This act was gravely defective in restricting, or not extending, the right to habeas corpus to cases other than those of persons arrested on criminal charges. This defect was not remedied until 1816, when an act (56 George III., ch. 100) was passed providing that the writ should be granted in other than criminal cases; that though the return might be good on the face of it, if the facts on which it was made appeared doubtful, the prisoner should be admitted to bail; and that the writ should run to harbors and roads on the coast, although not within any county.

In 1861 it was decided that the writ ran throughout the British Empire, and the act 25 and 26 Vict., ch. 20, was passed restricting the jurisdiction so that the writ should not run from the English court into those colonies or dominions where the granting of the writ by a local court had been provided for.

In the United States the right to the benefit of the writ of habeas corpus was always claimed by the English colonies in America, and was enjoyed by them except in cases of arbitrary oppression. An instance of its early use occurs in New York in 1707, in procuring the release of ministers arrested by an illegal warrant issued by the Governor, Cornbury. In New Jersey in 1710 the Legislature denounced a judge who had violated the "undoubted right" of a colonist by refusing the writ to him. In 1692 the South Carolina Assembly adopted the act 31 Charles II., and during the reign of Anne the act was expressly extended to Virginia. Maryland, in 1725 claimed the benefit of the writ as a "birthright of the inhabitants," independently of the royal favor. But, although the colonial charters generally contained express provisions that the colonists should have all the privileges and immunities of natural-born British subjects, no express mention, seems to have been made in them of this particular writ. It was rather taken for granted as belonging of right to every British subject and when the colonies separated from the mother country, the right of habeas corpus became a part of the general common law of the States, derived by them from the laws existing while they were still colonies. (See COMMON LAW.) The Constitution (Art. 1, sec. 9, subdiv.2) provides that "the privileges of the writ of habeas corpus shall not be suspended unless when, in cases of rebellion or invasion, the public safety may require it." The constitutions of most of the States contain provisions of a similar effect; and in Virginia, Vermont, Louisiana, and North Carolina the suspension of the writ in any case is forbidden. The Constitution of Maryland, however, does not mention the writ. Several of the States provide in their constitutions for suspensions, as in Massachusetts for twelve months, New Hampshire three months, Florida in case of insurrection or rebellion, etc.

President Lincoln suspended the privilege of the writ in 1861 by proclamation, but it was decided by Chief Justice Taney, in the Circuit Court of Maryland, that Congress alone possessed the right to suspend the writ; and this seems to be the better opinion, although the right of the President was supported by authorities at the time. Later, in March, 1863, Congress passed a bill authorizing the President to suspend the privilege of the writ; but in cases arising under the exercise of this authority it was held that the suspension of the privilege did not suspend the issuance of the writ, but that the return was to be the means of suspending its further operation. Neither does the suspension of the privilege of the writ deprive an unlawfully arrested or imprisoned person of his action of damages, nor protect the wrong-doer from criminal prosecution. None of the States have suspended the privileges of the writ except Massachusetts, where the privilege of the writ was suspended from November, 1786, to July, 1787, on the occasion of Shays's Rebellion. In England, as noted above, the King's Court, or Court of King's Bench, and the Court of Chancery were the ordinary courts from which this writ was issuable; but it could be issued by the Court of Common Pleas and by the Court of Exchequer, at least in case of persons privileged in those courts. The Habeas Corpus Act (31 Charles II., ch. 2) and other later acts prescribed the courts which could issue the writ, extending the jurisdiction so that it is always possible to obtain the writ in vacation as well as in term time.

In the United States the power of the Federal courts is purely statutory in origin. The original statute creating this power in them was the Judiciary Act of September 24, 1789, sec. 14 (1 Stat., L. 81), which provided "that writs of habeas corpus shall in no case extend to prisoners in gaol, unless they are in custody under or by color of the authority of the United States, or are committed for trial before some court of the same, or are necessary to be brought into court to testify." The jurisdiction created by this act, it is now settled, is exclusive in the Federal court. Subsequent statutes have extended this jurisdiction to cases where the prisoner is in custody for an act done or omitted, in pursuance of a law or process of the United States (Rev. Stat., sec. 753), this being the general effect of the act of March 2, 1833 (4 Stat. at L., 634), commonly called the Force Bill; to cases where the prisoner is held in violation of the Constitution, or a statute, or treaty of the United States, whether in a State or Federal court (Rev. Stat., sec. 753); "to all cases of any prisoner in jail or confinement who are subjects of a foreign State, and domiciled therein, who are confined or in custody under or by any authority or law, or process founded thereon, of the United States, or of any of them, for or on account of any act done or omitted under any alleged right, title, or authority, privilege, protection, or exemption set up or claimed under the commission or order or sanction of any foreign State or sovereignty, the validity and effect whereof depends upon the law of nations, or under color thereof" (act of August 29, 1842, 5 Stat. at L., 539; Rev. Stat., sec. 753).

The provisions do not grant to the Federal courts the authority by habeas corpus to discharge a prisoner from the custody of the State courts or officers where the prisoner is within the jurisdiction of the State authority by which he is imprisoned, merely because rights are involved which arise under the laws of the United States, since where there is a proper jurisdiction the State courts are equally bound with those of the Federal Government, and are equally supposed, to support and give effect to the Federal laws, and any erroneous rulling in this respect would involve an error of law, which could be remedied by a proper appeal to the Federal courts. But where the denial of right by the State court involves not only an error of law, but such a refusal as places the court in a position of acting without jurisdiction, as in acting under an unconstitutional State law, a basis is laid for the remedy of a habeas corpus from the Federal court. This power of the Federal courts to grant the writ under the special grounds mentioned above is discretionary, and the writ is frequently refused in cases where the granting of it would tend to subvert the ordinary course of justice in the State courts.