Habeas Corpus
Habeas Corpus
Dorinda Chrisman
PHI208
Instructor Slack
February 25, 2013
Habeas Corpus Habeas Corpus is an ancient common law prerogative writ - a legal procedure to which you have an undeniable right. It is an extraordinary remedy at law. Upon proper application, or even on naked knowledge alone, a court is empowered, and is duty bound, to issue the Extraordinary Writ of Habeas Corpus commanding one who is restraining liberty to forthwith produce before the court the person who is in custody and to show because why the liberty of that person is being restrained. Absent a sufficient showing for a proper restraint of liberty, the court is duty bound to order the restraint eliminated and the person discharged. Habeas Corpus is fundamental to American and all other English common law derivative systems of jurisprudence. It is the ultimate lawful and peaceable remedy for adjudicating the providence of liberty’s restraint. Since the history of Habeas Corpus is predominately English we must visit that history to gain understanding of American use of Habeas Corpus. (Habeas Corpus.Net) Habeas corpus, from the Latin “produce the body,” started as a straightforward means to require prisoners to present themselves for testimony at trial. What began as a weapon of the courts became with time protection against arbitrary detention, and still represents the cherished principle that unlawful detainment can be immediately challenged. Writs to this effect first appeared in the 11th century, making habeas corpus common law in England by the time rebellious barons forced King John I to codify it in the 1215 Magna Carta (or “Great Charter”), the foundational document of the Anglo-American legal system. To prevent kings from whimsically interfering in matters of detention, habeas corpus was further codified into English law in 1679. The principles of habeas corpus were also embedded in the U.S. Constitution when the 5th and 6th Amendments were approved in 1791. (Indypendent.Org)
Dorinda Chrisman
PHI208
Instructor Slack
February 25, 2013
Habeas Corpus Habeas Corpus is an ancient common law prerogative writ - a legal procedure to which you have an undeniable right. It is an extraordinary remedy at law. Upon proper application, or even on naked knowledge alone, a court is empowered, and is duty bound, to issue the Extraordinary Writ of Habeas Corpus commanding one who is restraining liberty to forthwith produce before the court the person who is in custody and to show because why the liberty of that person is being restrained. Absent a sufficient showing for a proper restraint of liberty, the court is duty bound to order the restraint eliminated and the person discharged. Habeas Corpus is fundamental to American and all other English common law derivative systems of jurisprudence. It is the ultimate lawful and peaceable remedy for adjudicating the providence of liberty’s restraint. Since the history of Habeas Corpus is predominately English we must visit that history to gain understanding of American use of Habeas Corpus. (Habeas Corpus.Net) Habeas corpus, from the Latin “produce the body,” started as a straightforward means to require prisoners to present themselves for testimony at trial. What began as a weapon of the courts became with time protection against arbitrary detention, and still represents the cherished principle that unlawful detainment can be immediately challenged. Writs to this effect first appeared in the 11th century, making habeas corpus common law in England by the time rebellious barons forced King John I to codify it in the 1215 Magna Carta (or “Great Charter”), the foundational document of the Anglo-American legal system. To prevent kings from whimsically interfering in matters of detention, habeas corpus was further codified into English law in 1679. The principles of habeas corpus were also embedded in the U.S. Constitution when the 5th and 6th Amendments were approved in 1791. (Indypendent.Org)
References: Sloss, David L. (Oct 2004), The American Journal of International Law, Rasul v. Bush D., (Oct 1861), Writ of Habeas Corpus, The American Law Register (1852-1891) Vol. 9: No 1 Hardin, Russell, (2004), Civil Liberties in the Era of Mass Terrorism, The Journal of Ethics Vol. 8 No1, Terrorism Levin-Waldman, O. (2012), American Government, San Diego, CA: Bridge Point Education Habeas Corpus. Net Indy pendent. Org Law. Cornell.edu