Habere in United Kingdom

Meaning of Habere (Latin Term)

The following is an old definition of Habere (latin term) [1]: To grasp, lay hold of: to have, hold. Habeas corpus. That you have the body. The emphatic words of several common-law writs issued to bring persons into court for a designated purpose. See particularly, 6, below. 1. Habeas corpus ad faciendum et recipiendum. That you have the body for doing and receiving. Removes an action into a superior court: commands the judge of the inferior court to produce the body of the defendant, with a statement of the cause of his detention (whence (the word(s) which follow it are derivatives from the same root word) called, also, habeas corpus cum causa), to do and to receive whatever the higher court shall decree. Applicable where the simpler writ of habeas corpus ad subjiciendum is inadequate; and grantable of right, without motion. Operates as a supersedeas. 2. Habeas corpus ad prosequendum. That you have the person for prosecuting. Removes a prisoner to the jurisdiction wherein it is alleged he committed a crime. 3. Habeas corpus ad respondendum. That you have the person for answering. Removes a prisoner that he may be charged with a new action in a higher court. 4. Habeas corpus ad satisfaciendum. That you have the person for satisfaction. Removes a prisoner into a superior court that he may there be charged with process of execution. 5. Habeas corpus ad testificandum. That you have the person for testifying. Removes a person from a place of detention that he may give testimony before a court. 6. Habeas corpus ad subjiciendum. That you have -the body for submitting to and receiving. Commands the person who has another in detention to produce the body of the prisoner, with the day and cause of his caption and detention, to do, submit to, and receive whatever the judge or court awarding the writ shall consider (see, in this resource, the term) in that behalf. This last, the great and efficacious prerogative writ, is commonly called The Writ of Habeas Corpus. It is the best and only sufficient defense of personal freedom. It is the remedy which the law gives for the enforcement of the civil right of personal liberty. . . The judicial proceeding mider it is not to inquire into the criminal act complained of, but into the right to liberty notwithstanding the act. The prosecution against the prisoner is a criminal proceeding, but the writ of habeas corpus, which he may obtain, is nota proceeding in that prosecution. On the contrary, it is a new suit brought by him to enforce a right, which he claims, as against those who are holding him in custody under the criminal process. If he fails to establish his right to his liberty, he may be detained for trial for the offense; but if he succeeds, he must be discharged from custody. The proceeding is one instituted by himself for his liberty, not by the government to pimish him for his crime. It is of a wholly civil nature. The writ was likely used at first to effect relief from private restraint. Trace of early use is found in Year Book 48 Edw. III, 22 (1375); was well understood in the time of Henry VI (1422-61); became available against the crown in thereign of Henry VII (1485-1509); in the time of Charles I (1625-49), was adjudged a constitutional remedy. The availability of the writ, as it obtained at common law, has been facilitated by statutes, particularly by 31 Charles II (1680), o. 2, called the Habeas Corpus Act, another Magna Charta, and by 56 Geo. III (1816), c. 100. Acts having the same general nature and object exist in the various States. A case outside of a statute is governed by the common law. The general principles were settled long before our national independence, and were in mind when the power was given to the Federal courts and judges. 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.” This provision has been copied into the constitutions of the States. Congress, by act of March 3, 1863, authorized the President to suspend the privilege of the writ whenever, during the rebellion, in his judgment, the public safety might require it. Suspension of the writ simply denies to the person arrested the privilege of its use, to obtain his liberty. Not a writ of error, though in some cases, in which the court issuing it has appellate power over the court by whose authority the petitioner is held in custody, it may be used with the writ of certiorari for that purpose. Used alone, its purpose is to enable the court to inquire, first, if the petitioner is restrained of his liberty. If he is not, the court can do nothing but discharge the writ. If there is such restraint, the court can then inquire into the cause of it, and, if the alleged cause be unlawful, it must discharge the prisoner. Wives restrained by husbands, children withheld from the proper parent or guardian, persons held under arbitrary custody by private individuals, as in a madhouse, as well as those under military control, may become subjects of relief by the writ. But something more than moral restraint is necessary: there must be actual confinement or the present means of enforcing it. The writ is of right, in the nature of a writ of error, grantable on cause shown. The usual course is for the court on application to issue the writ, and, on its return, to hear and dispose of the case: but where the cause of imprisonment is fully shown by the petition, the court may determine that the prisoner, if produced, would or would not be entitled to a discharge. The writ affords relief only where the proceedings below are entirely void, for any cause, as for want of jurisdiction, or because of the unconstitutionality of a statute. The reviewing power of the Supreme Court, in a criminal case, is confined to determining whether the lower court had jurisdiction to try and sentence for the offense. Ordinarily, the Supreme Court can issue the writ only under its appellate jurisdiction,- except in cases affecting public ministers or consuls, or those in which a State is a party. The act of March 27, 1868 (15 St. L. 44), took from the Supreme Court jurisdiction to review on appeal the decision of a circuit court upon a writ of habeas corpus; and it has no jurisdiction to review such decision on a writ of error. It may still issue its own writ of habeas corpus. A circuit court may discharge a person restrained of his liberty in violation of the Constitution, although held on an indictment for an offense against a State. Congress has prescribed the jurisdiction of the Federal courts under the writ; but as it has never particularly prescribed the mode of procedure, they have followed in substance the rules of the common law. The legislatures of the States not only provide what courts or officers may issue the writ, but, to a considerable extent, have regulated the practice under it. See Extradition; Indian. Habendum. To have; for having. Habendum et tenendum: to have and to hold. The initial, emphatic word in that clause of a deed which follows the granting part. Determines what estate or interest is granted; may lessen, enlarge, explain, or qualify, but not totally contradict or be repugnant to, the estate granted in the premises, see, in this resource, the term Habere facias possessionem. That you cause to have possession. Habere facias seisinam. That you cause to have seisin. If the plaintiff recovers in any action whereby the seisin or possession of land is awarded him, the writ of execution is an habere facias seisinam, or writ of seisin, of a freehold; or an habere facias possessionem, or writ of possession, of a chattel interest. These are writs commanding the sheriff to give actual possession to the plaintiff of the land recovered. At present, an habere facias possessionem puts into possession of the land a plaintiif who has been successful in an action of ejectment; and the writ of habere facias seisinam, is in vogue in some States in connection with the action of dower. Habere facias visum. That you cause to have a view. A writ, and the characteristic phrase in the same, which directed the sheriff to liave land viewed by a jury. Habilis. Having: capable, suitable; fit. By the canon law, if the parties are habiles ad matrimonium, it is a good marriage, whatever their ages.

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Notes and References

1. Concept of Habere (latin term) provided by the Anderson Dictionary of Law (1889)