Page:The New International Encyclopædia 1st ed. v. 20.djvu/787

WRIT. 671 WRIT. they provide only for the redress of certain fla- grant wrongs wliieh recurred most frequently. These wTits were issued by the chancellor or by the clerks of the Court of Chancery in the name of the King. There was a long period <luring which no new writs were devised and justice was often denied because the circumstances of a ca.se were not similar to those allei^cd in any existing writ. This hardship led to the enact- ment of the statute. Westminster 11. i l.'i Kdward 1., C. 24), by which it was ]irovided that where there was an injur}' or wrong which was similar {in consimili cunu) to a recognized wrong, for which there was a remedy under an existing writ, the Court of Chancery should frame a writ to cover the new facts. The statute was not lib- erally construed, but it resulted in several ad- ditions to the original writs. The forms of the original writs were preserved in a court record known as The Ilcitislcr of Vi'rits. An original writ contained a short statement of the facts complained of, and directed the sherifi' to command the defendant to satisfy the claim ; and if he failed to do so, to summon him to appear in court and answer the complaint. As each writ could be used to begin an action upon any state of facts practically similar to those alleged in it, the complaint in a writ was usually a fiction, and the plaintifl' was permitted to prove the actual facts upon which he based his claim. This use of fictions became the distinc- tive feature of common-law pleading and con- tinues where that system prevails. Among the more important writs for the beginning of real and mixed actions are: The icrit of right, for the recovery of real propertj'; formedon, for the re- covery of lands ; doicer, for the enforcement of a widow's right of dower; rjiiare impedit, to ascer- tain the right of presentation to a benefice or to try title to an advowson ; icrit of entr;/, to try title to land. The most important writs for the beginning of personal actions are: debt, for re- covery of a sum of money due; covenant, to re- cover for breach of a promise under seal ; detinue, for the specific recovery of goods unlawfully de- tained ; trespass on the ease, for any wrong which could not be redressed by the remedies of cove- nant or trespass, and out of this writ sprang the actions of trover and assumpsit. If the de- fendant did not appear in response to an origi- nal writ he was arrested under a judicial writ known as a capis ad respondendum. Other writs were the writ of snbprrna, of error, and of cer- tiorari for the review of judicial decisions. Habeas Corpus. This most important writ, sometimes known as the bulwark of English lib- erty, was instituted to enable the friends of a person supposed to be unlawfilly imprisoned to compel his keepers to produce him in court in order that it might be determined whether or not he was held lawfully. Its origin and early development are somewhat obscure, but it is believed by eminent authorities that forms of the writ were in use as early as the thirteenth century. However, it was probably used at that time in connection with the writ of certiorari to bring a prisoner before the King's Court when the proceeding itself was removed to that tribunal from- an inferior court ; also with the writ of privilege to bring a prisoner into a higher court in which he claimed the privilege of trial. During the sixteenth cen- tury, under the name of habeas corpus cum causa or corpus cum causa, the writ began to be employed to test the legality of an imi)ri3- onment. In Howell's case in 1588, the keepers of a i)risoner were compelled to inform the court of the cause of his detention, and the court de- clared that a prisoner should ahvays be produced in court on the return of the writ.^'l'his case was followed by the famous dictum of the King's Bench, known as the "Resolution in Anderson,' from the fact that it was reported in Anderson's Ueports (p. 298). The effect of this was to ren- der the writ of habeas corpus a distinct and posi- tive remedy, independent of certiorari and privi- lege, and available as a matter of right to all prisom>rs. The famous 'Five Knights' Case' in 1627 (3 St. Tr., pp. I-2;i5) tested the effect of the writ under the existing law. Five gentlemen were committed to prison on a warrant which alleged no particular cause for their arrest, except that it was by "special command of the King.' On ap- jilication of Sir Thomas Darnel, one of the pris- oners, the Court of King's Bench issued a writ of habeas corpus and the prisoners were brouglit before the court, but after an exhaustive argu- ment, were again remanded to prison as the court was not able to grant bail under the Stat- ute of Westminster 1. This example of the arbi- trary power of the King to imprison his subjects without cause led to the introduction of a bill in Parliament in 1()28, known as the Petition of Right, which contained a clause abrogating the power of the King to cast a person into prison 'without any cause shewed.' The "Six Members' Case,' which was decided in 1629, did not follow the spirit of the clause cited, evading its effect by a poorly disguised subterfuge. 'The return simply alleged the cause of detention as set forth in the writ, which was that the prisoners had committed "notable contempts' against the King and had "stirred up sedition' against him. The court refused to release the prisoneis and thus practically nullified the effect of the Habeas Corpus clause in the Petition of Right by its prejudiced and biased interpretation of its mean- ing. It remained for the "Act for the Abolition of the Star Chamber' (1041) permanently to es- tablish the writ as a substantial and effective remedy; and in 1679 the famous Habeas Corpus Act (31 Charles II. C 2) gave the writ its pres- ent form and settled many questions which had arisen during the development of the remedy. The first and perhaps the most important function of the writ was to secure the production of prisoners held on criminal charges. However, during the reign of CJeorge 111., the remedy was extended to cover other cases than criminal charges, as for example, to obtain custodj- of a child detained by some one claiming the right of guardianship. The United States Constitution provides that the privilege of the writ of habeas corpus "'shall not be suspended unless in case of rebellion or invasion where the public safety may require it." The President is authorized under a Federal statute thus to suspend the writ in the proper cases. The statutes of most of the States provide for the granting of the writ in cases where a person is in prison or restrained in his liberty for any cause or upon any pretense, for the purpose of inquiring into the cause of the imprisonment or restraint, and, in the proper