Thursday, November 5, 2009

Habeas Corpus (1)

Any one of several common-law writs, which issue out of a court of justice, or (in England) are awarded by a judge in vacation, and require the body of a person to be brought before the judge or into the court for some purpose specified in the writ.

The name arises from the emphatic words habeas corpus ('have the body') which occur in the writs so called. In the broadest inclusion, besides the writs now commonly so called, the writ known as capias is covered by the term habeas corpus, and these words form a part of the Latin form of the writ. Of all these writs the one which is now of primary importance, and which is commonly meant by the term, is that of which the fuller name is habeas corpus ad subjiciendum, the history and law concerning which is here briefly stated under that fuller name. Other writs of minor importance are given below under their fuller names, by which they are ordinarily distinguished.

Habeas Corpus ad Subjiciendum

This is a prerogative writ requiring the body of a person alleged to be unlawfully restrained of liberty to be brought before the judge or into court, that the lawfulness of the restraint may be investigated and determined. The writ is addressed to the person in whose custody the detained person is alleged to be, and commands him to produce the body of the prisoner before the court and there state the cause and warrant for his detention, or show cause why this was not done.

At the time when the Magna Charta declared that no "freeman may be taken or imprisoned but by the lawful judgment of his peers or by the law of the land," there seems to have been no definite machinery available by which a freeman so imprisoned could recover his freedom. This was due partly to the fact that the power was not then fully centralized, partly to the fact that the King's court (through which this was then to be accomplished if at all) was not yet ready to set at naught the King's will, and partly that the law seemed to fear too little rather than too much imprisonment of malefactors, and the action for false imprisonment seemed a sufficient check for merely lawless confinement. The words 'habeas corpus' are making their way into various writs, but they are not yet habitually used of any method of investigating the cause or legality of an imprisonment.

A person arrested was set free as soon as some sureties became bound for his appearance in court. It was not common to keep men in prison, not (apparently) because of any love of the abstract idea of liberty, but because imprisonment was costly and troublesome to the sheriff. The sheriff enjoyed a discretionary power of detaining or releasing prisoners upon sureties such as he considered sufficient, except that he might not set at liberty any one imprisoned by the special command of the King. A writ (de homine replegiando), which came into currency during this same period, directed the sheriff to deliver the prisoner unless he were taken at the special command of the King or his chief justiciar or for the death of a man, or for some forest offense, or for some other cause which by law made him irrepleviable; but the writ was so worded as to throw upon the sheriff the responsibility of deciding whether the prisoner should be kept in custody.

To be continued: Habeas Corpus ad Subjiciendum (2)
Source of Information: From my Collection of Books: The New International Encyclopedia: 1902-1905 Dodd, Mead and Company, New York total of 21 Volumes.
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