The habeas corpus

Latin for "that you have the body. The Habeas corpus first originated back inthrough the 39th clause of the Magna Carta signed by King John, which provided "No man shall be arrested or imprisoned Accordingly, habeas corpus also developed as the king's role to demand account for his subject who is restrained of his liberty by other authorities. Deeply rooted in the Anglo-American jurisprudence, the law of habeas corpus was adopted in the U.

The habeas corpus

Etymology[ edit ] From Latin habeas, 2nd person singular present subjunctive active of habere, "to have", "to hold"; and corpus, accusative singular of corpus, "body".

In reference to more than one person, habeas corpora. Literally, the phrase means "[we command] that you should have the [detainee's] body [brought to court]". These are the opening words of writs in 14th century Anglo-French documents requiring a person to be brought before a court or judge, especially to determine if that person is being legally detained.

Et hoc nullatenus omittatis periculo incumbente. Et habeas ibi hoc breve. Hereof in no way fail, at your peril. And have you then there this writ. Viscount of said Island, Greeting. We command you that you have the body of C. We command you that the body of Charles L.

Craig, in your custody detained, as it is said, together with the day and cause of his caption and detention, you safely have before Honorable Martin T. MantonUnited States Circuit Judge for the Second Judicial Circuit, within the circuit and district aforesaid, to do and receive all and singular those things which the said judge shall then and there consider of him in this behalf; and have you then and there this writ.

Similarly named writs[ edit ] The full name of the writ is often used to distinguish it from similar ancient writs, also named habeas corpus. Habeas corpus ad deliberandum et recipiendum: Habeas corpus ad prosequendum: Habeas corpus ad respondendum: Habeas corpus ad testificandum: Origins in England[ edit ] Further information: English law Habeas corpus originally stems from the Assize of Clarendona re-issuance of rights during the reign of Henry II of England.

No Freeman shall be taken or imprisoned, or be disseized of his Freeholdor Liberties, or free Customs, or be outlawed, or exiled, or any other wise destroyed; nor will We not pass upon him, nor condemn him, but by lawful judgment of his Peers, or by the Law of the land.

Habeas Corpus Petition

Blackstone explained the basis of the writ, saying "[t]he king is at all times entitled to have an account, why the liberty of any of his subjects is restrained, wherever that restraint may be inflicted. A previous law the Habeas Corpus Act had been passed forty years earlier to overturn a ruling that the command of the King was a sufficient answer to a petition of habeas corpus.

The Whig leaders had good reasons to fear the King moving against them through the courts as indeed happened in and regarded habeas corpus as safeguarding their own persons.

The short-lived Parliament which made this enactment came to be known as the Habeas Corpus Parliament - being dissolved by the King immediately afterwards.

Then, as now, the writ of habeas corpus was issued by a superior court in the name of the Sovereign, and commanded the addressee a lower court, sheriff, or private subject to produce the prisoner before the royal courts of law.

A habeas corpus petition could be made by the prisoner him or herself or by a third party on his or her behalf and, as a result of the Habeas Corpus Acts, could be made regardless of whether the court was in session, by presenting the petition to a judge.

Since the 18th century the writ has also been used in cases of unlawful detention by private individuals, most famously in Somersett's Casewhere the black slave Somersett was ordered to be freed.

The habeas corpus

The privilege of habeas corpus has been suspended or restricted several times during English historymost recently during the 18th and 19th centuries. Although internment without trial has been authorised by statute since that time, for example during the two World Wars and the Troubles in Northern Irelandthe habeas corpus procedure has in modern times always technically remained available to such internees.

However, as habeas corpus is only a procedural device to examine the lawfulness of a prisoner's detention, so long as the detention is in accordance with an Act of Parliamentthe petition for habeas corpus is unsuccessful. Since the passage of the Human Rights Actthe courts have been able to declare an Act of Parliament to be incompatible with the European Convention on Human Rightsbut such a declaration of incompatibility has no legal effect unless and until it is acted upon by the government.

However, rather than issuing the writ immediately and waiting for the return of the writ by the custodian, modern practice in England is for the original application to be followed by a hearing with both parties present to decide the legality of the detention, without any writ being issued.

If the detention is held to be unlawful, the prisoner can usually then be released or bailed by order of the court without having to be produced before it. With the development of modern public law, applications for habeas corpus have been to some extent discouraged, in favour of applications for judicial review.

The habeas corpus

Some legal experts questioned the constitutionality of the act, due in part to limitations it placed on habeas corpus. The rights exist in the common law but have been enshrined in the Constitution Actunder Section Ten of the Charter of Rights and Freedoms.

Suspension of the writ in Canadian history occurred famously during the October Crisisduring which the War Measures Act was invoked by the Governor General of Canada on the constitutional advice of Prime Minister Pierre Trudeauwho had received a request from the Quebec Cabinet. The writ was suspended for several years following the Battle of Fort Erie during the Fenian Risingthough the suspension was only ever applied to suspects in the Thomas D'Arcy McGee assassination.

However, a superior court always has the discretion to grant the writ even in the face of an alternative remedy see May v Ferndale Institution.

Habeas corpus

France[ edit ] A fundamental human right in the " Declaration of the Rights of Man " drafted by Lafayette in cooperation with Thomas Jefferson[26] the guarantees against arbitrary detention are enshrined in the French Constitution and regulated by the Penal Code.

The safeguards are equivalent to those found under the Habeas-Corpus provisions found in Germany, the United States and several Commonwealth countries.Extending habeas corpus: In , Kennedy was the fifth vote that gave terrorism suspects being held at Guantanamo Bay the right to challenge their detention in civilian courts.

— James Hohmann, Washington Post, "The Daily Five times Anthony Kennedy was the fifth vote shows the significance. Habeas Corpus - Got Yourself in Tax Debt? Free Consultation! [ Habeas Corpus ]!!!

In the US system, federal courts can use the writ of habeas corpus to determine if a state's detention of a prisoner is valid. A writ of habeas corpus is used to bring a prisoner or other detainee (e.g. institutionalized mental patient) before the court to determine . Habeas corpus definition, a writ requiring a person to be brought before a judge or court, especially for investigation of a restraint of the person's liberty, used as a .

Habeas corpus, an ancient common-law writ, issued by a court or judge directing one who holds another in custody to produce the body of the person before the court for some specified purpose.

Although there have been and are many varieties of the writ, the most important is that used to correct. A habeas corpus petition could be made by the prisoner him or herself or by a third party on his or her behalf and, as a result of the Habeas Corpus Acts, could be made regardless of whether the court was in session, by presenting the petition to a judge.

Habeas corpus - Wikipedia