Page:The New International Encyclopædia 1st ed. v. 09.djvu/476

* HABEAS CORPUS. i24: HABEAS CORPUS. or not extonding, the right to habeas corpus to cases other than those of persons arrested on criminal charges. Tliis defect was not remedied until 1«1U, when an act (50 George 111., ch. 100) ■vvas passed providing that the writ should be gianted in otiier ilnin criminal cases; that though the return might be good on the face of itj if the facts on which it was made appeared doubtful, the prisoner should be admitted to bail; and that the writ should run to harbors end roads on the coast, although not within any county. In 1801 it was decided that the writ ran throughout the British Empire, and the act 2.') and 20 Vict., ch. 20, was passed restricting the jurisdiction so that the writ should not run from the English court into those colonies or do- minions where the granting of the writ by a local court iiad been provided for. In the United States the right to the benefit of the writ of habeas corpus was always claimed by the English colonies in America, and vvas enjoyed by them except in cases of arbitrary oppression. An instance of its early use occurs in New York in 1707, in procuring the release of ministers arrested by an illegal warrant issued by the Governor, Cornbury. In Xew Jersey in 1710 the Legislature denounced a judge who had violated the 'tmdoubted right' of a colonist by refusing the writ to him. In 1092 the South Carolina Assembly ado])ted the act 31 Charles II., and during the reigii of Anne the act was expressly extended to Virginia. Maryland in 1725 claimed the benefit of the w-rit as a "birthright of the inhabitants." independently of the royal favor. Hut, although the colonial charters generally con- tained express provisions that the colonists should have all the privileges and immunities of natural-born British stibjects, no express men- tion seems to have been made in them of this particular writ. It was rather taken for granted as belonging of right to every British subject, and when the colonies separated from the mother country, the right of habeas corpus became a part of the general common law of the States, derived by them from the laws existing while they were still colonies. (See Common Law.) The Constitution (Art. 1, sec. 9, subdiv. 2) provides that "the privileges of the writ of habeas corpus shall not be suspended unless when, in cases of rebellion or invasion, the public safety may require it." The constitutions of most of the Slates contain provisions of a simi- lar effect ; and in Virginia, Vermont, Louisiana, and North Carolina the suspension of the writ in any case is forbidden. The Constitution of Maryland, however, does not mention the writ. Several of the States provide in their constitu- tions for suspensions, as in Massachusetts for twelve months. New Hampshire three months, Florida in case of insurrection or rebellion, etc. President Lincoln stispended the privilege of the writ in 1801 by proclamation, but it was decided by Chief .Tnstice Taney, in the Circuit Coiu't of ilaryland. that Congress alone possessed the right to suspend the writ ; and this seems to be the better opinion, although the right of the President was supported by authorities at the time. Later, in March, 180.3, Congress passed a bill authorizing the President to suspend the privilege of the writ ; hut in cases arising under the exercise of this authority it was held that the suspension of the privilege did not suspend the issuance of the writ, but that the return was to he the means of suspending its further oper- ation. Neither does the suspension of the privi- lege of the writ deprive an unlawfully arrested or imprisoned person of his action ot" damages, nor protect the wrong-doer from criminal prose- cution. None of the States have suspended the privileges of the writ except Massachusetts, where the privilege of the writ was suspended from November, 1786, to July, 1787, on the occa- sion of Shays's Rebellion. In England, as noted above, the King's Court, or Court of King's Bench, and the Court of Chancery were the ordi- nary courts from which this writ was issuable ; but it could be issued by the Court of Common Pleas and by the Court of Exchequer, at least in ca.se of i>ersons privileged in those courts. The Habeas Corpus Act (31 Charles II., ch. 2) and other later acts prescribed the courts which could issue the writ, extending the jurisdiction so that it is always possible to obtain the writ in vaca- tion as well as in term time. In the United States the power of the Federal courts is purely statutory in origin. The orig- inal statute creating this power in them was the .ludiciary Act of September 24, 1789, sec. 14 (1 .Stat., L. 81), which provided "that writs of habeas corpus shall in no -case extend to prison- ers in gaol, unless they are in custody under or by color of the authority of the L^nited States, or are committed for trial before some court of tho> same, or are necessary to be brought into court to testify." The jurisdiction created by this act, it is now settled, is exclusive in the Federal court. Subsequent statutes have extended this jurisdiction to cases where the prisoner is in custody for an act done or omitted, in pursuance of a law or process of the United States (Rev. Stat., sec. 7.53). this being the general effect of the act of March 2, 1833" (4 Stat, at L., 634), commonly called the Force Bill; to eases where the prisoner is held in violation of the Constitu- tion, or a statute, or treaty of the United States, w'hether in a State or Federal court (Rev. Stat., sec. 753) ; "to all cases of any prisoner in jail or confinement who are subjects of a foreign State, and domiciled therein, who are confined or in custody under or by any authorit.y or law, or process founded thereon, of the United States, or of any of them, for or on account of any act done or omitted under any alleged right, title, or authority, privilege, protection, or exemption set up or claimed under the commission or order or sanction of any foreign State or sovereignty, the validity and effect whereof depends upon the law of nations, or under color thereof (act of Atigust '29, 1842, 5 Stat, at L., 539; Rev. Stat., see. 753). These provisions do not grant to the Federal courts the authority by habeas corpus to dis- charge a prisoner from the ctistody of the State courts or officers where the prisoner is within the jurisdiction of the State authority by which he is im])risoned, merely because rights are involved which arise under the laws of the United States, since where there is a proper jurisdiction the State courts are equally bound with those of the Federal Government, and are equally supposed, to support and give effect to the Federal laws, and nny erroneous ruling in this respect would involve an error of law, which cotild be remedied