HABEAS CORPUS (Lat. that you have the body). A writ directed to the person detain ing another and commanding him to produce the body of the prisoner at a certain time and place, with the day and cause of his caption and detention, to do, submit to, and receive whatsoever the court or judge awarding the writ shall consider in that behalf.
This is the most famous writ in the taw ; and, having for many centuries been employed to re move illegal restraint upon personal liberty, no matter by what power imposed, it is often called the great writ of liberty. It takes ita name from the characteristic words it contained when the pro cess and records of the English courts were written in Latin: Prcecipimus tibi quad CORFUS 41. B in custodia ves tra detentum, ut dieitur. una cum causa captionis et detentionis sure, quocunque fanzine idem A B censeatur in eadem, HABEAS coram nobis apud Westm. 8c. ad subjiciendum et recipiendum ea qua: curia nostra de eo ad tune et ibidem ordinary con tigerit in hac parte, etc.
There were several other writs which contained the words habeas corpus ; but they were distin guished from this and from one another by the specific terms declaring the object of the writ, which terms are still retained in the nomenclature of writs: as, habeas corpus ad respondendum, ad tes tificandunt, ad satisfaciendum, ad prosequendum, and ad faciendum at recipiendum, ad deliberandum at recipiendum.
This writ was in like manner designated as habe as corpus ad sub jicicnclum et recipiendum; but, having acquired in public esteem a marked impor tance by reason of the nobler uses to which it has been devoted, it has so far appropriated the generic term to itself that it Is now, by way of eminence, commonly called The Writ of Habeas Corpus. The date of its origin cannot now be ascertained. Traces of its existence are found in the Year Book 48 Ed. III. 22; and it appears to have been familiar to, and well understood by, the judges in the reign of Henry VI. The ancient writ of de odio et atia and de homine repiegiando furnished a remedy in particular cases. In its early history it appears to have been used as a means of relief from private restraint. The earliest precedents where it was used against the crown are in the reign of Henry VII. Afterwards the use of it became more fre quent, and in the time of Charles 1. it was held an admitted constitutional remedy; Hurd, Hab. Corp. 145 ; Church, Hab. Corp. 3. In writing of procedure in the thirteenth century the work which throws so much new light upon the early history of English law, says: "Those famous words habeas corpus are making their way into divers writs, but for any habitual use of them for the purpose of investigat ing the cause of imprisonment we must wait until a later time." There is also a reference to what is termed the use of habeas corpus as "at one time a part of the ordinary mesne process In a personal action," also referred to as the Bractonian process which inserts a habeas corpus between attachment and distress," which (habeas corpus) a little later seems to disappear. No other allusion is made to the subject ; 2 Poll. & Maitl. 584, 591.
W. W. Howe (Studies in the Civil Law 54) who is as earnest in tracing the fountains of English law to a Roman source, as the writers last quoted are indisposed to do so, says on the subject: "The presence in the Pandects of every important doc trine of habeas corpus is an interesting fact, and suggests that the proceeding probably came to Eng land, as it did to Spain, from the Roman law.
There is no evidence, so far as I have been able to discover, that the process was of British or Teutonic origin. It is fully described in the forty-third book of the Pandects. The first text is the line from the 'Perpetual Edicts,' ait praetor: quern liberum dole malo retines; exhibeas.' 'The praetor declares: pro duce the freeman whom you unlawfully detain.' The writ was called the interdict or order 'de ho ming libero exhibendo.' After quoting this article of the Edict, the compilera of the Pandects intro duced the commentary of Ulpian to the extent of perhaps two pages of a modern law book, and the leading rules which he derives from the text are law, I believe, to-day in England and 'America. Thus he Says: 'This writ is devised for the preser vation of liberty to the end that no one shall detain a free person. The word freeman includes every freeman, infant or adult, male or female, one or many, whether sui or under the power of an other. For we only consider this: Is the person free? He who does not know that a freeman is de tained in his house is not in bad faith ; but as soon as he is advised of the fact he becomes in bad faith. The praetor says exhibeas (produce, exhibit). To exhibit a person is to produce him publicly, so that he can be seen and handled. This writ may be applied for by any person ; for no one is for bidden to act in favor of liberty.' And to this com mentary of Ulpian the compilers also add aome ex tracts from Venuleius, who, among other things says: 'A person ought not to be detained in bad faith for any time ; and so no delay should be granted to the person who thus detains him.' In other words, a writ of habeas corpus should be re turnable and heard instanter. It seems certain that this writ might have been applied for in Britain during the four centuries of Roman occupation, at least when not suspended by a condition of martial law ; and after the restoration of the Christian Church in the seventh century, and the occupation of judicial positions by bishops and other learned clerics, familiar with such procedure, it is not un reasonable to assume that it was revived and took its place in English law." After the use of the writ became more common, abuses crept into the practice, which in some meas ure impaired the usefulness of the writ. The party imprisoning was at liberty to delay his obedience to the first writ, and might wait till a second and third were issued before he produced the party ; and many other vexatious shifts were practised to de tain state prisoners in custody ; 3 Bla. Com. 135. Greater promptitude in its execution was required to render the writ efficacious. The subject was ac cordingly brought forward in parliament in 1668, and renewed from time to time until 1679, when the celebrated Habeas Corpus Act of 31 Car. IL was passed. This act has been made the theme of the highest praise and congratulation by British au thors, and is even said to have "extinguished all the resources of oppression." Hurd, Hab. Corp. Church, Hab. Corp. 37.