You Should Have the Body: Understanding Habeas Corpus

By Landman, James | Social Education, March 2008 | Go to article overview

You Should Have the Body: Understanding Habeas Corpus


Landman, James, Social Education


English legal commentator William Blackstone described the writ of habeas corpus as a second Magna Carta, and Supreme Court Chief Justice John Marshall called it the "great writ." It has been part of the Anglo-American common law tradition since the Middle Ages. In the United States, it has been a source of tension between state and federal courts, and a point of controversy with respect to the separate powers of the legislative, executive, and judicial branches. It is very much in the news today as the Supreme Court considers whether the writ of habeas corpus is available to the detainees at Guantanamo Bay, Cuba.

The basic purpose of the writ of habeas corpus is to afford a person who has been detained the chance to challenge the legality of his or her detention. The writ has a rich and varied history, and the scope of the writ has changed over the centuries of its use. This article looks at the origins of the writ, its development in English and American law, and current points of controversy regarding the writ.

Origins of the Writ in English Law

The writ of habeas corpus has its origins in the early common law courts of medieval England. Some legal historians have found a reference to the writ in Article 39 of the Magna Carta, which in 1215 provided that "no Freeman shall be taken, or imprisoned ... but by lawful Judgment of his Peers, or by the Law of the Land." Whether this refers to the writ of habeas corpus (or something like it) is disputed, but the prohibition against unlawful imprisonment or detention has always been at the heart of the writ.

In the medieval courts, writs of habeas corpus had several purposes, and took many forms. A writ was simply a written order of a court ordering someone to do something. Many of these writs involved a corpus (the Latin term for "body"), directing the person who had control of the body in question to appear in court for the purpose stated in the writ (the term habeas corpus means "you should have the body"). Thus, a medieval sheriff might receive a writ of habeas corpora juratorum (ordering him to appear in court with the bodies of potential jurors) or a writ of habeas corpus cum causa (ordering him to appear in court with the body of a prisoner "with cause" for the prisoner's confinement). The modern habeas writ developed from the writ of habeas corpus ad subjiciendum, which directed the person detaining a prisoner to produce the body of the prisoner with the reason for the detention, ready to submit (ad subjiciendum means "for submitting") to whatever the court ordered with respect to the prisoner. If the court found that the prisoner was being held without cause, it could order his or her release. (1)

The medieval courts that issued writs of habeas corpus were concerned as much with their own jurisdiction as with the liberty interests of the detained prisoner. The two English common law courts--King's Bench and Common Pleas-had serious jurisdictional competition from ecclesiastical courts, local and manorial courts, and, beginning in the late fourteenth century, the Court of Chancery. The writ of habeas corpus, issued in the name of the court and the king, provided a means for the common law courts to bring a person within the claimed jurisdiction of another court into the jurisdiction of King's Bench or Common Pleas. The issue of jurisdiction is also important with respect to the English law of habeas corpus because, if a prisoner was imprisoned as a result of conviction by a court of competent jurisdiction, the writ was not available.

The modern understanding of the writ of habeas corpus as a protection of individual liberty solidified in the seventeenth century, amid struggles between Parliament and the monarch for political supremacy. The Petition of Right in 1628 charged that the king's jailers were ignoring writs of habeas corpus and keeping English subjects illegally detained. In 1641, Parliament passed an act abolishing the Star Chamber, a court controlled by the king and an inner circle of advisors that operated in secret and became an instrument to suppress opposition to the crown. …

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