Habeas corpus facts for kids
A writ of habeas corpus ( Latin: "may you have the body") is a writ (legal action) that requires a person who has been arrested or imprisoned to be brought to a judge or into court. Once the person is brought before the court, the judge will determine if the person is being lawfully detained or must be released.
The writ of habeas corpus is one of what are called the "extraordinary", "common law", or "prerogative writs", which were historically issued by the English courts in the name of the monarch to control inferior courts and public authorities within the kingdom.
Etymology
The phrase is from the Latin habeās, 2nd person singular present subjunctive active of habēre, "to have", "to hold"; and corpus, accusative singular of corpus, "body". In reference to more than one person, the phrase is habeas corpora.
Literally, the phrase means "[we command] that you should have the [detainee's] body [brought to court]"; that is, that the detainee be brought to court in person. The complete phrase habeas corpus [coram nobis] ad subjiciendum means "that you have the person [before us] for the purpose of subjecting (the case to examination)". These are words of writs included in a 14th-century Anglo-French document requiring a person to be brought before a court or judge, especially to determine if that person is being legally detained.
Similarly named writs
The full name of the writ is often used to distinguish it from similar ancient writs, also named habeas corpus. These include:
- Habeas corpus ad deliberandum et recipiendum: a writ for bringing an accused from a different county into a court in the place where a crime had been committed for purposes of trial, or more literally to return holding the body for purposes of "deliberation and receipt" of a decision. ("Extradition")
- Habeas corpus ad faciendum et recipiendum (also called habeas corpus cum causa): a writ of a superior court to a custodian to return with the body being held by the order of a lower court "with reasons", for the purpose of "receiving" the decision of the superior court and of "doing" what it ordered.
- Habeas corpus ad prosequendum: a writ ordering return with a prisoner for the purpose of "prosecuting" him before the court.
- Habeas corpus ad respondendum: a writ ordering return to allow the prisoner to "answer" to new proceedings before the court.
- Habeas corpus ad testificandum: a writ ordering return with the body of a prisoner for the purposes of "testifying".
Origins in England
William Blackstone cites the first recorded usage of habeas corpus ad subjiciendum in 1305, during 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.
The 1679 codification of habeas corpus took place in the context of a sharp confrontation between King Charles II and Parliament, which was dominated by the then sharply oppositional, nascent Whig Party. The Whig leaders had good reasons to fear the king moving against them through the courts (as indeed happened in 1681) and regarded habeas corpus as safeguarding their own persons. The short-lived parliament which made this enactment came to be known as the Habeas Corpus Parliament – being dissolved by the king immediately afterwards.
Then, as now, the writ of habeas corpus was issued by a superior court in the name of the sovereign, and commanded the addressee (a lower court, sheriff, or private subject) to produce the prisoner before the royal courts of law. A habeas corpus petition could be made by the prisoner him or herself or by a third party on his or her 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. During the Seven Years' War and later conflicts, the writ was used on behalf of soldiers and sailors pressed into military and naval service. The Habeas Corpus Act 1816 introduced some changes and expanded the territoriality of the legislation.
The privilege of habeas corpus has been suspended or restricted several times during English history, most recently during the 18th and 19th centuries. Although internment without trial has been authorised by statute since that time, for example during the two World Wars and the Troubles in Northern Ireland, the habeas corpus procedure 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 is in accordance with an Act of Parliament, the petition for habeas corpus is 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, but such a declaration of incompatibility has no legal effect unless and until it is acted upon by the government.
The wording of the writ of habeas corpus implies that the prisoner is brought to the court for the legality of the imprisonment to be examined. However, rather than issuing the writ immediately and waiting for the return of the writ by the custodian, modern 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. With the development of modern public law, applications for habeas corpus have been to some extent discouraged, in favour of applications for judicial review. The writ, however, maintains its vigour, and was held by the UK Supreme Court in 2012 to be available in respect of a prisoner captured by British forces in Afghanistan, albeit that the Secretary of State made a valid return to the writ justifying the detention of the claimant.
See also
In Spanish: Habeas corpus para niños
