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The History Of Habeas Corpus

by the late Wally Farrell, Certified Criminal Law Spcialist, San Bernardino and Riverside County, California. Originally printed in 2004 and reprinted with permission from Crime, Justice and America magazine

Habeas corpus (roughly, “you should have the body”) has been a capstone of Anglo-American jurisprudence for many centuries, beginning in 1215: Abuses by King John led to the nobles compelling him to sign the Magna Carta, or Great Charter, recognizing the rights of Englishmen.

The parties met at a place named Runnymede along the Thames River for the historic signing. The Magna Carta established the principle that no one, including the King, was above the law. The roots of habeas corpus lie in Article 39, which states that no free man could be imprisoned except by the judgment of his peers.

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Habeas corpus is the remedy of last resort for a citizen unjustly detained by the government. Simply put, the writ is a mandate to a prison official ordering that an inmate be brought to court to determine whether or not that person has been lawfully imprisoned.

Since it was one of the first devices designed to insure fair treatment, review the grounds for imprisonment, and preserve individual freedom, it became known as the Great Writ of Liberty. The writ came to prominence in reaction to the operations of the Court of the Star Chamber during the Sixteen and Seventeenth Centuries in England.

The Court of the Star Chamber took its name from a pattern of stars painted on the ceiling above the judges. The Star Chamber became exceedingly powerful – and deadly – during the reigns of King Henry VIII and the Tudor and Stuart kings and queens who followed him. Eventually, the Star Chamber became a weapon against political and religious dissent. Punishment ranged from whipping, and being placed in stocks and branding, to life in custody.

The English Parliament abolished the Star Chamber in 1641, and in 1679 passed the Habeas Corpus act. This statute became a powerful device for the protection of liberty and contained severe penalties for judges who refused to issue the writs and jailers who did not produce prisoners within three days.

Later, the writ was among many contentions that fomented the Revolutionary War in the American colonies. The Royal Governors and their handpicked judges strove to quell dissent, and to control the colonists, by refusing to issue writs of habeas corpus. The writ was so significant to the rebelling colonists that it was embodied in Article I, Section 9 of the Constitution, which declares 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.”

The only American president ever to suspend habeas corpus relief was, oddly enough, Abraham Lincoln, the Great Emancipator, during the War Between the States. The United States Supreme Court held that the suspension was unconstitutional.

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