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HABEAS CORPUS
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HABEAS CORPUS , in See also:English See also:law, a See also:writ issued out of the High See also:Court of See also:Justice commanding the See also:person to whom it is directed to bring the See also:body of a person in his custody before that or some other court for a specified purpose.
There are various forms of the writ, of which the most famous is that known as habeas corpus ad subjiciendum, the well-established remedy for violation of See also:personal See also:liberty. From the earliest records of the English law no See also:free See also:man could be detained in custody except on a criminal See also:charge or conviction or for a See also:civil See also:debt. That right is expressed in the See also:Great See also:Charter in the words: " Nullus See also:liber See also:home capiatur vel imprisonetur See also:aut dissaisietur aut utlagetur, aut exuletur aut aliquo mode destruatur nec super eum ibimus nec super eum mittemus, nisi per legale judicium parium suorum, vel per legem terrae."1 The writ is a remedial mandatory writ of right existing by the See also:common law, i.e. it is one of the extraordinary remedies—such as See also:mandamus, certiorari and prohibitions, which the See also:superior courts may See also: But it acquired its full and See also:present constitutional importance by legislation. In Darnel's case (1627) the See also:judges held that the command of the king was a sufficient See also:answer to a writ of habeas corpus. The See also:House of See also:Commons thereupon passed resolutions to the contrary, and after a See also:conference with the House of Lords the measure known as the See also:Petition of Right was passed (1627, 3 See also:Car. I. c. i.) which, inter alia, recited (s. 5) that, contrary to the Great Charter and the See also:good See also:laws and statutes of the See also:realm, See also:divers of the king's subjects had of late been imprisoned without any cause shown, and when they were brought up on habeas corpus ad subjiciendum; and no cause was shown other than the See also:special command of the king signified by the privy See also:council, were nevertheless remanded to See also:prison, and enacted " that no See also:freeman in any such manner as is before mentioned be imprisoned or detained." The Petition of Right was disregarded in See also:Selden's case (1629), when it was successfully returned to a habeas corpus that Selden and others were committed by the king's special command " for notable contempts against the king and his See also:government and for stirring up See also:sedition against him."2 This led to legislation in 164o by which, after abolishing the See also:Star Chamber, the right to a habeas corpus was given to test the legality of commitments by command or See also:warrant of the king or the privy council.3 The reign of Charles II. was marked by further progress towards securing the freedom of the subject from wrongful imprisonment. See also:Lord See also:Clarendon was impeached, inter alia, for causing many persons to be imprisoned against law and to be conveyed in custody to places outside England. In 1668 a writ of habeas corpus was issued to test the legality of an imprisonment in See also:Jersey. Though the authority of the courts had been strengthened by the Petition of Right and the See also:act of 164o, it was still rendered insufficient by See also:reason of the insecurity of judicial See also:tenure, the fact that only the See also:chancellor (a See also:political as well as a legal officer) and the court of king's bench had undoubted right to issue the writ, and the inability or hesitation of the competent judges to issue the writ except during the legal See also:term, which did not See also:cover more than See also:half the See also:year. A See also:series of bills was passed through the Commons between 1668 and 1675, only to be rejected by the other House. In Jenkes's case (1676) Lord Chancellor See also:Nottingham refused to issue the writ in vacation in a case in which a man had been committed by the king in council for a speech at See also:Guildhall, and could get neither bail nor trial. In 1679, but rather in consequence of Lord Clarendon's arbitrary proceedings 4 than of Jenkes's case, a fresh See also:bill was introduced which passed both Houses (it is said the upper House by the counting of one stout peer as ten) and became the famous Habeas Corpus Act of 1679 (31 Car. II. c. 2). The passing of the act was largely due to the experience and See also:energy of Lord See also:Shaftesbury, after whom it was for some time called. The act, while a most important landmark in the constitutional See also:history of England, in no sense creates any right to personal freedom, but is essentially a See also:procedure act for improving the legal mechanism by means of which that acknowledged right may be enforced. 1 2 Hallam, Const. Hist. vol. ii., c. viii. (12th ed.) p. 2. 3 Ibid. c. ix. (12th ed.) p. 98. * Ibid. vol. iii., c. xiii. (12th ed.) p. 12. 6 See also:Dicey, Law of the Constitution (6th ed.), p. 217. It declares no principles and defines no rights, but is for See also:practical purposes See also:worth a See also:hundred articles guaranteeing constitutional liberty.' In the manner characteristic of English legislation the act is limited to the particular grievances immediately in See also:vie* and is limited to imprisonment for criminal or supposed criminal matters, leaving untouched imprisonment on civil process or by private persons. It recites that great delays have been used by sheriffs and gaolers in making returns of writs of habeas corpus directed to them; and for the prevention thereof, and the more speedy See also:relief of all persons imprisoned for criminal or supposed criminal matters, it enacts in substance as follows: (1) When a writ of habeas corpus is directed to a See also:sheriff or other person in charge of a prisoner, he must within 3, 10 or 20 days, according to the distance of the See also:place of See also:commitment, bring the body of his prisoner to the court, with the true cause of his detainer or imprisonment—unless the commitment was for See also:treason or felony plainly expressed in the warrant of commitment. (2) If any person be committed for any crime—unless for treason or felony plainly expressed in the warrant—it shall be lawful for such person or persons (other than persons convicted or in See also:execution by legal process) in time of vacation, to See also:appeal to the lord chancellor as a judge, who shall issue a habeas corpus returnable immediately, and on the return thereof shall See also:discharge the prisoner on giving See also:security for his See also:appearance before the proper court—unless the party so committed is detained upon a legal process or under a justice's warrant for a non-bailable offence. Persons neglecting for two terms to pray for a habeas corpus shall have none in vacation. (3) Persons set at large on habeas corpus shall not be recommitted for the same offence unless by the legal See also:order and process of the court having See also:cognizance of the case. (4) A person committed to prison for treason or felony shall, if he requires it, in the first See also:week of the next term or the first day of the next session of oyer and terminer, be indicted in that term or session or else admitted to bail, unless it appears on See also:affidavit that the witnesses for the See also:crown are not ready; and if he is not indicted and tried in the second term or session after commitment, or if after trial he is acquitted, he shall be discharged from imprisonment. (5) No inhabitant of England (except persons contracting, or, after conviction for felony, electing to be transported) shall be sent prisoner to See also:Scotland, See also:Ireland, Jersey, &c., or any place beyond the seas. Stringent penalties are provided for offences against the act. A judge delaying habeas corpus forfeits £Soo to the party aggrieved. Illegal imprisonment beyond seas renders the offender liable in an See also:action by the injured party to See also:treble See also:costs and See also:damages to the extent of not less than £Soo, besides subjecting him to the penalties of See also:praemunire and to other disabilities. " The great See also:rank of those who were likely to offend against this See also:part of the See also:statute was," says Hallam, " the cause of this unusual severity." Indeed as early as 1591 the judges had complained of the difficulty of enforcing the writ in the case of imprisonment at the instance of magnates of the realm. The effect of the act was to impose upon the judges under severe See also:sanction the See also:duty of protecting personal liberty in the case of criminal charges and of securing speedy trial upon such charges when legally framed; and the improvement of their tenure of See also:office at the revolution, coupled with the See also:veto put by the Bill of Rights on excessive bail, gave the judicature the See also:independence and authority necessary to enable them to keep the executive within the law and to restrain administrative development of the See also:scope or penalties of the criminal law; and this See also:power of the judiciary to See also:control the executive, coupled with the limitations on the right to set up " act of See also:state " as an excuse for infringing individual liberty is the special characteristic of English constitutional law.
It is to be observed that neither at common law nor under the act of 1679 was the writ the appropriate remedy in the case of a person convicted either on See also:indictment or summarily. It properly applied to persons detained before or without trial or See also:sentence; and for convicted persons the proper remedy was by writs of
' Dicey, Law of the Constitution (6th ed.), p. 195.See also:error or certiorari to which a writ of habeas corpus might be used as See also:ancillary.
As regards persons imprisoned for debt or on civil process the writ was available at common law to test the legality of the detention: but the practice in these cases is unaffected by the act of 1679, and is of no present See also:interest, since imprisonment on civil process is almost abolished. As regards persons in private custody, e.g. persons not sui See also:juris detained by those not entitled to their guardianship or lunatics, or persons kidnapped, habeas corpus ad subjiciendum seems not to have been the See also:ordinary common law remedy. The appropriate writ for such cases was that known as de homine replegiando. The use of this writ in most if not all criminal cases was forbidden in 1553; but it was used in the 17th century in a case of See also:kidnapping (Designy's case, 1682), and against Lord See also:Grey for abducting his wife's See also:sister (1682), and in the See also:earl of See also:Banbury's case to recover his wife (1704). The latest recorded instance of its use is Trebilcock's case (1736), in which a See also: In 1758 questions arose as to its application to persons in See also:naval or military custody, including pressed men, which led to the introduction of a bill in See also:parliament and to the consultation by the House of Lords of the judges (see See also:Wilmot's Opinions, p. 77). In the same year the writ was used to See also:release the wife of Earl See also:Ferrers from his custody and maltreatment, and was unsuccessfully applied for by See also: It is available to put an end to all forms of illegal detention in public or private custody. In the case of the See also:Canadian prisoners (1839) it was used to obtain the release of persons sentenced in See also:Canada for participating in the See also:rebellion of 1837, who were being conveyed throughout England in custody on their way to imprisonment in another part of the See also:empire, and it is matter of frequent experience for the courts to See also:review the legality of commitments under the See also:Extradition Acts and the Fugitive Offenders Act 1881, of fugitives from the justice of a foreign state or parts of the king's dominions outside the See also:British Islands. In times of public danger it has occasionally been thought necessary to " suspend " the Habeas Corpus Act 1679 by special and temporary legislation. This was done in 1794 (by an act annually renewed until 18or) and again in 1817, as to persons arrested and detained by his See also:majesty for conspiring against his person and government. The same course was adopted in Ireland in 1866 during a Fenian rising. It has been the practice to make such acts See also:annual and to follow their expiration by an act of See also:indemnity. In cases where See also:martial law exists the use of the writ is ex hypothesi suspended during conditions amounting to a state of See also:war within the realm or the British See also:possession affected (e.g. the Cape See also:Colony and See also:Natal during the See also:South See also:African War), and it would seem that the acts of courts martial during the period are not the subject of review by the ordinary courts. The so-called " suspension of the Habeas Corpus Act " bears a certain similarity to what is called in See also:Europe " suspending the constitutional guarantees " or " proclaiming a state of See also:siege," but " is not in reality more than suspension of one particular remedy for the See also:protection of personal freedom." There are various other forms of the writ according to the purpose for which it is granted. Thus habeas corpus ad respondendum is used to bring up a prisoner confined by the process of an inferior court in order to charge him in another proceeding (civil or criminal) in the superior court or some other court. As regards civil proceedings, this See also:form of the writ is now rarely used, owing to the abolition of See also:arrest on See also:mesne process and the restriction of imprisonment for debt, or in execution of a civil See also:judgment. The right to issue the writ depends on the common law, supplemented by an, act of 1802. It is occasionally used for the purpose of bringing a person in custody for debt or on a criminal charge before a criminal court to be charged in respect of a criminal proceeding: but the same result may be obtained by means of an order of a secretary of state, made under s. 11 of the Prison Act 1898, or by the written order of a court of criminal See also:jurisdiction before which he is required to take his trial on indictment (Criminal Law See also:Amendment Act 30 & 31 Viet. C. 35, s. Io). Other forms are ad satisfaciendum; ad faciendum et recipiendum, to remove intoa superior court proceedings under which the See also:defendant is in custody: ad testificandum, where a prisoner is required as a See also:witness, issued under an act of 1804 (s. II), which is in practice replaced by orders. under s. 11 of the Prison Act 1898 (supra) or the order of a judge under s. of the Criminal Procedure Act 1853: and ad deliberandum et recipias, to authorize the See also:transfer from one custody to another for purposes of trial, which is in practice superseded by the provisions of the Prison Acts 1865, 1871 and 1898, and the Criminal Law Amendment Act 1867 (supra). The above forms are now of little or no importance; but the procedure for obtaining them and the forms of writ are included in the Crown Office Rules 1906. Ireland.—The common law of Ireland as to the writs of habeas corp4is is the same as that in England. The writ has in past times been issued from the English court of king's bench into Ireland; but does not now so issue. The acts of 1803 and 1816 already mentioned apply to Ireland. The Petition of Right is not in terms applicable to Ireland. The Habeas Corpus Act 1679 does not apply to Ireland; but its See also:equivalent is supplied by an act of 1781–1782 of the Irish parliament (21 & 22 Geo. III. c. I O. Sec. 16 contains a See also:provision empowering the See also:chief See also:governor and privy council of Ireland by a See also:proclamation under the great See also:seal of Ireland to suspend the act during such time only as there shall be an actual invasion or rebellion in Ireland; and it is enacted that during the currency of the proclamation no judge or justices shall bail or try any person charged with being concerned in the rebellion or invasion without an order from the lord See also:lieutenant or lord See also:deputy and See also:senior of the privy council. In Ireland by an act of 1881 the Irish executive was given an See also:absolute power of arbitrary and preventive arrest on suspicion of treason or of an act tending to interfere with the See also:maintenance of law and order: but the warrant of arrest was made conclusive. This act continued by annual renewals until 1906, when it expired. Scotland.—The writ of habeas corpus is unknown to Scots law, nor will it issue from English courts into Scotland. Under a Scots act of 1701 (c. 6) provision is made for preventing wrongous imprisonment and against undue delay in trials. It was applied to treason felony in 1848. The right to speedy trial is now regulated by s. 43 of the Criminal Procedure Scotland Act 1887. These enactments are as to Scotland equivalent to the English Act of 1679. Under the Court of See also:Exchequer Scotland Act 1856 (19 & 20 V. C. 56) provision is made for bringing before the court of session persons and proceedings before inferior courts and public See also:officers—which is analogous to the See also:powers to issue habeas corpus in such cases out of the English court of exchequer (now the See also:revenue See also:side of the king's bench See also:division).
British Possessions.—The act of 1679 expressly applies to See also:Wales, See also:Berwick-on-Twecd, Jersey and See also:Guernsey, and the act of 1816 also extends to the Isle of Man. The court of king's bench has also issued the writ to the king's foreign dominions beyond seas, e.g. to St See also:Helena, and so late as 1861 to Canada (See also: In See also:Australasia and Canada and in most if not all the British possessions whose law is based on the common law, the power to issue and enforce the writ is possessed and is freely exercised by colonial courts, under the charters or statutes creating and regulating the courts. The writ is freely resorted to in Canada, and in 1905, 1906. two appeals came to the privy council from the dominion, one with reference to an extradition case, the other with respect to the right to expel aliens. Under the See also:Roman-Dutch law as applied in British See also:Guiana the writ was unknown and no similar process existed (2nd See also:report of See also:West See also:Indian law commissioners). But by the Supreme Court See also:Ordinance of 1893 that court possesses (inter alia) all the authorities, powers and functions belonging to or incident to a superior court of See also:record in England, which appears to include the power to issue the writ of habeas corpus. Under the Roman-Dutch law as applied to South See also:Africa free persons appear to have a right to release under a writ de libero homine exhibendo, which closely resembles the writ of habeas corpus, and the procedure described as " manifestation " used in the See also:kingdom of See also:Aragon (Hallam, See also:Middle Ages, vol. ii., c. iv.). The writ of habeas corpus has not been formally adopted or the Habeas Corpus Acts formally extended to South Africa; but in the Cape Colony, under the charter of justice and colonial legislation, the supreme court on petition grants a remedy equivalent to that obtained in England by writ of habeas corpus; and the remedy is sometimes so described (Koke v. Balie, 1879, 9 See also:Buchanan, 45, 6¢, arising out of a rising in Griqualand). During and after the South African War of 1899–1902 many attempts were made by this procedure to See also:challenge or review the sentences of courts martial; see re Fourie (1900), i8 Cape See also:Rep. 8. The laws of See also:Ceylon being derived from the Roman-Dutch law, the writ of habeas corpus is not indigenous: but, under s. 49 of the Supreme Court Ordinance 1889, the court or a judge has power to grant and issue " mandates in the nature of writs of habeas corpus." The chartered high courts in India have power to issue and enforce the writ of habeas corpus. The earliest record of its use was in 1775, when it was directed to See also:Warren See also:Hastings. It has been used to test the question whether Roman See also:Catholic religious orders could enter India, and in 187o an See also:attempt was made thereby to challenge the validity of a warrant in the nature of a lettre de cachet issued by the See also:viceroy (Ind. L. Rep. 6 See also:Bengal, 392, 456, 498), and it has also been applied to See also:settle controversies between See also:Hindus and missionaries as to the custody of a See also:young convert (R. v. See also:Vaughan, 1870, 5 Bengal, 418), and between a See also:Mahommedan See also:husband and his See also:mother-in-law as to the custody of a girl-wife (Khatija See also:Bibi, 187o, 5 Bengal, 557). See also:United States.—Before the See also:Declaration of Independence some of the See also:North See also:American colonies had adopted the act of 1679; and the federal and the other state legislatures of the United States have founded their procedure on that act. The common law as to the writ of habeas corpus has been inherited from England, and has been generally made to apply to commitments and detentions of all kinds. Difficult questions, unknown to English law, have arisen from the See also:peculiar features of the American state-See also:system. Thus the constitution provides that " the See also: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 it has been the subject of much dispute whether the power of suspension under this provision is vested in the See also:president or the See also:congress. The See also:weight of See also:opinion seems to lean to the latter alternative. Again, conflicts have arisen between the courts of individual states and the courts of the See also:union. It seems that a state court has no right to issue a habeas corpus for the discharge of a person held under the authority of the federal government. On the other See also:hand, the courts of the union issue the writ only in those cases in which the power is expressly conferred on them by the constitution.
AuTHORITIEs.—See also:Paterson, Liberty of the Subject (1877) ; See also:Short and Mellor, Crown Practice (189o); American: See also: Additional information and CommentsThere are no comments yet for this article.
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