diate post receptionem hujus brevis." Rex v. Gardner, Trem. P. C., 354.

Blackstone says the writ contained the words "ad faciendum" also, but they are not found in the form given by Coke nor in the writ copied in the case of Rex v. Gardner, Trem. P. C., 354.

Whether the words "ad faciendum" were used or not, the great prerogative writ was always distinguished by the words "ad subjiciendum." These words have been rendered, "to submit to," Black., 3, 131; "to undergo," Hand's Pr., 520; "to perform," per Solicitor-General, In re Belson, 3 Eng. Law and Eq., 56.

To the observation of Lord Campbell in the last case, that he did not see how the writ of "habeas corpus ad faciendum et recipiendum differed in substance from the writ of habeas corpus ad subjiciendum et recipiendum," it was answered: "The difference consists in the one being a writ of process, from which in case of error in the proceedings there would have been a rehearing before the Lord Chancellor and an appeal to the House of Lords; but can any one say there would have been an appeal if the Lord Chancellor had issued his fiat at once for the great prerogative writ of habeas corpus ad subjiciendum? The word subjiciendum would be omitted in the writ of habeas corpus cum causa."

The terms "to do, submit to and receive," are commonly used in the United States, where the form of the writ has not been prescribed by statute.

In the forms prescribed in Maine, Massachusetts, Ohio, the words "submit to" are omitted. They

were omitted in the form prescribed in Massachusetts, as early as 1785. Mass. Laws, 1788, p. 150.

2. In what name to issue. The writ, as appears, always runs in the name of the state. Commonwealth v. Briggs, 16 Pick., 203.

The state in all cases of wrongful detention is in legal presumption concerned in having justice done, and therefore must be a party to the proceeding to remove it. Wade v. Judge, 5 Ala., 130. "It is a prerogative writ which the King may send to any place, he having a right to be informed of the state and condition of every prisoner, and for what reason he is confined." 1 Ch. Cr. L., 119; Bac. Abr., tit., Hab. Corp., 2.

The proceeding in habeas corpus "is an inquisition by the Government at the suggestion and instance of an individual, but still in the name and capacity of the sovereign." Per Betts, cited in Barry v. Mercein, 5. How., 108.

3. To whom directed. Wherever a person is imprisoned by any person whatsoever, whether he be one concerned in the administration of justice, as a sheriff, gaoler, &c., or a private person, such as a doctor of physic, who confines a person under pretence of curing him of madness, &c., the habeas corpus must be directed to him. Bac. Abr., Hab. Corp., 6; Commonwealth v. Ridgeway, 2 Ashm., 247.

But it should not be directed in the disjunctive; for example to the sheriff or the gaoler. "Where a party is taken by a warrant of the sheriff, the writ must be directed to him, for in contemplation of law the prisoner is in his custody, and the writ must be

returned with the body; but where the prisoner has been immediately committed to the custody of the gaoler, as in all criminal cases, it must be directed to him." 1 Ch. Cr. L., 126; Bac. Abr., Hab. Corp., 6.

It may also be directed to any one participating in the illegal detention, though he be not the immediate actor in the wrong. Where the father applied for the writ to obtain the custody of his infant child, the mother having it with her at her father's, where she was staying, the writ was held to be properly directed to the wife's father. The People, ex rel. Barry v. Mercein, 3 Hill, 406.

In Ohio, it is provided, Swan Stat., 453, sec. 4., that:

"The person having the custody of the prisoner may in all writs of habeas corpus be designated by his name of office, if he have any, or by his own name; or, if both such names are unknown or uncertain, he may be described by an assumed appellation; and any one who is served with the writ shall be deemed the person intended thereby." Sec. 5. "The person to be produced shall be designated by his name, if known, and if that is unknown or uncertain, he may be described in any other way so as to make known who was intended."

It is also provided by the statute passed Feb. 8, 1847, sec. 1:

"That in case of confinement, imprisonment or detention by any person not a sheriff, deputy sheriff, coroner, jailor, constable, or marshal of this state, nor a marshal, deputy marshal or other like officer of the courts of the United States, the writ of habeas corpus shall be in the form following:

THE STATE OF OHIO,

COUNTY, ss.

[L. S.] To the Sheriffs of our several counties, greeting : We command you, that the body of of

by

of imprisoned and restrained of his liberty, as a judge of our

it is said, you take and have before

court

forth

, or, in case of his absence or disability, before some other judge of the same court, at with, to do and receive what our said judge shall then and there consider concerning him in this behalf; and summon the said then and there to appear before our said judge to show the cause of the taking and detaining of the said and have you there this writ, with your doings thereon. Witness, &c.

The common law direction of the writ in all cases of mere private restraint has been altered in this state. No penalty has been prescribed in cases of eloinment, and perhaps in such cases further legislation may required to give the writ the efficiency which it had at common law.

be

The writ in Massachussetts and Maine is required to be directed in like manner; and in Kentucky, on good cause shown, the officer or person serving the writ may be directed to take the applicant into his custody, and produce him on return of the writ. So in Indiana, if it be made to appear in any case, by satisfactory proof by affidavit, that the applicant is illegally held in custody, confinement or restraint, and that there is good reason to believe that such person will be carried out of the jurisdiction of the court or judge where the application is made, or will suffer some irreparable injury before compliance with the writ of habeas corpus can be enforced, a warrant stating the facts may be issued to the sheriff to take the person, &c. And in Alabama, when the detention

is in any other place than the penitentiary, or the common jail of the county, the writ commands the sheriff or coroner to take into his custody the person alleged to be illegally detained or confined, and forthwith to have him before the judge, &c.

In Maine, Massachusetts and Delaware, the concealing of the prisoner or changing his custody, with the intent to elude the service of the writ of habeas corpus, is prohibited under severe penalties; in the last, $3,600. In Indiana, Arkansas and Alabama, the act is declared a misdemeanor, and the offender subjected to fine and imprisonment.

SECTION VI.

SERVICE OF THE WRIT.

The writ at common law and under the statute 31 Car. 2, was not required to be served by an officer. The solicitor of the prisoner or any person in his behalf might deliver it to the person to whom it was directed. Hand's Pr., 73.

Under the act 31 Car. 2, it might be delivered to the officer to whom it was directed, or "left at the gaol or prison with any of the under officers, under keepers or deputy of said officers or keepers"

In some of the United States, special provisions have been made in reference to the mode of service where an evasion of service is attempted. In Louisiana and Indiana, where the person or officer refuses to receive the writ it will be sufficient service to state to him the contents (and probably in any other state);