Page:The New International Encyclopædia 1st ed. v. 09.djvu/475

* HABEAS CORPUS. 423 HABEAS CORPUS. pus, and these words foiin a part of the Latin form of the writ. Of all these writs the one which is now of primary importance, and which is commonly meant hy the term, is that of which the fuller name is habeas voriiiis ad suhjicien- dum, the history and law concerning which is here hrietly stated under ihat fuller name. Other writs of minor importance arc yiven below under llieir fuller names, by which they are or- dinarily distinguished. Habeas C'oiu'us ad Sucjicik.n'du.m. This is a prerogative writ requiring the body of a person alleged to he unlawfully restrained of liberty to be brought before the judge or into court, that the lawfulness of tlie restraint may be investi- gated and determined. The writ is addressed to the person in whose custody the detained per- son is alleged to be, and commands him to pro- duce the body of the prisoner before the court and there state the cause and warrant for his detention, or show cause why this was not done. At the time when the Magna Charta declared that no "freeman may be taken or imprisoned but by the lawful judgment of his peers or by the law of the land, ' there seems to have been no definite machinery available by which a freeman so im- prisoned could recover his freedom. This was due partly to the fact that the power was not then fully centralized, partly to the fact that the King's court (through which this was then to he accomplished if at all) was not yet ready to set at naught the King's will, and partly that the law seemed to fear too little rather than too much imprisonment of malefactors, and the ac- tion for false imprisonment seemed a sufficient check for merely lawless confinement. The words 'habeas^ corpiis' ai'e making their way into vari- ous writs, but they are not yet habitually used of any method of investigating the cause or le- gality of an imprisonment. A person arrested was set free as soon as some sureties became bound for his appearance in court. It was not common to keep men in prison, not (apparently) because of any love of the abstract idea of libertv, but because imprison- ment was costly and troublesome to the sheriff. The sheriff enjoyed a discretionary power of de- taining or releasing prisoners vipon sureties such as he considered sufficient, except th.at he might not set at liberty any one imprisoned by the special command of the King. A writ [de ho- mive repleginndo), which came into currency during this same period, directed the sheriff to deliver the prisoner unless he were taken at the special command of the King or his chief jus- ticiar or for the death of a man, or for some forest offense, or for some other cause which by law made him irrepleviable: but the writ was so worded as to throwi upon the sheriff the respon- sibility of deciding whether the prisoner should be kept in custody. In theory the central court (King's Court) had a control over the entire province of crim- inal justice, and at times directed a sheriff to send prisoners to Westminster for trial ; but such instanc'^s at this date were rare, and were gener- ally from ChanceiT rather than from the jus- tices, and were more aovernmentn! than judicial in their origin. Undoiditedly, also, if a man thought himself unlawfully imprisoned by the sheriff' or by some lord of a franchise, and made himself heard in the King's Court, the jus- tices of lliat court had power to order that his body he brought before them, and to liberate him if persuaded that his impri.sonment was unlaw- ful. Although in 1234 the royal court, by the mouth of William Raleigh, declared null and void the outlawry of Hubert de Burgh (q.v.), which the King had especially commanded, this victory of law over arbitrary power was gained only after a revolt and a chang(' of Ministry. In spite of this, a man conunitted to jail by the 'mandate of the King' would have found none to liberate him. It was two hundred years before the habeas corpus as the appropriate instrument for enforcing tlie law of personal liberty granted by Magna Cliarta became well established, and it was not until the reign of Charles II. that the last vestige of the superiority of the King's man- date disappears. In Darnel's case (3 Charles I., 1027) the judges declared that a return to a writ of habeas corpus directed to the warden of the Fleet Prison, which set forth that the pris- oner was detained by warrant of the Pri^'y Coun- cil, was a sufficient answer to the writ. The result of the indignation consequent upon this subserviency of the judges to the King's will was the passage of the Petition of Right (16 Charles I., ch. 10, sec. 8), which jirovided that the writ of habeas corpus should be granted as of course to a jjerson comnnttcd by the King or Privy Council upon demand made to the Court of King's Bench or Connnon Pleas, thus extending the power of granting the writ to the Common Pleas Court by statute. In 1076 the court re- fused to grant a writ upon such a motion in vacation, and this resulted in the passing of the Habeas Corpus Act. The substance of the act is that the sheriff or other person having a prisoner in his custody shall, when a writ of habeas cor- pus is directed to him, bring the body of his prisoner into court, within a time fixed, with the true cause of his detainer or imprisonment, un- less the commitment was for treason or felony ]dainly expressed in the warrant ; that the writ of habeas corpus should be granted in vacation time by the Lord Chancellor, the writ to be returnable immediately and the prisoner to be discharged on giving security for his appearance before the proper court, except in case of persons committed for treason or felony expressed in the warrant of commitment, persons convicted or suffering execution by legal process, and persons detained upon a legal process or for an oft'cnse not bailable upon a justice's warrant: that per- sons discharged on habeas corpus shall not be recommitted for the same offense except by the court having cognizance of the case; persons committed to prison for treason or felony if not indicted and tried in or before the second term or session after commitment should be dis- charged ; and that no inhabitant of Kngland (except convicted felons and those contracting to be transported) shall be sent as prisoners to Scotland. Ireland. .Tersey, etc.. or any place be- yond the seas. Stringent penalties provided for a forfeit of f.500 against a judge delaying the issue of the writ, costs and damages of not less than £.500. besides the penalties of proemunire for illegal Transportation beyond seas. This act was gravely defective in restricting,