lished in the time of Elizabeth, exercised a similar power in ecclesiastical matters which the Star Chamber assumed in other cases, and in an equally absolute and arbitrary manner. This court was also abolished 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 during the reign of Charles I. will perhaps the better enable us to understand the importance of the common-law protections to personal liberty to which we shall have occasion to refer, as well as the statutory securities which have since been added.

When the king in 1625 dissolved the Parliament and resorted to forced loans, monopolies, and ship-money as the means of replenishing a treasury that could only lawfully be supplied by taxes voted by the Parliament, the privy council was his convenient means of enforcing compliance with his will. Those who refused to contribute to the loans as demanded were committed to prison. When they petitioned the Court of King's Bench for their discharge, the warden of the Fleet made reply to the writ of habeas corpus, that they were detained by a warrant from the privy council, informing him of no particular cause of imprisonment, but that they were committed by the special command of his Majesty. This presented for the decision of the court the question, "Is such a warrant, which does not specify the cause for 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. Everything that distinguished our constitutional laws, all that rendered the name of England valuable, was at stake in this issue." This decision, among other violent acts, led to the Petition of Rights, one of the principal charters of English liberty, but which was not approved by the king until the judges had 1 Hallam's Constitutional History, ch. 7.

intimated that if he saw 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 the judges and other officers, and to compel prompt action in any case where illegal imprisonment was alleged. It gave no new rights, 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. These provisions 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 other person for him, the application to be in writing and on oath, and with a copy of the warrant of commitment, if any, 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 compulsory, under heavy penalties.

1 Hallam's Constitutional History, ch. 8.

2 Hallam's Constitutional History, ch. 13; Beeching's case, 4 B. & C. 136; Matter of Jackson, 15 Mich. 436.

Thus the duty which the judge or other officer might before evade with impunity, 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 Berwick-upon-Tweed abroad for imprisonment illegal, and subject to penalty.1 Important as this act was, it was less broad in its scope than the remedy had been before, being confined to imprisonment for criminal or supposed criminal matters;2 and the contest in Parliament, nearly a century later, to extend its provisions to other cases, was defeated by the opposition of Lord Mansfield, on the ground that it was unnecessary, as it clearly would have been if officers had always been disposed to perform their duty. Another attempt in 1816 was successful.

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

What Courts issue the Writ.

As a general rule the protection of personal liberty rests with the States, and to the State courts the party must apply for relief on habeas corpus when his liberty is restrained. The jurisdiction of the national courts is much circumscribed, and is confined to those cases where the unlawful confinement is under pretence of national authority, and to other cases where this process seems important to the enforcement of the national authority.

1. The Judiciary Act of 1789 provided that each of the several Federal courts should have power to issue the writ of habeas corpus, and that either of the justices of the Supreme Court, as well as District judges, should have power to grant writs of habeas corpus for the purposes of an inquiry into the cause of commitProvided, that in no case should such writs extend to

ment.

1 Mr. Hurd, in the Appendix to his excellent treatise on the Writ of Habeas Corpus, gives a complete copy of the act.

2

Mayor of London's case, 3 Wils. 198; Wilson's case, 7 Q. B. 984.

3 Life of Mansfield by Lord Campbell; 2 Lives of Chief Justices, ch. 35; 15 Hansard's Debates, 897 et seq.

prisoners in jail, unless where they were in custody under or by oolor 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

2. During the South Carolina troubles a further provision was thought necessary, and an act was passed providing that either of the justices of the Supreme Court, or a judge of any District Court of the United States, should have power to grant writs of habeas corpus in all cases of a prisoner or prisoners in jail or confinement, 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, the purpose of the provision being to protect officers and others acting under the national authority from being prosecuted and imprisoned for so doing, under pretence of State authority.2

3. In 1842 a further provision seemed to become necessary to prevent the government being embroiled with foreign nations, and an act was passed growing out of McLeod's case,3 which provided 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, should 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.4

These are the cases in which the national courts and judges have authority; in other cases the party must be remitted to his remedy in the State courts.5 And although the State courts for

1 1 Statutes at Large, 81.

2 4 Statutes at Large, 634. See Robinson's case, 6 McLean, 355.

325 Wend. 482. See review of this case by Judge Talmadge, 26 Wend. 663; and reply to the review, 3 Hill, 635.

5 Statutes at Large, 539.

Barry v. Mercein, 5 How. 103.

merly claimed and exercised the right to inquire into the lawfulness of restraint under the national authority, it is now settled by the decisions of the Supreme Court of the United States, that the determination of that question must rest exclusively with the national courts; and that when a writ of habeas corpus, issued by a State court, is served upon any officer or other person who retains another in custody under national authority, it is his duty by proper return to make known to the State court the authority by which he holds such person, but not further to obey the process, and that the State court has no jurisdiction to proceed further with the case.1

The State constitutions recognize the writ of habeas corpus, and designate the courts which may issue it, but they do not point out the cases in which it may be employed as a remedy. For this we are referred to the common law; and where statutes have been passed making specific provision for particular cases, it is believed that in no case has there been any intention to restrict the remedy, and make it less broad than it was at the common law.2

We have elsewhere referred to the rules which determine the validity of judicial proceedings. In the great anxiety, on the part of our legislators, to make the most ample provision for speedy relief from unlawful confinement, authority to issue the writ of habeas corpus has been conferred upon inferior judicial officers, who make use of it sometimes as if it were a writ of error, under which they might correct the errors and irregularities of other judges and courts, whatever their relative jurisdiction and dignity. Any such employment of the writ is an abuse. Where a

3

1 Ableman v. Booth, 21 How. 506; Norris v. Newton, 5 McLean, 92; Spangler's case, 11 Mich. 298; In re Hopson, 40 Barb. 34.

See Matter of Jackson, 15 Mich. 417, where this whole subject is fully considered. The application for the writ is not necessarily made by the party in person, ⚫ but may be made by any other person on his behalf, if a sufficient reason is stated for its not being made by him personally. The Hottentot Venus case, 13 East, 195; Child's case, 29 Eng. L. & Eq. R. 259. A wife may have the writ to release the husband from unlawful imprisonment, and may herself be heard on the application. Cobbett's case, 15 Q. B. 181, note; Cobbett v. Hudson, 10 Eng. L. & Eq. R. 318; Same case, 15 Q. B. 988. Lord Campbell in this case cites the case of the wife of John Bunyan, who was heard on his behalf when he was in prison.

It is worthy of serious consideration whether, in those States where the whole judicial power is by the constitution vested in certain specified courts, it is competent by law to give to judges at chambers or to inferior officers authority to review the decisions of the courts, and to discharge persons committed under their