H AREAS CORPUS. This most important writ. sometimes known as the bulwark of English lib erty, was instituted to enable the friends of a person supposed to lie unlawfully imprisoned to compel his keepers to produce him in court in order that it might he determined or not he was held lawfully. Its origin and early development are somewhat obscure, but it is believed by eminent authorities that forms of the writ were in use as early as the thirteenth century. However, it was probably used at that time in connection with the writ of certiorari to bring a prisoner before the King's Court when the proceeding itself was removed to that tribunal from- an inferior court; also with the writ of pririlege to bring a prisoner into a higher court in which he claimed the privilege of trial. During the sixteenth cen Wry, under the of habeas corpus cum masa Or eopu.s cam masa, the writ began to be employed to test the legality of an impris onment. In Howell's ease in 1388, the keepers of a prisoner were compelled to inform the court of the cause of his detention, and the court de c•hired that a prisoner should always be produced in court on the return of the writ.41'his ease was followed by the famous dictum of the King's Bench, known as the 'Resolution in Anderson,' from the fact that it was reported in Anderson's Reports (p. 298). The effect of this was to ren der the writ of habeas corpus a distinct and posi tive remedy, independent of certiorari and privi lege. and available as a matter of right to all prisoners.
The famous 'Five Knights' Case' in 1627 (3 St, Tr., pp. 1-235) tested the effect of the writ under the existing law. Five gentlemen were committed to prison on a warrant which alleged no particular cause for their arrest, except that it was by •special command of the King.' On ap plication of Sir Thomas Darnel, one of the pris oners, the Court of King's Bench issued a writ of habeas corpus and the prisoners were brought before the court, hut after an exhaustive argu ment, were again remanded to prison as the court was not able to grant bail under the Stat ute of Westminster 1. This example of the arbi trary power of the King to imprison his subjects without cause led to the introduction of a bill in Parliament in 1628, known as the Petition of Eight, which contained a clause abrogating the power of the King to cast a person into prison 'without any cause sheaved.' fhe 'Six i\lembers' Case,' which was decided in 1629, did not follow the spirit of the clause cited, evading its effect by a poorly disguised subterfuge. The return simply alleged the cause of detention as set forth in the writ, which was that the prisoners had committed 'notable contempts' against the King and had 'stirred up sedition' against. him. The court refused to release the prisoners and thus practically nullified the effect of the Habeas Corpus clause in the Petition of Right by its prejudiced and biased interpretation of its mean ing. It remained for the 'Act for the Abolition of the Star Chamber' (1641) permanently to es tablish the writ as a substantial and effective remedy; and in 1679 the famous Habeas Corpus Act (31 Charles TT. C 2) gave the writ its pres
ent form and settled ninny questions which had arisen during the development of the remedy.
The first and perhaps the most important function of the writ was to secure the production of prisoners held on criminal charges. However, during the reign of George III., the remedy was extended to cover other cases than criminal charges, as for example, to obtain custody of a child detained by sonic one claiming the right of guardianship. The United States Constitution provides that the privilege of the writ of habeas corpus "shall not be suspended unless in case of rebellion or invasion where the public safety may require it." The President is authorized under a Federal statute thus to suspend the writ in the proper cases. The statutes of most of the States provide for the granting of the writ in cases where a person is in prison or restrained in his liberty for any cause or upon any pretense, for the purpose of inquiring into the cause of the imprisonment or restraint, and, in the proper cases, of delivering him therefrom. In general, the writ is issued in two classes of cases: first, where a person is detained without legal process; and second, where a person is held under form of legal process or proceedings, in order to test the validity thereof. The sole purpose of the writ in these cases is to have a competent court pass upon the question of whether the prisoner is law fully detained. This does not involve a trial of the charges under which a person is held, but merely a determination whether the provisions of the law in regard to the arrest and detention of citizens have been complied with. In some States, the writ of habeas corpus ad testiflean dum is employed to secure the presence of a wit ness who may be lawfully detained in prison; or in some other restraint which may prevent his attendance. Other variations of the writ are the habeas corpus ad dclibcrandum et recipie•ndum, to remove for trial a person confined in one county to another where the offense charged was committed ; habeas corpus ad sat to bring a person from one court to another and there hold him subject to an execution under a judgment obtained in the latter.
The writ is usually obtained by a motion to a judge sitting as a court or at chambers, based upon a petition under oath or an affidavit de scribing the person in prison, the person detain ing him, and such facts in regard to the deten tion as the affiant has knowledge of. A writ may be issued and served on Sunday in most States, but usually cannot be made returnable on that day. Statutes relating to this remedy usually prescribe a penalty against a judge who refuses to grant the writ in the proper cases. Consult: Pollock and Maitland, History of the English Lair (2d ed., Boston, 1399) Hurd, On the Right of Personal Liberty and on The Writ of Habeas Corpus (Albany, 185S; 2d ed. 1876) ; Hallam, Constitutional History (New York, 1872) ; Black stone, Commentaries on the Lairs of England; and the writings of Story, Ilawle. and Pomeroy on the rnited States Constitution; also see FORMS OF ACTION.