Article 1, Section 9, Clause 2

Document 16

Joseph Story, Commentaries on the Constitution 3:§§ 1333--36


§ 1333. In order to understand the meaning of the terms here used, it will be necessary to have recourse to the common law; for in no other way can we arrive at the true definition of the writ of habeas corpus. At the common law there are various writs, called writs of habeas corpus. But the particular one here spoken of is that great and celebrated writ, used in all cases of illegal confinement, known by the name of the writ of habeas corpus ad subjiciendum, 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. It is, therefore, justly esteemed the great bulwark of personal liberty; since it is the appropriate remedy to ascertain, whether any person is rightfully in confinement or not, and the cause of his confinement; and if no sufficient ground of detention appears, the party is entitled to his immediate discharge. This writ is most beneficially construed; and is applied to every case of illegal restraint, whatever it may be; for every restraint upon a man's liberty is, in the eye of the law, an imprisonment, wherever may be the place, or whatever may be the manner, in which the restraint is effected.

§ 1334. Mr. Justice Blackstone has remarked with great force, that "to bereave a man of life, or by violence to confiscate his estate without accusation or trial, would be so gross and notorious an act of despotism, as must at once convey the alarm of tyranny throughout the whole kingdom. But confinement of the person by secretly hurrying him to gaol, where his sufferings are unknown or forgotten, is a less public, a less striking, and therefore a more dangerous engine of arbitrary force." While the justice of the remark must be felt by all, let it be remembered, that the right to pass bills of attainder in the British parliament still enables that body to exercise the summary and awful power of taking a man's life, and confiscating his estate, without accusation or trial. The learned commentator, however, has slid over this subject with surprising delicacy.

§ 1335. In England this is a high prerogative writ, issuing out of the Court of King's Bench, not only in term time, but in vacation, and running into all parts of the king's dominions; for it is said, that the king is entitled, at all times, to have an account, why the liberty of any of his subjects is restrained. It is grantable, however, as a matter of right, ex merito justitiae, upon the application of the subject. In England, however, the benefit of it was often eluded prior to the reign of Charles the Second; and especially during the reign of Charles the First. These pitiful evasions gave rise to the famous Habeas Corpus Act of 31 Car. 2, c. 2, which has been frequently considered, as another magna charta in that kingdom; and has reduced the general method of proceedings on these writs to the true standard of law and liberty. That statute has been, in substance, incorporated into the jurisprudence of every state in the Union; and the right to it has been secured in most, if not in all, of the state constitutions by a provision, similar to that existing in the constitution of the United States. It is not without reason, therefore, that the common law was deemed by our ancestors a part of the law of the land, brought with them upon their emigration, so far, as it was suited to their circumstances; since it affords the amplest protection for their rights and personal liberty. Congress have vested in the courts of the United States full authority to issue this great writ, in cases falling properly within the jurisdiction of the national government.

§ 1336. It is obvious, that cases of a peculiar emergency may arise, which may justify, nay even require, the temporary suspension of any right to the writ. But as it has frequently happened in foreign countries, and even in England, that the writ has, upon various pretexts and occasions, been suspended, whereby persons apprehended upon suspicion have suffered a long imprisonment, sometimes from design, and sometimes, because they were forgotten, the right to suspend it is expressly confined to cases of rebellion or invasion, where the public safety may require it. A very just and wholesome restraint, which cuts down at a blow a fruitful means of oppression, capable of being abused in bad times to the worst of purposes. Hitherto no suspension of the writ has ever been authorized by congress since the establishment of the constitution. It would seem, as the power is given to congress to suspend the writ of habeas corpus in cases of rebellion or invasion, that the right to judge, whether exigency had arisen, must exclusively belong to that body.

The Founders' Constitution
Volume 3, Article 1, Section 9, Clause 2, Document 16
The University of Chicago Press

Story, Joseph. Commentaries on the Constitution of the United States. 3 vols. Boston, 1833.

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