Eleanor Finch
The writ of habeas corpus is a legal action that prevents unlawful or arbitrary detention. It is a common law right that originated in England and is now recognised in countries with an Anglo-American legal system, such as the United States, Canada, and Australia. The right of habeas corpus is deeply rooted in the jurisprudence of these countries and is enshrined in their respective constitutions and laws. The writ of habeas corpus allows a prisoner or detainee to appear before a court to challenge the validity of their arrest, imprisonment, or detention under relevant laws or constitutional provisions. It is an important safeguard against arbitrary detention and a fundamental human right.
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What You'll Learn
The writ of habeas corpus
The most common and important purpose of a writ of habeas corpus is to determine the validity of a person's arrest, imprisonment, or detention under relevant laws or constitutional provisions. It is not a right against unlawful arrest, but rather a right to be released from imprisonment after such an arrest. A writ of habeas corpus can be used to examine any extradition processes used, the amount of bail, and the jurisdiction of the court.
In the United States, the right to petition for a writ of habeas corpus is guaranteed by the Constitution, which states 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" (Article I, Section 9, paragraph 2). The jurisdiction of federal courts to issue writs of habeas corpus was first granted by the Judiciary Act of 1789, but only for federal prisoners. Federal habeas jurisdiction was expanded to include state prisoners on a limited basis by the Habeas Corpus Act of 1867.
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Habeas corpus in the US
The writ of habeas corpus is a common law order issued by a judge or court requiring the appearance of a prisoner or detainee before the court for a specified purpose. The writ of habeas corpus is Latin for "that you have the body" or "you should have the body". The most common and important purpose of a writ of habeas corpus is to determine the validity of a person's arrest, imprisonment, or detention under relevant laws or constitutional provisions.
Habeas corpus was first established by statute in the Judiciary Act of 1789. This statutory writ applied only to those who "are in custody, under or by colour 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" and not to those held by state governments. The right of habeas corpus is not a right against unlawful arrest, but rather a right to be released from imprisonment after such an arrest. Federal habeas review did not extend to those in state custody until almost a century after the nation's founding with the Habeas Corpus Act of 1867.
In the United States, the jurisdiction of federal courts to issue writs of habeas corpus was first granted by the Judiciary Act of 1789, but only for federal prisoners. Federal habeas jurisdiction was not available for state prisoners until after the Civil War when it was authorized on a limited basis by the Habeas Corpus Act of 1867. The Detainee Treatment Act of 2005 (DTA) and the Military Commissions Act of 2006 (MCA) further narrowed the scope of habeas relief, providing that prisoners held in Guantanamo Bay may not access federal courts through habeas corpus. Instead, they must go through military commissions and then seek appeal in the D.C. Circuit Court.
The Suspension Clause of Article One does not expressly establish a right to the writ of habeas corpus; rather, it prevents Congress from restricting it. The U.S. Constitution specifically includes the habeas procedure in the Suspension Clause (Clause 2), located in Article One, Section 9. This states 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".
In modern times, a writ of habeas corpus is frequently requested on behalf of someone in police custody to require the police to either charge the arrested person with an offense or release them. Habeas corpus proceedings may also be employed to obtain the release of an accused individual before trial on the grounds that the bail set is excessive.
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Habeas corpus in other countries
The principle of habeas corpus, or "you should have the body", is a cornerstone of the legal system in the UK, US, and other democratic countries. It grants prisoners the right to challenge their imprisonment in a court of law.
In the UK, the principle of habeas corpus is protected by the Habeas Corpus Act 1679, which allows prisoners to request a court to review the legality of their detention. This Act has been influential in establishing similar protections in other countries, including former British colonies such as India and Pakistan.
In the US, habeas corpus is guaranteed by the Constitution, which states 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". The US Supreme Court has interpreted this to mean that both US citizens and non-citizens have the right to habeas corpus, including non-citizens detained in a foreign prison such as Guantanamo Bay. The US Congress can suspend habeas corpus in limited circumstances, as it did during the American Civil War and in the years following.
In other democratic countries, habeas corpus is often guaranteed as a fundamental right in their constitutions or equivalent documents. For example, the Basic Law of Germany guarantees "the right to petition for a writ of habeas corpus" in Article 104. Similarly, the Canadian Charter of Rights and Freedoms guarantees the right to habeas corpus in Section 10(c). In Australia, the right to habeas corpus is implied in the Constitution and has been upheld by the High Court.
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The history of habeas corpus
The foundations of habeas corpus are often thought to have originated in the Magna Carta of 1215, which guaranteed protection from unlawful imprisonment. However, this association between the Magna Carta and habeas corpus only became prominent in the 17th century following the conflict between the House of Commons and King Charles I. The writ of habeas corpus was then reaffirmed in the Habeas Corpus Acts of 1640 and 1679, which played a significant role in discussions of constitutional rights during the era leading up to American independence.
The Habeas Corpus Act of 1679 was particularly significant in the history of habeas corpus. It was passed by Parliament during a period of sharp confrontation with King Charles II and the nascent Whig Party. This Act imposed strict deadlines for sheriffs and jailers to respond to the writ and included heavy fines for non-compliance. It also applied to "privileged jurisdictions", where common law did not typically apply.
In the context of American history, the writ of habeas corpus was specifically referenced in the United States Constitution, recognising its existence and stipulating the conditions under which it could be withheld. During the American Civil War, President Abraham Lincoln controversially suspended the writ of habeas corpus, arguing that it was necessary to end the Southern rebellion. This suspension was later formalised through the Habeas Corpus Suspension Act of 1863, which allowed the president to suspend habeas corpus during times of war.
In modern times, the procedure for habeas corpus has been expanded and refined. The Law of Habeas Corpus of 24 May 1984, for example, allows an imprisoned person to allege unlawful imprisonment and request to appear before a judge. Habeas corpus has also been used in immigration, deportation, and military detention cases, showcasing its versatility and ongoing relevance in legal systems worldwide.
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Habeas corpus case studies
The writ of habeas corpus, a critical component of the US legal system and a cornerstone of constitutional law, safeguards individuals from unlawful imprisonment. It is a court order demanding that a prisoner be brought before a judge to determine if their detention is lawful. The writ's history can be traced back to England, where it was first established to challenge the King's authority to imprison people without justification. Today, it remains an essential protection for individual liberty, playing a significant role in famous court cases and continuing to shape constitutional law.
Case 1: The Landmark Case of Marbury v. Madison
One of the most well-known and influential Supreme Court cases involving the writ of habeas corpus is Marbury v. Madison in 1803. This case established the principle of judicial review, which gives the Supreme Court the power to declare laws unconstitutional. William Marbury, a justice of the peace, petitioned the Supreme Court for a writ of habeas corpus after President John Adams appointed him but his commission was not delivered by the outgoing Secretary of State, Madison. The Court, led by Chief Justice John Marshall, ruled that Marbury did have a right to his commission, but also declared that a portion of the Judiciary Act of 1789 was unconstitutional, marking the first time the Court asserted its power to strike down acts of Congress.
Case 2: Testing Presidential Power during the Civil War
During the Civil War, President Abraham Lincoln faced a significant challenge to his authority. In 1861, he suspended the writ of habeas corpus to deal with the emergency posed by the war, leading to the landmark case of Ex parte Merryman. John Merryman, a Confederate sympathizer, was arrested and detained by the US military for allegedly sabotaging Union railroads and telegraph wires. Merryman petitioned for a writ of habeas corpus, arguing that his detention was unlawful. The Supreme Court, in an opinion written by Chief Justice Roger Taney, ruled that only Congress had the power to suspend the writ, not the President, and ordered Merryman's release. This case highlighted the tension between civil liberties and national security during times of crisis.
Case 3: Protecting Civil Rights in World War II
In the famous case of Korematsu v. United States (1944), the Supreme Court considered the constitutionality of Executive Order 9066, which authorized the incarceration of Japanese Americans during World War II. Fred Korematsu, a US citizen of Japanese descent, refused to comply with the order and was convicted of remaining in a prohibited zone. He petitioned for a writ of habeas corpus, arguing that his conviction violated the Fifth Amendment. The Court, however, upheld the conviction, finding that the need to protect against espionage outweighed Korematsu's rights. This case stands as a stark reminder of the potential for abuse of power, even in times of national emergency.
Case 4: Modern Applications – The War on Terror
More recently, the writ of habeas corpus has been invoked in the context of the War on Terror. In Rasul v. Bush (2004), foreign nationals detained at Guantanamo Bay filed petitions for writs of habeas corpus, challenging the legality of their detention. The Supreme Court ruled that the detainees had a right to challenge their detention in US courts, recognizing that the protections of habeas corpus extend beyond US citizens. This case highlighted the ongoing importance of habeas corpus in ensuring that even those designated as "enemy combatants" have access to judicial review.
These case studies demonstrate the enduring significance of the writ of habeas corpus in safeguarding individual liberty, holding governments accountable, and shaping constitutional law. They illustrate how the writ has been used to challenge executive power, protect civil rights during times of crisis, and ensure that even in the face of national security concerns, the rule of law prevails.
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Frequently asked questions
Habeas Corpus, Latin for "that you have the body", is a writ or order issued by a judge or court to bring a detainee or prisoner before the court to determine if their imprisonment or detention is lawful.
Habeas Corpus was first introduced at the 1787 Constitutional Convention by Charles Pinckney, a delegate from South Carolina. It was established by statute in the Judiciary Act of 1789, which gave federal courts the jurisdiction to issue writs of habeas corpus.
Habeas Corpus is a fundamental human right, safeguarding against arbitrary detention. It is a crucial protection of individual liberty and is recognised in countries with an Anglo-American legal system.
Yes, the US Constitution states that the privilege of Habeas Corpus "shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it". There have been several instances of suspension, including during the Civil War by President Abraham Lincoln.
Habeas Corpus petitions have been used to challenge convictions, release individuals prior to trial on grounds of excessive bail, and grant relief to prisoners who are unlawfully detained after their sentences have expired. In the US, it has been used to challenge the detention of Guantanamo Bay detainees.
