remedies A writ of habeas corpus is an order in writing,
signed by the judge who grants the same, and sealed with the seal of the
court of he is a judge, issued in the name of the sovereign power where it
is granted, by such a court or a judge thereof, having lawful authority to
issue the same, directed to any one having a person in his custody or under
his restraint, commanding him to produce, such person at a certain time and
place, and to state the reasons why he is held in custody, or under
2. This writ was it common law considered as a remedy to remove the
illegal restraint on a freeman. But anterior to the 31 Charles II. its
benefit was, in a great degree, eluded by time-serving judges, who awarded
it only in term time, and who assumed a discretionary power of awarding or
refusing it. 3 Bulstr. 23. Three or four years before that statute was
passed there had been two very great cases much agitated in Westminster
Hall, upon writs of habeas corpus for private custody, viz: the cases of
Lord Lei-ah: 2 Lev; 128; and Sir Robert Viner, Lord Mayor.of London. 3
Keble, 434, 447, 470, 504; 2 Lev. 128; Freem. 389. But the court has wisely
drew the line of distinction between civil constitutional liberty, as
opposed to the power of the crown, and liberty as opposed to the violence
and power of private persons. Wilmots Opinions, 85, 86.
3. To secure the full benefit of it to the subject the statute 81 Car.
II. c. 2, commonly calfed the habeas corpus act, was passed. This gave to
the. writ the vigor, life, and efficacy requisite for the due protection of
the liberty of the subject. In England this. is considered as a high
prerogative writ, issuing out of the court of kings bench, in term time or
vacation, and running into every part of the kings dominions. It is also
grantable as a matter of right, ex debito justitae, upon the application of
4. The interdict De homine libero exhibendo of the Roman law, was a
remedy very similar to the writ of habeas corpus. When a freeman was
restrained by another, contrary to good faith, the praetor ordered that
such person should be brought before him that he might be liberated. Dig.
43, 29, 1.
5. The habeas corpus act has been substantially incorporated into the
jurisprudance of every state in the Union, and the right to the writ has
been secured by most of the constitutions of the states, and of the United
States. The statute of 31 Car. II. c. 2, provides that the person
imprisoned, if he be not a prisoner convict, or in execution of legal
process, or committed for treason or felony, plainly expressed in the
warrant, or has not neglected wilfully, by the space of two whole terms
after his imprisonment, to pray a habeas corpus for his enlargement, may
apply by any one in his behalf, in vacation time, to a judicial officer for
the writ of habeas corpus, and the officer, upon view of the copy of the
warrant of commitment, or upon proof of denial of it after due demand, must
allow the writ to be directed to the person in whose custody the party is
detained, and made returnable immediately before him. And, in term time,
any of the said prisoners may obtain his writ of habeas corpus, by applying
to the proper court.
6. By the habeas corpus law of Pennsylvania, (the Act of February 18,
1785,) the benefit of the writ of habeas corpus is given in "all cases
where any person, not being committed or detained for any criminal, or
supposed criminal matter," Who "shall be confined or restrained of his or
her liberty, under any color or pretence whatsoever." A similar provision
is contained in the habeas corpus act of New York. Act of April 21, 1818,
sect. 41, ch. 277.
7. The Constitution of the United State art. 1, s. 9, n. 2, 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 the same principle is contained in many of the state
constitutions. In order still more to secure the citizen the benefit of
this great writ, a heavy penalty is inflicted upon the judges who are bound
to grant it, in case of refusal.
8. It is proper to consider, 1. When it is to be granted. 2. How it is to
be served. 3. What return is to be made to it. 4. The bearing. 5. The
effect of the judgment upon it.
9. - 1. The writ is to be granted whenever a person is in actual
confinement, committed or detained as aforesaid, either for a criminal
charge, or, as in Pennsylvania and New York, in all cases where he is
confined or restrained of his liberty, under any color or pretence
whatsoever. But persons discharged on bail will not be considered as
restrained of their liberty so as to be entitled to, a writ of habeas
corpus, directed to their bail. 3 Yeates, R. 263; 1 Serg & Rawle, 356.
10. - 2. The writ may be served by any free person, by leaving it with
the person to whom it is directed, or left at the gaol or prison with any
of the under officers, under keepers, or deputy of the said officers or
keepers. In Louisiana, it is provided, that if the person to whom it is
addressed shall refuse to receive the writ, he who is charged to serve it,
shall inform him of its contents; if he to whom the writ is addressed
conceal himself, or refuse admittance to the person charged to serve it on
him, the latlat shall affix the order on the exterior of the place where
the person resides, or in which the petitioner is so confined. Lo. Code of
Pract. art. 803. The service is proved by the oath of the party making it.
11. - 3. The person to whom the writ is addressed or directed, is
required to make a return to it, within the time prescribed; he either
complies, or he does not. If, he complies, he must positively answer, 1.
Whether he has or has not in his power or custody the person to be set at
liberty, or whether that person is confined by him; if he return that he
has not and has not had him in his power or custody, and the return is
true, it is evident that a mistake was made in issuing the writ; if the
return is false, he is liable to a penalty, and other punishment, for
making such a, false return. If he return that he has such person in his
custody, then he must show by his return, further, by what authority, and
for what cause, he arrested or detained him. If he does not comply, he is
to be considered in contempt of the court under whose seal the writ has
been issued, and liable to a severe penalty, to be recovered by the party
12. - 4. When the prisoner is brought, before the judge, his judicial
discretion commences, and he acts under no other responsibility than that
which belongs to the exercise of ordinary judicial power. The judge or
court before whom the prisoner is brought on a habeas corpus, examines the
return and Papers, if any, referred to in it, and if no legal cause be
shown for the imprisonment or restraint; or if it appear, although legally
committed, he has not been prosecuted or tried within the periods required
by law, or that, for any other cause, the imprisonment cannot be legally
continued, the prisoner is discharged from custody. In the case of wives,
children, and wards, all the court does, is to see that they ire under no
illegal restraint. 1 Strange, 445; 2. Strange, 982; Wilmots Opinions, 120.
13. For those offences which are bailable, when the prisoner offers
sufficient bail, he is to be bailed.
14. He is to be remanded in the following cases: 1. When it appears he,
is detained upon legal process, out of some court having jurisdiction of
criminal matters, 2. When he is detained by warrant, under the hand and
seal of a magistrate, for some offence for which, by law, the prisoner is
not bailable. 3. When he is a convict in execution, or detained in
execution by legal civil process. 4. When he is detained fora contempt,
specially and plainly charged in the commitment, by some existing court,
having authority to commit for contempt. 5. When he refuses or neglects to
give the requisite bail in a case bailable of right. The judge is not
confined to the return, but he is to examine into the causes of the
imprisonment, and then he is to discharge, bail, or remand, as justice
shall require. 2 Kent, Com. 26; Lo. Code of Prac. art. 819.
15. - 5. It is provided by the habeas corpus act, that a person set at
liberty by the writ, shall not again be imprisoned for the same offence, by
any person whomsoever, other than by the legal order and process of such
court wherein he shall be bound by recognizance to appear, or other court
having jurisdiction of the cause. 4 Johns. R. 318; 1 Binn. 374; 5 John. R.
16. The habeas corpus can be suspended only by authority of the
legislature. The constitution of the United States provides, that the
privilege of the writ of habeas corpus shall not be suspended unless when,
in cases of invasion and rebellion, the public safety may require it.
Whether this writ ought to be suspended depends on political
considerations, of which the legislature, is to decide. 4 Cranch, 101. The
proclamation of a military chief, declaring martial law, cannot, therefore,
suspend the operation of the law. 1 Harr. Cond. Rep. Lo. 157, 159 3 Mart.
Lo. R. 531.
17. There are various kinds of this writ; the principal of which are
18. Habeas corpus ad deliberandum et recipiendum, is a writ which lies to
remove a prisoner to take his trial in the county where the offence was
committed. Bac. Ab. Habeas Corpus, A.
19. Habeas corpus ad faciendum et recipiendum, is a writ which issues out
of a court of competent jurisdiction, when a person is sued in an inferior
court, commanding the inferior judges to produce the body of the defendant,
together with the day and cause of his caption and detainer, (whence this
writ is frequently denominated habeas corpus cum causa) to do and receive
whatever the court or the judge issuing the writ shall consider in that
behalf. This writ may also be issued by the bail of a prisoner, who has
been taken upon a criminal accusation, in order to surrender him in his own
discharge; upon. the return of this writ, the court will cause an
exoneretur to be entered on the bail piece, and remand the prisoner to his
former custody. Tidds Pr. 405; 1 Chit. Cr. Law, 182.
20. Habeas corpus ad prosequendum, is a writ which issues for the purpose
of removing a prisoner in order to prosecute. 3 Bl. Com. 130.
21. Habeas corpus ad respondendum, is a writ which issues at the instance
of a creditor, or one who has a cause of action against a person who is
confined by the process of some inferior court, in order to remove the
prisoner and charge him with this new action in the court above. 2 Mod.
198; 3 Bl. Com. 107.
22. Habeas corpus ad satisfaciendum, is a writ issued at the instance of
a plaintiff for the purpose of bringing up a prisoner, against whom a
judgment has been rendered, in a superior court to charge him with the
process of execution. 2 Lill. Pr. Reg. 4; 3 Bl. Com. 129, 130.
23. Habeas corpus ad subjiciendum, by way of eminence called the writ of
habeas corpus, (q. v.) is a writ directed to the person detaining another,
and commanding him to produce the body of the prisoner, with the day and
cause of his caption and detention, ad faciendum, subjiciendum, et
recipiendum, to do, submit to, and receive, whatsoever the judge or court
awarding such writ shall consider in that behalf. 3 Bl. Com. 131; 3 Story,
24. Habeas corpus ad testificandum, a writ issued for the purpose of
bringing a prisoner, in order that he may testify, before the court. 3 Bl.
25. Habeas corpus cum causa, is a writ which may be issued by the bail
of a prisoner, who has been taken upon a criminal accusation, in order to
render him in their own discharge. Tidds Pr. 405. Upon the return of this
writ the court will cause an exoneretur to be entered on the bail piece,
and remand the defendant to his former custody. Id. ibid.; 1 Chit. Cr. Law
132. Vide, generally, Bac. Ab. h. t.; Vin. Ab. h. t.; Com. Dig. h. t.;
Nels. Ab. h. t.; the various American Digests, h. t.; Lo. Code of Prac.
art. 791 to 827; Danes Ab. Index, h. t.; Bouv. Inst. Index, h. t.
Source: Bouviers Law Dictionary 1856 Edition