¶ … history of Habeas Corpus. There are twelve references used for this paper. There have been a number of laws that have survived the test of time and continue to influence the legal world. It is important to look at the history of Habeas Corpus and the role it plays in the law today.

The Start of Habeas Corpus

Habeas corpus was first introduced in England in 1215 when the Magna Carta was written. When habeas corpus was first used, it had a limited range. Over time the scope expanded due to jurisdictional disputes between the superior courts and local courts of England.

Habeas corpus cum causa was the form of habeas corpus used by the courts which "compelled the sheriff to produce the prisoner who was the subject of the courts' jurisdictional dispute (Orye, law review)." series of crucial cases which began with the Case of the Five Knights and concluded with the Chamber's Case questioned the "validity of commitments, previously an incidental effect of the writ, making it a major object (Orye, law review)."

The courts as a rule limited the "use of the writ to challenge commitment in criminal cases before conviction. Habeas corpus relief was not available to prisoners held by a valid warrant or pursuant to the execution or judgment of a proper court. A convicted person was not entitled to the privilege of the writ because appeal was the remedy for a conviction contrary to law (Orye, law review)."

Early Beginnings

The English phrase habeas corpus began when a writ of habeas corpus "was a piece of paper served on a government official, saying 'You have the body of a person in prison, and we demand to know by what authority you have this person detained in custody (Unknown, NPR)."

Over the years, the writ of habeas corpus in England became the agent that could challenge in court a random arrest by a king or sheriff.

Many law school professors feel "the writ of habeas corpus was so important to our founding fathers that they incorporated it into the United States Constitution.

Leon Friedman, Professor, Hofstra Law School states 'It sort of has this magical quality. It's a way of challenging tyranny (unknown, NPR)."

American Habeas Corpus

It took until the late 1600's for the British colonies in America to adopt habeas corpus.

When the 1787 Constitutional Convention was convened "three of the twelve state constitutions of the original thirteen colonies had a habeas corpus provision. At the time of the drafting of the Constitution, the Framers viewed habeas corpus as so fundamental that they did not expressly provide for the writ, but instead, because they assumed that people enjoyed the privilege, simply prohibited its abolishment except in certain extraordinary circumstances (Orye, law review)."

Habeas Corpus Act

The Habeas Corpus Act was introduced in 1679 when the English Parliament was pressured by the public to adopt the act as a response to "abusive detention of persons without legal authority (www.fordham.edu/halsall/mod/1679habeascorp.html)."

The act was to "better secure the liberty of the subject, and prevent imprisonment beyond the seas. This writ does not judge whether a prisoner is guilty or not, it is meant to give the prisoner the right to contest whether his or her imprisonment is valid (Kolakowski, Criminal Law).

Habeas Corpus

Habeas Corpus is an order which is issued to the police or any arresting agency by a court, "commanding them to produce the detained person in order to determine the legality of the arrest (www.ferris.edu/htmls/academics/syllabi/mehlerbarry/geninfo/drmnot...)."

The writ of habeas corpus was established to protect against arbitrary imprisonment.

Both state and federal constitutions establish habeas corpus. "Article I, Section 9, of the U.S. Constitution provides that the privilege of habeas corpus shall not be suspended except in cases of rebellion or invasion, when the public safety may require it (www.ferris.edu/htmls/academics/syllabi/mehlerbarry/geninfo/drmnot...).

Most state constitutions have similar stipulations.

Habeas Corpus Defined

The term habeas corpus is Latin for 'you have the body'. A writ of habeas corpus is often filed by prisoners who seek release. A writ of habeas corpus is a "judicial mandate to a prison official ordering that an inmate be brought to the court so it can be determined whether or not that person is imprisoned lawfully and whether or not he should be released from custody (www.lectlaw.com/def/h001.htm)." habeas corpus petition is a "petition filed with a court by a person who objects to his own or another's detention or imprisonment. The petition must show that the court ordering the detention or imprisonment made a legal or factual error (www.lectlaw.com/def/h001.htm)." person serving a prison sentence is the one who usually files a habeas corpus petition.

A habeas corpus petition...

It is mainly a "procedure for obtaining a judicial determination of the legality of an individual's custody (www.acorn.net/jfkplace/09/fp.back_issues/17th_Issue/h_corpus.html)."
Criminally it is used by the petitioner to inquire of the court the legality of his or her confinement.

The constitutionality of a state criminal conviction is examined by a writ of federal habeas corpus.

Civilly, the writ is used to "challenge the validity of child custody and deportations (www.acorn.net/jfkplace/09/fp.back_issues/17th_Issue/h_corpus.html)."

Judiciary Act of 1789

Federal courts were given the power to grant the writ of habeas corpus by the Judiciary Act of 1789. This writ was for prisoners who sought to challenge their confining court's jurisdiction or detention by the President without an accurate legal course of action (Kolakowski, Criminal Law). The writ had certain stipulations however, which stated "it only applied to federal prisoners and could only be used to challenge the jurisdiction of the sentencing body (Orye, law review)."

In 1867, there was an expansion of the application of the writ to include state prisoners, although the inquiry was still limited to the sentencing body's jurisdiction.

The Act of 1867 did not clearly define the writ's extent or the procedures connected with it, causing the courts during the late nineteenth century to follow the "common law practice that res judicata did not apply to a dismissed habeas corpus petition, and prisoners were free to successively petition other courts (Kolakowski, Criminal Law)."

This caused confusion when the process for denial became accessible for the petitions, with some state courts "denying habeas corpus appeals based on res judicata, and others using an intermediate approach allowing smaller numbers of successive petitions (Kolakowski, Criminal Law)."

These provisions remained unchanged until the twentieth century (Orye, law review).

Suspension of Habeas Corpus

During the American Civil War, Abraham Lincoln suspended the right of habeas corpus by proclamation in 1861. Congress "explicitly empowered Lincoln to suspend the privilege of the writ during the war in 1863 (www.ferris.edu/htmls/academics/syllabi/mehlerbarry/geninfo/drmnot...)."

Several states have since suspended the privilege when martial law has been declared by state executives during strikes.

Suspension by Lincoln

President Abraham Lincoln was a strong defender of law, liberty and the Constitution, but made some questionable decisions when he "suspended individual liberties, shutting down anti-war and anti-administration newspapers and jailing dissidents (Kleinfeld, 24)." When President Lincoln suspended habeas corpus he obtained "more power than any other individual in America before or since (Kleinfeld, 24)." The force of the President is subject to court regulation with habeas corpus. "With it, a judge can demand that a prisoner be brought before him to evaluate whether the prisoner's detention is legal. Without it, an unlawfully incarcerated individual has no legal remedy. If Lincoln did not constitutionally have the power to suspend habeas corpus, then by doing so he fundamentally altered the freedom of American citizens (Kleinfeld, 24)."

Testing the Issue

On May 26th, 1861, in Baltimore, a case concerning treason tested the issue.

A lieutenant "in a group pledged to armed resistance against the government, John Merryman, petitioned the court for habeas corpus after being seized in his bed at two in the morning and confined at Fort McHenry (Kleinfeld, 24)."

Brevet Major-General George Gadwalader was ordered by Supreme Court by Chief Justice Roger Taney to bring Merryman to court in order to determine if he had indeed been legally imprisoned. This order was refused by the general, and the officer who represented him in court explained "that Merryman was charged with treason and that the general had permission from the president to suspend the writ if he thought it necessary.

Nonetheless, the general 'respectfully requests that you will postpone further action upon this case, until he can receive instructions from the president of the United States' (Kleinfeld, 24)."

Taney refused to abide with request and ordered the general to appear in court, escorted by a marshal. The marshal, however, was not allowed entrance to…