Habeas corpus

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In common law, a writ of habeas corpus may be issued by a judge ordering a prisoner to be brought before the court. The most commonly used, specific form of habeas corpus ad subjiceiendum requires the prisoner to be brought before the court to determine whether or not the individual is being held in custody lawfully. Originating in English common law, prior to the Magna Carta, habeas corpus in some form exists in most countries of the world, and in spirit in the United Nations "Declaration of Human Rights."

In its most basic form, the writ of habeas corpus serves as the final chance a prisoner has to challenge his conviction, one that will only be granted based on constitutional issues. This protection of the basic individual right to freedom, except for those proven to be dangerous to others, is vital to a properly functioning, fair human society. Until such times as those in power can guarantee such freedom by their own good character, legal recourse in the form of the writ of habeas corpus continues to be necessary. Albert Venn Dicey has written 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 common law, habeas corpus is the name of several writs that 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 the prisoner is being imprisoned lawfully.

The words habeas corpus ad subjiciendum are Latin for "(That) you may 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, for example habeas corpus ad testificandum ("[That] you may have/hold the body to bear witness"), for the production of a prisoner to give evidence in court.

The writ of habeas corpus ad subjiciendum is often referred to as the "Great Writ." Habeas corpus ad subjiciendum is a legal proceeding in which an individual held in custody can challenge the propriety of that custody under the law. The prisoner, or some other person on his behalf (e.g. where the prisoner is being held incommunicado), may petition the court or an individual judge for a writ of habeas corpus. Although the wording 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—only after the writ has been issued—modern practice in England, for example, tends to eliminate the formality of issuing the writ. Instead, the 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. It is also possible for individuals held by the state to petition for judicial review, and for individuals held by non-state entities to apply for an injunction.

Article 10 of the United Nations' "Declaration of Human Rights" (1948), states:

Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him.

This article, though it does not directly mention habeas corpus does call for adherence to what is essentially Habeas Corpus. Thusly, habeas corpus is not a universal practice, but it does apply to all UN member states. In most countries 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.

Other habeas corpus writs

A number of other types of habeas corpus writs exist, although they are rarely if ever invoked:

  • Habeas corpus ad deliberandum et recipiendum ("[That] you may have/hold the body to deliberate and retire")
  • Habeas corpus ad faciendum et recipiendum, a.k.a. habeas corpus cum causa ("[That] you may have/hold the body when there is a case at law")
  • Habeas corpus ad prosequendum ("[That] you may have/hold the body to prosecute")
  • Habeas corpus ad respondendum ("[That] you may have/hold the body to answer")
  • Habeas corpus ad satisfaciendum ("[That] you may have/hold the body until it is sufficient [to let him/her go]")
  • Habeas corpus ad testificandum ("[That] you may have/hold the body to bear witness")

History and use

The practice and right of habeas corpus was settled practice and law at the time of Magna Carta and was thus a fundamental part of the unwritten common “law of the land” of England (Robertson 2006). The use of the writ has evolved since that time in the United Kingdom and other countries. Examples of its development, use, and suspension, are described below in the United States, Republic of Ireland, and Malaysia.

United Kingdom

Blackstone (1979) 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 twelfth century. Winston Churchill, in his chapter on the English Common Law in The Birth of Britain, explained the process:

Only the King had a right to summon a jury. King Henry II 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 King Henry II 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. (Churchill 1994)

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. Then, as now, the writ of habeas corpus was issued by a superior court in the name of the Monarch, and commanded the addressee (a lower court, sheriff, or private subject) to produce the prisoner before the Royal courts of law. Petitions for habeas corpus could be made by the prisoner himself, or by a third party on his behalf. Since the eighteenth 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 ordered to be freed.

The right of habeas corpus has been suspended or restricted several times during English history, most recently during the eighteenth and nineteenth centuries. Although internment without trial has been authorized by statute since that time, for example 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.

United States

Habeas corpus, part of English common law, was considered important enough to be specifically mentioned in the United States 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).

In the U.S., the writ of habeas corpus ad subjiciendum is a civil (as opposed to a criminal) proceeding in which the court inquires as to the legitimacy of a prisoner's custody. Typically, habeas corpus proceedings investigate whether a criminal trial was conducted fairly and constitutionally, after the criminal appellate process has been exhausted. Habeas corpus is also used as a legal avenue to challenge other types of custody, such as pretrial detention or detention pursuant to a deportation proceeding.

The "constitutional" writ of habeas corpus was originally understood to apply only to those held in custody by officials of the executive branch of the federal government, and not to those held by state governments. Congress granted all federal courts jurisdiction under Title 28, Section 2241 of the United States Code to issue writs of habeas corpus to release prisoners held by any government entity (state or federal) from custody, but only when held in violation of the Constitution. Title 28 U.S.C., section 2254, is the primary habeas corpus vehicle to challenge the constitutionality of a state court conviction.

A similar provision, 28 U.S.C., section 2255, (though technically not a habeas corpus statute) provides analogous relief to federal prisoners. Sections 2254 and 2255 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. Prisoners who have been convicted in state courts also have access to habeas corpus actions under state law and can pursue such relief in addition to federal habeas corpus. Decisions by the Warren Supreme Court greatly expanded the use and scope of the federal writ in the 1950s and 1960s.

In the later part of the twentieth century, decisions by the Burger and Rehnquist Supreme Courts have somewhat narrowed the writ. The Anti-Terrorism and Effective Death Penalty Act of 1996 further limited the use of the federal writ by, among other things, imposing a one-year deadline (statute of limitation) and dramatically increasing the federal judiciary's deference to decisions previously made in state court proceedings either on appeal or in a state court habeas corpus action.

An example illustrates the section 2254 (which challenges a prisoner in state prison) process: A prisoner is convicted in state court and sentenced to a term in prison. He appeals his conviction to the state appellate court and then to the state supreme court. All uphold his conviction. Within a year, he files a petition for habeas corpus in a federal District Court, naming the prison warden as the defendant (as noted above, a petition for habeas corpus is a civil proceeding, with the prisoner as the plaintiff). The warden, typically represented by the state attorney general, files an "Answer." The prisoner may then respond to the answer. If his petition has a procedural defect, such as a failure to appeal to his state's highest court, his petition will be dismissed "without prejudice," meaning that the prisoner may refile his petition once he finishes exhausting his state remedies. If his petition, however, appears to have merit, the district court may appoint a federal Public Defender to represent him and hold an evidentiary hearing to evaluate the merits of his claim. If the judge determines that the prisoner's detention in state prison infringes on a constitutional right as recognized by the U.S. Supreme Court, the judge will order that the prisoner be released or, at least, granted a new trial. If not, his case will be dismissed with prejudice. After that, the prisoner may appeal to the United States Court of Appeals, provided he obtains a "certificate of appealability," or "COA," before proceeding. If the COA is denied, the prisoner may ask the Court of Appeals to reconsider its decision. If the prisoner is unsuccessful, he is barred from filing a second or successive petition for writs of habeas corpus in the district court, absent permission from the Court of Appeals.

A more recent use of the habeas corpus petition is with cases involving DNA evidence. If new technology can prove that a convicted prisoner did not commit the crime, he may file a habeas corpus petition and allege that his detention was based on a misapplication of the facts. At the evidentiary hearing, his attorney presents exculpatory DNA evidence, and the judge may then order his release. Thus, in its most basic form, the writ of habeas corpus serves as the final chance a prisoner has to challenge his conviction, one that will only be granted based on constitutional issues.

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 the 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 Habeas Corpus and imposed martial law.

In 1864, Lambdin P. Milligan and four others were accused of planning to steal Union weapons and invade Union prisoner of war camps. They 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. In Ex Parte Milligan 71 U.S. 2 1866 the Supreme Court of the United States decided that the suspension of the writ did not empower the President to try and convict citizens before military tribunals. The trial of civilians by military tribunals is allowed only if civilian courts are closed. This was one of the key Supreme Court Cases of the American Civil War that dealt with wartime civil liberties and martial law. In the early 1870s, 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.

War on Terror

The September 18, 2001 Presidential Military Order gave the President of the United States the power to declare anyone suspected of connection to terrorists or terrorism, as an enemy combatant. As such, that person could be held indefinitely, without charges being filed against him or her, without a court hearing, and without being entitled to a legal consultant. Many legal and constitutional scholars have contended that these provisions are in direct opposition to habeas corpus, and the United States Bill of Rights.

In the case of Hamdan v. Rumsfeld, argued before the United States Supreme Court in March 2006, Salim Ahmed Hamdan petitioned for a writ of habeas corpus, challenging the lawfulness of Secretary of Defense Donald Rumsfeld's plan to try him for alleged war crimes before a military commission convened under special orders issued by the President of the United States, rather than before a court-martial convened under the Uniform Code of Military Justice. On June 29, 2006, in a 5-3 ruling the Supreme Court of the United States rejected Congress's attempts to strip the court of jurisdiction over habeas corpus appeals by detainees at Guantánamo Bay, although Congress had previously passed the Detainee Treatment Act (DTA), which took effect on December 30, 2005: "[N]o court, justice, or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien detained by the Department of Defense at Guantanamo Bay, Cuba." §1005(e)(1), 119 Stat. 2742.

Republic of Ireland

In the Republic of Ireland the principle of habeas corpus is guaranteed by Article 40, Section 4 of the Irish constitution. This guarantees each individual "personal liberty" and outlines a detailed habeas corpus procedure, without actually mentioning the Latin term. However it also provides that habeas corpus is not binding on the Defense Forces during a state of war or armed rebellion.

Ireland inherited habeas corpus as part of the common law when it seceded from the United Kingdom in 1922, but the principle was also guaranteed by Article 6 of the Constitution of the Irish Free State in force from 1922 to 1937. A similar provision was included when the current constitution was adopted in 1937. Since that date, habeas corpus has been restricted by two constitutional amendments, the Second Amendment in 1941 and the Sixteenth Amendment in 1996. Before the Second Amendment an individual detained had the constitutional right to apply to any High Court judge for a writ of habeas corpus and to as many High Court judges as they wished. Since the Second Amendment a prisoner only has a right to apply to one judge and, once a writ has been issued, the President of the High Court has authority to choose the judge or panel of three judges who will decide the case. The amendment also added a requirement that, where the High Court believed someone's detention to be invalid due to the unconstitutionality of a law, it must refer the matter to the Irish Supreme Court and may only release the individual on bail in the interim.

In 1965, the Supreme Court ruled in the O'Callaghan case that the provisions of the constitution meant that an individual charged with a crime could only be refused bail if they were likely to flee or to interfere with witnesses or evidence. Ever since the Sixteenth Amendment, it has been possible for a court to take into account whether or not a person has committed serious crimes while on bail in the past.


In Malaysia, the right of habeas corpus is enshrined in the Federal Constitution, though the name habeas corpus is not used. Article 5(2) provides that "Where complaint is made to a High court or any judge thereof that a person is being unlawfully detained the court shall inquire into the complaint and, unless satisfied that the detention is lawful, shall order him to be produced before the court and release him."

As there are several statutes, for example, the Internal Security Act 1960, that still permit detention without trial, the procedure is usually only effective in such cases if it can be shown that there was a procedural error in the way that the detention was ordered.


Habeas corpus is imperative to the sustainability of law and order in a developed nation. Habeas corpus is essentially the foundation of the U.S. Bill of Rights and similar documents in other governments. Without habeas corpus, the potential for wrongful imprisonment is infinitely great.

Habeas corpus is a very necessary element of a fair government that wishes to adhere to regulations that institute equality for its citizens. Without habeas corpus, the people’s ability to view its government as legitimate decreases—as legitimate governments are most often perceived to provide reason for the imprisonment of its citizens. Thus, the likelihood for chaos as a result of the people’s desire to uproot an illegitimate government is increased.

In a perfect society, such guarantees of fair play by the government should not be necessary. Until such time, though, the security of an individual's right to freedom unless properly charged with criminal activity remains vital.

Further reading on historical background

  • Carpenter, A.H. 1902. "Habeas Corpus in the Colonies" in The American Historical Review. Vol. 8.,1. 18-27.
  • Dobbs, Michael. 2004. Saboteurs: The Nazi Raid on America. Vintage. ISBN 1400030420
  • Federman, Cary. 2006. The Body and the State: Habeas Corpus and American Jurisprudence. SUNY. ISBN 0791467031
  • Fisher, Louis. 2003. Nazi Saboteurs on Trial: A Military Tribunal and American Law. University Press of Kansas. ISBN 0700612386
  • Freedman, Eric M. 2001. Habeas Corpus: Rethinking the Great Writ of Liberty. NYU Press. ISBN 0814727174
  • Irons, Peter. 1999. A People's History of the Supreme Court. Viking. ISBN 0670870064
  • Nutting, Helen A. 1960. "The Most Wholesome Law—The Habeas Corpus Act of 1679" in The American Historical Review. Vol. 65., No. 3, pages 527-543.
  • Stone, Geoffrey R. 2004. Perilous Times: Free Speech in Wartime From the Sedition Act to the War on Terrorism. Norton. ISBN 0393058808

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External links

All links retrieved July 24, 2017.


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