Habeas corpus
From Freepedia
In English Common Law habeas corpus is the name of several writs which may be issued by a judge ordering a prisoner to be brought before the court. More commonly, the name refers to a specific writ known in full as habeas corpus ad subjiciendum, a prerogative writ ordering that a prisoner be brought to the court so it can be determined whether or not he is being imprisoned lawfully.
The words habeas corpus ad subjiciendum are Latin for "You (shall) have/hold the body to be subjected to (examination)", and are taken from the opening words of the writ in medieval times. Other habeas corpus writs also existed, e.g. habeas corpus ad testificandum ("You (shall) have/hold the body to bear witness", for the production of a prisoner to give evidence in court.
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Habeas corpus ad subjiciendum
Known as the "Great Writ", the writ of habeas corpus ad subjiciendum could formerly be used not only in criminal cases, but in cases of imprisonment for private debt. In many jurisdictions today the writ can also be issued against private individuals.
The right of habeas corpus has long been celebrated as the most efficient safeguard of the liberty of the subject. Dicey wrote that 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". In most countries, however, the procedure of habeas corpus can be suspended in time of national emergency.
In most civil law jurisdictions, comparable provisions exist, but they are generally not called "habeas corpus."
Habeas corpus in England
Blackstone cites the first recorded usage of habeas corpus in 1305, in the reign of King Edward I. However, other writs were issued with the same effect as early as the reign of Henry II in the 12th century.
Winston Churchill, in his chapter on the English Common Law in 'The Birth of Britain', explains the process thus:
- Only the King had a right to summon a jury. Henry accordingly did not grant it to private courts .. But all this was only a first step. Henry also had to provide means whereby the litigant, eager for royal justice, could remove his case out of the court of his lord into the court of the King. The device which Henry used was the royal writ .. and any man who could by some fiction fit his own case to the wording of one of the royal writs might claim the King's justice.
The procedure for the issuing of writs of habeas corpus was first codified by the Habeas Corpus Act 1679, following judicial rulings which had restricted the effectiveness of the writ. A previous act had been passed in 1640 to overturn a ruling that the command of the King was a sufficient answer to a petition of habeas corpus.
Then as now, the writ of habeas corpus was issued by a superior court in the name of the King, and commanded the addressee (a lower court, sheriff, or private subject) to produce the prisoner before the King's courts of law. Petitions for habeas corpus could be made by the prisoner himself or by a third party on his 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 Case (1771), where the black slave Somersett was freed with Lord Mansfield's declaration that "The air of England has long been too pure for a slave, and every man is free who breathes it".
Although the form of the writ of habeas corpus implies that the prisoner is brought to the court in order for the legality of the imprisonment to be examined, modern practice is to have a hearing with both parties present on whether the writ should issue, rather than issuing the writ and waiting for the return of the writ by the addressee before the legality of the detention is examined. The prisoner can then be released or bailed by order of the court without having to be produced before it.
The right of habeas corpus has been suspended or restricted several times during English history, most recently during the 18th and 19 centuries. Although internment without trial has been authorised by statute since that time, e.g. during the two World Wars and the Troubles in Northern Ireland, the procedure of habeas corpus 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 was in accordance with an Act of Parliament, the petition for habeas corpus would be unsuccessful.
Since the passage of the Human Rights Act 1998, the courts have been able to declare an Act of Parliament to be incompatible with the European Convention on Human Rights. However, such a declaration of incompatibility has no immediate legal effect until it is acted upon by Parliament.
Habeas corpus in the United States
This procedure, part of English common law, was considered important enough to be specifically mentioned in the U.S. Constitution, which says, "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 One, section nine).
The "constitutional" writ of habeas corpus, which was originally understood to apply to the actions of the executive branch of the federal government, and not to the states, and then only to the jurisdiction of the court, should be distinguished from what can be called "statutory" habeas corpus. Congress granted all federal courts jurisdiction under title 28, section 2254 of the United States Code to issue writs of habeas corpus to release state prisoners from custody when held unlawfully. A similar provision, 28 U.S.C., section 2255, provides analogous relief to federal prisoners.
These two statutory provisions govern the grant of habeas corpus relief by the federal courts after a prisoner is convicted and his direct appeals (in either state or federal court, depending on which jurisdiction has convicted the prisoner) have been completed. Decisions by the Warren Supreme Court greatly expanded the use and scope of the writ in the 1950s and 1960s. Over the last thirty years, decisions by the Burger and Rehnquist Courts have somewhat narrowed the writ. The Anti-Terrorism and Effective Death Penalty Act of 1996 further limited the use of the writ.
Suspension during the Civil War and Reconstruction
Habeas corpus was suspended on April 27, 1861, during the American Civil War by President Lincoln in Maryland and parts of midwestern states, including southern Indiana. He did so in response to riots, local militia actions and the threat that the Southern slave state of Maryland would secede from the Union leaving the nation's capital, Washington, D.C., in the south. He was also motivated by requests by generals to set up military courts to rein in "Copperheads" or Peace Democrats, and those in the Union who supported the Confederate cause. His action was challenged in court and overturned by the U.S. Circuit Court in Maryland (led by Supreme Court Chief Justice Roger B. Taney) in Ex Parte Merryman, 17 F. Cas. 144 (C.C.D. Md. 1861). Lincoln ignored Taney's order. In the Confederacy, Jefferson Davis also suspended the Habeas Corpus and imposed martial law. This was in part to maintain order and spur industrial growth in the South to compensate for the economic loss inflicted by its secession.
In 1864, Lambdin Milligan and four others were accused of planning to steal Union weapons and invade Union prisoner-of-war camps and were sentenced to hang by a military court. However, their execution was not set until May 1865, so they were able to argue the case after the Civil War. It was decided in the Supreme Court case Ex Parte Milligan 71 U.S. 2 1866 that the suspension was unconstitutional because civilian courts were still operating, and the Constitution (according to the Court) provided for suspension of habeas corpus only if these courts are actually forced closed. This was one of the key Supreme Court Cases of the American Civil War, which dealt primarily with wartime civil liberties and martial law.
In the early 1870's, President Grant suspended habeas corpus in nine counties in South Carolina, as part of federal civil rights action against the Ku Klux Klan under the 1870 Force Act and 1871 Ku Klux Klan Act.
The Civil War and Second World War habeas corpus decisions have attracted renewed interest since September 11, 2001 in light of the second Bush administration's assertion of presidential authority to designate even U.S. citizens as enemy unlawful combatants and hold them indefinitely, without criminal charges or access to counsel.
Suspension during the War on Terrorism
Australia
In October 2005, the Australian Federal Government under the leadership of Prime Minister John Howard, proposed the Federal Anti-Terrorism Bill 2005. Before the bills are introduced for debate in the Australian Parliament, the draft has been forwarded to the States and Territories for approval.
The proposed legislation is currently being debated in both the Federal and State parliaments and some legal experts have stated that the Act is unconstitutional because it abolishes habeas corpus, due process, and the presumption of innocence. Under the Act, a person can be detained without charge or trial for a period of seven days. At the end of the detention period, another warrant can be issued to detain the person for a further seven days. The warrants are issued by ASIO, not by a judge.
The proposed Federal Anti-Terrorism Bill 2005 is contrary to habeas corpus because it allows people to be imprisoned by a decision of the executive branch of government rather than the judiciary, to be imprisoned indefinitely without charge or trial, and it makes it an offence to even talk about somebody being imprisoned.
United Kingdom
This is a stub! Please tell us about how habeas corpus has been suspended in the United Kingdom due to the War on Terrorism.
United States of America
Illegal combatants imprisoned at U.S. Naval Station Guantanamo Bay, Cuba have no apparent right to habeas corpus.
The PATRIOT Act of 2001 gives the President of the United States the power to declare anyone suspected of connection to terrorists or terrorism, as an Enemy combatant. As an Enemy combatant that person can be held without charges being filed against him/her. Enemy Combatants can be held without a court hearing and are not entitled to legal consult.
Many legal and constitutional scholars would contend that these provisions of the PATRIOT Act are in opposition to habeas corpus, and the United States Bill of Rights. Specifically, American citizens declared an Enemy combatant under the PATRIOT Act may be denied their constitutional rights, as set forth in Amendments 4, 5, 6 and 8.
Habeas Corpus Writs
- habeas corpus ad deliberandum et recipiendum
- habeas corpus ad faciendum et repipiendum, a.k.a. habeas corpus cum causa
- habeas corpus ad prosequendum
- habeas corpus ad respondendum
- habeas corpus ad satisfaciendum
- habeas corpus ad subjiciendum
- habeas corpus ad testificandum
Historical Background
- A.H. Carpenter. "Habeas Corpus in the Colonies." The American Historical Review. Vol. 8., No. 1 (October 1902), pages 18-27.
- Louis Fisher. 2003. Nazi Saboteurs on Trial: A Military Tribunal and American Law. University Press of Kansas. ISBN 0700612386.
- Michael Dobbs. 2004. Saboteurs: The Nazi Raid on America. Vintage. ISBN 1400030420.
- Peter Irons. 1999. A People's History of the Supreme Court. Viking. ISBN 0670870064. Political context for Ex Parte Milligan explained on Pp. 186-189.
- Helen A. Nutting. "The Most Wholesome Law--The Habeas Corpus Act of 1679." The American Historical Review. Vol. 65., No. 3 (April 1960), pages 527-543.
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See also
- Neminem captivabimus
- Asha Bandele "Habeas Corpus is a legal Entitlement," a poem in Absence in the Palms of My Hands & Other Poems. New York: Harlem River Press. 1996.
Habeas Corpus is also the name of a play, a satirical, farcical black comedy by Alan Bennett. It details the story of a hedonistic family and the results of their dalliances.
It's also the name of a group supporting homosexuals in Hungary.
