Habeas Corpus

Definition of Habeas Corpus

Note: See a more comprehensive approach to the Habeas Corpus legal concept in the American Law Encyclopedia

A court order requiring the state to show cause for a person's detention. Habeas corpus is a Latin term meaning “you have the body.” Habeas corpus was originally a procedure in English law designed to prevent governmental misconduct, especially the improper detention of prisoners before any kind of trial. Its primary purpose was to force jailers to bring a detained person before a judge who would examine the adequacy of the detention. If the judge found the person to be in custody improperly, he or she could order the prisoner's release through a writ of habeas corpus. A writ is an order from a court requiring the recipient of the order to do what the order commands. In American law, the preliminary hearing functions as the point of examination into the propriety of pretrial detention, as well as into the charges brought against an accused person. Article I, Section 9, of the U.S. Constitution provides 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.” President Lincoln attempted to suspend the writ early in the Civil War, but it was determined in Ex parte Merryman (17 Fed. Cas. No. 9487: 1861) that suspension was entirely a congressional prerogative. Congress subsequently authorized Lincoln to suspend the writ of habeas corpus at his discretion. This action was challenged and eventually decided by the Supreme Court in Ex parte Milligan (4 Wallace 2: 1866). A unanimous Court said the president could not suspend habeas corpus under any circumstances. A five-member majority held that Congress did not have the power either. There has been no subsequent attempt to suspend habeas corpus in the United States.

See Also

Collateral Attack (Law of the United States) Writ (Law of the United States).

Resources

Habeas Corpus Related Resources

• Habeas Corpus in the United States Legal Encyclopedia
• Appellate Judicial Process Keywords in the United States Legal Encyclopedia
• Appellate Process Keywords in the International Legal Dictionary

Notes

• “Habeas Corpus”, The American Law Dictionary, 1991, California

Habeas Corpus

In the Past

Remedies

Note: for more information on remedies, the corresponding entry in this U.S. encyclopedia. A writ of habeas corpus is an order in writing, signed by the judge who grants the same and sealed with the seal of the court of he is a judge, issued in the name of the sovereign power where it is granted, by such a court or a judge tof this, having lawful authority to issue the same, directed to any one having a person in his custody or under his restraint, commanding him to produce, such person at a certain time and place and to state the reasons why he is held in custody or under restraint.

Developments

This writ was it common law considered as a remedy to remove the illegal restraint on a freeman. But anterior to the 31 Charles II. its benefit was, in a great degree, eluded by time-serving judges, who awarded it only in term time and who assumed a discretionary power of awarding or refusing it. 3 Bulstr. 23. Three or four years before that statute was passed there had been two very great cases much agitated in Westminster Hall, upon writs of habeas corpus for private custody, viz: the cases of Lord Lei-ah: 2 Lev; 128; and Sir Robert Viner, Lord Mayor.of London. 3 Keble, 434, 447, 470, 504; 2 Lev. 128; Freem. 389. But the court has wisely drew the line of distinction between civil constitutional liberty, as opposed to the power of the crown and liberty as opposed to the violence and power of private people. Wilmot's Opinions, 85, 86.

Details

To secure the full benefit of it to the subject the statute 81 Car. II. c. 2, commonly calfed the habeas corpus act, was passed. This gave to the writ the vigor, life and efficacy requisite for the due protection of the liberty of the subject. In England (see more about this legal system) this. is considered as a high prerogative writ, issuing out of the court of king's bench, in term time or vacation and running into every part of the king's dominions. It is also grantable as a matter of right, ex debito justitae, upon the application of any person.

More Information

The habeas corpus act has been substantially incorporated into the jurisprudance of every state in the Union and the right to the writ has been secured by most of the constitutions (see more about this popular legal topic in the U.S. encyclopedia) of the states and of the United States of America. The statute of 31 Car. II. c. 2, gives that the person imprisoned, if he be not a prisoner convict or in execution of legal process or committed for treason or felony, plainly expressed in the warrant or has not neglected deliberately, by the space of two whole terms after his imprisonment, to pray a habeas corpus for his enlargement, may apply by any one in his behalf, in vacation time, to a judicial officer for the writ of habeas corpus and the officer, upon view of the copy of the warrant of commitment or upon proof of denial of it after due demand, must allow the writ to be directed to the person in whose custody the party is detained and made returnable immediately before him. And, in term time, any of the said prisoners may get his writ of habeas corpus, by applying to the proper court.

Other Issues

By the habeas corpus law of Pennsylvania (see more about this State laws here) , (the Act of February 18, 1785,) the benefit of the writ of habeas corpus is given in “all cases where any person, not being committed or detained for any criminal (see more about this popular legal topic in the U.S. encyclopedia) or supposed criminal (see more about this popular legal topic in the U.S. encyclopedia) matter,” Who “shall be confined or restrained of his or her liberty, under any color or pretence any.” A similar provision is contained in the habeas corpus act of New York (see more about this State laws here). Act of April 21, 1818, sect. 41, ch. 277.

More

The constitution (see more about this popular legal topic in the U.S. encyclopedia) of the United State art. 1, s. 9, n. 2, gives, that ” the privilege of the writ of habeas corpus must not be suspended, unless when, in cases of rebellion or invasion, the public safety may need it and the same principle is contained in many of the state constitutions (see more about this popular legal topic in the U.S. encyclopedia). In order still more to secure the citizen the benefit of this great writ, a heavy penalty is inflicted upon the judges who are bound to grant it, if refusal.

More

It is proper to consider, 1. When it is to be granted. 2. How it is to be served. 3. What return is to be made to it. 4. The bearing. 5. The effect of the judgment upon it.

More

The writ is to be granted whenever a person is in actual confinement, committed or detained as aforesaid, either for a criminal (see more about this popular legal topic in the U.S. encyclopedia) charge, or, as in Pennsylvania (see more about this State laws here) and New York (see more about this State laws here) , in all cases where he is confined or restrained of his liberty, under any color or pretence any. But people discharged on bail will not be considered as restrained of their liberty so as to be entitled to, a writ of habeas corpus, directed to their bail. 3 Yeates's Reports, Pennsylvania, R. 263; 1 Serg & Rawle, 356.

More

The writ may be served by any free person, by leaving it with the person to whom it is directed or left at the gaol or prison with any of the under officers, under keepers or deputy of the said officers or keepers. In Louisiana (see more about this State laws here) , it is given, that if the person to whom it is addressed must refuse to receive the writ, The person who is charged to serve it, must inform him of its contents; if he to whom the writ is addressed conceal himself or refuse admittance to the person charged to serve it on him, the latlat must affix the order on the exterior of the place where the person resides or in which the petitioner is so confined. Lo. Code of Practice art. 803. The service is proved by the oath of the party making it. The person to whom the writ is addressed or directed, is needd to make a return to it, within the time prescribed; he either complies or he does not. If, he complies, he must positively answer, 1. Whether he has or has not in his power or custody the person to be set at liberty or whether that person is confined by him; if he return that he has not and has not had him in his power or custody and the return is true, it is evident that a mistake was made in issuing the writ; if the return is false, he is liable to a penalty and other punishment, for making such a, false return. If he return that he has such person in his custody, then he must show by his return, further, by what authority and for what cause, he arrested or detained him. If he does not comply, he is to be considered in contempt of the court under whose seal the writ has been issued and liable to a severe penalty, to be recovered by the party aggrieved. When the prisoner is brought, before the judge, his judicial discretion commences and he acts under no other responsibility than that which belongs to the exercise of ordinary judicial power. The judge or court before whom the prisoner is brought on a habeas corpus, examines the return and Papers, if any, in question it and if no legal cause be shown for the imprisonment or restraint; or if it appear, although legally committed, he has not been prosecuted or tried within the periods needd by law or that, for any other cause, the imprisonment cannot be legally continued, the prisoner is discharged from custody. In the case of wives, children (see more about this popular legal topic in the U.S. encyclopedia) and wards, all the court does, is to see that they ire under no illegal restraint. 1 Strange, 445; 2. Strange, 982; Wilmot's Opinions, 120. For those offences which are bailable, when the prisoner offers enough bail, he is to be bailed. He is to be remanded in the following cases: 1. When it appears he, is detained upon legal process, out of some court having jurisdiction of criminal (see more about this popular legal topic in the U.S. encyclopedia) matters, 2. When he is detained by warrant, under the hand and seal of a magistrate, for some offence for which, by law, the prisoner is not bailable. 3. When he is a convict in execution or detained in execution by legal civil process. 4. When he is detained for a contempt, specially and plainly charged in the commitment, by some existing court, having authority to commit for contempt. 5. When he refuses or neglects to give the requisite bail in a case bailable of right. The judge is not confined to the return, but he is to examine into the causes of the imprisonment and then he is to discharge, bail or remand, as justice must need. 2 Kent, Com. 26; Lo. Code of Prac. art. 819. [1]

Resources

Notes and References

1. Partialy, this information about habeas corpus is based on the Bouvier?s Law Dictionary, 1848 edition. There is a list of terms of the Bouvier?s Law Dictionary, including habeas corpus.

See Also

Habeas Corpus (Appellate Process)