habeas corpus

Habeas Corpus

[Latin, You have the body.] A writ (court order) that commands an individual or a government official who has restrained another to produce the prisoner at a designated time and place so that the court can determine the legality of custody and decide whether to order the prisoner's release.

A writ of habeas corpus directs a person, usually a prison warden, to produce the prisoner and justify the prisoner's detention. If the prisoner argues successfully that the incarceration is in violation of a constitutional right, the court may order the prisoner's release. Habeas corpus relief also may be used to obtain custody of a child or to gain the release of a detained person who is insane, is a drug addict, or has an infectious disease. Usually, however, it is a response to imprisonment by the criminal justice system.

A writ of habeas corpus is authorized by statute in federal courts and in all state courts. An inmate in state or federal prison asks for the writ by filing a petition with the court that sentenced him or her. In most states, and in federal courts, the inmate is given the opportunity to present a short oral argument in a hearing before the court. He or she also may receive an evidentiary hearing to establish evidence for the petition.

The habeas corpus concept was first expressed in the Magna Charta, a constitutional document forced on King John by English landowners at Runnymede on June 15, 1215. Among the liberties declared in the Magna Charta was that "No free man shall be seized, or imprisoned, or disseised, or outlawed, or exiled, or injured in any way, nor will we enter on him or send against him except by the lawful judgment of his peers, or by the law of the land." This principle evolved to mean that no person should be deprived of freedom without Due Process of Law.

The writ of habeas corpus was first used by the common-law courts in thirteenth- and fourteenth-century England. These courts, composed of legal professionals, were in competition with feudal courts, which were controlled by local landowners, or "lords." The feudal courts lacked procedural consistency, and on that basis, the common-law courts began to issue writs demanding the release of persons imprisoned by them. From the late fifteenth to the seventeenth centuries, the common-law courts used the writ to order the release of persons held by royal courts, such as the Chancery, admiralty courts, and the Star Chamber.

The only reference to the writ of habeas corpus in the U.S. Constitution is contained in Article I, Section 9, Clause 2. This clause provides, "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." President Abraham Lincoln suspended the writ in 1861, when he authorized his Civil War generals to arrest anyone they thought to be dangerous. In addition, Congress suspended it in 1863 to allow the Union army to hold accused persons temporarily until trial in the civilian courts. The Union army reportedly ignored the statute suspending the writ and conducted trials under Martial Law.

In 1789, Congress passed the Judiciary Act of 1789 (ch. 20, § 14, 1 Stat. 73 [codified in title 28 of the U.S.C.A.]), which granted to federal courts the power to hear the habeas corpus petitions of federal prisoners. In 1867, Congress passed the Habeas Corpus Act of February 5 (ch. 28, 14 Stat. 385 [28 U.S.C.A. §§ 2241 et seq.]). This statute gave federal courts the power to issue habeas corpus writs for "any person … restrained in violation of the Constitution, or of any treaty or law of the United States." The U.S. Supreme Court has interpreted it to mean that federal courts may hear the habeas corpus petitions of state prisoners as well as federal prisoners.

The writ of habeas corpus is an extraordinary remedy because it gives a court the power to release a prisoner after the prisoner has been processed through the criminal justice system, with all its procedural safeguards and appeals. For this reason, the burden is initially on the petitioning prisoner to prove that he or she is being held in violation of a constitutional right. If the petitioner can meet this burden with sufficient evidence, the burden then shifts to the warden to justify the imprisonment.

Rubin "Hurricane" Carter

Federal courts grant writs of habeas corpus only when grave constitutional violations have occurred. The granting of Rubin "Hurricane" Carter's habeas petition in 1985 freed him from almost 20 years of imprisonment for a crime he maintains he did not commit.

Carter was a top-ranked middleweight boxer when he and John Artis were arrested in 1966 and charged with murdering three people in Paterson, New Jersey. Carter and Artis were African American; the victims were white. Carter and Artis claimed they were the victims of racism and a police frame-up, but they were convicted of murder and sentenced to life imprisonment.

Carter fought his conviction in state court, but the verdict was upheld. In 1974 he published The Sixteenth Round: From Number 1 Contender to Number 45472. The book became a national best-seller and drew attention to his case. In 1975 Bob Dylan wrote and recorded the song "Hurricane," which recounted Carter's arrest and trial and characterized Carter as an innocent man. This publicity, along with an investigation by the New Jersey public defenders' office, led to a motion for a new trial. The motion was granted, but Carter and Artis were convicted again in 1976. Carter remained imprisoned; Artis was paroled in 1981.

After all state appeals were exhausted, the only remaining avenue for relief was to file for a writ of habeas corpus in federal court. In November 1985 Judge H. Lee Sarokin ruled that the second murder trial convictions were unconstitutional because the prosecution had been allowed to imply that guilt could be inferred by the defendants' race and because the prosecution withheld Polygraph evidence that could have been used to impeach the credibility of their "star witness" (Carter v. Rafferty, 621 F. Supp. 533 [D.N.J. 1985]). Judge Sarokin therefore granted habeas corpus, overturned the convictions, and ordered "Immediate release from custody with prejudice."

The State of New Jersey appealed to the Third Circuit Court of Appeals, asking to reverse Sarokin's ruling and requesting that Carter remain incarcerated until a final ruling. The Third Circuit rejected both appeals. New Jersey appealed to the U.S. Supreme Court, which also refused to overturn. The state chose not to attempt a third prosecution of Carter and Artis. Carter moved to Canada where he headed the Association for the Defense of the Wrongly Convicted.

A prisoner may file a petition for a writ of habeas corpus with the sentencing court only after exhausting all appeals and motions. Federal courts may receive a petition from a state prisoner, but not until the petitioner has attempted all available appeals and motions and habeas corpus petitions in the state courts. Federal prisoners must exhaust all available appeals and motions in the federal sentencing court and federal appeals courts before filing a habeas corpus petition with the sentencing court. If the first petition is denied, the inmate may petition the appeals courts.

A petition for a writ of habeas corpus is a civil action against the jailer. It is neither an appeal nor a continuation of the criminal case against the prisoner. It is not used to determine guilt or innocence. Rather, the purpose is solely to determine whether the confinement is in violation of a constitutional right. This is significant because it limits the scope of complaints that a petitioner may use as a basis for the writ.

Violation of the Due Process Clauses of the Fifth and Fourteenth Amendments is the most common basis for a writ of habeas corpus. Prose-cutorial misconduct, juror malfeasance, and ineffective assistance of counsel are common due process grounds for the writ. Fifth Amendment grounds include failure of the police to give Miranda warnings before in-custody questioning, in violation of the right against Self-Incrimination, and multiple trials, in violation of the Double Jeopardy prohibition. The Eighth Amendment right against Cruel and Unusual Punishment is another common ground for habeas corpus relief, especially in cases involving the death penalty or a lengthy prison term.

There are several notable restrictions on the writ's application. Fourth Amendment violations of the right against unreasonable Search and Seizure cannot be raised in a habeas corpus petition. Prisoners are not entitled to a court-appointed attorney for habeas corpus petitions. Newly developed constitutional principles will not be applied retroactively in habeas corpus cases except where doubt is cast on the guilt of the prisoner. Delay in filing a habeas petition may result in its dismissal if the government is prejudiced (i.e., made less able to respond) by the delay. In addition, the petitioner must be in custody to request a writ of habeas corpus. This rule prevents a prisoner from challenging a conviction through habeas corpus after serving out a sentence for the conviction.

The law of habeas corpus is ever changing. In the 1990s, the U.S. Supreme Court took steps to further limit the writ's application. In Keeney v. Tamayo-Reyes, 504 U.S. 1, 112 S. Ct. 1715, 118 L. Ed. 2d 318 (1992), the Court held that a habeas corpus petitioner is not entitled to an evidentiary hearing in federal court unless she or he can show two things: a reason for failing to develop evidence at trial, and actual prejudice to the prisoner's defense as a result of the failure. In Herrera v. Collins, 506 U.S. 390, 113 S. Ct. 853, 122 L. Ed. 2d 203 (1993), the Court held that a claim of actual innocence is not a basis for federal habeas corpus relief. This means that newly discovered evidence alone does not entitle a petitioner to federal habeas corpus relief.

The availability and import of habeas corpus in state courts is also subject to change through judicial decisions and new laws. For example, in 1995, the Texas Legislature passed a law that made the habeas corpus process concurrent with appeals (Tex. Crim. Proc. Code Ann. art. 11.071). This law effectively limited the number of times that a Texas state prisoner could challenge the disposition of a criminal case. Significantly, the law applied to all criminal defendants, including those facing the death penalty. Under the legislation, a death row inmate has only one round of review in Texas state courts before seeking relief in federal court.

In 1996, Congress passed the Anti-Terrorism and Effective Death Penalty Act (AEDPA) (Pub. L. No. 104-132, 110 Stat. 1214). Congress sought to streamline post-conviction appeals proceedings and to curtail the time that prisoners could use to seek habeas corpus relief. Since the enactment of the law, the U.S. Supreme Court has been called upon to interpret a number of the AEDPA provisions; these rulings primarily have addressed technical details of the workings of the new law but the Court has endorsed the AEDPA and removed jurisdiction from the lower federal courts to hear many habeas petitions. The Court upheld the constitutionality of the AEDPA in Felker v. Turpin, 518 U.S. 651, 116 S. Ct. 2333, 135 L. Ed. 2d 827 (1996).

The habeas corpus provisions represent a major shift in federal-state judicial relations, for Congress directed that federal courts generally defer to state court judgments on questions of federal Constitutional Law in criminal cases. The AEDPA established a "deference" standard, which mandates that the federal courts, in reviewing state court convictions, defer to a state court ruling on the merits of any habeas corpus claim. This deferral includes questions of fact and of law, as well as mixed questions of fact and law. A federal court must defer unless the state court adjudication of the claim resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the U.S. Supreme Court; or if the state conviction resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding.

The AEDPA also contains a number of specific rules for habeas corpus review. The act provides for a one-year filing deadline for non-capital habeas corpus petitions. The time starts running at the conclusion of direct review or expiration of time for seeking such review. The law requires a certificate of appealability from a circuit judge or justice before a petitioner may appeal from denial of relief. The petitioner must make a substantial showing of denial of a constitutional right, and the certificate must be issue-specific. The AEDPA also allows federal courts to deny relief with respect to unexhausted claims but may not grant relief if the claim is unexhausted. The habeas petitioner can avoid exhaustion only if there is no available state remedy or the remedy is ineffective to protect the petitioner's rights. If there is no state remedy because of a procedural default, federal review is still prohibited.

The AEDPA also places restrictions on the ability of a petitioner to obtain an evidentiary hearing on a claim where the prisoner failed to develop the factual basis. Because state court fact-findings are presumed to be correct, the petitioner must rebut the presumption by clear and convincing evidence. To obtain an evidentiary hearing, the petitioner must show that the claim relies on a new rule made retroactive by the U.S. Supreme Court or that the factual predicate could not have been discovered earlier through due diligence. Moreover, in all cases, the petitioner must show by clear and convincing evidence that but for the alleged error for which a hearing is sought, no reasonable factfinder would have found petitioner guilty of the underlying offense. This is a steep hurdle for a habeas petitioner to overcome.

The AEDPA also seeks to prevent the abuse of habeas corpus by limiting the number of times a prisoner may ask for a writ. A successive habeas petition may not be filed in district court unless the petitioner is authorized to do so by a three-judge panel of the Court of Appeals. The U.S. Supreme Court, in Felker, characterized this provision as an acceptable "gatekeeping" mechanism. If petitioners make a Prima Facie showing that they satisfy the exceptions against successive petitions they may proceed; otherwise the court must dismiss the petition. If a successive claim was presented in a prior petition, it must be dismissed; no exceptions are authorized by the AEDPA. Though the AEDPA provides some narrow exceptions to this rule, any claim must establish by clear and convincing evidence that but for the error no reasonable factfinder would have found the petitioner guilty of the underlying offense.

In habeas petitions from death row inmates, the AEDPA imposes additional rules beyond those already described. The rules apply to states that establish certain standards for competence of counsel. For states to benefit from these additional limitations, they must provide a mechanism for appointment and compensation of competent counsel in state post-conviction proceedings or for appointment of counsel to handle the appeal and post-conviction remedies in a unitary proceeding. Once the state court has made an appointment of counsel, a federal court that would have jurisdiction over the case may enter a stay of execution. The stay expires if a timely petition is not filed, if the prisoner properly waives the right to pursue federal habeas relief, or if relief is denied at any stage of federal review. Once a stay vacates under any of those circumstances, a new one may not be imposed unless the petitioner can overcome the presumption against successive petitions.

The AEDPA sets a time limit for habeas petition in capital cases: The petition must be filed within 180 days after final state court affirmance on direct review. In addition, the AEDPA requires that capital habeas cases be given priority over all non-capital matters, and it imposes time limits on resolution. These include a decision by the district court within 180 days after the petition is filed, although the court may extend its time by no more than 30 days. Failure by the district court to act within the time limits may be enforced by a petition for writ of mandate. More importantly, a court of appeals must decide the case within 120 days after the reply brief is filed; any petition for rehearing must be decided within 30 days after the petition is filed, or 30 days after any requested responsive pleading is filed. If rehearing or rehearing en banc is granted, the case must be decided within 120 days after the order granting such rehearing. In addition, the time limits are applicable to all first petitions, successive petitions, and habeas cases considered on remand from a court of appeals or the U.S. Supreme Court.The AEDPA has changed the legal landscape for prisoners seeking writs of habeas corpus. Petitioners must act within set deadlines, and they must attempt to place all issues in dispute before the first habeas-reviewing federal court or risk the chance of being rejected in a successive petition.

Further readings

Freedman, Eric M. 2001. Habeas Corpus: Rethinking the Great Writ of Liberty. New York: New York Univ. Press.

Harrington, James C., and Anne More Burnham. 1995. "Texas's New Habeas Corpus Procedure for Death-Row Inmates: Kafkaesque—and Probably Unconstitutional." St. Mary's Law Journal 27 (fall).

Jones, Andrew A. 1994. "Federal Habeas Corpus Evidentiary Hearings: Has the Court Deliberately Bypassed Section 2254(D)?" Wisconsin Law Review (January-February).

Morse, Charles R. 1993. "Habeas Corpus and 'Actual Innocence': Herrera v. Collins, 113 S. Ct. 853 (1993)." Harvard Journal of Law and Public Policy 16 (autumn).

habeas corpus

(hay-bee-us core-puss) n. Latin for "you have the body," it is a writ (court order) which directs the law enforcement officials (prison administrators, police, or sheriff) who have custody of a prisoner to appear in court to help the judge determine whether the prisoner is unlawfully in prison or jail. The writ is obtained by petition to a judge in the county or district where the prisoner is incarcerated, and the judge sets a hearing on whether there is a legal basis for holding the prisoner. Habeas corpus is a protection against illegal confinement, such as holding a person without charges, when due process obviously has been denied, bail is excessive, parole has been granted, an accused has been improperly surrendered by the bail bondsman, or probation has been summarily terminated without cause. Historically called "the great writ," the renowned scholar of the Common Law, William Blackstone called it the "most celebrated writ in English law." It may also be used as a means to contest child custody and deportation proceedings in court. The writ of habeas corpus can be employed procedurally in federal district courts to challenge the constitutionality of a state court conviction.

habeas corpus

HABEAS CORPUS, remedies A writ of habeas corpus is an order in writing, signed by the judge who grants the same, and sealed with the seal of the court of he is a judge, issued in the name of the sovereign power where it is granted, by such a court or a judge thereof, having lawful authority to issue the same, directed to any one having a person in his custody or under his restraint, commanding him to produce, such person at a certain time and place, and to state the reasons why he is held in custody, or under restraint.
     2. This writ was it common law considered as a remedy to remove the illegal restraint on a freeman. But anterior to the 31 Charles II. its benefit was, in a great degree, eluded by time-serving judges, who awarded it only in term time, and who assumed a discretionary power of awarding or refusing it. 3 Bulstr. 23. Three or four years before that statute was passed there had been two very great cases much agitated in Westminster Hall, upon writs of habeas corpus for private custody, viz: the cases of Lord Lei-ah: 2 Lev; 128; and Sir Robert Viner, Lord Mayor.of London. 3 Keble, 434, 447, 470, 504; 2 Lev. 128; Freem. 389. But the court has wisely drew the line of distinction between civil constitutional liberty, as opposed to the power of the crown, and liberty as opposed to the violence and power of private persons. Wilmot's Opinions, 85, 86.
     3. To secure the full benefit of it to the subject the statute 81 Car. II. c. 2, commonly called the habeas corpus act, was passed. This gave to the. writ the vigor, life, and efficacy requisite for the due protection of the liberty of the subject. In England this. is considered as a high prerogative writ, issuing out of the court of king's bench, in term time or vacation, and running into every part of the king's dominions. It is also grantable as a matter of right, ex debito justitae, upon the application of any person.
     4. The interdict De homine libero exhibendo of the Roman law, was a remedy very similar to the writ of habeas corpus. When a freeman was restrained by another, contrary to good faith, the praetor ordered that such person should be brought before him that he might be liberated. Dig. 43, 29, 1.
     5. The habeas corpus act has been substantially incorporated into the jurisprudence of every state in the Union, and the right to the writ has been secured by most of the constitutions of the states, and of the United States. The statute of 31 Car. II. c. 2, provides that the person imprisoned, if he be not a prisoner convict, or in execution of legal process, or committed for treason or felony, plainly expressed in the warrant, or has not neglected willfully, by the space of two whole terms after his imprisonment, to pray a habeas corpus for his enlargement, may apply by any one in his behalf, in vacation time, to a judicial officer for the writ of habeas corpus, and the officer, upon view of the copy of the warrant of commitment, or upon proof of denial of it after due demand, must allow the writ to be directed to the person in whose custody the party is detained, and made returnable immediately before him. And, in term time, any of the said prisoners may obtain his writ of habeas corpus, by applying to the proper court.
     6. By the habeas corpus law of Pennsylvania, (the Act of February 18, 1785,) the benefit of the writ of habeas corpus is given in "all cases where any person, not being committed or detained for any criminal, or supposed criminal matter," Who "shall be confined or restrained of his or her liberty, under any color or pretence whatsoever." A similar provision is contained in the habeas corpus act of New York. Act of April 21, 1818, sect. 41, ch. 277.
     7. The Constitution of the United State art. 1, s. 9, n. 2, 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 the same principle is contained in many of the state constitutions. In order still more to secure the citizen the benefit of this great writ, a heavy penalty is inflicted upon the judges who are bound to grant it, in case of refusal.
     8. It is proper to consider, 1. When it is to be granted. 2. How it is to be served. 3. What return is to be made to it. 4. The bearing. 5. The effect of the judgment upon it.
     9.-1. The writ is to be granted whenever a person is in actual confinement, committed or detained as aforesaid, either for a criminal charge, or, as in Pennsylvania and New York, in all cases where he is confined or restrained of his liberty, under any color or pretence whatsoever. But persons discharged on bail will not be considered as restrained of their liberty so as to be entitled to, a writ of habeas corpus, directed to their bail. 3 Yeates, R. 263; 1 Serg & Rawle, 356.
    10.-2. The writ may be served by any free person, by leaving it with the person to whom it is directed, or left at the gaol or prison with any of the under officers, under keepers, or deputy of the said officers or keepers. In Louisiana, it is provided, that if the person to whom it is addressed shall refuse to receive the writ, he who is charged to serve it, shall inform him of its contents; if he to whom the writ is addressed conceal himself, or refuse admittance to the person charged to serve it on him, the latter shall affix the order on the exterior of the place where the person resides, or in which the petitioner is so confined. Lo. Code of Pract. art. 803. The service is proved by the oath of the party making it.
    11.-3. The person to whom the writ is addressed or directed, is required to make a return to it, within the time prescribed; he either complies, or he does not. If, he complies, he must positively answer, 1. Whether he has or has not in his power or custody the person to be set at liberty, or whether that person is confined by him; if he return that he has not and has not had him in his power or custody, and the return is true, it is evident that a mistake was made in issuing the writ; if the return is false, he is liable to a penalty, and other punishment, for making such a, false return. If he return that he has such person in his custody, then he must show by his return, further, by what authority, and for what cause, he arrested or detained him. If he does not comply, he is to be considered in contempt of the court under whose seal the writ has been issued, and liable to a severe penalty, to be recovered by the party aggrieved.
    12.-4. When the prisoner is brought, before the judge, his judicial discretion commences, and he acts under no other responsibility than that which belongs to the exercise of ordinary judicial power. The judge or court before whom the prisoner is brought on a habeas corpus, examines the return and Papers, if any, referred to in it, and if no legal cause be shown for the imprisonment or restraint; or if it appear, although legally committed, he has not been prosecuted or tried within the periods required by law, or that, for any other cause, the imprisonment cannot be legally continued, the prisoner is discharged from custody. In the case of wives, children, and wards, all the court does, is to see that they ire under no illegal restraint. 1 Strange, 445; 2. Strange, 982; Wilmot's Opinions, 120.
    13. For those offences which are bailable, when the prisoner offers sufficient bail, he is to be bailed.
    14. He is to be remanded in the following cases: 1. When it appears he, is detained upon legal process, out of some court having jurisdiction of criminal matters, 2. When he is detained by warrant, under the hand and seal of a magistrate, for some offence for which, by law, the prisoner is not bailable. 3. When he is a convict in execution, or detained in execution by legal civil process. 4. When he is detained for a contempt, specially and plainly charged in the commitment, by some existing court, having authority to commit for contempt. 5. When he refuses or neglects to give the requisite bail in a case bailable of right. The judge is not confined to the return, but he is to examine into the causes of the imprisonment, and then he is to discharge, bail, or remand, as justice shall require. 2 Kent, Com. 26; Lo. Code of Prac. art. 819.
    15.-5. It is provided by the habeas corpus act, that a person set at liberty by the writ, shall not again be imprisoned for the same offence, by any person whomsoever, other than by the legal order and process of such court wherein he shall be bound by recognizance to appear, or other court having jurisdiction of the cause. 4 Johns. R. 318; 1 Binn. 374; 5 John. R. 282.
    16. The habeas corpus can be suspended only by authority of the legislature. The constitution of the United States provides, that the privilege of the writ of habeas corpus shall not be suspended unless when, in cases of invasion and rebellion, the public safety may require it. Whether this writ ought to be suspended depends on political considerations, of which the legislature, is to decide. 4 Cranch, 101. The proclamation of a military chief, declaring martial law, cannot, therefore, suspend the operation of the law. 1 Harr. Cond. Rep. Lo. 157, 159 3 Mart. Lo. R. 531.
    17. There are various kinds of this writ; the principal of which are explained below.
    18. Habeas corpus ad deliberandum et recipiendum, is a writ which lies to remove a prisoner to take his trial in the county where the offence was committed. Bac. Ab. Habeas Corpus, A.
    19. Habeas corpus ad faciendum et recipiendum, is a writ which issues out of a court of competent jurisdiction, when a person is sued in an inferior court, commanding the inferior judges to produce the body of the defendant, together with the day and cause of his caption and detainer, (whence this writ is frequently denominated habeas corpus cum causa) to do and receive whatever the court or the judge issuing the writ shall consider in that behalf. This writ may also be issued by the bail of a prisoner, who has been taken upon a criminal accusation, in order to surrender him in his own discharge; upon. the return of this writ, the court will cause an exoneretur to be entered on the bail piece, and remand the prisoner to his former custody. Tidd's Pr. 405; 1 Chit. Cr. Law, 182.
    20. Habeas corpus ad prosequendum, is a writ which issues for the purpose of removing a prisoner in order to prosecute. 3 Bl. Com. 130.
    21. Habeas corpus ad respondendum, is a writ which issues at the instance of a creditor, or one who has a cause of action against a person who is confined by the process of some inferior court, in order to remove the prisoner and charge him with this new action in the court above. 2 Mod. 198; 3 Bl. Com. 107.
    22. Habeas corpus ad satisfaciendum, is a writ issued at the instance of a plaintiff for the purpose of bringing up a prisoner, against whom a judgment has been rendered, in a superior court to charge him with the process of execution. 2 Lill. Pr. Reg. 4; 3 Bl. Com. 129, 130.
    23. Habeas corpus ad subjiciendum, by way of eminence called the writ of habeas corpus, (q.v.) is a writ 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. 3 Bl. Com. 131; 3 Story, Const. Sec. 1333.
    24. Habeas corpus ad testificandum, a writ issued for the purpose of bringing a prisoner, in order that he may testify, before the court. 3 Bl. Com. 130.
    25. Habeas corpus cum causa, is a writ which may be issued by the bail of a prisoner, who has been taken upon a criminal accusation, in order to render him in their own discharge. Tidd's Pr. 405. Upon the return of this writ the court will cause an exoneretur to be entered on the bail piece, and remand the defendant to his former custody. Id. ibid.; 1 Chit. Cr. Law 132. Vide, generally, Bac. Ab. h.t.; Vin. Ab. h.t.; Com. Dig. h.t.; Nels. Ab. h.t.; the various American Digests, h.t.; Lo. Code of Prac. art. 791 to 827; Dane's Ab. Index, h.t.; Bouv. Inst. Index, h.t.