THE WRIT OF HABEAS CORPUS.

CHAPTER I.

NATURE OF THE WRIT OF HABEAS CORPUS, AND SOURCES

AND EXTENT OF JURISDICTION OVER IT.

Section I. GENERAL NATURE OF THE WRIT OF HABEAS CORPUs.

II. JURISDICTION IN ENGLAND.

III. JURISDICTION OF THE FEDERAL COURTts.

IV. JURISDICTION OF THE STATE COURTS.

V. CONCURRENT JURISDICTION OF STATE AND FEDERAL COURTS.

VI ULTIMATE JURISDICTION OF THE SUPREME COURT OF THE UNITED STATES.

SECTION I.

GENERAL NATURE OF THE WRIT OF HABEAS CORPUS.

The writ of habeas corpus is that legal process which is employed for the summary vindication of the right of personal liberty when illegally restrained. It takes its name from the emphatic words which it contained when it was written in Latin. The same words were, however, used in a variety of writs which had for their object the production of a person before a court or judge. These writs were distinguished from each other, at common law, by the terms which

denoted the particular purpose for which they were issued; as, ad respondendum; ad faciendum et recipiendum; ad prosequendum; ad satisfaciendum; ad testificandum, and ad subjiciendum et recipiendum.

It was the last of these only, which was designed to procure liberation from illegal confinement. It was directed to the person detaining another, and commanded him to produce the body of the prisoner or person detained, together with the day and cause of his caption and detention, to submit to and receive whatsoever the court or judge awarding the writ might consider in that behalf.

Employed to vindicate the right of personal liberty by whatever power infringed, it became inseparably associated with that right; and in proportion as the right was valued, so was the writ by which it was defended. It was its grateful office which commended this species of the writ to the favorable regard of the people, and finally dignified it as, The writ of habeas corpus.

There were, indeed, other writs, at common law, viz: de atio et atia, de homine replegiando, which in particular cases, were used to obtain a similar object; but being more limited in their application and more complicated and slow in their operation, they gradually fell into disuse.

The date of the origin of the writ of habeas corpus is unknown. It is supposed to have been in use before the date of the Magna Carta. But a diligent inquirer, having access to the best sources of information, states the result of his investigation into the origin of the writ as follows: "The writ of habeas

corpus is found in operation at a remote period of the English law. The earliest reign in which I have been able to trace its frequent appearance, is that of Henry VI. At that period it seems to have been familiar to and well understood by the judges. Vine's Case, 34 H. 6.

"After this period the existence of the writ of habeas corpus is distinctly observed, and its progress can be effectually traced. But before the reign of Henry VI., I find myself obscured by a cloud. In the Year Book, 48 Ed. III., 22, there is a case upon this writ, or as it was then called, corpus cum causa.

"The research for a higher origin than the time of Henry VI., is unnecessary. The investigation may answer antiquarians; it cannot materially assist a constitutional lawyer." Hill's Report Canadian Prisoner's Case, 6.

In its early history it appears to have been used as a means of relief from private restraint. The earliest precedents where it was used against the crown are in the reign of Henry VII. Afterwards the use of it became more frequent, and in the time of Charles I., it was held an admitted constitutional remedy.

Though the writ of habeas corpus originated in the common law of England, the leading idea of it -deliverance by summary legal process from illegal confinement-may be traced in the laws of other countries which derived none of their principles of jurisprudence or rules of procedure from English law.

The interdict, de homine libero exhibendo, of the civil law, was a remedy in some important particulars similar to the writ of habeas corpus. When a

freeman was restrained by another in bad faith, the prætor ordered his interdict that such person should be brought before him in public that he might be liberated. Dig., 43, tit. 29.

And the process of the Spanish law, called "Manifestation," appears to have resembled the writ of habeas corpus. Mr. Hallam cites a remarkable instance of its use and efficiency against the sovereign, "not only in order to illustrate the privilege of manifestation, but as exhibiting an instance of judicial firmness and integrity, to which, in the fourteenth century no country in Europe could offer a parallel." Hallam's Mid. Ages, 222.

But the writ of habeas corpus in England and America has not only been rendered a more complete and efficacious remedy for illegal imprisonment in all cases, than any similar process in any other country; but it has also been raised to the importance and clothed with the power of a political principle, so that while and because it is an invaluable and incomparable protection for personal liberty, it is also in turn protected by the highest power in the State, constitutional and legislative, as a cherished popular right and safeguard of civil liberty.

In the further examination of the subject of the writ of habeas corpus, it is proposed to consider the sources and extent of the jurisdiction over it; the general principles of practice under it; the law of imprisonment under legal process; the law of bail; the law of private restraint; the law of extradition of fugitives; the subjects of writs of error and of recommitment after discharge under the writ.

SECTION II.

JURISDICTION IN ENGLAND.

1. Jurisdiction at Common Law.

2 Statutory Jurisdiction.

1. The common law jurisdiction. The origin of this jurisdiction as has been seen cannot now be ascertained. It is supposed to have been exercised before Magna Carta. Hallam Middle Ages, 342. It extended to all cases of illegal imprisonment whether claimed under public or private authority. 2 Inst., 55; Rex. v. Mead, 1 Burr. 542; 3 Bl. Com., 133.

It was exercised by the Courts of Chancery, King's Bench and Common Pleas, and in a case of privilege by the Exchequer. Bac. Abr. Hab. Corp., B. 1. The chancellor or a judge of the Court of King's Bench might grant the writ in vacation, returnable immediate at chambers. Watson's Case, 36 Eng. C. L., 254.

2. Statutory jurisdiction. By the statute 31 Car., 2, the Court of Exchequer, in cases of imprisonment for "criminal or supposed criminal matters," was authorized to grant the writ in term time as well as the Courts of Chancery, King's Bench and Common Pleas; and upon a proper application it was made the duty of "lord chancellor, lord keeper, or any of his majesty's justices, either of the one bench or of the other, or the barons of the exchequer of the degree of the coif," to grant the writ in vacation.

By the act of 56 Geo. 3, c. 100, similar jurisdiction in cases of imprisonment or restraint of liberty, other than those provided for in 31 Car. 2, was conferred