Cyclopædia of Political Science, Political Economy, and the Political History of the United States

Edited by: Lalor, John J.
(?-1899)
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First Pub. Date
1881
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New York: Maynard, Merrill, and Co.
Pub. Date
1899
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Includes articles by Frédéric Bastiat, Gustave de Molinari, Henry George, J. B. Say, Francis A. Walker, and more.
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HABEAS CORPUS

II.130.1

HABEAS CORPUS is a writ ordered by a court of law or equity, to produce before it the body of a prisoner, that the court may inquire into the cause of imprisonment or detention with a view to protect the right of personal liberty. Properly speaking, this writ is known in law as habeas corpus ad subjiciendum. The term habeas corpus is, however, used as the formal commencement of several other legal writs known to English and American law, and of a character closely identified with the writ of habeas corpus ad subjiciendum, to wit: The writ of habeas corpus ad respondendum is a writ issued by a common law court to bring up a prisoner to be served with a writ in another action. The writ of habeas corpus ad satisfaciendum is a similar writ to take the prisoner in execution for another cause of action. The writ of habeas corpus ad testificandem is the writ by which a prisoner is brought up by the jailor to testify in a court of justice.

II.130.2

—This writ of habeas corpus ad subjiciendum is the writ, however, which holds its exalted place in history as one of the greatest barriers ever erected by a people against the encroachment of executive authority and the oppression of a tyrannical sovereign, and is universally acknowledged as the chief safeguard of English liberty. It is of ancient origin, and came into existence amid the early struggles of our English ancestry for personal freedom. It is one of those great unrepealable laws which without the aid of legislation became a part of the common law of England and is of greater age than magna charta itself.

II.130.3

—In his "History of the Middle Ages," that great historian, Hallam, referring to its ancient origin, says, "Whether courts of justice framed the writ of habeas corpus in conformity to the spirit of this clause, or found it already in their register, it became from that era (magna charta) the right of every subject to demand it." The origin of this writ is, however, commonly referred to the clause to which Hallam alludes, in the great charter of English freedom granted by King John to the barons of England, in June, 1215, at Runnymede.

II.130.4

—Again, in 1 Const. History, 16, Hallam also states in reference to this writ: "From earliest records of English law no freeman could be detained in prison except upon a criminal charge or conviction, or for a civil debt. In the former case it was always in his power to demand of the court of king's bench a writ of habeas corpus ad subjiciendum directed to the person detaining him in custody, by which he was enjoined to bring up the body, with the warrant of commitment, that the court might judge of its sufficiency, and remand the party, admit him to bail, or discharge him according to the nature of the charge."

II.130.5

—Sir William Blackstone, that great expositor of English law, in one of those Commentaries (1 Bl. Com. 135) which form the groundwork of all modern legal acquirements, thus presents the social and political influence of that particular clause of the writ which declares that every English freeman shall be entitled to a trial by a jury of his peers: "Of great importance to the public is the preservation of this right of personal liberty, for if once it were left in the power of any of the highest magistrates to imprison arbitrarily whomsoever he or his officers thought proper, there would soon be an end of all other rights and immunities. Some have thought that unjust attacks even upon life or property at the arbitrary will of the magistrate are less dangerous to the commonwealth than such as are made upon the personal liberty of the subject. To bereave a man of life, or by violence to confiscate his estate without accusation or trial, would be so gross and notorious an act of despotism as must at once convey the alarm of tyranny throughout the kingdom; but confinement of the person by secretly hurrying him to jail where his sufferings are unknown or forgotten, is a less public, a less striking, and therefore a more dangerous, engine of arbitrary government. And yet sometimes when the state is in real danger, even this may be a necessary measure. But the happiness of our constitution is, that it is not left to the executive power to determine when the danger of the state is so great as to render this measure expedient, for it is the parliament only or legislative power that, whenever it sees proper, can authorize the crown, by suspending the habeas corpus act for a short and limited time, to imprison suspected persons without giving any reasons for so doing."

II.130.6

—The origin of this writ for the protection of personal liberty is frequently, although erroneously, stated to be in the passage of the English statute called the habeas corpus act. This act was passed during the reign of Charles II., over 450 years from the time of magna charta (31 Car. II, c. 2), and neither added to nor detracted from the fundamental principles of that efficacious writ, but was passed in order to define with clear precision the appropriate remedies attendant upon the invasion of personal rights. This passage of the act appears to have been induced by certain rulings and frivolous objections made by judges of English courts during the preceding reign when relief was applied for under the provisions of the writ.

II.130.7

—The great charter had laid the foundation of this part of English liberty; the petition of rights had renewed it; and the bill of rights had extended it. There were, however, certain provisions still wanting in the manner and form of its execution to render it complete and prevent all evasion or delay on the part of judges who were disposed to interfere with the personal rights of the subject.

II.130.8

—This act provided that, when any person was committed charged with crime, the lord chancellor or any of the judges should, upon proper application, issue the writ and order the prisoner to be brought up and discharged, either with or without bail. That the writ should be more or less promptly obeyed according to the distance. Should the jail he within twenty miles of the judge, the writ must be obeyed in three days, and proportionably so for greater distances; but on no account whatever must the delay exceed twenty days. That any officer or jailor who should neglect to deliver a copy of the warrant of commitment, or who should convey the prisoner to another jail or place of custody without cause, should forfeit £100, and for the second offense £200, and be forever debarred from again holding office. That no person once liberated by the operation of the writ of habeas corpus should be recommitted for the same offense, under a penalty of £500. That every person committed for treason or felony should be tried at the next assizes following, or admitted to bail, unless the attendance of the witnesses for the crown could be enforced at that session of the court; and if not tried at the next succeeding session of the assizes, he should be discharged from further imprisonment. That no justice, under a penalty of £500, should refuse to any prisoner a writ of habeas corpus, and that application for the writ might be made to either the court of chancery or to the court of queen's bench, common pleas or exchequer, and that the writ might be applied for by persons imprisoned in any part of England, Guernsey or Jersey.

II.130.9

—It has been held by some of the English courts that this power extended over all of England's colonies, and the judges of the queen's bench once held that this prerogative power had always been inherent in English courts in favor of British subjects wherever imprisoned, save of course in a foreign country. A statute (Vict. 25) is now in force taking away from English courts this jurisdiction over the colonies of England, whenever such courts exist as can exercise such a jurisdiction.

II.130.10

—The act of habeas corpus passed during the reign of Charles II. related alone to persons imprisoned on criminal charges; all other cases demanding relief were left to the operations of the common law. These operations were ascertained to be entirely inadequate to the required relief; and to institute the proper remedy the statute 56 Geo. III., c. 100, was enacted by parliament, extending the action of the writ of habeas corpus to other than criminal cases. Under the provisions of this statute any person restrained of his liberty, (those in custody for criminal matters and persons imprisoned under a judgment for debt excepted, as coming under the act of Charles II. for relief), could apply to any judge of the common law courts for a writ of habeas corpus provided that by affidavit a reasonable and probable ground of complaint was shown.

II.130.11

—Thus by the enactment of this statute the chain of defenses erected and established by law for the protection of the personal rights of the subject, and to guard against their infringement by the crown, was rendered perfect and complete. And to-day, whenever within the physical boundaries of England a subject of either sex or any age is unlawfully imprisoned, he or she, or, if a minor, by his or her next friend or guardian, may apply for relief under the operations of the writ of habeas corpus, and if a prima facie case can be shown, a writ will be immediately issued by the judge before whom the information is filed, directed to the person or jailor who unlawfully holds in custody such person, and if he fail to make prompt and proper return by showing good and sufficient cause on legal grounds for detainer in his custody as a prisoner such person, he will be committed by the court for contempt. If it be ascertained that the party is confined under legal authority, the court will compel the production of the warrant of commitment, and the warrant of commitment must plainly set forth the cause of detainer and the jurisdiction of the judge or justice committing the accused, upon which the reviewing court shall pass, in determining the legality of the imprisonment.

II.130.12

—The act of parliament known as the habeas corpus act (31 Car. II., c. 2.) does not extend in jurisdiction to Scotland, but in that country the subject is protected in his personal rights and liberty, by the provisions of an act passed in 1701, c. 6 (q. v.), known as the "Wrongous Imprisonment Act," and which by many is called the "Scotch Habeas Corpus Act."

II.130.13

—Under the power conferred by the constitution of the United States, establishing within its physical boundaries the privilege of the writ of habeas corpus, congress at various times has enacted such wholesome laws as have proven efficacious in promoting the operations of this writ for the defense of the personal rights of the citizen. It has ordained, That the supreme court and the circuit and the district courts shall have power to issue writs of habeas corpus, and that the several justices and judges of the said courts, within their respective jurisdictions, shall have power to grant writs of habeas corpus for the purpose of an inquiry into the cause of restraint of liberty, provided that the prisoner is in custody under or by color of the authority of the United States, or is committed for trial before some court thereof, or held for an act done or omitted in pursuance of a law of the United States, or of an order, process or decree of a court or judge thereof, or is in custody in violation of the constitution, or of a law or treaty of the United States; or, being a subject or citizen of a foreign state and domiciled therein, is in custody for an act done or omitted under any alleged right, title, authority, privilege, protection or exemption claimed under the commission or order or sanction of any foreign state, or under color thereof, the validity and effect whereof depend upon the law of nations; or unless it is necessary to bring the prisoner into court to testify. That application for the writ of habeas corpus shall be made to the court or justice or judge authorized to issue the same, by complaint in writing, signed by the person for whose relief it is intended, setting forth the facts concerning the detention of the party restrained, in whose custody he is detained, and by virtue of what claim or authority, if known. That the facts set forth in the complaint shall be verified by the oath of the person making the application. That the court or justice or judge to whom such application is made shall forthwith award a writ of habeas corpus unless it appears from the petition itself that the party is not entitled to it. That the writ shall be directed to the person in whose custody the party is detained. That any person to whom such writ is directed shall make due return thereof in three days thereafter, unless the party be detained beyond the distance of twenty miles; and if beyond that distance and not that of a hundred miles, within ten days; and if beyond the distance of a hundred miles, within twenty days. That the person to whom the writ is directed shall certify to the court, justice or judge before whom it is returnable, the true cause of the detention of such person, and that the person making the return shall at the same time bring the body of the party before the judge who granted the writ. That when the writ is returned, a day shall be set for the hearing of the cause, not exceeding five days thereafter, unless the party petitioning requests a longer time. That the petition of the party imprisoned or restrained may deny any of the facts set forth in the return, or may allege any other facts that may be material in the case. Said denials or allegations shall be under oath. That the return and all suggestions made against it may be amended by leave of the court or justice or judge, before or after the same are filed, so that thereby the material facts may be ascertained. That the court or justice or judge shall proceed in a summary way to determine the facts of the case, by hearing the testimony and the arguments, and thereupon to dispose of the party as law and justice require. That when a writ of habeas corpus is issued in the case of any prisoner who, being a subject or citizen of a foreign state and domiciled therein, is committed or confined or in custody, by or under the authority or law of any one of the United States, or process founded thereon, on account of any act done or omitted under an alleged right, title, authority, privilege, protection or exemption, claimed under the commission or order or sanction of any foreign state, or under color thereof, the validity and effect whereof depend upon the law of nations, notice of the said proceedings, to be prescribed by the court or justice or judge at the time of granting said writ, shall be served on the attorney general or other officer prosecuting the pleas of said state, and due proof of such service shall be made to the court or justice or judge before the hearing. That from the final decision of any court, justice or judge inferior to the circuit court, upon an application for a writ of habeas corpus, or upon such writ when issued, an appeal may be taken to the circuit court for the district in which the cause is heard. 1, In the case of any person alleged to be restrained of his liberty in violation of the constitution, or of any law or treaty of the United States; and 2, In the case of any prisoner who, being a subject or citizen of a foreign state, and domiciled therein, is committed or confined or in custody by or under the authority or law of the United States, or of any state, under an alleged right, title, authority, privilege, protection or exemption, set up or claimed under the commission, order or sanction of any foreign state or sovereignty, the validity and effect where of depend upon the law of nations, or under color thereof. That from the final decision of such circuit court an appeal may be taken to the supreme court in the cases just described, and that these appeals shall be taken on such terms, and under such regulations and orders, as well for the custody and appearance of the person alleged to be in prison or restrained of his liberty, as for sending up to the appellate tribunal a transcript of the petition, writ of habeas corpus, return thereto, and other proceedings, as may be prescribed by the supreme court, or, in default thereof, by the court, justice or judge hearing the case. That pending the proceedings or appeal in the cases enumerated and until final judgment therein, and after final judgment of discharge, any proceedings against the person so imprisoned or restrained of his liberty, in any state court, or by or under the authority of any state for any matter so heard and determined, or in process of being heard and determined, under such writ of habeas corpus, shall be deemed null and void—The constitutions of the various states composing the federal Union, in their bills of right or otherwise, have likewise provided for the privilege of the writ of habeas corpus for all matters that might arise under state laws and regulations, within their several boundaries, requiring the privilege of this writ for the protection of the personal liberty of the citizen. The courts empowered to grant the writ have also been designated by the state constitutions, and a majority have conferred upon their supreme courts original jurisdiction in all cases arising under habeas corpus. They have likewise in most cases adopted the exact language of that part of section nine of the constitution of the United States which declares 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." Thus the people of the United States have enacted the same barriers against the encroachment of executive authority as did the people of England against the oppression of sovereignty, upon the personal rights of the citizen and the subject. Notable instances of its suspension, however, have occurred, in time of war, and one at least in time of peace, when the national life was not endangered by armed invasion or rebellion. It was, indeed, after the close of a long and disastrous war between the government and the seceding states of the south, and those whose legal judgment was shrouded by strict partisan feeling have claimed for it the color of right. Nevertheless the suspension of this writ was ordered by the president of the United States at a time when peace had been declared, after all the armed forces of the socalled confederate government had surrendered to the authority of the government of the United States, and its safety was no longer endangered, and after a period of several months had intervened between the day on which peace had been declared, and that on which the writ was suspended. On the morning succeeding the promulgation by the president of the order of execution of Mary E. Surratt, charged with conspiring with others in the murder of the president, in accordance with the judgment of the military commission before which they were tried, upon application by the counsel of Mary E. Surratt to Judge Wylie, of the District of Columbia, for a writ of habeas corpus, ordering the commandant of the military district in which she was confined to produce her body before his court to determine by what authority it was held in custody of the military authorities, the judge ordered the writ to issue, and placed it in the hands of the U. S. Marshal, who served it upon Gen. Hancock, the commandant of the said military district. The president, however, believing that Gen. Hancock would obey the writ, and having determined upon the execution of the woman, directed the attorney general of the United States to appear with Gen. Hancock in obedience to the summons, before Judge Wylie, and as the representative of the president, present to the court the following return, which was an executive order suspending the writ of habeas corpus, to wit:

  EXECUTIVE OFFICE, July 7, 1865, 10 A. M.
To Major General W. S. Hancock, commanding, etc.

I, Andrew Johnson, President of the United States, do hereby declare that the writ of habeas corpus has been heretofore suspended in such cases as this, and I do hereby especially suspend this writ, and direct that you proceed to execute the order heretofore given upon the judgment of the Military Commission, and you will give this order in return to this writ.

(Signed)   ANDREW JOHNSON, President.

II.130.14

Notwithstanding the affirmation in the foregoing order of the president, it does not appear that the writ was ever before, and certainly not since, suspended in any case of similar purport, and consequently stands alone, in the executive and judicial history of the country, as an example to be lamented and execrated by all men who love liberty.

II.130.15

—With regard to the application of habeas corpus in exterritorial cases, it has been held that a writ of habeas corpus may be awarded to bring up an American subject unlawfully detained on board of a foreign ship-of-war; the commander being fully within the reach of, and amenable to, the usual jurisdiction of the state where he happens to be. (Case of an American citizen on British ship, 1 Op., 47, Bradford, 1794)

II.130.16

—It has been again held, that a prisoner of war on board a foreign man-of-war, or of her prize, can not be released by habeas corpus issuing from courts either of the United States or of a particular state. But if such prisoner of war be taken on shore, he becomes subject to the local jurisdiction or not, according as it may be agreed between the political authorities of the belligerent and neutral power. (Case of the President and Prize, 7 Op., 122, Cushing, 1855)

II.130.17

—These cases appear to establish the principle that an American citizen is entitled to the privileges of habeas corpus, when unlawfully detained on board of a foreign man-of-war, while lying within the jurisdiction of the United States, not having committed an offense amenable to the law of nations. But if held as a prisoner of war, on board such foreign vessel—that is, having committed a crime amenable to the law of nations—the ship-of-war possesses in the ports of the United States the rights of exterritoriality, and is not subject to the local jurisdiction, and the party held in custody, although an American citizen, can not be released by habeas corpus. Once removed, however, from the ship-of-war, within the land jurisdiction of the United States, his status is immediately changed, and he becomes, like all others, subject to the local jurisdiction, and can not lawfully vi et armis be reconveyed to the exterritorial jurisdiction of the ship-of-war.

JNO. W. CLAMPITT.

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