1911 Encyclopædia Britannica/Habeas Corpus

29486311911 Encyclopædia Britannica, Volume 12 — Habeas CorpusWilliam Feilden Craies

HABEAS CORPUS, in English law, a writ issued out of the High Court of Justice commanding the person to whom it is directed to bring the body of a person in his custody before that or some other court for a specified purpose.

There are various forms of the writ, of which the most famous is that known as habeas corpus ad subjiciendum, the well-established remedy for violation of personal liberty. From the earliest records of the English law no free man could be detained in custody except on a criminal charge or conviction or for a civil debt. That right is expressed in the Great Charter in the words: “Nullus liber homo capiatur vel imprisonetur aut dissaisietur aut utlagetur, aut exuletur aut aliquo modo destruatur nec super eum ibimus nec super eum mittemus, nisi per legale judicium parium suorum, vel per legem terrae.[1] The writ is a remedial mandatory writ of right existing by the common law, i.e. it is one of the extraordinary remedies—such as mandamus, certiorari and prohibitions, which the superior courts may grant. While “of right,” it is not “of course,” and is granted only on application to the High Court or a judge thereof, supported by a sworn statement of facts setting up at least a probable case of illegal confinement. It is addressed to the person in whose custody another is detained, and commands him to bring his prisoner before the court immediately after the receipt of the writ, together with the day and cause of his being taken and detained, to undergo and receive (ad subjiciendum et recipiendum) whatsoever the court awarding the writ “may consider of concerning him in that behalf.”

It is often stated that the writ is founded on the article of the Great Charter already quoted; but there are extant instances of the issue of writs of habeas corpus before the charter. Other writs having somewhat similar effect were in use at an early date, e.g. the writ de odio et atiâ, used as early as the 12th century to prevent imprisonment on vexatious appeals of felony, and the writ of mainprise (de manucaptione), long obsolete if not abolished in England but which it was attempted to use in India so late as 1870. In the ease of imprisonment on accusation of crime the writ issued from the court of king’s bench (or from the chancery), and on its return the court judged of the legality of the imprisonment, and discharged the prisoner or admitted him to bail or remanded him to his former custody according to the result of the examination.

By the time of Charles I. the writ was fully established as the appropriate process for checking illegal imprisonment by inferior courts or by public officials. But it acquired its full and present constitutional importance by legislation.

In Darnel’s case (1627) the judges held that the command of the king was a sufficient answer to a writ of habeas corpus. The House of Commons thereupon passed resolutions to the contrary, and after a conference with the House of Lords the measure known as the Petition of Right was passed (1627, 3 Car. I. c. i.) which, inter alia, recited (s. 5) that, contrary to the Great Charter and the good laws and statutes of the realm, divers of the king’s subjects had of late been imprisoned without any cause shown, and when they were brought up on habeas corpus ad subjiciendum, and no cause was shown other than the special command of the king signified by the privy council, were nevertheless remanded to prison, and enacted “that no freeman in any such manner as is before mentioned be imprisoned or detained.” The Petition of Right was disregarded in Selden’s case (1629), when it was successfully returned to a habeas corpus that Selden and others were committed by the king’s special command “for notable contempts against the king and his government and for stirring up sedition against him.”[2] This led to legislation in 1640 by which, after abolishing the Star Chamber, the right to a habeas corpus was given to test the legality of commitments by command or warrant of the king or the privy council.[3]

The reign of Charles II. was marked by further progress towards securing the freedom of the subject from wrongful imprisonment. Lord Clarendon was impeached, inter alia, for causing many persons to be imprisoned against law and to be conveyed in custody to places outside England. In 1668 a writ of habeas corpus was issued to test the legality of an imprisonment in Jersey. Though the authority of the courts had been strengthened by the Petition of Right and the act of 1640, it was still rendered insufficient by reason of the insecurity of judicial tenure, the fact that only the chancellor (a political as well as a legal officer) and the court of king’s bench had undoubted right to issue the writ, and the inability or hesitation of the competent judges to issue the writ except during the legal term, which did not cover more than half the year. A series of bills was passed through the Commons between 1668 and 1675, only to be rejected by the other House. In Jenkes’s case (1676) Lord Chancellor Nottingham refused to issue the writ in vacation in a case in which a man had been committed by the king in council for a speech at Guildhall, and could get neither bail nor trial. In 1679, but rather in consequence of Lord Clarendon’s arbitrary proceedings[4] than of Jenkes’s case, a fresh bill was introduced which passed both Houses (it is said the upper House by the counting of one stout peer as ten) and became the famous Habeas Corpus Act of 1679 (31 Car. II. c. 2). The passing of the act was largely due to the experience and energy of Lord Shaftesbury, after whom it was for some time called. The act, while a most important landmark in the constitutional history of England, in no sense creates any right to personal freedom, but is essentially a procedure act for improving the legal mechanism by means of which that acknowledged right may be enforced.[5] It declares no principles and defines no rights, but is for practical purposes worth a hundred articles guaranteeing constitutional liberty.[6]

In the manner characteristic of English legislation the act is limited to the particular grievances immediately in view and is limited to imprisonment for criminal or supposed criminal matters, leaving untouched imprisonment on civil process or by private persons. It recites that great delays have been used by sheriffs and gaolers in making returns of writs of habeas corpus directed to them; and for the prevention thereof, and the more speedy relief of all persons imprisoned for criminal or supposed criminal matters, it enacts in substance as follows: (1) When a writ of habeas corpus is directed to a sheriff or other person in charge of a prisoner, he must within 3, 10 or 20 days, according to the distance of the place of commitment, bring the body of his prisoner to the court, with the true cause of his detainer or imprisonment—unless the commitment was for treason or felony plainly expressed in the warrant of commitment. (2) If any person be committed for any crime—unless for treason or felony plainly expressed in the warrant—it shall be lawful for such person or persons (other than persons convicted or in execution by legal process) in time of vacation, to appeal to the lord chancellor as a judge, who shall issue a habeas corpus returnable immediately, and on the return thereof shall discharge the prisoner on giving security for his appearance before the proper court—unless the party so committed is detained upon a legal process or under a justice’s warrant for a non-bailable offence. Persons neglecting for two terms to pray for a habeas corpus shall have none in vacation. (3) Persons set at large on habeas corpus shall not be recommitted for the same offence unless by the legal order and process of the court having cognizance of the case. (4) A person committed to prison for treason or felony shall, if he requires it, in 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 it appears on affidavit that the witnesses for the crown are not ready; and if he is not indicted and tried in the second term or session after commitment, or if after trial he is acquitted, he shall be discharged from imprisonment. (5) No inhabitant of England (except persons contracting, or, after conviction for felony, electing to be transported) shall be sent prisoner to Scotland, Ireland, Jersey, &c., or any place beyond the seas. Stringent penalties are provided for offences against the act. A judge delaying habeas corpus forfeits £500 to the party aggrieved. Illegal imprisonment beyond seas renders the offender liable in an action by the injured party to treble costs and damages to the extent of not less than £500, besides subjecting him to the penalties of praemunire and to other disabilities. “The great rank of those who were likely to offend against this part of the statute was,” says Hallam, “the cause of this unusual severity.” Indeed as early as 1591 the judges had complained of the difficulty of enforcing the writ in the case of imprisonment at the instance of magnates of the realm. The effect of the act was to impose upon the judges under severe sanction the duty of protecting personal liberty in the case of criminal charges and of securing speedy trial upon such charges when legally framed; and the improvement of their tenure of office at the revolution, coupled with the veto put by the Bill of Rights on excessive bail, gave the judicature the independence and authority necessary to enable them to keep the executive within the law and to restrain administrative development of the scope or penalties of the criminal law; and this power of the judiciary to control the executive, coupled with the limitations on the right to set up “act of state” as an excuse for infringing individual liberty is the special characteristic of English constitutional law.

It is to be observed that neither at common law nor under the act of 1679 was the writ the appropriate remedy in the case of a person convicted either on indictment or summarily. It properly applied to persons detained before or without trial or sentence; and for convicted persons the proper remedy was by writs of error or certiorari to which a writ of habeas corpus might be used as ancillary.

As regards persons imprisoned for debt or on civil process the writ was available at common law to test the legality of the detention: but the practice in these cases is unaffected by the act of 1679, and is of no present interest, since imprisonment on civil process is almost abolished. As regards persons in private custody, e.g. persons not sui juris detained by those not entitled to their guardianship or lunatics, or persons kidnapped, habeas corpus ad subjiciendum seems not to have been the ordinary common law remedy. The appropriate writ for such cases was that known as de homine replegiando. The use of this writ in most if not all criminal cases was forbidden in 1553; but it was used in the 17th century in a case of kidnapping (Designy’s case, 1682), and against Lord Grey for abducting his wife’s sister (1682), and in the earl of Banbury’s case to recover his wife (1704). The latest recorded instance of its use is Trebilcock’s case (1736), in which a ward sought to free himself from the custody of his guardian.

Since that date the habeas corpus ad subjiciendum has been used in cases of illegal detention in private custody. In 1758 questions arose as to its application to persons in naval or military custody, including pressed men, which led to the introduction of a bill in parliament and to the consultation by the House of Lords of the judges (see Wilmot’s Opinions, p. 77). In the same year the writ was used to release the wife of Earl Ferrers from his custody and maltreatment, and was unsuccessfully applied for by John Wilkes to get back his wife, who was separated from him by mutual agreement. But perhaps the most interesting instances of that period are the case of the negro Somerset (1771), who was released from a claim to hold him as a slave in England: and that of the Hottentot Venus (1810), where an alien woman on exhibition in England was brought before the court by Zachary Macaulay in order to ascertain whether she was detained against her will.

The experience of the 18th century disclosed defects in the procedure for obtaining liberty in cases not covered by the act of 1679. But it was not till 1816 that further legislation was passed for more effectually securing the liberty of the subject. The act of 1816 (56 Geo. III. c. 100), does not touch cases covered by the act of 1679. It enacts (1) that a writ of habeas corpus shall be issued in vacation time in favour of a person restrained of his liberty otherwise than for some criminal or supposed criminal matter (except persons imprisoned for debt or by civil process); (2) that though the return to the writ be good and sufficient in law, the judge shall examine into the truth of the facts set forth in such return, and if they appear doubtful the prisoner shall be bailed; (3) that the writ shall run to any port, harbour, road, creek or bay on the coast of England, although not within the body of any county. The last clause was intended to meet doubts on the applicability of habeas corpus in cases of illegal detention on board ship, which had been raised owing to a case of detention on a foreign ship in an English port.

It will appear from the foregoing statement that the issue and enforcement of the writ rests on the common law as strengthened by the acts of 1627, 1640, 1679 and 1816, and subject also to the regulations as to procedure contained in the Crown Office Rules, 1906. The effect of the statutes is to keep the courts always open for the issue of the writ. It is available to put an end to all forms of illegal detention in public or private custody. In the case of the Canadian prisoners (1839) it was used to obtain the release of persons sentenced in Canada for participating in the rebellion of 1837, who were being conveyed throughout England in custody on their way to imprisonment in another part of the empire, and it is matter of frequent experience for the courts to review the legality of commitments under the Extradition Acts and the Fugitive Offenders Act 1881, of fugitives from the justice of a foreign state or parts of the king’s dominions outside the British Islands.

In times of public danger it has occasionally been thought necessary to “suspend” the Habeas Corpus Act 1679 by special and temporary legislation. This was done in 1794 (by an act annually renewed until 1801) and again in 1817, as to persons arrested and detained by his majesty for conspiring against his person and government. The same course was adopted in Ireland in 1866 during a Fenian rising. It has been the practice to make such acts annual and to follow their expiration by an act of indemnity. In cases where martial law exists the use of the writ is ex hypothesi suspended during conditions amounting to a state of war within the realm or the British possession affected (e.g. the Cape Colony and Natal during the South African War), and it would seem that the acts of courts martial during the period are not the subject of review by the ordinary courts. The so-called “suspension of the Habeas Corpus Act” bears a certain similarity to what is called in Europe “suspending the constitutional guarantees” or “proclaiming a state of siege,” but “is not in reality more than suspension of one particular remedy for the protection of personal freedom.”

There are various other forms of the writ according to the purpose for which it is granted. Thus habeas corpus ad respondendum is used to bring up a prisoner confined by the process of an inferior court in order to charge him in another proceeding (civil or criminal) in the superior court or some other court. As regards civil proceedings, this form of the writ is now rarely used, owing to the abolition of arrest on mesne process and the restriction of imprisonment for debt, or in execution of a civil judgment. The right to issue the writ depends on the common law, supplemented by an act of 1802. It is occasionally used for the purpose of bringing a person in custody for debt or on a criminal charge before a criminal court to be charged in respect of a criminal proceeding: but the same result may be obtained by means of an order of a secretary of state, made under s. 11 of the Prison Act 1898, or by the written order of a court of criminal jurisdiction before which he is required to take his trial on indictment (Criminal Law Amendment Act 30 & 31 Vict. c. 35, s. 10.)

Other forms are ad satisfaciendum; ad faciendum et recipiendum, to remove into a superior court proceedings under which the defendant is in custody: ad testificandum, where a prisoner is required as a witness, issued under an act of 1804 (s. 11), which is in practice replaced by orders under s. 11 of the Prison Act 1898 (supra) or the order of a judge under s. 9 of the Criminal Procedure Act 1853: and ad deliberandum et recipias, to authorize the transfer from one custody to another for purposes of trial, which is in practice superseded by the provisions of the Prison Acts 1865, 1871 and 1898, and the Criminal Law Amendment Act 1867 (supra).

The above forms are now of little or no importance; but the procedure for obtaining them and the forms of writ are included in the Crown Office Rules 1906.

Ireland.—The common law of Ireland as to the writs of habeas corpus is the same as that in England. The writ has in past times been issued from the English court of king’s bench into Ireland; but does not now so issue. The acts of 1803 and 1816 already mentioned apply to Ireland. The Petition of Right is not in terms applicable to Ireland. The Habeas Corpus Act 1679 does not apply to Ireland; but its equivalent is supplied by an act of 1781–1782 of the Irish parliament (21 & 22 Geo. III. c. 11). Sec. 16 contains a provision empowering the chief governor and privy council of Ireland by a proclamation under the great seal of Ireland to suspend the act during such time only as there shall be an actual invasion or rebellion in Ireland; and it is enacted that during the currency of the proclamation no judge or justices shall bail or try any person charged with being concerned in the rebellion or invasion without an order from the lord lieutenant or lord deputy and senior of the privy council. In Ireland by an act of 1881 the Irish executive was given an absolute power of arbitrary and preventive arrest on suspicion of treason or of an act tending to interfere with the maintenance of law and order: but the warrant of arrest was made conclusive. This act continued by annual renewals until 1906, when it expired.

Scotland.—The writ of habeas corpus is unknown to Scots law, nor will it issue from English courts into Scotland. Under a Scots act of 1701 (c. 6) provision is made for preventing wrongous imprisonment and against undue delay in trials. It was applied to treason felony in 1848. The right to speedy trial is now regulated by s. 43 of the Criminal Procedure Scotland Act 1887. These enactments are as to Scotland equivalent to the English Act of 1679. Under the Court of Exchequer Scotland Act 1856 (19 & 20 V. c. 56) provision is made for bringing before the court of session persons and proceedings before inferior courts and public officers—which is analogous to the powers to issue habeas corpus in such cases out of the English court of exchequer (now the revenue side of the king’s bench division).

British Possessions.—The act of 1679 expressly applies to Wales, Berwick-on-Tweed, Jersey and Guernsey, and the act of 1816 also extends to the Isle of Man. The court of king’s bench has also issued the writ to the king’s foreign dominions beyond seas, e.g. to St Helena, and so late as 1861 to Canada (Anderson’s case 1861, 30 L.J.Q.B. 129). In consequence of the last decision it was provided by the Habeas Corpus Act 1862 that no writ of habeas corpus should issue out of England by authority of any court or judge “into any colony or foreign dominion of the crown where the crown has a lawfully established court of justice having authority to grant or issue the writ and to ensure its due execution in the ‘colony’ or dominion” (25 & 26 V. c. 20). The expression “foreign dominion” is meant to apply to places outside the British Islands, and does not include the Isle of Man or the Channel Islands (see re Brown [1864], 33 L.J.Q.B. 193).

In Australasia and Canada and in most if not all the British possessions whose law is based on the common law, the power to issue and enforce the writ is possessed and is freely exercised by colonial courts, under the charters or statutes creating and regulating the courts. The writ is freely resorted to in Canada, and in 1905, 1906, two appeals came to the privy council from the dominion, one with reference to an extradition case, the other with respect to the right to expel aliens.

Under the Roman-Dutch law as applied in British Guiana the writ was unknown and no similar process existed (2nd report of West Indian law commissioners). But by the Supreme Court Ordinance of 1893 that court possesses (inter alia) all the authorities, powers and functions belonging to or incident to a superior court of record in England, which appears to include the power to issue the writ of habeas corpus. Under the Roman-Dutch law as applied to South Africa free persons appear to have a right to release under a writ de libero homine exhibendo, which closely resembles the writ of habeas corpus, and the procedure described as “manifestation” used in the kingdom of Aragon (Hallam, Middle Ages, vol. ii., c. iv.). The writ of habeas corpus has not been formally adopted or the Habeas Corpus Acts formally extended to South Africa; but in the Cape Colony, under the charter of justice and colonial legislation, the supreme court on petition grants a remedy equivalent to that obtained in England by writ of habeas corpus; and the remedy is sometimes so described (Koke v. Balie, 1879, 9 Buchanan, 45, 64, arising out of a rising in Griqualand). During and after the South African War of 1899–1902 many attempts were made by this procedure to challenge or review the sentences of courts martial; see re Fourie (1900). 18 Cape Rep. 8.

The laws of Ceylon being derived from the Roman-Dutch law, the writ of habeas corpus is not indigenous: but, under s. 49 of the Supreme Court Ordinance 1889, the court or a judge has power to grant and issue “mandates in the nature of writs of habeas corpus.” The chartered high courts in India have power to issue and enforce the writ of habeas corpus. The earliest record of its use was in 1775, when it was directed to Warren Hastings. It has been used to test the question whether Roman Catholic religious orders could enter India, and in 1870 an attempt was made thereby to challenge the validity of a warrant in the nature of a lettre de cachet issued by the viceroy (Ind. L. Rep. 6 Bengal, 392, 456, 498), and it has also been applied to settle controversies between Hindus and missionaries as to the custody of a young convert (R. v. Vaughan, 1870, 5 Bengal, 418), and between a Mahommedan husband and his mother-in-law as to the custody of a girl-wife (Khatija Bibi, 1870, 5 Bengal, 557).

United States.—Before the Declaration of Independence some of the North American colonies had adopted the act of 1679; and the federal and the other state legislatures of the United States have founded their procedure on that act. The common law as to the writ of habeas corpus has been inherited from England, and has been generally made to apply to commitments and detentions of all kinds. Difficult questions, unknown to English law, have arisen from the peculiar features of the American state-system. Thus the constitution 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”; and it has been the subject of much dispute whether the power of suspension under this provision is vested in the president or the congress. The weight of opinion seems to lean to the latter alternative. Again, conflicts have arisen between the courts of individual states and the courts of the union. It seems that a state court has no right to issue a habeas corpus for the discharge of a person held under the authority of the federal government. On the other hand, the courts of the union issue the writ only in those cases in which the power is expressly conferred on them by the constitution.

Authorities.—Paterson, Liberty of the Subject (1877); Short and Mellor, Crown Practice (1890); American: Church on Habeas Corpus (2nd ed. 1893).  (W. F. C.) 

  1. See Hallam, Const. Hist. vol. i., c. vii. (12th ed.) p. 384.
  2. Hallam, Const. Hist. vol. ii., c. viii. (12th ed.) p. 2.
  3. Ibid. c. ix. (12th ed.) p. 98.
  4. Ibid. vol. iii., c. xiii. (12th ed.) p. 12.
  5. Dicey, Law of the Constitution (6th ed.), p. 217.
  6. Dicey, Law of the Constitution (6th ed.), p. 195.