HABEAS Corpus, the most celebrated writ in the English law. Of this there are various kinds made use of by the courts at Westminster, for removing prisoners from one court into another for the more easy administration of justice. The habeas corpus ad respondendum is issued when a man has a cause of action against one 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. The habeas corpus ad satisfaciendum issues when a prisoner has had judgment against him in an action, and the plaintiff is desirous to bring him up to some superior court to charge him with the process of execution. The similar writs ad prosequendum, testificandum, deliberandum, issue when it is necessary to remove a prisoner, in order to prosecute or bear testimony in any court, or. to be tried in the proper jurisdiction in which the fact was committed. Lastly, the common writ ad faciendum et recipiendum, issues out of any of the courts of Westminster Hall, when a person is sued in some inferior jurisdiction, and is desirous to remove the action into the superior court; commanding the inferior judges to produce the body of the defendant, together with the day and cause of his caption and detainer (whence the writ is frequently denominated an habeas corpus cum causa), to do and receive whatsoever the king’s court shall consider in that behalf. But the great and efficacious writ, in all manner of illegal confinement, is that of habeas corpus ad subjiciendum, directed to the person detaining another, and commanding him to produce the body of the prisoner, with a specification of 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. This is a high prerogative writ, and therefore by the common law issues out of the Court of King’s Bench, not only in term-time, but also during the vacation, by a fiat from the chief-justice, or any other of the judges, and runs into all parts of the king’s dominions, except Scotland; for the king is at all times entitled to have an account why the liberty of any of his subjects is restrained, wherever that restraint may be inflicted. If it issues in vacation, it is usually returnable before the judge himself who awarded it, and he proceeds by himself [7:11:100]thereon; unless the term should intervene, and then it may be returned in court. Indeed, if the party were privileged in the Courts of Common Pleas and Exchequer, as being an officer or suitor of the court, an habeas corpus ad subjiciendum might also have been awarded from thence; and if the cause of imprisonment were palpably illegal, they might have discharged him. But if he were committed for any criminal matter, they could only have remanded him, or taken bail for his appearance in the Court of King’s Bench, which occasioned the Common Pleas to discountenance such applications. It has also been said, and by very respectable authorities, that the like habeas corpus may issue out of the Court of Chancery in vacation; but upon the famous application to Lord Nottingham by Jenks, notwithstanding the most diligent searches, no precedent could be found where the chancellor had issued such a writ in vacation, and therefore his lordship refused it.

In the Court of King’s Bench it was, and still is, necessary to apply for it by motion to the court, as in the case of all other prerogative writs, such as certiorari, prohibition, mandamus, and the like, which do not issue as of mere course, without showing some probable cause why the extraordinary power of the crown is called in to the party’s assistance. For, as it was argued by Lord Chief-Justice Vaughan, α it is granted on motion, because it cannot be had of course, and there is therefore no necessity to grant it; for the court ought to be satisfied that the party has a probable cause to be delivered.” And this seems the more reasonable, because, when once granted, the person to whom it is directed can return no satisfactory excuse for not bringing up the body of the prisoner. So that, if it issued of mere course, without showing to the court or judge some reasonable ground for awarding it, a traitor or felon under sentence of death, a soldier or mariner in the king’s service, a wife, a child, a relation, or a domestic, confined for insanity or other prudential reasons, might obtain a temporary enlargement by suing out an habeas corpus, though sure to be remanded as soon as brought up to the court. And therefore Sir Edward Coke, when chief-justice, did not scruple (in 13 Jac. I.) to deny a habeas corpus to one confined by the Court of Admiralty for piracy, there appearing, upon his own showing, sufficient grounds to confine him. On the other hand, if a probable ground be shown that the party is imprisoned without just cause, and therefore has a right to be delivered, the writ of habeas corpus is then a writ of right, which “may not be denied, but ought to be granted to every man that is committed, or detained in prison, or otherwise restrained, though it be by the command of the king, the privy council, or any other.”

Habeas Corpus Act is the famous act of 31 Car. II. c. 2, which is frequently considered as another magna charta of the kingdom. It enacts, 1. That the writ of habeas corpus shall be returned, and the prisoner brought up, within a limited time according to the distance, not exceeding in any case twenty days. 2. That such writs shall be indorsed, as granted in pursuance of this act, and signed by the person awarding them. 3. That on complaint and request in writing by or on behalf of any person committed and charged with any crime, unless committed for treason or felony expressed in the warrant, or for suspicion of the same, or as accessary thereto before the fact, or convicted or charged in execution by legal process, the Lord Chancellor, or any of the twelve judges in vacation, upon viewing a copy of the warrant, or affidavit that a copy is denied, shall, unless the party has neglected for two terms to apply to any court for his enlargement, award a habeas corpus for such prisoner, returnable immediately before himself or any other of the judges; and upon the return made shall discharge the party, if bailable, upon giving security to appear and answer to the accusation in the proper court of judicature. 4. That officers and keepers neglecting to make due returns, or not delivering to the prisoner or his agent, within six hours after demand, a copy of the warrant of commitment, or shifting the custody of a prisoner from one to another without sufficient reason or authority (specified in the act), shall for the first offence forfeit L.100, and for the second offence L.200, to the party grieved, and be disabled to hold his office. 5. That no person, once delivered by habeas corpus, shall be recommitted for the same offence, under a penalty of L.500. 6. That every person committed for treason or felony shall, if he requires it the first week of the next term, or the first day of the next session of oyer and terminer, be indicted in that term or session, or else admitted to bail, unless the king’s witnesses cannot be produced at that time; and if acquitted, or if not indicted and tried in the second term or session, he shall be discharged from his imprisonment for such imputed offence; but that no person, after the assizes shall be opened for the county in which he is detained, shall be removed by habeas corpus, until after the assizes are ended, but shall be left to the justice of the judges of assize. 7. That any such prisoner may, however, move for and obtain bis habeas corpus, as well out of the Chancery or Exchequer as out of the King’s Bench or Common Pleas; and the Lord Chancellor or judges denying the same, on sight of the warrant, shall, on oath that the same is refused, forfeit severally to the party grieved the sum of L.500. 8. That the writ of habeas corpus shall run into the counties palatine, cinque ports, and other privileged places, and the islands of Jersey and Guernsey. 9. That no inhabitant of England, except persons contracting, or convicts praying to be transported, or having committed some capital offence in the place to which they are sent, shall be sent prisoners to Scotland, Ireland, Jersey, Guernsey, or any places beyond the seas, within or without the king’s dominions, on pain that the party committing, his advisers, aiders, and assistants, shall forfeit to the party grieved a sum not less than L.500, to be recovered with treble costs, shall be disabled from holding any office of trust or profit, shall incur the penalties of proemunire, and shall be incapable of the king’s pardon.

This is the substance of that great and important statute, which, however, extends only to the case of commitments for such criminal charges as can produce no inconvenience to public justice by a temporary enlargement of the prisoner; all other cases of unjust imprisonment being left to the habeas corpus at common law. But even upon writs at the common law it is expected by the court, agreeably to ancient precedents and the spirit of the act of parliament, that this writ should be immediately obeyed, without waiting for any alias or pluries writ; otherwise an attachment will issue. By these admirable regulations, judicial as well as parliamentary, the remedy is now complete for removing the injury of unjust and illegal confinement; a remedy the more necessary, because the oppression does not always arise from the ill-nature, but sometimes from the mere inattention, of government. For it frequently happens in foreign countries, and has happened in England during the temporary suspension of the statute, that persons apprehended upon suspicion have suffered a long imprisonment, merely because they were forgotten.