Year: 1863

The writ of habeas corpus has been known to
the English law (the source Of most of our Amer
lean l,w) for many centuries. The common law
which is that portion of the law which is so an
cient as not to be found embodied in the form Of
a statue provided for the issue Of this writ ina
variety OF cases, and each Of these cllsses OF
cases had its own peculiar species form of writ
Of hobeds cOrpus Various statutes were passed
to prevent the benefit of the writ from being
withheld for the purpose OF depressing the sub
jects Of The crown-he most important of which
was the one passed in the thirty first year of the
reign Of Charles the Second, which is called y
way of eminence the Habeas Corpus .4ct. The
specific provisions of this act it is not necessary
to detail


1t is probable that at the time Of the adoption
OF the Federal Constitution, every State WAS pro-
vided with habcas corpu, act of its own, or
bad adopted the substance Of the legislation of
England on the subject rs part of its own com
mon law. By this means ''the privileges of the
| writ of hdJeaS corpus" was extended to every
citizen Of these United States. There have
never been in this country as many for rs uses
OF the writ rs in England. and it has almost nva-
| riaby been limited to the form Of the general
| purpose contemplated by the act of the thirty
| first year of Charles the Second


The General purpose of the writ of ha6eaS
co puS is to provide summary and expeditions
lease to persons imprisoned orrestraned Of their
liberty without authority Of law, and to save
them from languishing in unlawful confinement
1t is signed by Il judge Of a superior Court. and
commands the person having the custody Of
another (whether acting in public or private ca
paciy) to "have the body (ha6eas cOrpus) Of
the prisoner before the court or before the
Judge, if the court be not sitting. in order that it
may he determined whether the prisoner is de-
tained by due authority of law. Before the writ
issues, there must be complaint and petition Of
the prisoner, or some friend of his substlntiated
by the oath OF the complainant. When such
complaint is made in good faith, it is the duty OF
the judge to issue the writ Penalties are some
times imposed upon judges who refuse to grant
the privilege OF the writ, and are always imposed
upon those who refuse to bring Il prisoner before
the court or judge and make return OF exhibit
OF the cause or authority for the Imprisonment.
If the court or judge on due inquiry, shall find,
not indeed that the prisoner is limo cn but that
the Imprisonment is unauthorized by law or
should be term ated by the giving OF suffcit mt
bail, it is the duty Of the Judge to order his
lease Internationally in the first place, and upon
bail in the other. There are no damages recov-
cred in this proceeding by the injured party
against the persons who have unlawiully mpris-
oned him. and there is no penalty pronounced
| Tor the crime against public justice.


| This summary method OF obtaining release
| from unlawful Imprisonment, is additional to the
remedy for the injury by means Of suit for
damages, provided by the common law Of the





often imposed for the violation OF public justice.
The suit Tor damages is the only means oil obtain.
ing prv.te satisfaction Tor the outrage; and in
the English law it is at least as ancient as the
writ OF habeas corpus. II there were no such
thing as the writ of ha6eaS corpus, there would
still be right to an action for damages for the
trespass, and should the existing law which gives
the privilege be annuled, the injured party
would not be left entirely without satisfaction for
the wrong


The legislation of the Federal Government is
not without its statue giving the citizens in Ger
tain cases the privilege of the writ OF habeds
corpus. 1t may he had "where they are in Gus
tody, under or by color of the authority of the
| United States, or are committed for tral before
some court OF the same, or are necessary to be
brought into court to testify" or "where he OF
they shall be confined on or by any authority o
law for any act done omitted to be done in
pursuance Of a law of the United States" OF
where foreigners are confined for any act done
under the sanction of foreign sovereign by vir.
tue or under color of the law Of nations. These
provisions are designed for maintaining the au-
thority and dischargng the duty assigned to the
general government by the Constitution.


There is a marked difference between the func.
tions OF judge under our American hobeaa
corpus acts. and under those of England, arising
from the fact that here we have a certain "higher
law" contained in written Constitutions TO which