Habeas Corpus , an ancient English writ, used for a variety of purposes from the remotest time. It is addressed to a sheriff or other officer, and commands him to have the body of the person named at a certain place and time. "When all writs were in Latin, the characterizing words of this writ were ut habeas corpus, and the name has long survived the use of these words in the writ. One of the purposes for which it was used was to recover freedom which had been wrongfully taken away. Personal liberty was always asserted by the common law from its earliest ages; and it was always assailed by kings who would be tyrants, and with an earnestness proportioned to their tyranny. Hence it became necessary to declare this principle in the most solemn manner in Magna Charta. It is there said that "no man shall be taken or imprisoned but by the lawful judgment of his peers, or by the law of the land;" and this clause, more than any other, has given to that instrument the name of the palladium of English liberty, a name which is deserved rather by the writ of habeas corpus.
For, on the one hand, the great charter did not enact this as a new rule of law, but only declared it to be the law of the land: and, on the other, its force and influence gradually faded, in despite of repeated formal confirmations; and this law became actual and operative only by means of the habeas corpus. This writ was issuable from the king's bench; and it was used to protect or restore liberty, by bringing the prisoner before the court, whose duty it was to order his immediate discharge if he were not restrained of his liberty according to law. But it was evaded by courts and sheriffs, who were disposed to support royal or ministerial usurpations; and it became so powerless that early in the reign of Charles I. the court of king's bench formally decided that they had no power to release any person imprisoned without any cause assigned, if he were imprisoned by the express command of the king, or by the lords of the privy council. The petition of right, passed in 1628, asserted the illegality of this decision, and declared that "no freeman should be imprisoned or detained without cause shown, to which he may make answer according to law." But the means of enforcing this rule were still imperfect, and persona] liberty was still violated; and by 16 Charles I., ch. 10, various provisions were enacted, intended to make the writ more effectual.
But this was not enough. The judges still continued to refuse the writ at their pleasure, or to insist that it could be issued only in term time; and prisoners were sent to distant jails, and sheriffs and jailers refused to obey it; or if the party imprisoned were brought before an examining court, his liberty was still withheld on frivolous pretences. At length, in the 31st year of the reign of Charles II. (1079), what is now always understood by the habeas corpus act was enacted. It consisted of a variety of provisions, devised with so much skill, and so well adapted to give each other mutual support, that it may safely be asserted that personal liberty will be safe in England and the United States so long as this law remains in force. Evasion of it is almost impossible; and it can be made ineffectual only by a positive and open violation of its essential provisions, or by a distinct denial of its interposition. The English statute has been copied in the United States, without essential change; the variations from it being only such as would, in the opinion of the various legislatures, make its provisions more stringent, and the security it gives to liberty more certain and available. - The provisions of the statutes of habeas corpus, now in force in the different states, may be stated generally thus: 1. The writ commands the sheriff* or other person to whom it is directed, to have the body of the person who is said to be restrained of his liberty forthwith before the justice issuing it, or some other tribunal competent to try the questions the case may present; and to summon the person restraining the alleged prisoner to be there also, and bring with him the cause of the restraint; that all parties may then and there submit themselves to whatever may be lawfully adjudged and ordered in their behalf.
The language varies in the different statutes which give the form of the writ; but it is always substantially as above. 2. The writ must be granted, as of right, by any of the justices of the higher courts, and, in their absence or inaccessibility, by any of those of a lower court, down to justices of the quorum; the law covering in this respect a wide range, so as to insure to every applicant some one from whom this redress or remedy may come. 3. It must be granted at any time when it is prayed for, whether a court be sitting or not. 4. It must be granted either to the party himself restrained of his liberty, or to any one applying for him; and if his name be unknown, the best description which can readily be given is sufficient. 5. The application must be in writing, and must be verified by the oath of the applicant. 0. The sheriff or other officer to whom it is directed must render prompt obedience, and make immediate service, and return the writ forthwith with a full statement of his doings. 7. It must be returned before the proper magistrate at chambers, if a court to which it is made returnable be not then in session. 8. Upon the return, the alleged prisoner being present, the case is tried; and unless sufficient cause for his imprisonment is shown, he is ordered to be discharged at once. 9. If not wholly discharged, the court or magistrate may order him to be discharged on giving reasonable bail, if he be held for any bailable offence or cause. 10. In some of the states it is provided that the writ may not issue if the party restrained be imprisoned for crime, or in execution civil or criminal, and by lawful warrant.
In others these exceptions are not made, but if facts like these appear on trial, the prisoner is remanded. 11. In general, after a party has been discharged on habeas corpus, he cannot be again imprisoned or restrained of his liberty for the same cause. 12. The issuing of the writ by the magistrate applied to, and prompt and full obedience to it by the officer or other person to whom it is directed, are secured by very heavy penalties; and also by the fact that any applicant to whom the writ is refused by one magistrate may apply to another, and the number of those to whom he may thus resort is so large that it is hardly possible for them all to be corrupted, or for any reason indisposed to render due obedience to the law. - The vast importance of this law can be appreciated only by those who have studied the history of despotism; although it discloses only what might have been inferred with almost equal certainty from the reason of the thing. Whether the ruling authority of a nation (be it in the hands of one or of many) shall be absolute or subordinated to law must depend, in the last result, upon its power over the persons of those who are subject to it.
Whatever be the law, if there be a sovereign who may disregard it, and put in strict imprisonment those who would resist him; if he may substitute his own commands for law, and take away from society and from all power of resort to law those who do not obey him; it is perfectly obvious that there can be no disobedience and no resistance which is not rebellion if it be put down, or revolution if it succeed. The histories of France and of England offer the most perfect illustration of this. Beginning from the feudal ages, they stood then about upon an equality in respect to the power of the sovereign and the personal rights of the subject. Under some of her monarchs, of the Plantagc-net and Tudor families, England seemed to be yielding herself up to a more absolute tyranny than was known to her neighbor. But as the ages went on, it became apparent in France that the subjection of the citizen to the sovereign became with every generation more complete. By insidious rather than open increase, the power of the king, or rather the power of ministers who acted in the name of the king, to imprison at their pleasure whom they would, for political or personal, public or private reasons, became so entirely established, that every minister of the crown had, it is said, a large number of blank lettres de cachet (or letters under the privy seal of the king) which he could fill with names at his pleasure, and by which the police were authorized and commanded to imprison the party named and hold him in prison at the pleasure of the minister.
The Bastile became a recognized instrument of state; and in its cells lay those who were placed there only at the suspicion or the caprice of some minister, and who remained there only because they were forgotten. Of course this state of things could not last; for no one acquainted with human nature could doubt that such irresponsible and enormous power would be enormously abused, and lead its possessors into folly and insanity. Therefore the French revolution came to do the work which must be done, and only revolution could do, and therefore the reign of terror almost necessarily replaced the despotism which had been its parent. If we now turn to England, we shall see that in the Anglo-Saxon times despotism was rarely attempted, and never successful; that the laws and institutions of those days are all founded on the presumption of personal liberty and rights; that this element of character might for a time be suppressed or enfeebled, but that it could never be annihilated; that it rose from time to time into prominence and activity, and, as opportunity offered or could be made, gradually asserted itself: first in the fact of a common law, which the courts regarded as binding upon them; then in the recognition of personal liberty and right as an unquestionable principle of common law; then by such timely assertions as in Magna Charta, in the petition of right, and finally in the act of habeas corpus. - That this act is sufficiently valued in the United States may be inferred from the fact that the federal constitution (art. I., sec. 9, No. 2) provides that "the provisions of the act shall not be suspended, unless when in case of rebellion or invasion the public safety may require it;" and there is a provision to the same effect in some of the state constitutions.
Everywhere the statute itself is enacted, and, so far as words can have the effect, made stringent and effectual. By various acts of congress jurisdiction is conferred upon the federal courts to issue the writ of habeas cor-pus in cases of confinement by federal or under pretence of federal authority, and also in other cases where it may be necessary to the enforcement of federal jurisdiction. How far the state courts have the right to inquire into unlawful restraints upon personal liberty under claim of federal authority has been the subject of no little discussion and conflict of decision. The supreme court of the United States has finally determined that though the state courts may issue the writ in all cases, yet when it appears by the return that the restraint is under a claim of federal authority, they can proceed no further, but must leave the validity of the claim to be determined by the federal courts. - The technical name of this writ is habeas corpus ad subjiciendum, from the requirement contained in it that the alleged prisoner and the persons restraining him should "submit themselves to the order of the court." It is sometimes called also habeas corpus cum causa.
Habeas corpus ad testificandum was formerly used to compel witnesses to testify in certain cases, and habeas corpus ad satisfaciendum was employed to obtain satisfaction of certain judgments. But these are now obsolete. This writ is now frequently resorted to by parents of minors who have enlisted without their permission, by parents who wish to obtain possession of children withheld from them, and for similar purposes. It has been solemnly decided that the habeas corpus act can be suspended only by the legislature; and that the proclamation of martial law by a military officer is not sufficient.