Page:EB1911 - Volume 12.djvu/811

Rh annually renewed until 1801) and again in 1817, as to persons arrested and detained by his 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 annual and to follow their expiration by an act of indemnity. In cases where martial law exists the use of the writ is ex hypothesi suspended during conditions amounting to a state of war within the realm or the British possession affected (e.g. the Cape Colony and Natal during the South 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 Europe “suspending the constitutional guarantees” or “proclaiming a state of siege,” but “is not in reality more than suspension of one particular remedy for the 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 form of the writ is now rarely used, owing to the abolition of arrest on mesne process and the restriction of imprisonment for debt, or in execution of a civil 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 jurisdiction before which he is required to take his trial on indictment (Criminal Law Amendment Act 30 & 31 Vict. c. 35, s. 10.)

Other forms are ad satisfaciendum; ad faciendum et recipiendum, to remove into a superior court proceedings under which the defendant is in custody: ad testificandum, where a prisoner is required as a witness, issued under an act of 1804 (s. 11), which is in practice replaced by orders under s. 11 of the Prison Act 1898 (supra) or the order of a judge under s. 9 of the Criminal Procedure Act 1853: and ad deliberandum et recipias, to authorize the 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 corpus 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 equivalent is supplied by an act of 1781–1782 of the Irish parliament (21 & 22 Geo. III. c. 11). Sec. 16 contains a provision empowering the chief governor and privy council of Ireland by a proclamation under the great 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 lieutenant or lord deputy and senior of the privy council. In Ireland by an act of 1881 the Irish executive was given an absolute power of arbitrary and preventive arrest on suspicion of treason or of an act tending to interfere with the 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 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 officers—which is analogous to the powers to issue habeas corpus in such cases out of the English court of exchequer (now the revenue side of the king’s bench division).

British Possessions.—The act of 1679 expressly applies to Wales, Berwick-on-Tweed, Jersey and 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 Helena, and so late as 1861 to Canada (Anderson’s case 1861, 30 L.J.Q.B. 129). In consequence of the last decision it was provided by the Habeas Corpus Act 1862 that no writ of habeas corpus should issue out of England by authority of any court or judge “into any colony or foreign dominion of the crown where the crown has a lawfully established court of justice having authority to grant or issue the writ and to ensure its due execution in the ‘colony’ or dominion” (25 & 26 V. c. 20). The expression “foreign dominion” is meant to apply to places outside the British Islands, and does not include the Isle of Man or the Channel Islands (see re Brown [1864], 33 L.J.Q.B. 193).

In 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 Roman-Dutch law as applied in British Guiana the writ was unknown and no similar process existed (2nd report of West Indian law commissioners). But by the Supreme Court Ordinance of 1893 that court possesses (inter alia) all the authorities, powers and functions belonging to or incident to a superior court of 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 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 kingdom of Aragon (Hallam, 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 Buchanan, 45, 64, 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 challenge or review the sentences of courts martial; see re Fourie (1900). 18 Cape Rep. 8.

The laws of 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 Warren Hastings. It has been used to test the question whether Roman Catholic religious orders could enter India, and in 1870 an attempt was made thereby to challenge the validity of a warrant in the nature of a lettre de cachet issued by the viceroy (Ind. L. Rep. 6 Bengal, 392, 456, 498), and it has also been applied to settle controversies between Hindus and missionaries as to the custody of a young convert (R. v. Vaughan, 1870, 5 Bengal, 418), and between a Mahommedan husband and his mother-in-law as to the custody of a girl-wife (Khatija Bibi, 1870, 5 Bengal, 557).

United States.—Before the Declaration of Independence some of the North 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 peculiar features of the American state-system. Thus the constitution 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 it has been the subject of much dispute whether the power of suspension under this provision is vested in the president or the congress. The weight of opinion seems to lean to the latter alternative. Again, conflicts have arisen between the courts of individual states and the courts of the 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 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.

—Paterson, Liberty of the Subject (1877); Short and Mellor, Crown Practice (1890); American: Church on Habeas Corpus (2nd ed. 1893).

HABERDASHER, a name for a tradesman who sells by retail small articles used in the making or wearing of dress, such as sewing cottons or silks, tapes, buttons, pins and needles and the like. The sale of such articles is not generally carried on alone, and a “haberdashery counter” usually forms a department of