CORPUS, is a writ in the English law, of which there are various kinds, for removing prison ers from one court into another, for the more easy admi nistration of justice. Such are the habeas corpus ad re spondendont, sat isfaciendoin, prosequendoin, testificandoni, deliberanduin, ec. when a prisoner is removed from an in ferior court to be charged with a new action in the courts above; or when he is to be charged with process of exe cution; or when it is necessary to remove a prisoner in or der to prosecute or bear testimony in any court, or to he tried in the jurisdiction wherein the fact of which he is accused was committed. There is also the common writ ad facienduin et recilliendonz, otherwise called an habeas corpus coin Coosa, which issues out of the courts of West minster Hall, commanding the inferior judge to produce the body of the defendant in a process, together with the day and cause of his caption and detainer, to do and re ceive whatsoever the king's court shall consider in that behalf.
But the most important writ of this kind, and the most efficacious for vindicating the personal liberty of the sub ject in all cases of illegal confinement, is that of habeas corpus ad subjiciendunt. This is a high prerogative writ, and therefore, by the common law, issuing out of the court of King's Bench, not only in term time, but also during the vacation, by a fiat front the chief justice, or any other of the judges, and running into all parts of the king's do minions. Like all other prerogative writs, it must be ap plied for by motion, and does not issue of mere course, without sliming some probable cause why the extraordi nary power of the crown is called in to the assistance of the party. And this is the more reasonable, because, when ()nee granted, the person to whom it is directed can return no satisfactory excuse for not bringing up the body of the prisoner. This also, it will be observed, induces an absolute necessity of expressing, upon every commitment, the reason for which it is made; in order that the court, upon an habeas corpus, may examine into its validity, and act according to the circumstances of the case.
The law of England has always been extremely careful in asserting and preserving the personal liberty of indivi duals, which ought never to be abridged at the mere dis cretion of the magistrate, without the explicit permission of the laws. The great charter provides, that no freeman shall be taken or imprisoned, but by the lawful judgment of his equals, or by the law of the land ; and many subse quent old statutes expressly direct, that no man shall be taken or imprisoned by suggestion or petition to the king, or his counsel, unless it be by legal indictment, or the pro cess of the common law. The :wilt of habeas corpus af fords an ample and effectual remedy in all cases of illegal confinement ; yet this remedy was in danger of being ren dered nugatory during the early part of the reign of Charles I. the court of King's bench having determined,
that they could not upon an habeas corpus either bail or deliver a prisoner, though committed without any cause assigned, in case he was committed by the special com mand of the king, or by the lords of the privy council. This illegal judgment drew on a parliamentary enquiry, and produced the petition of .right, 3 Car. I. which enact ed, that no freeman shall be imprisoned or detained with out cause shewn, to which he may make answer according to law. The evasions of this enactment, however, which were attempted in the following years, particularly in the case of Air Seldcn, gave rise to the statute 16 Car. I. c. 10. § B. whereby it was that if any person be re strained of his liberty by order or cleciTe of any illegal court, or by command of the king's majesty in person, or by warrant of the council board, or of any of the privy council, lie shall, upon demand of his counsel, have a writ of habeas corpus, to bring his body before the court of King's Bench or Common Pleas, who shall determine whether the cause of his commitment be just, and there upon do as to justice shall appertain. Bat other abuses now crept into daily practice, which in some measure de feated the benefit of this great constitutional remedy ; and in the case of Jenks, who in 1676 was committed by the king in council for a turbulent speech at Guildhall, new shifts and devices were made use of to prevent his en largement by law. These abuses gave birth to the famous habeas corpus act, 31 Car. II. c. 2. which has frequently been considered as another magna charta of the kingdom ; and by which the methods of obtaining this writ are so plainly pointed out and enforced, that, so long as this sta tute remains unimpeached, no subject of England can be Long detained in prison, except in those cases in which the law requires and justifies such detainer.
Sometimes, when the state is in real danger, a tempo rary suspension of the habeas corpus act is thought neces sary; but, fortunately, it is not left to the executive power to determine when the danger of the state is so great as to render this measure expedient. For the Parliament only, or legislative power, whenever it sees proper, can autho rise the crown, by suspending the habeas corpus act for a short and limited time, to imprison suspected persons without giving any reason for so doing. This, however, is an experiment which ought never to be resorted to, ex cept in cases of extreme emergency. See Blackstone's Comment. B. III. ch. 8, and Jacob's Law Dict. by Tomlins, in which the reader will also find the substance of the pro visions contained in the habeas corpus act. (z)