendance of pri soners as witnesses, &c. But the great writ of Habeas Corpus is that which in cases of alleged illegal confinement is directed to the person who detains another; and the purport of the writ is a command to such person to produce the body of the prisoner, and to state the day and the cause of his caption and detention, and, further, to do, submit to, and receive (ad faciendum, subjiciendum et recipiendum) whatsoever the judge or court that awards the writ shall direct.

All persons, whether natives or aliens, are entitled to this writ. The decision of the judges of the King's Bench in the early part of the reign of Charles I., that they could not, upon a Habeas Corpus, bail or deliver a prisoner, though com mitted without any cause assigned, in cases where he was committed by the special command of the king, or by the Lords of the Privy Council, caused the parliamentary inquiry which was followed by the Petition of Right, 1626, which re cites this judgment, and declares that no freeman shall be imprisoned or detained without cause shown, to which he may make answer according to law. The court, however, and the judges still endeavoured to uphold the usurpation of the crown , and consequently the statute 16 Car. 1. c. 10, was made, which enacted that any person committed by the king himself or his Privy Council, or any members thereof, should have the writ of Habeas Corpus granted to him upon demand or motion made to the Court of King's Bench or Common Pleas, which should thereupon, within three court days after the return of the writ, examine and deter mine the legality of the commitment, and do justice in delivering, bailing, or re manding the prisoner. Still, however, new devices were made use of to prevent the due execution of this enactment, and eventually the statute 31 Chas. II. c. '2, was passed, which is called the Habeas Corpus Act, and is frequently spoken of as another Magna Charts. This statute declares the cases and mode in which this writ may be obtained ; and lest this statute should be evaded by demanding unreasonable bail or sureties for the pri soner's appearance, it is declared by the 1 W. & M. stet. ii. c. 2, that excessive bail shall not be required. (Blackstone, Corn., vols. i. and The provisions of the 31 Chas. II. c. 2, are extended to Ireland by the Irish act, 21 & 22 Geo. III. c. 11.

It has been customary in times of alleged danger to suspend the Habeas Corpus Act. A suspension of the Habeas Corpus Act is effected by an act of parlia ment which empowers the crown, for a limited period, to imprison suspected per sons without stating any reason for the imprisonment. " The effect of a suspen sion of the Habeas Corpus Act is not in itself to enable any one ' to imprison sus pected persons without giving any reason for so doing.' But it prevents persons who

are committed upon certain charges from being bailed, tried, or discharged, for the the time of the suspension, except under the provisions of the suspending act, leaving, however, to the magistrate or per son committing all the responsibility at tending an illegal imprisonment. It is very common, therefore, to pass acts of indemnity subsequently for the protection of those who either could not defend themselves without making improper dis closures of the information on which they acted, or who have done acts not strictly defensible at law, though justified by the necessity of the moment. See 57 Geo. III. c. 3 and c. 55, for instances of sus pending acts ; and 58 Gen. II. c. 6, for one of an indemnifying act." (Cole ridge's Note on Blackstone, i. 136.) The statute 31 Chas. II. c. 2, has been re enacted or adopted, if not in terms yet in substance. in most of the American States; and the New York revised statutes (vol. ii. p. 561) provide for relief under the writ de hornine replegiando, in favour of fugitives from service in any other state ; but this provision has been held to be contrary to the constitution and laws of the United States. and void in respect to slaves being fugitives from states where slavery is lawful. (Kent's Corn.) The 56 Geo. III. c. 100, which was passed " for more effectually securing the liberty of the subject," after reciting that the existing acts only apply to cases of imprisonment on criminal charges, enacts that if any person is imprisoned, except for crime or debt, any baron of the ex chequer, as well as any judge of either bench in England or Ireland, shall, on complaint on behalf of the party confined, if reasonable cause appear to them, award in vacation time a writ of Habeas Corpus, returnable immediately before the judge awarding the same, or any other judge of the same court.

The statute 31 Chas. II. c. 2, intro duced no new principle into the English law. The great charter (Magna Charta) declares that no freeman shall be taken or imprisoned but by the lawful judg ment of his equals, or by the law of the land (c. 29). From the date of the great charter, at least, if a man was confined in prison on a criminal charge, he could apply to the Court of King's Bench for the writ of Habeas Corpus ad subjicien dum. This writ was directed to the per son who detained the prisoner in custody, and it required him to produce the pri soner in court and the warrant of com mitment, that the court might judge if the commitment was legal, and admit him trail, send him back to prison, or order him to be discharged, according to the circumstances of the case. This writ could not be refused. The object of the statute of Charles was to prevent the abuses which had grown up to the detri ment of this important privilege.

Habeas Corpus is not a form known in the Law of Scotland. The form by which a person imprisoned gets his trial brought on, or his release if he is not brought to trial, is there called ' Running Letters.'