In Australasia and Canada and in most if not all the British possessions whose law is based on the common law, the power to issue and enforce the writ is possessed and is freely exercised by colonial courts, under the charters or statutes creating and regulating the courts. The writ is freely resorted to in Canada, and in 1905, 1906, two appeals came to the privy council from the dominion, one with reference to an extradition case, the other with respect to the right to expel aliens.
Under the Roman-Dutch law as applied in British Guiana the writ was unknown and no similar process existed (2nd report of West Indian law commissioners). But by the Supreme Court Ordinance of 1893 that court possesses (inter alia) all the authorities, powers and functions belonging to or incident to a superior court of record in England, which appears to include the power to issue the writ of habeas corpus. Under the Roman-Dutch law as applied to South Africa free persons appear to have a right to release under a writ de libero homine exhibendo, which closely resembles the writ of habeas corpus, and the procedure described as “manifestation” used in the kingdom of Aragon (Hallam, Middle Ages, vol. ii., c. iv.). The writ of habeas corpus has not been formally adopted or the Habeas Corpus Acts formally extended to South Africa; but in the Cape Colony, under the charter of justice and colonial legislation, the supreme court on petition grants a remedy equivalent to that obtained in England by writ of habeas corpus; and the remedy is sometimes so described (Koke v. Balie, 1879, 9 Buchanan, 45, 64, arising out of a rising in Griqualand). During and after the South African War of 1899-1902 many attempts were made by this procedure to challenge or review the sentences of courts martial; see re Fourie (1900). 18 Cape Rep. 8.
The laws of Ceylon being derived from the Roman-Dutch law, the writ of habeas corpus is not indigenous: but, under s. 49 of the Supreme Court Ordinance 1889, the court or a judge has power to grant and issue “mandates in the nature of writs of habeas corpus.” The chartered high courts in India have power to issue and enforce the writ of habeas corpus. The earliest record of its use was in 1775, when it was directed to Warren Hastings. It has been used to test the question whether Roman Catholic religious orders could enter India, and in 1870 an attempt was made thereby to challenge the validity of a warrant in the nature of a lettre de cachet issued by the viceroy (Ind. L. Rep. 6 Bengal, 392, 456, 498), and it has also been applied to settle controversies between Hindus and missionaries as to the custody of a young convert (R. v. Vaughan, 1870, 5 Bengal, 418), and between a Mahommedan husband and his mother-in-law as to the custody of a girl-wife (Khatija Bibi, 1870, 5 Bengal, 557).
United States.—Before the Declaration of Independence some of the North American colonies had adopted the act of 1679; and the federal and the other state legislatures of the United States have founded their procedure on that act. The common law as to the writ of habeas corpus has been inherited from England, and has been generally made to apply to commitments and detentions of all kinds. Difficult questions, unknown to English law, have arisen from the peculiar features of the American state-system. Thus the constitution provides that “the privilege of the writ of habeas corpus shall not be suspended unless when, in cases of rebellion or invasion, the public safety may require it”; and it has been the subject of much dispute whether the power of suspension under this provision is vested in the president or the congress. The weight of opinion seems to lean to the latter alternative. Again, conflicts have arisen between the courts of individual states and the courts of the union. It seems that a state court has no right to issue a habeas corpus for the discharge of a person held under the authority of the federal government. On the other hand, the courts of the union issue the writ only in those cases in which the power is expressly conferred on them by the constitution.
Authorities.—Paterson, Liberty of the Subject (1877); Short and Mellor, Crown Practice (1890); American: Church on Habeas Corpus (2nd ed. 1893).
(W. F. C.)
[1] See Hallam, Const. Hist. vol. i., c. vii. (12th ed.) p. 384.
[2] Hallam, Const. Hist. vol. ii., c. viii. (12th ed.) p. 2.
[3] Ibid. c. ix. (12th ed.) p. 98.