Haak

Same as HAKE, q. v. Haar'kies, n. [Ger. haar, hair, and kies, gravel pyrites.] ( Min.) Capillary pyrites in very delicate acicular crystals. Haarlem, a city and lake of the Netherlands. See SECTION II. Haarlem, in New York. See HARLEM. Habakkuk. ( Script .) The name of the 35th in order of the books of the Old Testament, forming one of those of the 12 minor prophets. Habeas Corpus. [Lat., you may have the body.] (Law.) It is one of the first objects of all civil institutions to secure to every member the rights of personal liberty, or, in other words, the control and disposition of his own person, at his own will and pleasure, in such manner, however, as not to violate the laws or infringe upon the rights of others. It may seem, upon the first consideration of the subject, that this is not an object of the institutions and laws of an arbitrary government, since the sovereign, and those representing him in an executive or military capacity, may seize and imprison any one, with or without cause, or upon grounds more or le important and excusable, according as the government is, in its principles and in its administration, more or le arbitrary. But a slight reflection will show that, even in the most arbitrary governments, the first object is to secure one subject from the seizure of his person or the violation of his rights, whether of person or property, by another; for in a community of men, where every member should be left at liberty to seize upon and imprison any other, if he had the physical power to do so, there would be, substantially, and to practical purposes, no government at all. There might be an a ociation of men acting under the orders of the prince, and in concert with each other, who should have more power than any other a ociation in the community, and who might, accordingly, by the right of the strongest, seize persons and property at their own will and pleasure; but such an a ociation would hardly deserve the name of civil polity or government, which signifies not merely physical power and superiority of force, which exists among brutes as well as men, but a body of laws more or le extensive, whereby the liberty and rights of the subjects are secured more or le effectually, according to the degree of improvement and perfection in the constitution and laws of the state. In every government, therefore, whether arbitrary or free, or occupying any one of the various degrees in the scale of freedom, one of the first and most important objects is the security of the person from violence or detention not authorized by law. There is, then, this e ential difference, in this respect, between different governments; in those which are arbitrary, the present will of the sovereign, and, accordingly, of those representing him in civil and military capacities, is the law; whereas, in others, the law is a fixed rule, which every citizen or subject may know and conform to, if he chooses; the sovereign and the magistrates being bound by this law no le than the other members of the society. This fixed law settles beforehand all the cases in which any person may be detained or imprisoned; and the term imprisonment , in this application, does not signify merely shutting up in a gaol, since the voluntary detention of a person in a private house or in the streets, says Sir William Black stone, is an imprisonment . The cases in which imprisonment is lawful being thus ascertained by the law, the great provision of Magna Charta (q. v.) intervenes, namely, "That no freeman shall be seized or imprisoned, but by the judgment of his equals or the law of the land." The term equals or peers , here, has reference to an indictment or trial by jury, or other body, of which the office and functions are equivalent to those of jurors, as is the case in regard to the House of Lords, in respect to certain parties and offences. This particular mode of accusation or trial might as well be omitted, and the rule would then stand, that no man should be imprisoned but by the law of the land. It is the law alone that can imprison, and not the sovereign, or any representative of the sovereign, whether the sovereignty resides in one individual, or a body, or more than one body of men. This principle constitutes the leading feature of Magna Charta , and lies at the foundation of every free government. In order to secure personal liberty, and at the same time to maintain government, which requires, in the case of crimes and some others, the restraint of the person, it is absolutely e ential that the law should not only specify explicitly the cases in which the citizen may be seized or imprisoned, but also provide that he shall not be arrested, or restrained of his liberty, in any other case whatever; and such is the law in the U. States and in England. Nor is this principle confined to the person, it being no le the law that a man's goods, setting aside his person, shall not be seized and detained, otherwise than by order of the law. Such being the rules that lie at the foundation of civil society, the very important questions occur: how these rules are to be enforced; how is the law most effectually to guarantee to every one of its subjects the inviolability of his person and property? The first and most obvious security is that derived directly from the law of nature, and not surrendered among the other sacrifices made by the members of a community to each other, as a condition precedent to the forming of civil society. The law permits every man to defend his person and property, and to repel by force, any unlawful invasion of either. It will not justify him in using extreme force, and committing any outrageous, disproportionate, or wanton injury, in resisting and repelling even an unlawful injury of his person or property; but it will justify him in using a reasonable degree of force, proportioned to the injuriousne or atrocity of the violence attempted by the a ailing party. But the law of nature affords but a feeble protection, and men unite HABE in communities for the purpose of obtaining more effectual defences against wrong, and reparations for injuries when committed; and the very first provision of the law is to inflict punishment for any wrongs and violence whereby the public is disturbed, and also to make reparation to a party injured. If one man unlawfully seizes the property, or imprisons the person of another, he is, by the laws of every community, liable to make amends in damages. As far, therefore, as an injury is such that it can be repaired by a pecuniary compensation, and as far as the trespa er is able to make such reparation, the remedy is complete. But since trespa ers are not always able to make reparation for injuries, and some injuries are such that pecuniary damages are not an adequate reparation, and also, because the law intends to prevent wrongs, as well as to provide for punishments and compensations where they have been committed, it provides certain proce es for immediate prevention, in case of a violent and unauthorized invasion of property or person. Of this character are the proce es on complaint for forcible entry on real estate, the action of replevin in respect to goods and chattels, and the writ de homine rep leg i an do , or writ of H. C., in respect to the person. The writ de homine rep leg i an do is similar to that of replevin, and is, in fact, as its name imports, the replerying of a man. When a man's person has been carried out of the country, so that he cannot be found, then a proce takes place somewhat similar to that adopted when goods are carried off, so as not to be repleviable. In the case of the goods, a proce in with ern am i ues, by which other goods are taken. So in the case of the man; the person who thus conveyed him away is himself taken in a proce in with ern am , as a pledge for the restoration of the person sought to be replevied. This proce of replevying a man is very ancient in the English law; forms of the writ being given by Fitzherbert, and also found in the Register of Writs. But it was not until more than 400 years after the date of ' Magna Charta that an adequate remedy was adopted, whereby the great privilege, provided for in that charter, was effectually secured. This security was effected by the Habeas Corpus Act, pa ed in the 31st year of Charles II. c. 2, which has been adopted, in substance, in all the U. States; and many of the State constitutions expre ly guarantee to the citizens the right to this writ, as one of the fundamental principles of the government; and by the Constitution of the U. States, the privilege of this writ is secured, at all times, except in cases of rebellion or invasion, when the public safety may require its suspension. The right is liable to be suspended in England in the same cases, it being sometimes nece ary to clothe the executive with an extraordinary power, as the Romans were in the habit of choosing a dictator in emergencies, when the public was in danger. This, as Sir William Black stone says, is the sacrifice of the security of personal liberty for a time, the more effectually to secure it in future. At all times, when the privilege is not suspended by law, every citizen has a right to this writ. It is, however, to no purpose that the party should be brought before a judge, on habeas corpus , to be immediately remanded to prison. The laws, accord. ingly, except certain cases; thus the laws of New York provide, that if a person is not a convict, or in execution by legal proce , or committed for treason or felony, plainly expre ed in the warrant, and has not neglected to apply to be released for two whole terms, he is entitled to this writ. An application may be made to a judge, either in court or out of court, for this writ; and if it does not appear that the person is imprisoned under some of the circumstances above named, or if it be in some other State than New York, if it does not appear to the judge that his case comes under some of the exceptions provided by the law of the State (and the laws except only the plainest cases), then it is the absolute duty of the judge to grant the writ, directed to the gaoler, officer or person who detains the complainant, ordering him to bring the prisoner before him. The laws of England provide that, if the Chancellor or any of the 12 judges refuses the writ when the party is entitled to it, he incurs a very heavy forfeiture to the complainant. It is universally, in the U. States, the imperative duty of the judge to order the complainant to be immediately brought before him, unle his case plainly comes within one of the exceptions pointed out by the law. The party being thus brought up, the judge determines whether he is entitled to be discharged, absolutely, or to be discharged on giving a certain bail, or must be remanded to prison. If the imprisonment is wholly unauthorized, the complainant is discharged; if it be not unauthorized, but is yet for a cause in which the party is entitled to be discharged on giving bail, the judge orders accordingly. This is the writ which is justly denominated the great bulwark and second Magna Charta of British liberty. And it is no le the bulwark of American than of British liberty; for it not only protects the citizen from unlawful imprisonment, at the suggestion of the civil officers of the government, in behalf of the public, but also against groundle arrests at the suit or instigation of individuals. There are other writs of habeas corpus , but the one we have described is always intended when the term is used without other explanation.