In the United States the right to the benefit of the writ of habeas corpus was always claimed by the English colonies in America, and was enjoyed by them except in cases of arbitrary oppression. An instance of its early use occurs in New York in 1707, in procuring the release of ministers arrested by an illegal warrant issued by the Governor, Cornbury. In New Jersey in 1710 the Legislature denounced a judge who had violated the 'undoubted right' of a colonist by refusing the writ to him. In 1692 the South Carolina Assembly adopted the act 31 Charles II., and during the reign of Anne the act was expressly extended to Virginia. Maryland in 1725 claimed the benefit of the writ as a "birthright of the inhabitants," independently of the royal favor. But, although the colonial charters generally con tained express provisions that the colonists should have all the privileges and immunities of natural-born British subjects, no express men tion seems to have been made in them of this particular writ. It was rather taken for granted as belonging of right to every British subject, and when the colonies separated from the mother country, the right of habeas corpus became a part of the general common law of the States, derived by them from the laws existing while they were still colonies. (See LAw.) The Constitution (Art. 1, sec. 9, subdiv. 2) provides that "the privileges of the writ of habeas corpus shall not be suspended unless when, in cases of rebellion or invasion, the public safety may require it." The constitutions of most of the States contain provisions of a simi lar effect; and in Virginia, Vermont, Louisiana, and North Carolina the suspension of the writ in any case is forbidden. The Constitution of Maryland, however, does not mention the writ. Several of the States provide in their constitu tions for suspensions, as in Massachusetts for twelve months, New Hampshire three months, Florida in case of insurrection or rebellion, etc.
President Lincoln suspended the privilege of the writ in 1861 by proclamation, but it was decided by Chief Justice Taney, in the Circuit Court of Maryland, that Congress alone possessed the right to suspend the writ; and this seems to be the better opinion, although the right of the President was supported by authorities at the time. T.ater, in March, 1863, Congress passed a bill authorizing the President to suspend the privilege of the writ; but in cases arising under the exercise of this authority it was held that the suspension of the privilege did not suspend the issuance of the writ, but that the return was to be the means of suspending its further oper ation. Neither does the suspension of the privi lege of the writ deprive an unlawfully arrested or imprisoned person of his action of damages, nor protect the wrong-doer from criminal prose cution. None of the States have suspended the privileges of the writ except Massachusetts, where the privilege of the writ was suspended from November, 1786, to July, 1787, on the occa sion of Shays's Rebellion. In England, as noted above, the King's Court, or Court of King's Bench, and the Court of Chancery were the ordi nary courts from which this writ was issuable; but it could be issued by the Court of Common Pleas and by the Court of Exchequer, at least in case of persons privileged in those courts. The
Habeas Corpus Act (31 Charles II., ch. 2) and other later acts prescribed the courts which could issue the writ, extending the jurisdiction so that it is always possible to obtain the writ in vaca tion as well as in term time.
In the United States the power of the Federal courts is purely statutory in origin. The orig inal statute creating this power in them was the Judiciary Act of September 24, 1789, sec. 14 (1 Stat., L. 81), which provided "that writs of habeas corpus shall in no case extend to prison ers in gaol, unless they are in custody under or by color of the authority of the United States, or are committed for trial before some court of th2 same, or are necessary to be brought into court to testify." The jurisdiction created by this act, it is now settled, is exclusive in the Federal court. Subsequent statutes have extended this jurisdiction to cases where the prisoner is in custody for an act done or omitted, in pursuance of a law or process of the United States (Rev. Stat., sec. 753), this being the general effect of the act of March 2, 1833 (4 Stat., L. 634), com monly called the Force Bill; to cases where the prisoner is held in violation of the Constitution, or a statute, or treaty of the United States, whether in a State or Federal court (Rev. Stat., sec. 753) ; "to all cases of any prisoner in jail or confinement who are subjects of a foreign State, and domiciled therein, who are confined or in custody under or by any authority or law, or process founded thereon, of the United States, or of any of them, for or on account of any act done or omitted under any alleged right, title, or authority, privilege, protection, or exemption set up or claimed under the commission or order or sanction of any foreign State or sovereignty, the validity and effect whereof depends upon the law of nations, or under color thereof" (act of August 29, 1842, 5 Stat., L. 539; Rev. Stat., sec. 753).
These provisions do not grant to the Federal courts the authority by habeas corpus to dis charge a prisoner from the custody of the State courts or officers where the prisoner is within the jurisdiction of the State authority by which he is imprisoned, merely because rights are involved which arise under the laws of the United States, since where there is a proper jurisdiction the State courts are equally bound with those of the Federal Government, and are equally supposed, to support and give effect to the Federal laws, and any erroneous ruling in this respect would involve an error of law, which could be remedied by a proper appeal to the Federal courts. But where the denial of right by the State court in volves not only an error of law, but such a re fusal as places the court in a position of acting without jurisdiction, as in acting under an un constitutional State law, a basis is laid for the remedy of a habeas corpus from the Federal court. This power of the Federal courts to grant the writ under the special grounds mentioned above, is discretionary, and the writ is frequently refused in cases where the granting of it would tend to subvert the ordinary course of justice in the State courts.