adopted on the recommendation of the distinguished and able commissioners to whom the legislature had committed the very important charge of revising, for tober 1861, pp. 471 to 519, supposed to be from the pen of Professor Parker of Cambridge.

While it is unquestionably true that where martial law exists, the privilege of the writ of habeas corpus is suspended, yet whether martial law shall prevail or not, does not depend upon the will of the President as Commander-inChief of the Army and Navy. Martial law comes with war, exists under proclamation or other act, and is limited by the necessities of war. It suspends the privilege of the writ of habeas corpus, not because some officer has issued a proclamation to that effect, but because it closes the courts, deprives civil officers of the power to serve process, and turns all civil government over to the hand of the military officer in command. It suspends, while it lasts, not only the privilege of the writ, but also the civil power of the legislative; judicial and executive branches of the government. To say, in such case, that the suspension is the act of the President, is to say that he abolishes courts, removes civil officers and destroys civil process. No provision of the constitution was necessary to enable the suspension of the privilege of the writ, at such times, as the constitution itself is suspended by martial law in the territory over which it extends. The constitutional provision was intended to apply in cases where martial law does not exist and where the civil law is able to assert its authority. The doctrine seems to be that the suspension of the privilege of the writ contemplated by the constitution has no relation to a state of martial law, and can take effect only in those cases of rebellion or invasion where the power to issue and proceed under the writ, is free and unobstructed. In Ex parte Milligan, supra, the court say: If in foreign invasion or civil war the courts are actually closed, and it is impossible to administer criminal justice according to law, then, on the theatre of actual military operation where war really prevails there is a necessity to furnish a substitute for the civil authority thus overthrown to preserve the safety of the army and society; and as no power is left but the military, it is allowed to govern by martial rule until the laws can have their free course. As necessity creates the rule, so it limits its duration; for if this government is continued after the courts are reinstated, it is a gross usurpation of power. Martial rule can never exist when the courts are open and unobstructed exercise of their jurisdiction. It is also confined to the locality of actual war." See also In re Griffin, 16 Wis. 366. In Commonwealth v. Frink, 4 Am. Law Reg. N. S. 700, it was held that on the 29th day of July, 1864, the rebellion, being ended, the authority of the President, under the act of March 3, 1863, to suspend the privilege of the writ of habeas corpus had expired.

In the Confederate States the privilege of the writ was suspended during the late war. For the views of the courts as to the power to suspend, and the effect of the suspension, see In the matter of Cain, 2 Winston, N. C. 143; In the matter of Long, Ib. 150; In the matter of Rafter, Ib. 153; In the matter of Spirey, Ib. 156; The State v. Sparks, 27 Texas, 705.

their use, the laws of the state. The act as then passed, though revised since, is substantially the same as that now in force.

In 1795, the statute of 31 Car. II., was in substance re-enacted in New Jersey, and is still the law of the state.

In South Carolina and Georgia, the act of 31 Car. II., was adopted before the revolution, and remains in force with only slight changes.'

The new states have quite generally passed laws de138] fining the jurisdiction and regulating the *practice under the writ.

The new states have, in many instances, copied their acts relating to this writ from those of some of the older states; and the act of 31 Car. II., may be said to be "the basis of all the American statutes on the subject." There are some differences in the mode of procedure, but there are no such material departures in the statutes of any of the states from the established principles by which the practice was governed at common law, as to render the general rules of the common law procedure wholly inapplicable.

It would be impracticable to give in detail the provisions of the statutes of all the states on this subject, within the limits proposed for this work. The same spirit pervades them all, and the inquiries which remain to be considered cannot be uninteresting nor unimportant in any of the states.

1 In Virginia, Pennsylvania and New York the statutes are the same, with very unimportant exception, as when the first edition of the book was published. In New Jersey, the act of 1795 remains unrepealed. In South Carolina and Georgia important changes have been made in the act of 31 Car. II., by recent revisions.

* 1 Kent, 642.

THE WRIT OF HABEAS CORPUS.

*CHAPTER I.

[143

NATURE OF THE WRIT OF HABEAS CORPUS, AND SOURCES AND EXTENT OF JURISDICTION OVER IT.

Section I. GENERAL NATURE OF THE WRIT OF Habeas corpus.

II. JURISDICTION IN ENGLAND.

III. JURISDICTION OF THE FEDERAL COURTS.

IV. JURISDICTION OF THE STATE COURTS.

V. CONCURRENT JURISDICTION OF STATE AND FEDERAL COURTS.

VI. ULTIMATE JURISDICTION OF THE SUPREME COURT OF THE UNITED STATES.

SECTION I.

GENERAL NATURE OF THE WRIT OF HABEAS CORPUS.

THE writ of habeas corpus is that legal process which is employed for the summary vindication of the right of personal liberty when illegally restrained. It takes its name from the emphatic words which it contained when it was written in Latin. The same words were, however, used in a variety of writs which had for their object the production of a person before a court or judge. These writs were distinguished from each other, at common law, by the terms which denoted the particular [144 purpose for which they were issued; as, ad respondendum; ad faciendum et recipiendum; ad prosequendum; ad satisfaciendum; ad testificandum and ad subjiciendum et recipiendum.

It was the last of these only, which was designed to procure liberation from illegal confinement. It was di

rected to the person detaining another, and commanded him to produce the body of the prisoner or person detained, together with the day and cause of his caption and detention, to submit to and receive whatsoever the court or judge awarding the writ might consider in that behalf.

Employed to vindicate the right of personal liberty by whatever power infringed, it became inseparably associated with that right; and in proportion as the right was valued, so was the writ by which it was defended. It was its grateful office which commended this species of the writ to the favorable regard of the people, and finally dignified it as, The writ of habeas corpus.

There were, indeed, other writs, at common law, viz. : de otio et atia, de homine replegiando, which in particular cases, were used to obtain a similar object; but being more limited in their application and more complicated and slow in their operation, they gradually fell into disuse.

The date of the origin of the writ of habeas corpus is unknown. It is supposed to have been in use before the date of the Magna Carta. But a diligent inquirer, having access to the best sources of information, states the result of his investigation into the origin of the writ 145] as follows: "The writ of habeas corpus is found in operation at a remote period of the English law. The carliest reign in which I have been able to trace its frequent appearance, is that of Henry VI. At that period it seems to have been familiar to and well understood by the judges.'

"After this period the existence of the writ of habeas corpus is distinctly observed, and its progress can be effectually traced. But before the reign of Henry VI.,

1 Vine's Case, 34 H. 6. Lord Hale, whose research and painstaking collec tion of manuscript cases in the reign of Henry III., Ed. I., II., III., and Henry IV., V., VI., may be seen by reference to his will and schedule of his books, mentions an instance of the writ; 33 Ed. I. Hale's Hist. Com. Law, 193.

I find myself obscured by a cloud. In the Year Book, 48 Ed. III., 22, there is a case upon this writ, or as it was then called, corpus cum causa.

"The research for a higher origin than the time of Henry VI., is unnecessary. The investigation may answer antiquarians; it cannot materially assist a constitutional lawyer."

In its early history it appears to have been used as a means of relief from private restraint. The earliest precedents where it was used against the crown are in the reign of Henry VII. Afterwards the use of it became more frequent, and in the time of Charles I., it was held an admitted constitutional remedy.

Though the writ of habeas corpus originated in the common law of England, the leading idea of it-deliverance by summary legal process from illegal confinement-may be traced in the laws of other countries which derived none of their principles of jurisprudence or rules of procedure from English law.

The interdict, de homine libero exhibendo, of the civil law, was a remedy in some important particulars similar to the writ of habeas corpus. When a *freeman [146 was restrained by another in bad faith, the prætor ordered his interdict that such person should be brought before him in public that he might be liberated."

And the process of the Spanish law, called "Manifestation," appears to have resembled the writ of habeas corpus. Mr. Hallam cites a remarkable instance of its use and efficiency against the sovereign, "not only in order to illustrate the privilege of manifestation, but as exhibiting an instance of judicial firmness and integrity, to which, in the fourteenth century no country in Europe could offer a parallel."

But the writ of habeas corpus in England and America

1 Hill's Report Canadian Prisoner's Case, 6.

Dig. 43, tit. 29.

* Hallam's Mid. Ages, 222.