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).