HABEAS CORPUS ( Lat., "[that] you have the body"), a writ or order issued by a court to a person having custody of another, commanding him or her to produce the detained person in order to determine the legality of the detention. The writ of habeas corpus is of English origin; its original purpose was to liberate illegally detained persons, and it is still a protection against arbitrary imprisonment.

History.

The earliest use of the writ as a constitutional remedy against the tyranny of the Crown took place in the latter part of the 16th century, when it was applied in behalf of persons committed to prison by the Privy Council. Many ways of avoiding the effectiveness of the writ were subsequently developed. In a case in 1627 the judges decided that a sufficient answer to a writ of habeas corpus was that the prisoner was detained by warrant of the Privy Council. In 1641 Parliament, by legislation that abolished the Star Chamber, tried to increase the effectiveness of the writ. This law provided that persons who were imprisoned by a court exercising jurisdiction similar to the Star Chamber, or by command of the sovereign or of the Privy Council, should be granted a writ of habeas corpus without delay; and that the court was to determine within three days after the return of the writ the legality of such imprisonment.

The subsequent refusal of judges to issue writs of habeas corpus during vacation periods resulted in the passage by Parliament of the Habeas Corpus Act of 1679. That statute imposed severe penalties on any judge who refused without good cause to issue the writ and on any officer or other person who failed to comply with it. After that date the authority of the court was paramount to any order of the sovereign, and the writ became a powerful weapon for the protection of the liberty of the monarch's subjects. The statute, however, dealt only with imprisonment for criminal offenses, and it was not until 1816 that its benefits were extended to persons detained for other reasons.

Modern Use.

Protection against arbitrary imprisonment by the right of habeas corpus is not found in continental Europe. In the democratic countries of Western Europe, however, the codes of criminal procedure require that an arrested person be informed with reasonable promptness of the charges and be allowed to seek legal counsel. In many other countries, persons are subjected at times to lengthy periods of imprisonment without being informed of the charges. The writ of habeas corpus has been adopted in many Latin American countries, either by constitutional provision or statutory enactment, but has frequently been nullified in practice during times of political or social upheaval.

U.S. Law.

The use of habeas corpus is established by both federal and state constitutions. Article I, Section 9, of the U.S. Constitution provides that the privilege of the writ of habeas corpus shall not be suspended except in cases of rebellion or invasion, when the public safety may require it.

The constitutions of most states contain similar provisions, and in some states suspension of the writ is forbidden in any case.

Massachusetts suspended the privilege of the writ from November 1786 to July 1787, on the occasion of Shays' Rebellion. The outstanding instance in the U.S. of the suspension of the right of habeas corpus occurred in 1861 during the American Civil War, when Abraham Lincoln suspended it by proclamation. In 1863 Congress explicitly empowered Lincoln to suspend the privilege of the writ during the war. In later years courts in several states suspended the privilege when state executives declared martial law during strikes. In the U.S. the writ was originally limited to cases of illegal imprisonment, but its use was subsequently extended, and it is now also applicable to controversies in divorce and adoption proceedings involving the custody of minors. The basis for such applications of the writ is the assumption that the state has the right, paramount to any parental or other claims, to dispose of children as their best interests require.

Both federal and state courts issue writs of habeas corpus. Federal courts, however, can issue such writs only under given conditions, as when a prisoner is detained by order of the federal government or has been committed for trial before a federal court. Federal courts can also issue writs of habeas corpus when a charge against a prisoner concerns an act done in pursuance of a federal law or order of a federal court, or when his or her detention is alleged to be in violation of the U.S. Constitution or of a law or treaty of the U.S. The jurisdiction of the federal courts in this regard extends to foreigners, if they have acted under the authority of their own governments, so that their guilt or liability must be determined by international law. The state courts may issue the writ in all cases that do not fall exclusively under federal jurisdiction.

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