Page:EB1911 - Volume 12.djvu/809

Rh is well known (Rom. i. 17; Gal. iii. 11; Heb. x. 38) though the difference is apt to be exaggerated by those who forget how much of the element of : lies in Paul’s conception of . In G. A. Smith’s words, “as Paul’s adaptation, ‘the just shall live by faith,’ has become the motto of evangelical Christianity, so we may say that Habakkuk’s original of it has been the motto and the fame of Judaism: ‘the righteous shall live by his faithfulness.’”

The Hebrew text of this impressive and varied book is unfortunately corrupt in many places; even so cautious a critic as Driver accepts or favourably notices eighteen textual emendations in the three chapters, and suspects the text in at least seven other cases. For the interpretation of the book in detail, the English reader will find Driver’s commentary (1906) the most useful.

References to earlier literature will be found in the following noteworthy studies of recent date: Davidson, “Nahum, Habakkuk and Zephaniah,” in Cambridge Bible (1896); Nowack, Die kleinen Propheten (Hdkr.) (1897); Wellhausen, Die kleinen Propheten3 (1898); G. A. Smith, “The Book of the Twelve Prophets,” in The Expositor’s Bible, vol. ii. (1898); Driver, article “Habakkuk” in Hastings’ Dictionary of the Bible, vol. ii. pp. 269–272 (1900); Budde, article “Habakkuk” in ''Ency. Biblica'', vol. ii., c. 1921–1928 (1901); Stevenson, “The Interpretation of Habakkuk,” in The Expositor (1902), pp. 388–401; Peake, The Problem of Suffering in the Old Testament (1904), pp. 4-11 and app. A, “Recent Criticism of Habakkuk”; Marti, Dodekapropheton (K. H. C.) (1904); Driver, “Minor Prophets,” vol. ii., in Century Bible (1906); Duhm, Das Buch Habakkuk (Text, Übersetzung und Efklärung), 1906 (regards the book as a unity belonging to the time of Alexander the Great). Max L. Margolis discusses the anonymous Greek version of Habakkuk iii. in a volume of ''Old Test. and Semitic Studies: in Memory of'' William Rainey Harper (Chicago, 1908).

 HABDALA (lit. “separation”), a Hebrew term chiefly appropriated to ceremonies at the conclusion of Sabbath and festivals, marking the separation between times sacred and secular. On the Saturday night the ceremony consists of three items: (a) benediction over a cup of wine (common to many other Jewish functions); (b) benediction over a lighted taper, of which possibly the origin is utilitarian, as no light might be kindled on the Sabbath day, but the rite may be symbolical; and (c) benediction over a box of sweet-smelling spices. The origin of the latter has been traced to the bowl of burning spice which in Talmudic times was introduced after each meal. But here too symbolic ideas must be taken into account. Both the light and the spices would readily fit into the conception of the Sabbath “Over-soul” of the mystics.

HABEAS CORPUS, in English law, a writ issued out of the High Court of Justice commanding the person to whom it is directed to bring the 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 personal liberty. From the earliest records of the English law no free man could be detained in custody except on a criminal charge or conviction or for a civil debt. That right is expressed in the Great Charter in the words: “Nullus liber homo capiatur vel imprisonetur aut dissaisietur aut utlagetur, aut exuletur aut aliquo modo destruatur nec super eum ibimus nec super eum mittemus, nisi per legale judicium parium suorum, vel per legem terrae.” The writ is a remedial mandatory writ of right existing by the common law, i.e. it is one of the extraordinary remedies—such as mandamus, certiorari and prohibitions, which the superior courts may grant. While “of right,” it is not “of course,” and is granted only on application to the High Court or a judge thereof, supported by a sworn statement of facts setting up at least a probable case of illegal confinement. It is addressed to the person in whose custody another is detained, and commands him to bring his prisoner before the court immediately after the receipt of the writ, together with the day and cause of his being taken and detained, to undergo and receive (ad subjiciendum et recipiendum) whatsoever the court awarding the writ “may consider of concerning him in that behalf.”

It is often stated that the writ is founded on the article of the Great Charter already quoted; but there are extant instances of the issue of writs of habeas corpus before the charter. Other writs having somewhat similar effect were in use at an early date, e.g. the writ de odio et atiâ, used as early as the 12th century to prevent imprisonment on vexatious appeals of felony, and the writ of mainprise (de manucaptione), long obsolete if not abolished in England but which it was attempted to use in India so late as 1870. In the ease of imprisonment on accusation of crime the writ issued from the court of king’s bench (or from the chancery), and on its return the court judged of the legality of the imprisonment, and discharged the prisoner or admitted him to bail or remanded him to his former custody according to the result of the examination.

By the time of Charles I. the writ was fully established as the appropriate process for checking illegal imprisonment by inferior courts or by public officials. But it acquired its full and present constitutional importance by legislation.

In Darnel’s case (1627) the judges held that the command of the king was a sufficient answer to a writ of habeas corpus. The House of Commons thereupon passed resolutions to the contrary, and after a conference with the House of Lords the measure known as the Petition of Right was passed (1627, 3 Car. I. c. i.) which, inter alia, recited (s. 5) that, contrary to the Great Charter and the good laws and statutes of the realm, 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 special command of the king signified by the privy council, were nevertheless remanded to prison, and enacted “that no freeman in any such manner as is before mentioned be imprisoned or detained.” The Petition of Right was disregarded in 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 government and for stirring up sedition against him.” This led to legislation in 1640 by which, after abolishing the Star Chamber, the right to a habeas corpus was given to test the legality of commitments by command or warrant of the king or the privy council.

The reign of Charles II. was marked by further progress towards securing the freedom of the subject from wrongful imprisonment. Lord 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 Jersey. Though the authority of the courts had been strengthened by the Petition of Right and the act of 1640, it was still rendered insufficient by reason of the insecurity of judicial tenure, the fact that only the chancellor (a 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 term, which did not cover more than half the year. A 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 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 Guildhall, and could get neither bail nor trial. In 1679, but rather in consequence of Lord Clarendon’s arbitrary proceedings than of Jenkes’s case, a fresh 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 energy of Lord Shaftesbury, after whom it was for some time called. The act, while a most important landmark in the constitutional history of England, in no sense creates any right to personal freedom, but is essentially a procedure act for improving the legal mechanism by means of which that acknowledged right may be enforced.