ished in 1641, but was afterwards revived for a short time in the reign of James II.

It is evident that while these tribunals existed there could be no effectual security to liberty. A brief reference to the remarkable struggle which took place during the reign of Charles I. will perhaps the better enable us to understand the importance of those common-law protections to personal liberty to which we shall have occasion to refer, and also of those statutory securities which have since been added.

When the king attempted to rule without the parliament, and in 1625 dissolved that body, and resorted to forced loans, the grant of monopolies, and the levy of ship moneys, as the means of replenishing a treasury that could only lawfully be supplied by taxes granted by the commons, the privy council was his convenient means of enforcing compliance with his will. Those who refused to contribute to the loans demanded were committed to prison. When they petitioned the Court of the King's Bench for their discharge, the warden of the fleet made return to the writ of habeas corpus, that they were detained by warrant of the privy council, informing him of no particular cause of imprisonment, but that they were committed by the special command of his majesty. Such a return presented for the decision of the court the question, "Is such a warrant, which does not specify the cause of detention, valid by the laws of England?" The court held that it was, justifying their decision upon supposed precedents, although, as Mr. Hallam says, "it was evidently the consequence of this decision that every statute from the time of Magna Charta, designed to protect the personal liberties of Englishmen, became a dead letter, since the insertion of four words in a warrant (per speciale mandatum regis), which might become matter of form, would control their remedial efficacy. And this wound was the more deadly in that the notorious cause of these gentlemen's imprisonment was their withstanding an illegal exaction of money. Every thing that distinguished our constitutional laws, all that rendered the name of England valuable, was at stake in this issue." 1 This decision, among other violent acts, led to the Petition of Right, one of the principal charters of English liberty, but which was not assented to by the king until the judges had * intimated that if he saw [* 344]

1 Hallam, Const. Hist. c. 7. See also Brodie, Const. Hist. Vol. II. c. 1.

fit to violate it by arbitrary commitments, they would take care that it should not be enforced by their aid against his will. And four years later, when the king committed members of parliament for words spoken in debate, offensive to the royal prerogative, the judges evaded the performance of their duty on habeas corpus, and the members were only discharged when the king gave his consent to that course.1

The Habeas Corpus Act was passed in 1679, mainly to prevent such abuses and other evasions of duty by judges and ministerial officers, and to compel prompt action in any case in which illegal imprisonment was alleged. That act gave no new right to the subject, but it furnished the means of enforcing those which existed before. The preamble recited that "whereas great delays have been used by sheriffs, jailers, and other officers, to whose custody any of the king's subjects have been committed for criminal or supposed criminal matters, in making returns of writs of habeas corpus, to them directed, by standing out on alias or pluries habeas corpus, and sometimes more, and by other shifts, to avoid their yielding obedience to such writs, contrary to their duty and the known laws of the land, whereby many of the king's subjects have been and hereafter may be long detained in prison in such cases, where by law they are bailable, to their great charge and vexation. For the prevention whereof, and the more speedy relief of all persons imprisoned for any such criminal or supposed criminal matters," the act proceeded to make elaborate and careful provisions for the future. The important provisions of the act may be summed up as follows: That the writ of habeas corpus might be issued by any court of record or judge thereof, either in term-time or vacation, on the application of any person confined, or of any person for him; the application to be in writing and on oath, and with a copy of the warrant of commitment attached, if procurable; the writ to be returnable either in court or at chambers; the person detaining the applicant to make return to the writ by bringing up the prisoner with the cause of his detention, and the court or judge to discharge him unless the imprisonment appeared to be legal, and in that case to take bail if the case was bailable; and performance of all these duties was made

1 Hallam, Const. Hist. c. 8; Brodie, Const. Hist. Vol. I. c. 8.

* Hallam, Const. Hist. c. 13; Beeching's Case, 4 B. & C. 136; Matter of Jackson, 15 Mich. 436.

*

compulsory, under heavy penalties. Thus the duty which [* 345] the judge or other officer might evade with impunity before,

he must now perform or suffer punishment. The act also provided for punishing severely a second commitment for the same cause, after a party had once been discharged on habeas corpus, and also made the sending of inhabitants of England, Wales, and Berwickupon-Tweed abroad for imprisonment illegal, and subject to penalty. Important as this act was it was less broad in its scope than the remedy had been before, being confined to cases of imprisonment for criminal or supposed criminal matters; 2 but the attempt in parliament nearly a century later to extend its provisions to other cases was defeated by the opposition of Lord Mansfield, on the express ground that it was unnecessary, inasmuch as the commonlaw remedy was sufficient; as perhaps might have been, had officers been always disposed to perform their duty. Another attempt in 1816 was successful.4

3

The Habeas Corpus Act was not made, in express terms, to extend to the American colonies, but it was in some expressly, and in others by silent acquiescence, adopted and acted upon, and all the subsequent legislation in the American States has been based upon it, and has consisted in little more than a re-enactment of its essential provisions.

What Courts issue the Writ.

The protection of personal liberty is for the most part confided to the State authorities, and to the State courts the party must apply for relief on habeas corpus when illegally restrained. There are only a few cases in which the federal courts can interfere; and those are cases in which either the illegal imprisonment is under pretence of national authority, or in which this process becomes important or convenient in order to enforce or vindicate some right, or authority under the Constitution or laws of the United States.

1 Mr. Hurd, in the appendix to his excellent treatise on the Writ of Habeas Corpus, gives a complete copy of the act. See also appendix to Lieber, Civil Liberty and Self-Government; Broom, Const. Law, 218.

* See Mayor of London's Case, 3 Wils. 198; Wilson's Case, 7 Q. B. 984. 'Life of Mansfield by Lord Campbell, 2 Lives of Chief Justices, c. 35; 15 Hansard's Debates, 897 et seq.

• By Stat. 56 Geo. III. c. 100. See Broom, Const. Law. 224.

The Judiciary Act of 1789 provided that each of the several federal courts should have power to issue writs of scire facias, habeas corpus, and all other writs not specially provided for by statute, which might be necessary for the exercise of their respective jurisdictions and agreeable to the principles and usages of law; and that either of the justices of the Supreme Court, as well as the district judges, should have power to grant writs of habeas corpus for the purposes of an inquiry into the cause of commitment:

provided that in no case should such writs extend to [* 346] * prisoners in jail, unless where they were in custody under or by color of the authority of the United States, or were committed to trial before some court of the same, or were necessary to be brought into court to testify.1 Under this statute no court of the United States or judge thereof could issue a habeas corpus to bring up a prisoner in custody under a sentence or execution of a State court, for any other purpose than to be used as a witness. And this was so whether the imprisonment was under civil or criminal process.2

During what were known as the nullification troubles in South Carolina, the defect of federal jurisdiction in respect to this writ became apparent, and another act was passed, having for its object, among other things, the protection of persons who might be prosecuted under assumed State authority for acts done under the laws of the United States. This act provided that either of the justices of the Supreme Court, or a judge of any District Court of the United States, in addition to the authority already conferred by law, should have power to grant writs of habeas corpus in all cases of a prisoner or prisoners in jail or confinement, where he or they shall be committed or confined on or by any authority of law, for any act done or omitted to be done, in pursuance of a law of the United States, or any order, process, or decree of any judge or court thereof.8

In 1842 further legislation seemed to have become a necessity,

11 Statutes at Large, 81.

2 Ex parte Dorr, 3 How. 103.

3 4 Stat. at Large, 634. See Ex parte Robinson, 6 McLean, 355; s. c. 1 Bond, 39; U. S. v. Jailer of Fayette Co., 2 Abb. U. S. 265. Robinson was United States marshal, and was imprisoned under a warrant issued by a State court for executing process under the Fugitive Slave Law, and was discharged by a justice of the Supreme Court of the United States under this act.

in order to give to the federal judiciary jurisdiction upon this writ of cases in which questions of international law were involved, and which, consequently, could only properly be disposed of by the jurisdiction to which international concerns were by the Constitution committed. The immediate occasion for this legislation was the arrest of a subject of Great Britain by the authorities of the State of New York, for an act which his government avowed and took the responsibility of, and which was the subject of diplomatic correspondence between the two nations. An act of Congress was consequently passed, which provides that either of the justices of the Supreme Court, or any judge of any District Court of the United States in which a prisoner is confined, in addition to the authority previously conferred by law, shall have power to grant writs of habeas corpus in all cases of any prisoner or prisoners in jail or confinement, where he, she, or they, being subjects or citizens of a foreign State, and domiciled therein, shall be committed, or confined, or in custody, under or by any authority, or law, or process founded thereon, of the United States or of any one of them, for or on account of any act done or omitted under any alleged right, title, authority, privilege, protection, or exemption, set up or claimed under the commission, or order, or sanction of any foreign State or sovereignty, the validity or effect whereof depends upon the law of nations, or under color thereof.1

In 1867 a further act was passed, which provided that the several courts of the United States, and the several justices and judges of such courts, within their respective jurisdictions, in addition to the authority already conferred by law, shall have power to grant writs of habeas corpus in all cases where any person may be restrained of his or her liberty in violation of the Constitution, or of any treaty or law of the United States.2

These are the cases in which the national courts and judges have jurisdiction of this writ: in other cases the party must seek his remedy in the proper State tribunal.3 And although

15 Stat. at Large, 539. McLeod's Case, which was the immediate occasion of the passage of this act, will be found reported in 25 Wend. 482. It was reviewed by Judge Talmadge in 26 Wend. 663, and a reply to the review appears in 3 Hill, 635.

2 14 Stat. at Large, 385.

3 Ex parte Dorr, 3 How. 103; Barry v. Mercein, 5 How. 103; Dekraft v. Barney, 2 Black, 704. See United States v. French, 1 Gall. 1; Ex parte Barry, 2 How. 65.