As the act is limited to cases of commitments for "criminal or supposed criminal matters," every oth er species of restraint of personal liberty was left to the ordinary remedy at common law ; but, doubts being entertained as to the extent of the jurisdiction of the judge to inquire into the truth of the return to the writ in such cases an attempt was made, in 1767, in the house of lords, to render the jurisdiction more remedial. It was opposed by Lord Mansfield as unnecessary, and failed, for the time, of success. It was subsequently renewed, however ; and the act of 56 Geo. III. c. 100 supplies, in England, all the needed legislation in cases not embraced by the act of 31 Car. II. ; Hurd, Hab. Corp.
The English colonists in America regarded the privilege of the writ as one of the "dearest birth rights of Britons ;" and sufficient indications exist that it was frequently resorted to. The denial of it in Massachusetts by Judge Dudley in 1689 to Rev. John Wise, imprisoned for resisting the collection of an oppressive and illegal tax, was made the sub ject of a civil action against the judge, and was, moreover, denounced, as one of the grievances of the people, in a pamphlet published in 1689 on the authority of "the gentlemen, merchants, and inhab-, itants of Boston and the county adjacent." In New York in 1707 it served to effect the release of the Presbyterian ministers Makemie and Hampton from an illegal warrant of arrest issued by the gov ernor, Cornbury, for preaching the gospel without license. In New Jersey in 1710 the assembly de nounced one of the judges for refusing the writ to Thomas Gordon, which, they said, was the "un .doubted right and great privilege of the subject." In South Carolina in 1692 the assembly adopted the act of 31 Car. II. This act was extended to Virginia by Queen Anne early in her reign, while in the assembly of Maryland in 1715 the benefit of its pro visions was claimed, independent of royal favor, as the "birthright of the inhabitants." The refusal of parliament in 1774 to extend the law of habeas cor pus to Canada was denounced by the continental congrest in September of that year as oppressiye, and was subsequently recounted in the Declaration of Independence as one of the manifestations on the part of the British government of tyranny over the colonies ; Hurd, Bah. Corp. 109.
It is provided in art. i. sec. 9, § 2 of the constitution of the United States that "The privilege of the writ of habeas corpus shall not be suspended, unless when, in cases of rebellion or invasion, the public safety may require it." Similar provisions are found in the constitutions of most of the states.
In 1861, Taney, C. J., decided in the United States circuit court of Maryland, that con gress alone possessed the power under the constitution to suspend the writ ; Ex parte Merryman, Taney 246, 9 Am. L. Reg. 524, Fed. Gas. No. 9,487 ; this view was also taken by other courts ; In re Kemp, 16 Wis. 360 ; People v. Gaul, 44 Barb. (N. Y.) 98 ; Griffin v. Wilcox, 21 Ind. 370 ; contra, Ex parte Field, 5 Blatchf. 63, Fed. Cas. No. 4,761. In the beginning of the Civil War President Lin coln suspended the privilege of the writ of habeas corpus on his own authority, and without the sanction of an act of congress. He was supported in his opinion of his right to suspend by some of the legal writers of the time, notably by Horace Binuey of Philadel phia, and by Reverdy Johnson of Maryland (2 Moore's Rebellion Record, Does., p. 185). For the opinions of Senators Browning, Trumbull, Sherman, Howe and Fessenden, see Congressional Globe, pp. 188, 337, 393, 453. For the history of this controversy see 3 Political Science Quarterly 454; 5 Am. Lawyer 169 ; see 3 Rhodes, Hist. U. S. 438. The privilege of the writ is, however, neces sarily suspended whenever martial law is de dared in force ; for martial law suspends all civil process. A prisoner of war, therefore, or one held by military arrest under the law martial, is not a subject for the habeas cor pus writ ; 1 Bish. Cr. L. § 63. See MARTIAL LA w. Nor is a prisoner in the military or naval service whose offence is properly cog nizable before a court martial ; Johnson v. Sayre, 158 U. S. 109, 15 Sup. Ct. 773, 39 L. Ed. 914. Congress, by act of March 3, 1863, 12 Stat. L. 755, authorized the president to suspend the privilege of the writ throughout the whole or any part of the United States, whenever in his judgment the public safety might require it, during the rebellion. Under the provisions of this act, a partial suspen sion took place, but it was held that the sus pension of the privilege of the writ does not suspend the writ itself. The writ issues as a matter of course ; and on the return made to it the court decides whether the party apply ing is denied the right of proceeding any fur ther with it ; Ex parte Milligan, 4 Wall. (U. S.) 2, 18 L. Ed. 281. Nor does the suspension of the writ legalize a wrongful arrest and im prisonment ; it deprives the person thus ar rested of the means of procuring his liberty, but does not exempt the person making the illegal arrest from liability for damages, nor from criminal prosecution ; Griffin v. Wil cox, 21 Ind. 372 ; contra, McCall v. McDow ell, Deady 233, Fed. Cas. No. 8,673 ; 1 Bishop, New Cr. L. § 64.