051 616 9061

Follow us:

Habeas CorpusConcept of Habeas Corpus – The Great Writ

May 3, 20200

Concept of Habeas Corpus – The Great Writ was derived even before the Magna Carta, 1215 and since then it has become more interesting as the right of an individual.

It took a reasonable time for research to collect the quality of an information and I’m gonna cover the possible aspects according to the queries of the people such as

Why is the writ of habeas corpus referred to as the great writ?

How does the concept of habeas corpus protect a person?

What is the legal Concept of habeas corpus?

So, let’s start it with your attention!

What is the legal Concept of habeas corpus?

I just want to welcome you and just make comments on the principle behind the great writ of habeas corpus that can be traced to the Roman Empire.

And is rooted in the idea that a monarch or person in power cannot imprison or confine anyone without legal justification.

The job of the law is to establish the legitimacy of authority which means an authority cannot be abused or perceived as abused.

This has been expressed as habeas corpus in the law.

Since long before 1200 and reaffirmed in the time of Charles II, Henry II, Henry VI and then to counter the work of the Star Chamber and up to the present for the British.

It is part of their unwritten Constitution.

For the Americans it is part of the written constitutions.

The action may be brought by anyone and it asks that the individual be produced and publicly exhibited.

The idea is that the arbitrary acts of the monarch are King or executive in unjustly imprisoning any person.

Thus anyone can ask for relief, the remedy is equitable there is a byway which has been a particular concern to me.

In my research on 1890s Chicago and that is the use of Habeas Corpus as a means for a parent typically a father to regain the custody of children taken from him children and orphanages or social services are taken away by the mother as well as the situation with my subject Florence Kelly.

Why do I need to explain the concept of habeas corpus?

I want to discuss two old ideas that they’re often brigaded together as though they were one they’re really two

The first is the substantive principle that no human being should be deprived of liberty without just cause.

Now that’s a ringing proposition.

It’s so profound, so familiar that we might take it for granted.

We shouldn’t this proposition have been more violated than accepted and demonstrated in human history.

It’s a very important one, Habeas corpus is related to the substantive proposition of individual liberty.

In that it provides the mechanism of enforcement habeas corpus makes that substantive proposition of individual liberty real in the world.

This is a lawyer’s idea.

Lawyers are pleased with abstract that is to be sure but at some point a lawyer wants to know:

How is it that some substitute proposition can be made reality?

How can it be brought down to earth and made effective in the real world?

Habeas Corpus provides that mechanism.

The arrangement for habeas corpus is simple.

It’s elegant in its simplicity.

The prisoner who alleges that his detention is unlawful, files a petition with the court.

The court then issues the great writ of habeas corpus.

This is the classic model.

We’ve changed it a bit.

It’s Article II but this is a classic model.

The court issues the writ of habeas corpus.

How does the concept of habeas corpus protect a person?

The function of which is to require the custodian that person who holds the prisoner in detention to produce the body of the prisoner in court.

And to file a reply that explains the basis of the detention.

And then you see how it works that the custodian complies with the writ that produces the body of the prisoner and returns the court.

Then is in a position to evaluate the return and to decide whether the custodian’s explanation for the detention is just.

And if so then the prisoner is remanded to custody.

If not, the prisoner is released.

It’s an effective long-standing beautiful symmetrical idea.

Habeas corpus as the mechanism for enforcing the principle of individual liberty.

We have celebrated this in our culture and our literature in our politics.

For as long as anyone can remember Dr. Johnson said that habeas corpus is the principal advantage that English law institutions have against the governments of other countries.

The great civil libertarian at Harvard Zechariah Chafee said that habeas corpus is the most important right in the Constitution freedom of worship.

Habeas Corpus in History

I’m paraphrasing freedom of speech will survive but only habeas corpus can penetrate a prison wall.

The history of habeas corpus is a splendid story in itself.

There’s a stirring narrative here that stretches certainly behind Magna Carta but in the ordinary context.

English context the instructions back to Magna Carta.

You can look it up, I did this romantic habeas corpus history.

I’m about to give you it right there in Wikipedia on the plains of Runnymede.

The Barrens struck their deal with King John and crafted Magna Carta.

The Great Charter of English Liberty that ended the despotic power of the crown and established human liberty and brigaded with that at the time was habeas corpus as the effective mechanism of enforcement.

The 39th chapter of Magna Carta is celebrated that “no free man shall be taken or imprisoned, saved by the lawful judgment of his peers or by the law of the land.”

The principle of individual liberty connected to link to vitally with habeas corpus and then the idea.

So the narrative goes that in this country our Federal Constitution succeeded to Magna Carta.

And habeas corpus, in England provided the mechanism of enforcement in the Constitution.

Suspension of Habeas Corpus in US Constitution

We do have the suspension clause regarding the suspension of the great writ of habeas corpus.

The privilege of the writ of habeas corpus shall not be suspended unless in case of:

  1. Rebellion.
  2. Invasion.
  3. The public safety.

shall be the requirement the only human individual rights set out of the body of the original Constitution and then great statutes in this country the 1789 Act and the 1867 Habeas Corpus Act established federal court jurisdiction to entertain petitions from prisoners in either federal or state custody to inquire into the validity of their detention.

Why is the writ of habeas corpus called the great writ of liberty?

The writ of habeas corpus called the great writ of liberty because of the wonderful and stirring history and that of it much is true history is elusive stuff.

We need to be clear-eyed about this and we shouldn’t be carried away with romance.

Even in this romantic context of individual liberty and habeas corpus.

Magna Carta wasn’t the great Charter of English Liberty at all.

It was a laundry list of deals worked by noblemen with King John.

The law of the land referred to in the 1215 document was probably just customary law for the protection of wealthy landowners.

A free man wasn’t an ordinary person.

A free man was a wealthy land order; a nobleman and if a nobleman was to be judged by anyone, it was to be by his own peers not by his social inferiors.

Habeas corpus wasn’t mentioned as the great writ in Magna Carta.

There was a writ of habeas corpus at the time but it was a modest administrative instrument that courts use.

It was more or less a summons.

It was a way to produce a person in court in order that some adjudication could go forward.

Early on there’s even a case to be made that habeas corpus was allied with the law of arrest.

It wasn’t so much that habeas corpus was used to free someone from custody but rather to put someone in custody to bring him into court coercively in order to adjudicate the skid.

Why is the writ of habeas corpus referred to as the great writ?

There is another theory that why is the writ of habeas corpus referred to as the great writ.

Habeas corpus was issued not to ensure that the king didn’t hold someone in just custody.

But rather on behalf of the king to ensure that somebody else didn’t hold the king subjects in custody.

So they wouldn’t be available to protect the king or to pay him tribute or the services of the Wars.

It took five hundred years before the ideas we associate with habeas corpus came to be attached to habeas corpus retrospectively.

Now I have to tell you that I think this is the romantic stir in history.

It’s not that habeas corpus was originally such a wonderful and splendid idea.

It’s that we made it something of that sort deliberately over time.

It fits and starts not in any linear way and again it is hard to say exactly how this occurred.

Redbird cook certainly had a lot to do with John Selden.

They crafted very deliberately protections for individuals in England against Royal Power and then this is the way of lawyers to soften the blow to make their argument more persuasive.

They tended them to attach very creative ideas to something old Magna Carta.

And in this country no one knew really what the suspension Clause, was all about?

Until, in the Romanian case that the Supreme Court for the first time in over 200 years began to explain what the suspension Clause means.

And that only because after all this time finally Congress and the President pressed the point. 

In modern times two principal ways: 

  1. One of them is a check on executive detention, and 
  2. The Guantanamo cases, 

are good illustrations of this. 

They’re held the prisoners, not because they’ve been convicted of crimes, not because they’ve even been charged with crimes but rather because they’re thought to be enemy combatants. 

They are held in executive custody to incapacitate them.

Federal Writ of Habeas Corpus

Federal writ of habeas corpus is an available vehicle for them and we’ve seen that it does work in that context it describes as much more common in the criminal justice context even though a defendant is convicted in trial and the conviction and sentence. 

Sometimes a death penalty sentence are approved on review. 

Nonetheless, federal habeas corpus are available to look into the facts of the matter and determine really whether the detention serving a sentence or awaiting conviction awaiting execution is just this is a jurisdiction that has existed a long time. 

It has never been all that aggressive. 

I must say in the middle of the 20th century, there was a time when federal courts did fairly routinely use habeas corpus to investigate.

Whether the Bill of Rights was complied with in state criminal trials? 


Whether appellate courts did appropriately correct any errors of federal law made in trials? 

but since then in a host of ways.

A habeas corpus has been trimmed back. 

Criminal Writ of Habeas Corpus And Example

You know, there’s a third idea I’d like to mention to you before I stop. 

It’s a new idea not an old one and it’s not a big idea at all. 

In my view it’s a dangerous, troubling idea.

And that is, in the modern age we have grown beyond habeas corpus. 

We don’t need it anymore to be a relic of the past. 

We have better institutions,better courts operating in a more regular and fair way. 

And if they make mistakes, for example, in criminal trials we have federal and appellate courts to correct those errors and we don’t need this ancient archaic thing. 

Habeas corpus around anymore of the functions that it once served can be handled in other ways. 

I think this is very dangerous, 

However, romantic and unrealistic is directly our associations with the great writ of habeas corpus. 

This is a splendid vehicle for protecting individual liberty and even if it’s not been around so long as one might think. 

It has been around a long time. 

It has stood the test of time. 

It does operate in it’s elegant simple way. 

In 1915 the Supreme Court heard Frank’s case – a murder case from Atlanta, Georgia. 

Leo Frank was charged with with murder was convicted in state court and the Georgia Supreme Court sustained the conviction. 

It appeared on the record that the usual regular forms were observed in a sterile kind of way. 

It looked like a fair and appropriate proceeding such that his penalty of death was appropriate. 

And the Supreme Court was asked them that:

Whether habeas corpus might be appropriate? 

Whether federal courts should use the habeas corpus? 

Nonetheless to inquire into the circumstances under which Leo Frank had been convicted and the court declined this was 1915 Justice Holmes to set it Holmes pointed out and the court had to recognize that this wasn’t any kind of trial at all. 

It had been dominated by an anti-semitic mob. 

There was no question at all that it was. 

They’re top to bottom and that the Georgia Supreme Court has presided over. 

A Sham Holmes said you don’t understand habeas corpus. 

He meant, he said this habeas corpus cuts through all forms and goes to the very tissue of the structure. 

It comes in from the outside not in subordination to the proceedings and although every form may have been preserved opens the inquiry whether they have been more than an empty shell?

Habeas corpus being the great writ has this special ancient archaic function in support of the principle of individual liberty. 

A few years later in the Moore case from Arkansas, factually similar case Justice Holmes was able to achieve a majority and wrote that set about habeas corpus into American law.

I must tell you that since then we have attended to move away from proposed positions and habeas corpus no longer has the kind of muscular significance in criminal cases that it once had though again.

This moves the sense that if habeas corpus is no longer needed and that our processes can get along without it that is a troubling dangerous idea I suggested a moment ago.
I want to share with you from roughly the same period in 1919 George Bork who was a famous and now unknown but very courageous Federal District Judge in Montana stood in the center of an angry storm swirling about him and granted the writ of habeas corpus to an alleged radical who was held for deportation. His name was John Jackson.

 Judge Bork said about the Delirium that was sweeping the country assuming petitioner is of the so-called reds. 

And of the evil practice charged against him he and his kind are less a danger to America than are those who endorse or use the methods that brought them to deportation. 

These latter are the mob and the spirit of violence and intolerance incarnate the most alarming manifestation. 

In the end, I would like to ask a question that 

Why is habeas corpus called the great writ?

And please answer the question in the separate section of questions of this blog.

If you find this article helpful then please share this on your social accounts.

And also refer us to your suggestions for the improvements of the quality of an information.

Leave a Reply

Your email address will not be published. Required fields are marked *

© Copyright 2024 | The Case Lawyer | ISO Certified Law Firm

Open chat
Need help?
Hi, How can I help you?