[1] These legends are collected in Hastings, D. B. vol. ii. p. 272.
He is the watchman of Is. xxi. 6 (cf. Hab. ii. 1); the son of the
Shunammite (2 Kings iv. 16); and is miraculously lifted by his hair
to carry his own dinner to Daniel in the lions' den (_supra_).
[2] Followed by Peake in _The Problem of Suffering_, pp. 4 f., 151
f., to whose appendix (A) reference may be made for further details
of recent criticism.
[3] For the less probable theories of Rothstein, Lauterburg, Happel
and Peiser (amongst others), cf. Marti's _Commentary_, pp. 328 f. and
332. Stevenson (_The Expositor_, 1902) states clearly the
difficulties for those who regard ch. i. as a unity. He sees two
independent sections, 2-4 + 12-13, and 5-11 + 14-17.
[4] Earlier, however, than Ps. lxxvii. 17-20, which is drawn from it.
HABDALA (lit. "separation"), a Hebrew term chiefly appropriated to
ceremonies at the conclusion of Sabbath and festivals, marking the
separation between times sacred and secular. On the Saturday night the
ceremony consists of three items: (a) benediction over a cup of wine
(common to many other Jewish functions); (b) benediction over a lighted
taper, of which possibly the origin is utilitarian, as no light might be
kindled on the Sabbath day, but the rite may be symbolical; and (c)
benediction over a box of sweet-smelling spices. The origin of the
latter has been traced to the bowl of burning spice which in Talmudic
times was introduced after each meal. But here too symbolic ideas must
be taken into account. Both the light and the spices would readily fit
into the conception of the Sabbath "Over-soul" of the mystics. (I. A.)
HABEAS CORPUS, in English law, a writ issued out of the High Court of
Justice commanding the person to whom it is directed to bring the body
of a person in his custody before that or some other court for a
specified purpose.
There are various forms of the writ, of which the most famous is that
known as _habeas corpus ad subjiciendum_, the well-established remedy
for violation of personal liberty. From the earliest records of the
English law no free man could be detained in custody except on a
criminal charge or conviction or for a civil debt. That right is
expressed in the Great Charter in the words: "_Nullus liber homo
capiatur vel imprisonetur aut dissaisietur aut utlagetur, aut exuletur
aut aliquo modo destruatur nec super eum ibimus nec super eum mittemus,
nisi per legale judicium parium suorum, vel per legem terrae._"[1] The
writ is a remedial mandatory writ of right existing by the common law,
i.e. it is one of the extraordinary remedies--such as _mandamus_,
_certiorari_ and prohibitions, which the superior courts may grant.
While "of right," it is not "of course," and is granted only on
application to the High Court or a judge thereof, supported by a sworn
statement of facts setting up at least a probable case of illegal
confinement. It is addressed to the person in whose custody another is
detained, and commands him to bring his prisoner before the court
immediately after the receipt of the writ, together with the day and
cause of his being taken and detained, to undergo and receive (_ad
subjiciendum et recipiendum_) whatsoever the court awarding the writ
"may consider of concerning him in that behalf."
It is often stated that the writ is founded on the article of the Great
Charter already quoted; but there are extant instances of the issue of
writs of _habeas corpus_ before the charter. Other writs having somewhat
similar effect were in use at an early date, e.g. the writ _de odio et
atia_, used as early as the 12th century to prevent imprisonment on
vexatious appeals of felony, and the writ of mainprise (_de
manucaptione_), long obsolete if not abolished in England but which it
was attempted to use in India so late as 1870. In the ease of
imprisonment on accusation of crime the writ issued from the court of
king's bench (or from the chancery), and on its return the court judged
of the legality of the imprisonment, and discharged the prisoner or
admitted him to bail or remanded him to his former custody according to
the result of the examination.
By the time of Charles I. the writ was fully established as the
appropriate process for checking illegal imprisonment by inferior courts
or by public officials. But it acquired its full and present
constitutional importance by legislation.
In Darnel's case (1627) the judges held that the command of the king was
a sufficient answer to a writ of _habeas corpus_. The House of Commons
thereupon passed resolutions to the contrary, and after a conference
with the House of Lords the measure known as the Petition of Right was
passed (1627, 3 Car. I. c. i.) which, inter alia, recited (s. 5) that,
contrary to the Great Charter and the good laws and statutes of the
realm, divers of the king's subjects had of late been imprisoned without
any cause shown, and when they were brought up on _habeas corpus ad
subjiciendum_, and no cause was shown other than the special command of
the king signified by the privy council, were nevertheless remanded to
prison, and enacted "that no freeman in any such manner as is before
mentioned be imprisoned or detained." The Petition of Right was
disregarded in Selden's case (1629), when it was successfully returned
to a _habeas corpus_ that Selden and others were committed by the king's
special command "for notable contempts against the king and his
government and for stirring up sedition against him."[2] This led to
legislation in 1640 by which, after abolishing the Star Chamber, the
right to a _habeas corpus_ was given to test the legality of commitments
by command or warrant of the king or the privy council.[3]
The reign of Charles II. was marked by further progress towards securing
the freedom of the subject from wrongful imprisonment. Lord Clarendon
was impeached, _inter alia_, for causing many persons to be imprisoned
against law and to be conveyed in custody to places outside England. In
1668 a writ of _habeas corpus_ was issued to test the legality of an
imprisonment in Jersey. Though the authority of the courts had been
strengthened by the Petition of Right and the act of 1640, it was still
rendered insufficient by reason of the insecurity of judicial tenure,
the fact that only the chancellor (a political as well as a legal
officer) and the court of king's bench had undoubted right to issue the
writ, and the inability or hesitation of the competent judges to issue
the writ except during the legal term, which did not cover more than
half the year. A series of bills was passed through the Commons between
1668 and 1675, only to be rejected by the other House. In Jenkes's case
(1676) Lord Chancellor Nottingham refused to issue the writ in vacation
in a case in which a man had been committed by the king in council for a
speech at Guildhall, and could get neither bail nor trial. In 1679, but
rather in consequence of Lord Clarendon's arbitrary proceedings[4] than
of Jenkes's case, a fresh bill was introduced which passed both Houses
(it is said the upper House by the counting of one stout peer as ten)
and became the famous Habeas Corpus Act of 1679 (31 Car. II. c. 2). The
passing of the act was largely due to the experience and energy of Lord
Shaftesbury, after whom it was for some time called. The act, while a
most important landmark in the constitutional history of England, in no
sense creates any right to personal freedom, but is essentially a
procedure act for improving the legal mechanism by means of which that
acknowledged right may be enforced.[5] It declares no principles and
defines no rights, but is for practical purposes worth a hundred
articles guaranteeing constitutional liberty.[6]
In the manner characteristic of English legislation the act is limited
to the particular grievances immediately in view and is limited to
imprisonment for criminal or supposed criminal matters, leaving
untouched imprisonment on civil process or by private persons. It
recites that great delays have been used by sheriffs and gaolers in
making returns of writs of _habeas corpus_ directed to them; and for the
prevention thereof, and the more speedy relief of all persons imprisoned
for criminal or supposed criminal matters, it enacts in substance as
follows: (1) When a writ of _habeas corpus_ is directed to a sheriff or
other person in charge of a prisoner, he must within 3, 10 or 20 days,
according to the distance of the place of commitment, bring the body of
his prisoner to the court, with the true cause of his detainer or
imprisonment--unless the commitment was for treason or felony plainly
expressed in the warrant of commitment. (2) If any person be committed
for any crime--unless for treason or felony plainly expressed in the
warrant--it shall be lawful for such person or persons (other than
persons convicted or in execution by legal process) _in time of
vacation_, to appeal to the lord chancellor as a judge, who shall issue
a _habeas corpus_ returnable immediately, and on the return thereof
shall discharge the prisoner on giving security for his appearance
before the proper court--unless the party so committed is detained upon
a legal process or under a justice's warrant for a non-bailable offence.
Persons neglecting for two terms to pray for a _habeas corpus_ shall
have none in vacation. (3) Persons set at large on _habeas corpus_ shall
not be recommitted for the same offence unless by the legal order and
process of the court having cognizance of the case. (4) A person
committed to prison for treason or felony shall, if he requires it, in
the first week of the next term or the first day of the next session of
oyer and terminer, be indicted in that term or session or else admitted
to bail, unless it appears on affidavit that the witnesses for the crown
are not ready; and if he is not indicted and tried in the second term or
session after commitment, or if after trial he is acquitted, he shall be
discharged from imprisonment. (5) No inhabitant of England (except
persons contracting, or, after conviction for felony, electing to be
transported) shall be sent prisoner to Scotland, Ireland, Jersey, &c.,
or any place beyond the seas. Stringent penalties are provided for
offences against the act. A judge delaying _habeas corpus_ forfeits L500
to the party aggrieved. Illegal imprisonment beyond seas renders the
offender liable in an action by the injured party to treble costs and
damages to the extent of not less than L500, besides subjecting him to
the penalties of _praemunire_ and to other disabilities. "The great rank
of those who were likely to offend against this part of the statute
was," says Hallam, "the cause of this unusual severity." Indeed as early
as 1591 the judges had complained of the difficulty of enforcing the
writ in the case of imprisonment at the instance of magnates of the
realm. The effect of the act was to impose upon the judges under severe
sanction the duty of protecting personal liberty in the case of criminal
charges and of securing speedy trial upon such charges when legally
framed; and the improvement of their tenure of office at the revolution,
coupled with the veto put by the Bill of Rights on excessive bail, gave
the judicature the independence and authority necessary to enable them
to keep the executive within the law and to restrain administrative
development of the scope or penalties of the criminal law; and this
power of the judiciary to control the executive, coupled with the
limitations on the right to set up "act of state" as an excuse for
infringing individual liberty is the special characteristic of English
constitutional law.
It is to be observed that neither at common law nor under the act of
1679 was the writ the appropriate remedy in the case of a person
convicted either on indictment or summarily. It properly applied to
persons detained before or without trial or sentence; and for convicted
persons the proper remedy was by writs of error or _certiorari_ to
which a writ of _habeas corpus_ might be used as ancillary.
As regards persons imprisoned for debt or on civil process the writ was
available at common law to test the legality of the detention: but the
practice in these cases is unaffected by the act of 1679, and is of no
present interest, since imprisonment on civil process is almost
abolished. As regards persons in private custody, e.g. persons not _sui
juris_ detained by those not entitled to their guardianship or lunatics,
or persons kidnapped, _habeas corpus ad subjiciendum_ seems not to have
been the ordinary common law remedy. The appropriate writ for such cases
was that known as _de homine replegiando_. The use of this writ in most
if not all criminal cases was forbidden in 1553; but it was used in the
17th century in a case of kidnapping (Designy's case, 1682), and against
Lord Grey for abducting his wife's sister (1682), and in the earl of
Banbury's case to recover his wife (1704). The latest recorded instance
of its use is Trebilcock's case (1736), in which a ward sought to free
himself from the custody of his guardian.
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).
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.)