A high prerogative writ of ancient origin, the vital purposes of which are to obtain immediate relief from illegal confinement; to liberate those who may be imprisoned without sufficient cause, and to deliver them from unlawful custody; or to obtain a proper custody of persons illegally detained from the control of those who are entitled to the custody of them [25 Am J1st Hab § 2]. A generic term in one sense, being applicable to each of several different writ, but as used generally, referring to the writ of habeas corpus ad subjiciendum [25 Am J1st Hab § 2].
HABEAS CORPUS AD SUBJICIENDUM
The ordinary writ of habeas corpus [see habeas corpus].
- A writ of habeas corpus in an order in writing, signed by a 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 ot produce, such person at a certain time and place, and to state the reasons why he is held in custody, or under restraint.
- 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 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 May or 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 [Wilmot’s Opinions 85, 86].
- 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 king’s bench, in term time or vacation, and running into every part of the king’s dominions. It is also grantable as a matter of right, ex debito justitae, upon the application of any person.
- 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].
- The habeas corpus act has been substantially incorporated into the jurisprudence 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 willfully, 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.
- 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].
- The Constitution of the United States art.1, s. 9, c. 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.” 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.
- It is proper to consider
- When it is to be granted
- How it is to be served
- What return is to be made of it
- The bearing
- The effect of the judgment upon it
- 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].
- The writ may be served 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.
- 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 whether he has or has not in his power or custody the person to be set at liberty, or whether the 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 aggrieved.
- When a 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 no illegal restraint [1 Strange, 445; 2 Strange, 982; Wilmot’s Opinions, 120].
- For hose offence which are bailable, when the prisoner offers sufficient bail, he is to be bailed.
- He is to be remanded in the following cases:
- When it appears he is detained upon legal process out of some court having jurisdiction of criminal matters,
- 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.
- When he is a convict in execution, or detained in execution by legal civil process.
- When he is detained for a contempt, specially and plainly charged int eh commitment, by some existing court, having authority to commit for contempt.
- 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 Pac. art. 819].
- 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. 282].
- 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 Crance, 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].
- There are various kinds of this writ; the principal of which are explained below.
- 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].
- 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 to 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 [Tidd’s Pr. 405; 1 Chit. Cr. Law, 182].
- Habeas corpus ad prosequendum is a writ which issues for the purpose of removing a prisoner in order to prosecute [3 Bl. Com. 130].
- 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].
- 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].
- Habeas corpus ad subjiciendum, by way of eminence called the writ of habeas corpus, 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, Const. 1333].
- Habeas corpus ad testificandum is a writ issued for the purpose of bringing a prisoner, in order that he may testify, before the court [3 Bl. Com. 130].
- 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 [Tidd’s 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; Dane’s Ab. Index, h.t.; Bouv. Inst. Index, h.t.].
HABEAS CORPUS, Lat. (you have the body)
The name given to a variety of writs, (of which these were anciently the emphatic words,) having for their object to bring a party before a court or judge. In common usage, and whenever these words are used alone, they are understood to mean the habeas corpus ad subjiciendum.
Habeas Corpus Act: the English statute of 31 Car. II c. 2, is the original and prominent habeas corpus act. It was amended and supplemented by St. 56 Geo. III. c. 100. And similar statutes have been enacted in all the United States. This act is justly regarded as the great constitutional guaranty of personal liberty.
Habeas corpus ad deliberandum et recipeindum: a writ issued to remove, for trial, a person confined in one county to the county or place where the offense of which he is accused was committed [Bac. Abr. “Habeas Corpus,” A; 1 Chit. Crim. Law, 132.; Ex parte Bollman, 4 Cranch, 97, 2 L. E. 554]. Thus, it has been granted to remove a person in custody for contempt to take his trial for perjury in another county [1 Tyrw. 185].
Habeas corpus ad faciendum et recipeindum: a writ issuing in civil cases to remove the cause, as also the body of the defendant, from an inferior court to a superior court having jurisdiction, there to be disposed of. It is also called “habeas corpus cum causa” [Ex parte Bollman, 4 Cranch, 97, 2 L. E. 554].
Habeas corpus ad prosequendu: a writ which issues when it is necessary to remove a prisoner in order to prosecute in the proper jurisdiction wherein the fact was committed [3 Bl. Comm. 130].
Habeas corpus ad respondendum: a writ which is usually employed in civil cases to remove a person out of the custody of one court into that of another, in order that he may be sued and answer the action in the latter [2 Sell. Pr. 259; 2 Mod. 198; 3 Bl. Comm. 129; 1 Tidd. Pr. 300].
Habeas corpus ad satisfaciendum: in English practice, a writ which issues when a prisoner has had judgement against him in an action, and the plaintiff is desirous to bring him up to some superior court, to charge him with process of execution [3 Bl. Comm. 129, 130; 3 Steph. Comm. 693; 1 Tidd. Pr. 350].
Habeas corpus ad subjiciendum: a writ directed to the person detaining another, and commanding him to produce the body of the prisoner, (or person detained), 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 Steph. Comm. 695]. This is the well-known remedy for deliverance from illegal confinement, called by Sir William Blackstone the most celebrated writ in the English law, and the great and efficacious writ in all manner of illegal confinement [3 Bl. Comm. 129].
Habeas corpus ad testificandum: a writ to bring a witness into court, when is in custody at the time of a trial, commanding the sheriff to have his body before the court, to testify in the cause [3 Bl. Comm. 130; 2 Tidd. Pr. 809; Ex parte Marmaduke. 91 Mo. 250, 4 S. W. 91. 60 Am. Rep. 250].
Habeas corpus cum causa: (you have the body, with the cause); another name for the writ of habeas corpus ad faciendum et recipiendum [1 Tidd, Pr. 348, 349].