habeas corpus
    n 1: a writ ordering a prisoner to be brought before a judge
         [syn: habeas corpus, writ of habeas corpus]
    2: the civil right to obtain a writ of habeas corpus as
       protection against illegal imprisonment

Habeas corpus \Ha"be*as cor"pus\ (h[=a]"b[-e]*[a^]s
   k[^o]r"p[u^]s). [L. you may have the body.] (Law)
   A writ having for its object to bring a party before a court
   or judge; especially, one to inquire into the cause of a
   person's imprisonment or detention by another, with the view
   to protect the right to personal liberty; also, one to bring
   a prisoner into court to testify in a pending trial.
   --Bouvier.
   [1913 Webster]

HABEAS CORPUS, remedies A writ of habeas corpus is an order in writing, 
signed by the judge who grants the same, and sealed with the seal of the 
court of he is a judge, issued in the name of the sovereign power where it 
is granted, by such a court or a judge thereof, having lawful authority to 
issue the same, directed to any one having a person in his custody or under 
his restraint, commanding him to produce, such person at a certain time and 
place, and to state the reasons why he is held in custody, or under 
restraint. 
     2. This writ was it common law considered as a remedy to remove the 
illegal restraint on a freeman. But anterior to the 31 Charles II. its 
benefit was, in a great degree, eluded by time-serving judges, who awarded 
it only in term time, and who assumed a discretionary power of awarding or 
refusing it. 3 Bulstr. 23. Three or four years before that statute was 
passed there had been two very great cases much agitated in Westminster 
Hall, upon writs of habeas corpus for private custody, viz: the cases of 
Lord Lei-ah: 2 Lev; 128; and Sir Robert Viner, Lord Mayor.of London. 3 
Keble, 434, 447, 470, 504; 2 Lev. 128; Freem. 389. But the court has wisely 
drew the line of distinction between civil constitutional liberty, as 
opposed to the power of the crown, and liberty as opposed to the violence 
and power of private persons. Wilmot's Opinions, 85, 86. 
     3. To secure the full benefit of it to the subject the statute 81 Car. 
II. c. 2, commonly called the habeas corpus act, was passed. This gave to 
the. writ the vigor, life, and efficacy requisite for the due protection of 
the liberty of the subject. In England this. is considered as a high 
prerogative writ, issuing out of the court of king's bench, in term time or 
vacation, and running into every part of the king's dominions. It is also 
grantable as a matter of right, ex debito justitae, upon the application of 
any person. 
     4. The interdict De homine libero exhibendo of the Roman law, was a 
remedy very similar to the writ of habeas corpus. When a freeman was 
restrained by another, contrary to good faith, the praetor ordered that such 
person should be brought before him that he might be liberated. Dig. 43, 29, 
1. 
     5. The habeas corpus act has been substantially incorporated into the 
jurisprudence of every state in the Union, and the right to the writ has 
been secured by most of the constitutions of the states, and of the United 
States. The statute of 31 Car. II. c. 2, provides that the person 
imprisoned, if he be not a prisoner convict, or in execution of legal 
process, or committed for treason or felony, plainly expressed in the 
warrant, or has not neglected willfully, by the space of two whole terms 
after his imprisonment, to pray a habeas corpus for his enlargement, may 
apply by any one in his behalf, in vacation time, to a judicial officer for 
the writ of habeas corpus, and the officer, upon view of the copy of the 
warrant of commitment, or upon proof of denial of it after due demand, must 
allow the writ to be directed to the person in whose custody the party is 
detained, and made returnable immediately before him. And, in term time, any 
of the said prisoners may obtain his writ of habeas corpus, by applying to 
the proper court. 
     6. By the habeas corpus law of Pennsylvania, (the Act of February 18, 
1785,) the benefit of the writ of habeas corpus is given in "all cases where 
any person, not being committed or detained for any criminal, or supposed 
criminal matter," Who "shall be confined or restrained of his or her 
liberty, under any color or pretence whatsoever." A similar provision is 
contained in the habeas corpus act of New York. Act of April 21, 1818, sect. 
41, ch. 277. 
     7. The Constitution of the United State art. 1, s. 9, n. 2, 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 the same principle is contained in many of the state 
constitutions. In order still more to secure the citizen the benefit of this 
great writ, a heavy penalty is inflicted upon the judges who are bound to 
grant it, in case of refusal. 
     8. It is proper to consider, 1. When it is to be granted. 2. How it is 
to be served. 3. What return is to be made to it. 4. The bearing. 5. The 
effect of the judgment upon it. 
     9.-1. The writ is to be granted whenever a person is in actual 
confinement, committed or detained as aforesaid, either for a criminal 
charge, or, as in Pennsylvania and New York, in all cases where he is 
confined or restrained of his liberty, under any color or pretence 
whatsoever. But persons discharged on bail will not be considered as 
restrained of their liberty so as to be entitled to, a writ of habeas 
corpus, directed to their bail. 3 Yeates, R. 263; 1 Serg & Rawle, 356. 
    10.-2. The writ may be served by any free person, by leaving it with 
the person to whom it is directed, or left at the gaol or prison with any of 
the under officers, under keepers, or deputy of the said officers or 
keepers. In Louisiana, it is provided, that if the person to whom it is 
addressed shall refuse to receive the writ, he who is charged to serve it, 
shall inform him of its contents; if he to whom the writ is addressed 
conceal himself, or refuse admittance to the person charged to serve it on 
him, the latter shall affix the order on the exterior of the place where the 
person resides, or in which the petitioner is so confined. Lo. Code of 
Pract. art. 803. The service is proved by the oath of the party making it. 
    11.-3. The person to whom the writ is addressed or directed, is 
required to make a return to it, within the time prescribed; he either 
complies, or he does not. If, he complies, he must positively answer, 1. 
Whether he has or has not in his power or custody the person to be set at 
liberty, or whether that person is confined by him; if he return that he has 
not and has not had him in his power or custody, and the return is true, it 
is evident that a mistake was made in issuing the writ; if the return is 
false, he is liable to a penalty, and other punishment, for making such a, 
false return. If he return that he has such person in his custody, then he 
must show by his return, further, by what authority, and for what cause, he 
arrested or detained him. If he does not comply, he is to be considered in 
contempt of the court under whose seal the writ has been issued, and liable 
to a severe penalty, to be recovered by the party aggrieved. 
    12.-4. When the prisoner is brought, before the judge, his judicial 
discretion commences, and he acts under no other responsibility than that 
which belongs to the exercise of ordinary judicial power. The judge or court 
before whom the prisoner is brought on a habeas corpus, examines the return 
and Papers, if any, referred to in it, and if no legal cause be shown for 
the imprisonment or restraint; or if it appear, although legally committed, 
he has not been prosecuted or tried within the periods required by law, or 
that, for any other cause, the imprisonment cannot be legally continued, the 
prisoner is discharged from custody. In the case of wives, children, and 
wards, all the court does, is to see that they ire under no illegal 
restraint. 1 Strange, 445; 2. Strange, 982; Wilmot's Opinions, 120. 
    13. For those offences which are bailable, when the prisoner offers 
sufficient bail, he is to be bailed. 
    14. He is to be remanded in the following cases: 1. When it appears he, 
is detained upon legal process, out of some court having jurisdiction of 
criminal matters, 2. When he is detained by warrant, under the hand and seal 
of a magistrate, for some offence for which, by law, the prisoner is not 
bailable. 3. When he is a convict in execution, or detained in execution by 
legal civil process. 4. When he is detained for a contempt, specially and 
plainly charged in the commitment, by some existing court, having authority 
to commit for contempt. 5. When he refuses or neglects to give the requisite 
bail in a case bailable of right. The judge is not confined to the return, 
but he is to examine into the causes of the imprisonment, and then he is to 
discharge, bail, or remand, as justice shall require. 2 Kent, Com. 26; Lo. 
Code of Prac. art. 819. 
    15.-5. It is provided by the habeas corpus act, that a person set at 
liberty by the writ, shall not again be imprisoned for the same offence, by 
any person whomsoever, other than by the legal order and process of such 
court wherein he shall be bound by recognizance to appear, or other court 
having jurisdiction of the cause. 4 Johns. R. 318; 1 Binn. 374; 5 John. R. 
282. 
    16. The habeas corpus can be suspended only by authority of the 
legislature. The constitution of the United States provides, that the 
privilege of the writ of habeas corpus shall not be suspended unless when, 
in cases of invasion and rebellion, the public safety may require it. 
Whether this writ ought to be suspended depends on political considerations, 
of which the legislature, is to decide. 4 Cranch, 101. The proclamation of a 
military chief, declaring martial law, cannot, therefore, suspend the 
operation of the law. 1 Harr. Cond. Rep. Lo. 157, 159 3 Mart. Lo. R. 531. 
    17. There are various kinds of this writ; the principal of which are 
explained below. 
    18. Habeas corpus ad deliberandum et recipiendum, is a writ which lies 
to remove a prisoner to take his trial in the county where the offence was 
committed. Bac. Ab. Habeas Corpus, A. 
    19. Habeas corpus ad faciendum et recipiendum, is a writ which issues 
out of a court of competent jurisdiction, when a person is sued in an 
inferior court, commanding the inferior judges to produce the body of the 
defendant, together with the day and cause of his caption and detainer, 
(whence this writ is frequently denominated habeas corpus cum causa) to do 
and receive whatever the court or the judge issuing the writ shall consider 
in that behalf. This writ may also be issued by the bail of a prisoner, who 
has been taken upon a criminal accusation, in order to surrender him in his 
own discharge; upon. the return of this writ, the court will cause an 
exoneretur to be entered on the bail piece, and remand the prisoner to his 
former custody. Tidd's Pr. 405; 1 Chit. Cr. Law, 182. 
    20. Habeas corpus ad prosequendum, is a writ which issues for the 
purpose of removing a prisoner in order to prosecute. 3 Bl. Com. 130. 
    21. Habeas corpus ad respondendum, is a writ which issues at the 
instance of a creditor, or one who has a cause of action against a person 
who is confined by the process of some inferior court, in order to remove 
the prisoner and charge him with this new action in the court above. 2 Mod. 
198; 3 Bl. Com. 107. 
    22. Habeas corpus ad satisfaciendum, is a writ issued at the instance of 
a plaintiff for the purpose of bringing up a prisoner, against whom a 
judgment has been rendered, in a superior court to charge him with the 
process of execution. 2 Lill. Pr. Reg. 4; 3 Bl. Com. 129, 130. 
    23. Habeas corpus ad subjiciendum, by way of eminence called the writ of 
habeas corpus, (q.v.) is a writ directed to the person detaining another, 
and commanding him to produce the body of the prisoner, with the day and 
cause of his caption and detention, ad faciendum, subjiciendum, et 
recipiendum, to do, submit to, and receive, whatsoever the judge or court 
awarding such writ shall consider in that behalf. 3 Bl. Com. 131; 3 Story, 
Const. Sec. 1333. 
    24. Habeas corpus ad testificandum, a writ issued for the purpose of 
bringing a prisoner, in order that he may testify, before the court. 3 Bl. 
Com. 130. 
    25. Habeas corpus cum causa, is a writ which may be issued by the bail 
of a prisoner, who has been taken upon a criminal accusation, in order to 
render him in their own discharge. Tidd's Pr. 405. Upon the return of this 
writ the court will cause an exoneretur to be entered on the bail piece, and 
remand the defendant to his former custody. Id. ibid.; 1 Chit. Cr. Law 132. 
Vide, generally, Bac. Ab. h.t.; Vin. Ab. h.t.; Com. Dig. h.t.; Nels. Ab. 
h.t.; the various American Digests, h.t.; Lo. Code of Prac. art. 791 to 
827; Dane's Ab. Index, h.t.; Bouv. Inst. Index, h.t. 

HABEAS CORPUS.  A writ by which a man may be taken out of jail when
confined for the wrong crime.