2.
This writ was it common law considered as a remedy to remove the
illegal restraint on a freeman. But anterior to the 31 Charles II. its
benefit was, in a great degree, eluded by time-serving judges, who
awarded it only in term time, and who assumed a discretionary power of
awarding or refusing it. 3 Bulstr. 23. Three or four years before that
statute was passed there had been two very great cases much agitated in
Westminster Hall, upon writs of habeas corpus for private custody, viz:
the cases of Lord Lei-ah: 2 Lev; 128; and Sir Robert Viner, Lord
Mayor.of London. 3 Keble, 434, 447, 470, 504; 2 Lev. 128; Freem. 389.
But the court has wisely drew the line of distinction between civil
constitutional liberty, as opposed to the power of the crown, and
liberty as opposed to the violence and power of private persons.
Wilmot's Opinions, 85, 86.
3.
To secure the full benefit of it to the subject the statute 81 Car. II.
c. 2, commonly calfed the habeas corpus act, was passed. This gave to
the. writ the vigor, life, and efficacy requisite for the due protection
of the liberty of the subject. In England this. is considered as a high
prerogative writ, issuing out of the court of king's bench, in term
time or vacation, and running into every part of the king's dominions.
It is also grantable as a matter of right, ex debito justitae, upon the
application of any person.
4.
The interdict De homine libero exhibendo of the Roman law, was a remedy
very similar to the writ of habeas corpus. When a freeman was
restrained by another, contrary to good faith, the praetor ordered that
such person should be brought before him that he might be liberated.
Dig.43, 29, 1.
5.
The habeas corpus act has been substantially incorporated into the
jurisprudance of every state in the Union, and the right to the writ has
been secured by most of the constitutions of the states, and of the
United States. The statute of 31 Car. II. c. 2, provides that the person
imprisoned, if he be not a prisoner convict, or in execution of legal
process, or committed for treason or felony, plainly expressed in the
warrant, or has not neglected wilfully, by the space of two whole terms
after his imprisonment, to pray a habeas corpus for his enlargement, may
apply by any one in his behalf, in vacation time, to a judicial officer
for the writ of habeas corpus, and the officer, upon view of the copy
of the warrant of commitment, or upon proof of denial of it after due
demand, must allow the writ to be directed to the person in whose
custody the party is detained, and made returnable immediately before
him. And, in term time, any of the said prisoners may obtain his writ of
habeas corpus, by applying to the proper court.
6.
By the habeas corpus law of Pennsylvania, (the Act of February 18,
1785,) the benefit of the writ of habeas corpus is given in "all cases
where any person, not being committed or detained for any criminal, or
supposed criminal matter," Who "shall be confined or restrained of his
or her liberty, under any color or pretence whatsoever." A similar
provision is contained in the habeas corpus act of New York. Act of
April 21, 1818, sect. 41, ch. 277.
7.
The Constitution of the United State art. 1, s. 9, n. 2, provides, 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 and the same principle is contained in many of the state
constitutions. In order still more to secure the citizen the benefit of
this great writ, a heavy penalty is inflicted upon the judges who are
bound to grant it, in case of refusal.
8.
It is proper to consider, 1. When it is to be granted. 2. How it is to
be served. 3. What return is to be made to it. 4. The bearing. 5. The
effect of the judgment upon it.
9.
- 1. The writ is to be granted whenever a person is in actual
confinement, committed or detained as aforesaid, either for a criminal
charge, or, as in Pennsylvania and New York, in all cases where he is
confined or restrained of his liberty, under any color or pretence
whatsoever. But persons discharged on bail will not be considered as
restrained of their liberty so as to be entitled to, a writ of habeas
corpus, directed to their bail. 3 Yeates, R. 263; 1 Serg & Rawle,
356.
10.
- 2. The writ may be served by any free person, by leaving it with the
person to whom it is directed, or left at the gaol or prison with any of
the under officers, under keepers, or deputy of the said officers or
keepers. In Louisiana, it is provided, that if the person to whom it is
addressed shall refuse to receive the writ, he who is charged to serve
it, shall inform him of its contents; if he to whom the writ is
addressed conceal himself, or refuse admittance to the person charged to
serve it on him, the latlat shall affix the order on the exterior of
the place where the person resides, or in which the petitioner is so
confined. Lo. Code of Pract. art. 803. The service is proved by the oath
of the party making it.
11.
- 3. The person to whom the writ is addressed or directed, is required
to make a return to it, within the time prescribed; he either complies,
or he does not. If, he complies, he must positively answer, 1. Whether
he has or has not in his power or custody the person to be set at
liberty, or whether that person is confined by him; if he return that he
has not and has not had him in his power or custody, and the return is
true, it is evident that a mistake was made in issuing the writ; if the
return is false, he is liable to a penalty, and other punishment, for
making such a, false return. If he return that he has such person in his
custody, then he must show by his return, further, by what authority,
and for what cause, he arrested or detained him. If he does not comply,
he is to be considered in contempt of the court under whose seal the
writ has been issued, and liable to a severe penalty, to be recovered by
the party aggrieved.
12.
- 4. When the prisoner is brought, before the judge, his judicial
discretion commences, and he acts under no other responsibility than
that which belongs to the exercise of ordinary judicial power. The judge
or court before whom the prisoner is brought on a habeas corpus,
examines the return and Papers, if any, referred to in it, and if no
legal cause be shown for the imprisonment or restraint; or if it appear,
although legally committed, he has not been prosecuted or tried within
the periods required by law, or that, for any other cause, the
imprisonment cannot be legally continued, the prisoner is discharged
from custody. In the case of wives, children, and wards, all the court
does, is to see that they ire under no illegal restraint. 1 Strange,
445; 2. Strange, 982; Wilmot's Opinions, 120.
13. For those offences which are bailable, when the prisoner offers sufficient bail, he is to be bailed.
14.
He is to be remanded in the following cases: 1. When it appears he, is
detained upon legal process, out of some court having jurisdiction of
criminal matters, 2. When he is detained by warrant, under the hand and
seal of a magistrate, for some offence for which, by law, the prisoner
is not bailable. 3. When he is a convict in execution, or detained in
execution by legal civil process. 4. When he is detained fora contempt,
specially and plainly charged in the commitment, by some existing court,
having authority to commit for contempt. 5. When he refuses or neglects
to give the requisite bail in a case bailable of right. The judge is
not confined to the return, but he is to examine into the causes of the
imprisonment, and then he is to discharge, bail, or remand, as justice
shall require. 2 Kent, Com. 26; Lo. Code of Prac. art. 819.
15.
- 5. It is provided by the habeas corpus act, that a person set at
liberty by the writ, shall not again be imprisoned for the same offence,
by any person whomsoever, other than by the legal order and process of
such court wherein he shall be bound by recognizance to appear, or other
court having jurisdiction of the cause. 4 Johns. R. 318; 1 Binn. 374; 5
John. R.282.
16.
The habeas corpus can be suspended only by authority of the
legislature. The constitution of the United States provides, that the
privilege of the writ of habeas corpus shall not be suspended unless
when, in cases of invasion and rebellion, the public safety may require
it. Whether this writ ought to be suspended depends on political
considerations, of which the legislature, is to decide. 4 Cranch, 101.
The proclamation of a military chief, declaring martial law, cannot,
therefore, suspend the operation of the law. 1 Harr. Cond. Rep. Lo. 157,
159 3 Mart. Lo. R. 531.
17. There are various kinds of this writ; the principal of which are explained below.
18.
Habeas corpus ad deliberandum et recipiendum, is a writ which lies to
remove a prisoner to take his trial in the county where the offence was
committed. Bac. Ab. Habeas Corpus, A.
19.
Habeas corpus ad faciendum et recipiendum, is a writ which issues out
of a court of competent jurisdiction, when a person is sued in an
inferior court, commanding the inferior judges to produce the body of
the defendant, together with the day and cause of his caption and
detainer, (whence this writ is frequently denominated habeas corpus cum
causa) to do and receive whatever the court or the judge issuing the
writ shall consider in that behalf. This writ may also be issued by the
bail of a prisoner, who has been taken upon a criminal accusation, in
order to surrender him in his own discharge; upon. the return of this
writ, the court will cause an exoneretur to be entered on the bail
piece, and remand the prisoner to his former custody. Tidd's Pr. 405; 1
Chit. Cr. Law, 182.
20.
Habeas corpus ad prosequendum, is a writ which issues for the purpose
of removing a prisoner in order to prosecute. 3 Bl. Com. 130.
21.
Habeas corpus ad respondendum, is a writ which issues at the instance
of a creditor, or one who has a cause of action against a person who is
confined by the process of some inferior court, in order to remove the
prisoner and charge him with this new action in the court above. 2
Mod.198; 3 Bl. Com. 107.
22.
Habeas corpus ad satisfaciendum, is a writ issued at the instance of a
plaintiff for the purpose of bringing up a prisoner, against whom a
judgment has been rendered, in a superior court to charge him with the
process of execution. 2 Lill. Pr. Reg. 4; 3 Bl. Com. 129, 130.
23.
Habeas corpus ad subjiciendum, by way of eminence called the writ of
habeas corpus, (q. v.) is a writ directed to the person detaining
another, and commanding him to produce the body of the prisoner, with
the day and cause of his caption and detention, ad faciendum,
subjiciendum, et recipiendum, to do, submit to, and receive, whatsoever
the judge or court awarding such writ shall consider in that behalf. 3
Bl. Com. 131; 3 Story, Const. §1333.
24.
Habeas corpus ad testificandum, a writ issued for the purpose of
bringing a prisoner, in order that he may testify, before the court. 3
Bl. Com. 130.
25.
Habeas corpus cum causa, is a writ which may be issued by the bail of a
prisoner, who has been taken upon a criminal accusation, in order to
render him in their own discharge. Tidd's Pr. 405. Upon the return of
this writ the court will cause an exoneretur to be entered on the bail
piece, and remand the defendant to his former custody. Id. ibid.; 1
Chit. Cr. Law132. Vide, generally, Bac. Ab. h. t.; Vin. Ab. h. t.; Com.
Dig. h. t.; Nels. Ab. h. t.; the various American Digests, h. t.; Lo.
Code of Prac. art. 791 to 827; Dane's Ab. Index, h. t.; Bouv. Inst.
Index, h. t.
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