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.