Writ of habeas corpus

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In common law and other countries, habeas corpus (/'heɪbiəs 'kɔɹpəs/) is the name of a legal action or writ by means of which detainees can seek relief from unlawful imprisonment. The writ of habeas corpus has historically been an important instrument for the safeguarding of individual freedom against arbitrary state action.

Known as the "Great Writ," a writ of habeas corpus ad subjiciendum is a court order addressed to a prison official (or other custodian) ordering that a prisoner be brought before the court so that the court can determine whether that person is serving a lawful sentence or should be released from custody. The prisoner, or some other person on his behalf (for example, where the prisoner is being held incommunicado), may petition the court or an individual judge for a writ of habeas corpus.

The right of habeas corpus—or rather, the right to petition for the writ—has long been celebrated as the most efficient safeguard of the liberty of the subject. Albert Venn Dicey wrote 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 most countries, however, the procedure of habeas corpus can be suspended in time of national emergency. In most civil law jurisdictions, comparable provisions exist, but they may not be called "habeas corpus."<ref>http://www.constitution.org/cmt/avd/law_con.htm</ref>



The writ is often referred to in full in legal texts as habeas corpus ad subjiciendum (or more rarely ad faciendum, subjiciendum et recipiendum). The name derives from the words of the writ in Medieval Latin:

The word habeas in the writ is not in the indicative mood ("You have ..."), but in the subjunctive: "We command that you have ...". The full name of the writ is often used to distinguish it from similar ancient writs:

  • 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;
  • 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 “prosecuting” him before the court;
  • Habeas corpus ad respondendum, a writ ordering return in order to allowing the prisoner to “answer” to new proceedings before the court;
  • Habeas corpus ad satisfaciendum, a writ ordering return with the body of a prisoner for “satisfaction” or execution of a judgment of the issuing court; and
  • Habeas corpus ad testificandum, a writ ordering return with the body of a prisoner for the purposes of “testifying”.

That the basic form of the writs of habeas corpus, now written in English, has changed little over the centuries can be seen from the following example (technically a writ ad faciendum et recipiendum, but strikingly similar to the Latin form quoted above):

History of habeas corpus in England

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. Blackstone explained the basis of the writ, saying:

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. A previous act had been passed in 1640 to overturn a ruling that the command of the King was a sufficient answer to a petition of habeas corpus.

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 himself or by a third party on his 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, most famously in Somersett's Case (1771), where the black slave Somersett was ordered to be freed, the famous words being quoted:

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 procedure of habeas corpus 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 was in accordance with an Act of Parliament, the petition for habeas corpus would be 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. However, such a declaration of incompatibility has no immediate legal effect 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 in order 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. It is also possible for individuals held by the state to petition for judicial review, and individuals held by non-state entities to apply for an injunction.

United States

The United States Constitution specifically included the English common law procedure in the Suspension Clause, located in Article One, Section 9. It states:

The writ of habeas corpus ad subjiciendum is a civil, not criminal, proceeding in which a court inquires as to the legitimacy of a prisoner's custody. Typically, habeas corpus proceedings are to determine whether the court which imposed sentence on the defendant had jurisdiction and authority to do so, or whether the defendant's sentence has expired. Habeas corpus is also used as a legal avenue to challenge other types of custody such as pretrial detention or detention by the United States Bureau of Immigration and Customs Enforcement pursuant to a deportation proceeding.


The 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, which independently afford habeas corpus pursuant to their respective constitutions and laws. The United States Congress granted all federal courts jurisdiction under Template:Usc to issue writs of habeas corpus to release prisoners held by any government entity within the country from custody in the following circumstances:

  • Is in custody under or by color of the authority of the United States or is committed for trial before some court thereof; or
  • Is in custody for an act done or omitted in pursuance of an Act of Congress, or an order, process, judgment or decree of a court or judge of the United States; or
  • Is in custody in violation of the Constitution or laws or treaties of the United States; or
  • Being a citizen of a foreign state and domiciled therein is in custody for an act done or omitted under any alleged right, title, authority, privilege, protection, or exemption claimed under the commission, order or sanction of any foreign state, or under color thereof, the validity and effect of which depend upon the law of nations; or
  • It is necessary to bring said persons into court to testify or for trial.

In 1950s and 1960s, decisions by the Warren Supreme Court greatly expanded the use and scope of the federal writ. Though in the last thirty years, decisions by the Burger and Rehnquist Courts have somewhat narrowed the writ. The Antiterrorism and Effective Death Penalty Act of 1996 further limited the use of the federal writ by imposing a one-year statute of limitations 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.

Suspension during the Civil War and Reconstruction

On April 27, 1861, habeas corpus was suspended by President Lincoln in Maryland and parts of midwestern states, including southern Indiana during the American Civil War. Lincoln did so in response to riots, local militia actions, and the threat that the border slave state of Maryland would secede from the Union, leaving the nation's capital, Washington, D.C., surrounded by hostile territory. Lincoln 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. This was in part to maintain order and spur industrial growth in the South to compensate for the economic loss inflicted by its secession.

In 1864, Lambdin P. Milligan and four others were accused of planning to steal Union weapons and invade Union prisoner-of-war camps and 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 was unconstitutional because the President was not empowered 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.

Suspension in the United States during the “War on Terrorism

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The November 13, 2001 Presidential Military Order gave the President of the United States the power to detain non-citizens suspected of connection to terrorists or terrorism as an unlawful combatant. As such, it was asserted that a person could be held indefinitely without charges being filed against him or her, without a court hearing, and without entitlement to a legal consultant. Many legal and constitutional scholars contended that these provisions were in direct opposition to habeas corpus, and the United States Bill of Rights.

In Hamdi v. Rumsfeld, 542 U.S. 507 (2004), the Supreme Court reaffirmed the right of United States citizens to seek writs of habeas corpus even when declared enemy combatants.

In Hamdan v. Rumsfeld, 548 U.S. ___ (2006), Salim Ahmed Hamdan petitioned for a writ of habeas corpus, challenging that the military commissions set up by the Bush administration to try detainees at Guantánamo Bay “violate both the Uniform Code of Military Justice and the four Geneva Conventions.” In a 5-3 ruling, the Supreme Court rejected Congress's attempts to strip the courts of jurisdiction over habeas corpus appeals by detainees at Guantánamo Bay. Congress had previously passed the Department of Defense Appropriations Act, 2006 which stated in Section 1005(e), “Procedures for Status Review of Detainees Outside the United States”:

“(1) Except as provided in section 1005 of the Detainee Treatment Act of 2005, no 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 Guantánamo Bay, Cuba.
“(2) The jurisdiction of the United States Court of Appeals for the District of Columbia Circuit on any claims with respect to an alien under this paragraph shall be limited to the consideration of whether the status determination … was consistent with the standards and procedures specified by the Secretary of Defense for Combatant Status Review Tribunals (including the requirement that the conclusion of the Tribunal be supported by a preponderance of the evidence and allowing a rebuttable presumption in favor of the Government's evidence), and to the extent the Constitution and laws of the United States are applicable, whether the use of such standards and procedures to make the determination is consistent with the Constitution and laws of the United States.”

On 29 September, 2006, the House and Senate approved the Military Commissions Act of 2006 (MCA), a bill that would suspend habeas corpus for any alien determined to be an “unlawful enemy combatant" engaged in hostilities or having supported hostilities against the United States”<ref>http://thomas.loc.gov/cgi-bin/query/z?c109:S.3930:</ref><ref>Klein, Rick (29 September). Senate's passage of detainee bill gives Bush a win: Democrats say GOP capitulate. Boston Globe.</ref> by a vote of 65–34. (This was the result on the bill to approve the military trials for detainees; an amendment to remove the suspension of habeas corpus failed 48–51.<ref>http://thomas.loc.gov/cgi-bin/bdquery/z?d109:SP5087:</ref>) President Bush signed the Military Commissions Act of 2006 into law on October 17, 2006.

With the MCA's passage, the law altered the language from “alien detained … at Guantánamo Bay”:

“Except as provided in section 1005 of the Detainee Treatment Act of 2005, no 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 United States who has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination.” §1005(e)(1), 119 Stat. 2742.

On 20 February, 2007, the U.S. Court of Appeals for the District of Columbia Circuit upheld this provision of the MCA in a 2-1 decision. The decision is likely to be appealed to the Supreme Court.

Under the MCA, the law restricts habeas appeals for only those aliens detained as "enemy combatants," or awaiting such determination. Left unchanged is the provision that, after such determination is made, it is subject to appeal in U.S. Court, including a review of whether the evidence warrants the determination. If the status is upheld, then their imprisonment is deemed lawful; if not, then the government can change the prisoner's status to something else, at which point the habeas restrictions no longer apply.

There is, however, no legal time limit which would force the government to provide a Combatant Status Review Tribunal (CSRT) hearing. Prisoners are legally prohibited from petitioning any court for any reason before a CSRT hearing takes place.

On January 17, 2007, Attorney General Gonzales asserted in Senate testimony that while habeas corpus is "one of our most cherished rights," the United States Constitution does not expressly guarantee habeas rights to United States residents or citizens.

As such, the law could be extended to US citizens and held if left unchecked.[1]


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The writ of habeas corpus as a procedural remedy is part of Australia's English law inheritance. In October 2005, the Australian Federal Government under the leadership of Prime Minister John Howard, proposed the Federal Anti-Terrorism Act 2005. Before the bills are introduced for debate in the Australian Parliament, the draft has been forwarded to the States and Territories for approval.

The legislation was being debated in both the federal and state parliaments, and some legal experts have stated that the act is unconstitutional because it abolishes habeas corpus, due process, and the presumption of innocence. Some Solicitors-General consider the Act also violates the separation of powers. Amendments made that were proposed by some State Premiers and Liberal Party backbenchers include a greater right of appeal of a detained person, and the case to be considered on the basis of merit, rather than points of law.

The act allows the executive branch of government rather than the judiciary to imprison people and to imprison people indefinitely without charge or trial. The act also makes it an offence to even talk about somebody being imprisoned. One of the more controversial aspects of the legislation is the requirement that a parent, if informed of their child's detention, may not inform any further person including the other parent. This clause applies also to detention of adults.

Also of controversy in Australia is this law's pertinence to the detention Australian nationals held in other countries under terrorism charges. All nations under international law may claim jurisdiction over their citizens for trial within their country under its laws. The Howard Government did not extradite David Hicks because there were no laws in Australia by which he could be tried. David Hicks has written a letter to his family and the high court pleading habeas corpus. It is being reviewed by the high court of Australia.

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 Defence Forces during a state of war or armed rebellion.

The state 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 has a right to apply to only 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 release the individual on bail only 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 be refused bail only if they were likely to flee or to interfere with witnesses or evidence. 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 effective in such cases only if it can be showed that there was a procedural error in the way that the detention was ordered.

New Zealand

While habeas corpus is generally used on the government, it can also be used on individuals. In 2006, a child was allegedly kidnapped by his mother's father after a custody dispute. The father filed habeas corpus against the mother, the grandfather, the grandmother, the great grandmother, and another person alleged to have assisted in the kidnap of the child. The mother did not present the child to the court and was imprisoned for contempt of court. She was released when the childs grandfather came forward with him in late January 2007. [2] [3]


The Constitution of Portugal states that Habeas corpus shall be available to counter the misuse of power in the form of illegal arrest, imprisonment or detention. According to the Portuguese Penal Process Code, the application for it shall be made to the judge conducting the preliminary investigations or to the Portuguese Supreme Court of Justice.

The reasons that may justify an habeas corpus are: exceeded the period to deliver the detainee to judicial power; exceeded the detention period stated by law or judicial decision; detention outside the legally allowed places; detention ordered by an incompetent authority; and detention motivated for fact for which the law does not allow detention.


The Spanish Constitution states that An habeas corpus procedure shall be provided for by law in order to ensure the immediate handing over to the judicial authorities of any person illegally arrested. The law which regulates the procedure is the Law of Habeas Corpus of 24 May 1984 which provides that a person imprisoned may, on his own or through a third person, allege his Habeas Corpus right and request to appear before a judge. The request must specify the grounds on which the detention is considered to be unlawful which can be, for example, that the imprisoner does not have the legal authority, or that the prisoner's constitutional rights were violated or that he was subject to mistreatment, etc. The judge may then request additional information if needed and may issue an Habeas Corpus order at which point the holding authority has 24 hours to bring the prisoner before the judge.

Popular culture

  • Have His Carcase, a Peter Wimsey novel by Dorothy Sayers, derives its title from "habeas corpus" (the title is a doggerel translation of the phrase, used in the novel) - it makes reference, amongst other things, that at first in the novel, the body of the murder victim cannot be produced.
  • Habeas Corpus is the name of Monk's pig in Doc Savage, so called because it is an insult to the fastidious lawyer character Ham.
  • A song called Habeas Corpus appears on The Agony Scene's eponymous 2003 album.
  • "Habeas Corpus" is the name of a fictitious movie that figures prominently in Robert Altman's movie The Player.
  • An episode of Angel is called "Habeas Corpses", a play on "habeas corpus".

Further reading on historical background

  • A.H. Carpenter. "Habeas Corpus in the Colonies." The American Historical Review. Vol. 8., No. 1 (October 1902), pages 18-27.
  • Louis Fisher. 2003. Nazi Saboteurs on Trial: A Military Tribunal and American Law. University Press of Kansas. ISBN 0-7006-1238-6.
  • Michael Dobbs. 2004. Saboteurs: The Nazi Raid on America. Vintage. ISBN 1-4000-3042-0.
  • Peter Irons. 1999. A People's History of the Supreme Court. Viking. ISBN 0-670-87006-4. Political context for Ex Parte Milligan explained on Pp. 186-189.
  • Helen A. Nutting. "The Most Wholesome Law--The Habeas Corpus Act of 1679." The American Historical Review. Vol. 65., No. 3 (April 1960), pages 527-543.
  • Geoffrey R. Stone. 2004. Perilous Times, Free Speech in Wartime From the Sedition Act to the War on Terrorism. Norton. ISBN 0-393-05880-8.
  • Cary Federman. 2006. The Body and the State: Habeas Corpus and American Jurisprudence. SUNY. ISBN 0-7914-6703-1.
  • Eric M. Freedman. 2001. Habeas Corpus: Rethinking the Great Writ of Liberty (NYU Press) ISBN 0-8147-2717-4
  • Robert Searles Walker, Ph.D., HABEAS CORPUS WRIT OF LIBERTY: English and American Origins and Development, BookSurge/Amazon 2006 LibCongControl#2006906118, ISBN 1-4196-4478-5.

See also



External links

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