About Habeas Corpus

Habeas corpus is Latin for "you shall produce the body." The phrase is most often associated with the writ of habeas corpus, which is a legal tool used to protect individuals from wrongful detention or imprisonment. The writ of habeas corpus, also referred to as "the great writ," comes from English common law and dates back to the Magna Carta.

Use of the Writ of Habeas Corpus

The writ of habeas corpus has traditionally been the most important means for individuals to defend against wrongful detention or imprisonment. A petition for a writ of habeas corpus can be filed either by the person affected or by a third party on behalf of the person affected. The writ is a judicial order to a prison official, jailer or custodian to bring the person before the court to determine if the person's imprisonment is lawful or if the person should be released. The writ must show that an error was made with regard to the imprisonment. Use of the writ of habeas corpus is a basic individual right under the constitution of the United States. The U.S. Supreme Court has tried to prevent the abusive use of habeas corpus by prisoners filing writs one after another.

Functions of the Writ of Habeas Corpus

Under English common law, the monarch had a right to know why any of his or her subjects were being detained or imprisoned. The writ of habeas corpus could be issued by the courts in the name of the monarch. It was used to control inferior courts and public authorities within the kingdom. When the United States was formed as a constitutional republic, the people became sovereign (they replaced the monarch), which meant any individual had the right to initiate a writ of habeas corpus. Because the writ assumes non-authority on the part of the party served, the writ transcends being a civil or criminal matter. The party served has the burden of proof ; if the burden of proof is not satisfied, the court must decide in favor of the party initiating the writ and the prisoner will be released either outright or on bail. The writ of habeas corpus does not raise a question of guilt or innocence, but one of due process.

History of Habeas Corpus

The writ of habeas corpus was used as early as the 12th century; the first recorded use was 1306, during the reign of King Henry I. The first codification was the Habeas Corpus Act of 1679. Throughout its history, habeas corpus has been suspended during times of war, rebellion or civil unrest. In the United States, habeas corpus was suspended by Abraham Lincoln during the Civil War. Supreme Court Chief Justice Roger B Taney opposed Lincoln on this, but the Congress supported him.

In 2001, President Bush issued a military order giving him authority to detain non-citizens suspected of being connected to terrorism or of being enemy combatants indefinitely without charges, without a court hearing and without legal counsel. On September 26, 2006, Congress passed the Military Commissions Act of 2006, which suspended habeas corpus for any alien determined to be an "unlawful enemy combatant engaged in hostilities or having supported hostilities against the United States." Many legal scholars feel that both the military order and the act of 2006 oppose habeas corpus and violate the U.S. Bill of Rights.

Practical Considerations

Without habeas corpus, an individual could be held without charges, without a court hearing and without legal representation indefinitely. American society would not be any different than societies where people just disappear for exercising free speech or religion or some other right that the government chooses to deny to its citizens. Habeas corpus is a basic right under the U.S. Constitution, but it is also a right that supports and makes possible other basic rights.

Significance of Habeas Corpus

Habeas corpus remains the primary means for the individual to defend against unlawful imprisonment. According to Albert Venn Dicey, "the Habeas Corpus Acts declare no principle and define no rights, but they are for practical purposes worth a hundred constitutional articles guaranteeing individual liberty."