Thursday, November 5, 2009

Habeas Corpus (3)

This act was gravely defective in restricting, or not extending, the right to habeas corpus to cases other than those of persons arrested on criminal charges. This defect was not remedied until 1816, when an act (56 George III., ch. 100) was passed providing that the writ should be granted in other than criminal cases; that though the return might be good on the face of it, if the facts on which it was made appeared doubtful, the prisoner should be admitted to bail; and that the writ should run to harbors and roads on the coast, although not within any county.

In 1861 it was decided that the writ ran throughout the British Empire, and the act 25 and 26 Vict., ch. 20, was passed restricting the jurisdiction so that the writ should not run from the English court into those colonies or dominions where the granting of the writ by a local court had been provided for.

In the United States the right to the benefit of the writ of habeas corpus was always claimed by the English colonies in America, and was enjoyed by them except in cases of arbitrary oppression. An instance of its early use occurs in New York in 1707, in procuring the release of ministers arrested by an illegal warrant issued by the Governor, Cornbury. In New Jersey in 1710 the Legislature denounced a judge who had violated the "undoubted right" of a colonist by refusing the writ to him. In 1692 the South Carolina Assembly adopted the act 31 Charles II., and during the reign of Anne the act was expressly extended to Virginia. Maryland, in 1725 claimed the benefit of the writ as a "birthright of the inhabitants," independently of the royal favor. But, although the colonial charters generally contained express provisions that the colonists should have all the privileges and immunities of natural-born British subjects, no express mention, seems to have been made in them of this particular writ. It was rather taken for granted as belonging of right to every British subject and when the colonies separated from the mother country, the right of habeas corpus became a part of the general common law of the States, derived by them from the laws existing while they were still colonies. (See COMMON LAW.) The Constitution (Art. 1, sec. 9, subdiv.2) provides that "the privileges 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 constitutions of most of the States contain provisions of a similar effect; and in Virginia, Vermont, Louisiana, and North Carolina the suspension of the writ in any case is forbidden. The Constitution of Maryland, however, does not mention the writ. Several of the States provide in their constitutions for suspensions, as in Massachusetts for twelve months, New Hampshire three months, Florida in case of insurrection or rebellion, etc.

President Lincoln suspended the privilege of the writ in 1861 by proclamation, but it was decided by Chief Justice Taney, in the Circuit Court of Maryland, that Congress alone possessed the right to suspend the writ; and this seems to be the better opinion, although the right of the President was supported by authorities at the time. Later, in March, 1863, Congress passed a bill authorizing the President to suspend the privilege of the writ; but in cases arising under the exercise of this authority it was held that the suspension of the privilege did not suspend the issuance of the writ, but that the return was to be the means of suspending its further operation. Neither does the suspension of the privilege of the writ deprive an unlawfully arrested or imprisoned person of his action of damages, nor protect the wrong-doer from criminal prosecution. None of the States have suspended the privileges of the writ except Massachusetts, where the privilege of the writ was suspended from November, 1786, to July, 1787, on the occasion of Shays's Rebellion. In England, as noted above, the King's Court, or Court of King's Bench, and the Court of Chancery were the ordinary courts from which this writ was issuable; but it could be issued by the Court of Common Pleas and by the Court of Exchequer, at least in case of persons privileged in those courts. The Habeas Corpus Act (31 Charles II., ch. 2) and other later acts prescribed the courts which could issue the writ, extending the jurisdiction so that it is always possible to obtain the writ in vacation as well as in term time.

To be continued: Habeas Corpus (4)

Transcribed information from : The New International Encyclopaedia: 1902-1905 Dodd, Mead and Company New York Total of 21 Volumes.

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