051 616 9061

Follow us:

< class="bt_bb_headline_tag">Habeas Corpus
" subheadline="<span class="btArticleDate">May 3, 2020</span><a href="https://thecaselawyer.com/2020/05/03/writ-of-habeas-corpus/#comments" class="btArticleComments">0</a>" font="" font_weight="" font_size="" color_scheme="" color="" align="" url="" target="_self" html_tag="h1" size="large" dash="bottom" el_id="" el_class="" el_style="" supertitle_position=""]

Habeas Corpus literally means that you have the body.”

It’s not the dead body of the person actually. 

Habeas Corpus is a Latin phrase meaning that you have the body” which means “you have the person in custody who is petitioning for the writ.”

This article is based on the research which will be covering all the possible aspects of the writ of habeas corpus.

The one thing I can assure you that after understanding or reading this article your concept will be clear.

So before I start, let me share some questions asked by the people.

And so is that this article covering, and If you find your query related to it,

Then this article is gonna make your presentation excellent.

The most asking questions are that:

What is habeas corpus? 


What is a writ of habeas corpus?

and the people were asking for the detailed answers, hence this article.

Besides those questions, I’m discussing such questions which I faced during the research work that:

How protections of habeas Corpus are to be seek?

So far as the constitutional study is concerned, my team have highlighted the following:

What rights were guaranteed by the Habeas Corpus Act?

What is the constitutional right of habeas corpus?

Petition for writ of habeas corpus in US Constitution?

Besides the queries mentioned above,

I’m going to publish this article in more details,

So that this may cover all the possible aspects of the concerning topic.

I need your ATTENTION, please!

What is a writ of habeas corpus?

Before I go directly for habeas corpus meaning in words, which would create some confusion in your mind.

 Let me just take you from another track which helps you to understand what habeas corpus is and what does habeas corpus mean in the right way.

Let’s have a look!

 Note: In order to understand the definition of habeas corpus you must have to know about the ARREST.

 An arrest means the seizure of an accused by taking him into custody when the police have a suspicion backed up by evidence that the person is breaking the law.

On the other hand, the Police have wider powers, as the police can arrest an accused even without having a warrant.

 In addition, the police can enter premises without a warrant in order to arrest an accused but subject to the occupier consent and provided one of the following criteria is:

  1. First criteria the Police must have observed the suspect entering or living in the premises.
  2. Second criteria is that the Police believe that the suspect is breaking the law.
  3. Third if he fears that the accused will escape before the police can get the arrest warrant.

 In contrast the arrest is invalid when there is neither ground nor evidence for the police to believe that the person is breaking the law.

In all cases a suspect is entitled to the following rights on arrest and during detention:

  1. The right to remain silent before Police.
  2. The right to know the reasons for his arrest.
  3. The right to consult with a lawyer.
  4. The right to privacy during legal consultations.
  5. The right to get the essential care like the right to food to rest and to receive medical treatment.
  6. Lastly, the suspect has the right of access to the courts.

As a result, the police’s failure to respect the suspect rights will render the arrest and the detention invalid and any such detention pursuant to that arrest will be unlawful.

In this case, the suspect can apply to the High Court for “a habeas corpus” by challenging the validity of his detention and if the court is not satisfied that the detention is lawful, the judge will order to release the suspect immediately.

History of Writ of Habeas Corpus

What is a brief history of writ of habeas corpus?

Habeas corpus is not something that’s mentioned in Magna Carta 1215, but it has been an accepted part of English law since medieval times.

One important milestone in Britain history was when the House of Commons refused in 1625 and then again in 1626 to legislate for taxes to be raised for Charles to pay for his foreign war.

The King’s response to this was by ordering his richer subjects to lend him money.

A group of men known as the “Five Knights” refused to make these loans to the King for which they were imprisoned by Charles.

These gentlemen pointed out they had not been accused of breaking any law.

All of them sought a writ of habeas corpus to secure their release but they were actually unsuccessful.

Because the court persuaded that the detention was by special royal command.

So in that case the Knights eventually agreed to make the loan and were released.

However, the House of Commons was outraged about what had happened in 1628.

The Commons passed a statute with the reluctant assent of King Charles which became known as the petition of rights

This law prohibited the government from levying taxes or using other means of raising money to go to get money from the people without the proper permission of Parliament’s.

It’s also stated and this is crucial for the habeas corpus bit that nobody should be imprisoned.

Or otherwise molested by service of the Crown for refusing to pay taxes or other financial charges that had not been authorized by parliament.

Today, an application for judicial review is mostly used instead of habeas corpus and since the Human Rights Act 1998.

There’s been another option which is an application to the courts for breach of Article 5 of the European Convention on Human Rights which is the right to liberty and security of the person.

And there’s also the possibility of an application under the common law of false imprisonment.

But this can take a considerable time to come before the court.

Whereas habeas corpus applications are treated as much more urgent.

Remember: The state has the legal right to detain criminal suspects and put people in prison so long as they’ve been convicted by a court.

So, habeas corpus applications will not normally be used in relation to a refusal of bail.

Or where a person has been given a custodial sentence after conviction by a court notice.

There have been occasions in recent times where people were detained for lengthy periods without criminal charges or trial by government authorities in democratic states.

So, one instance is the detention without trial of those suspected of involvement in IRA activities in Northern Ireland during the 1970s.

I know that is the detention without trial of suspects or terrorists in the prison at Guantanamo Bay, Cuba.

The decision to locate this prison in Cuba was not a random one.

Its inmates are held outside the jurisdiction of US law.

So it’s very difficult for them to seek the protection of writ of habeas corpus

Habeas Corpus And The Constitution Overview!

What is the constitutional right of habeas corpus?

You know one of the interesting things in the development of this law is the courts get incredibly hung up on.

And this is what lawyers do and what judges do is like what is the exact definition of an enemy combatant. 

So that you know people who may not have been in an army or done much of anything become declared enemy combatants but I’d actually liked both of our panelists also to address the question of the fact that with the appointment of quote conservative federal judges to the majority of seats in the federal judiciary. 

What rights were guaranteed by the habeas corpus act?

The right to Liberty guaranteed by the 5th amendment does extend to foreign nationals living in the country.

Now the question is more general: I’d like to share if the rights guaranteed to American citizens by the Habeas Corpus Act extend or have extended historically to two non-american citizens living in the United States.

The Following rights were guaranteed by the Habeas Corpus Act:

  1. Right to engage counsel for challenging the detention.
  2. Right to produce the detainee before the court.
  3. Right to restrain the jail authority against transfering the detainee to another place.
  4. Right to ensure the fundamental rights guaranteed by the constitution.

Do you think that’s going to have a really important effect in the future of habeas corpus?

Article 3, Federal judges transcend ideology There are plenty of instances in which right-wing conservative. 

Federal judges have done precisely what seems to me needs to be done in cause of liberty. 

I must tell you though the nation of the federal courts and it seems to be something worth a great deal of attention and effort.

What does the constitution say about habeas corpus?

Article 32 of the Constitution makes the Supreme Court as the guarding of the fundamental rights.

The power to issue the appropriate writ in the form of the writ of habeas corpus Supreme Court will be able to implement fundamental rights so that the jurisdiction is enjoyed with the Supreme Court.

The purpose of the writ of habeas corpus needs to protect individuals differently and when a person is arrested and detained illegally.

Whenever he is arrested he may be released by the court to ensure that he is in illegal detention.

The writ of habeas corpus is designed to give a person who complains that he is being unlawfully detained and that was accessed to the courts to have the lawfulness of the detention.

The writ is frequently addressed to the governor of the jail but it may be addressed to the officer in charge of an immigration detention center.

Once the individual is before the court the custodian must confirm that the individual is in state custody. 

When and where the person was taken into custody? 

And shows good cause,

Why should the person continue to remain in custody?

Habeas corpus is the remedy by which representatives of the state are brought to account for their detention of the individual.

The Petition of Right, 1628 I’ll read a little bit from it and later it became although expressed as a petition from the Parliament of the King.

It was treated as a statute the part I want to discuss is Clause 8.

It said they meaning the parliamentarians do therefore humbly pray to your Most Excellent Majesty that no man hereafter be compelled to make or yield any gift, loan, benevolence, tax or such like charge without common consent by Act of Parliament.

So there’s the idea against the rule of law and that none be called to make an answer or take such oath or give attendance or be confined or imprisoned or otherwise molested or disquieted, concerning the same or for refusal levels.

There is a clearer connection than between The Petition of Right.

I’ve just quoted from Dicey’s First Meaning of the Rule of Law in 1667, when power Clarendon was impeached and one of the charges against him was that he had sent persons to quote remote Islands Garrison’s and other places to prevent them from the benefit of the law.

That’s exactly what he did.

Clarendon fled and later died in exile. 

It was not until 1679 that the House of Lords by a majority of only 57 to 55 passed The Habeas Corpus Amendment Act.

Section 11 of that act remedied the position and since that time devices to circumvent habeas corpus have been labeled unlawful in the United Kingdom.

The reason that act is of some special interest is the votes 57 to 55 in the House of Lords.

The House of Commons was in favor of it’s pretty certain that the Lord’s did not vote 57 to 55 in favor the story which seems to be accepted is that it was lost before the House of Lords but one Lord was counted as about 10 votes in favor and through this device somehow the recording of the vote of 57 to 55 in favor passed.

That was never questioned so this act which we today think was the most important hallmark in favor of the rule of law really probably passed by this way according to law.

What I’m talking about here with the Revised Statutes are the Revised Statutes of 1875.

It is derived from the war acts of Congress in the 1860s, the first civil rights act for example the reconstruction act of 1867.

The Supreme Court of the United States has said in cases right around the same time as the revised statutes although slightly before them is that the laws I had just enacted and one of them was the Habeas Corpus Act of 1867 did not apply to these common law writs wasn’t relevant there because they were there but they call it appropriate vigor in law by their own force.

Article 34 of the Magna Carta signed 800 years ago in 1215 but it said that a free man had the right to his own court.

What is it that we should be doing and going in there and making our own courts and taking it away from them?

The Revised Statutes, it shows clearly and unambiguously that they can’t be counted upon for anything by way of authority to deny your writ.

Where is the writ of habeas corpus in the constitution?

You can find the habeas corpus in Article 1, section 9, Clause 2 of the constitution.

The writ of habeas corpus is called the great writ.

And it’s called the great writ for a reason because it’s specifically written that a writ of habeas corpus cannot be suspended at any time unless by some type of war or whatever it’s like martial law or something like emergency.

It’s very serious stuff.

In other words it cannot be taken away from you.

What does it do?

It protects you from tyranny.

Now what is tyranny?

It is actions outside of any type of law.

It’s basically you are being ordered to do something or you’re being dispossessed from your land.

It’s a new legal phrase I’m going to show you because I found a case law from a Supreme Court that says you cannot be imprisoned or dispossessed with this possession.

They don’t go into detail.

So you got to look up these words.

And then you find out that this possession is being deprived of your land and this cannot happen unless by a judgment of your peers.

Where do we have a judgment from a trial by jury?

So any judgment for support we know is without a trial by a jury and that makes it unconstitutional.

The Petition Of Habeas Corpus

A petition for writ of habeas corpus can allow a person, who is being illegally detained, to be released.

If a person has been arrested and they’re being held without bond they’re entitled to a writ of habeas corpus petition.

A lawyer can file the writ petition in court for habeas corpus and that will cause the person to be brought before the court.

So the court can determine that they are being illegally held and ordered to be released.

So onward, the next important questions are:

What is a habeas corpus petition?

What is the purpose of a writ of habeas corpus?

The purpose of a writ of habeas corpus petition applies to a person who has been convicted of a crime.

And exhausted his appeals.

And if he is still being held and there’s no legal reason to the detention,

He may be entitled to a writ of habeas corpus also in the event of actual innocence.

For instance you may have heard of situations where people have been exonerated by DNA evidence.

They may have previously been convicted and served time but DNA evidence subsequently shows that they’re innocent; they can be released on a writ of habeas corpus.

What does the writ of habeas corpus seek to prevent?

You gotta do it by the writ of Habeas Corpus.

So, let me tell you…

In the Constitution under Article 1, Section 9, the privilege of the writ of habeas corpus shall not be suspended unless in cases of rebellion or invasion.

Writ of habeas corpus seeks to prevent the infringement of any of your constitutional rights which also means your right to a trial by jury and your right to have your property protected under the Fourth Amendment.

So you could file a writ of habeas corpus against your employer, you could file a writ of habeas corpus against the child support order because it’s written by one of these referees.

What is the importance of the writ of habeas corpus

The importance of the writ of Habeas corpus is more important as you think which used to determine preliminary matters in criminal cases.

The writ of Habeas Corpus can be an adequate relief against such:

  1. An an illegal detention;
  2. Removal to another state without due procedure;
  3. The denial of bail;
  4. The double jeopardy;
  5. For a speedy trial; or
  6. Extradition to a foreign country.

Must Read!!

Suspension of Habeas Corpus – The Lost Chapter

Complete History of Habeas Corpus

Protection of habeas corpus

Protection of habeas corpus means that saving an individual’s fundamental rights guaranteed by the constitution from infringement by the authorities without due process of law.

How does the concept of habeas corpus protect a person?

Well let me illustrate with an imagined example the protection of habeas corpus:

I suppose that a British comedian, let’s call him Russell, makes fun of the government in some way during his comedy show in the small hours of the morning. 

He’s taken into custody by the police and locked up in Wormwood Scrubs prison.

He repeatedly asked what offense has been charged with but received no reply.

Through his lawyer he asks a High Court Judge for a writ of habeas corpus that is addressed to the governor of the prison.

If he gets a writ requires the governor to physically bring the detained person in this case Russell before the judge so he can be satisfied that there are lawful grounds for detention.

If the judge is satisfied that the imprisoned person has been detained in prison without proper process under the criminal justice system, he’ll be released.

So to sum up, the writ of habeas corpus is a way of protection for someone in prison without proper charges in the normal way to secure his release.

What would be the writ of habeas relief?

The petition of writ of habeas corpus means challenging your detention if the order of the court granting a petition what relief would result in the immediate release of your client?

There’s very law on the topic, it’s a law that there is mostly negative but there are a couple of circuit courts or at least one Circuit Court and one federal court who have said that even though your client is not being detained on the criminal charge is sufficient because the granting of the habeas petition would result in their being released. 


Let me ask you a couple of questions.

How is habeas corpus a protection for individual rights?


When can a writ of habeas corpus be taken away?

I want an answer this question from you in the question section of this blog!

If you find this article helpful,

Then please promote this through your social media accounts.

And assist me to make quality improvements in this research.

How does a writ of habeas corpus safeguard individual freedom?

An individual enables himself through filing writ of Habeas Corpus before the court and requests for due process and safeguard to ensure his freedom. And if someone is an accused for commision of crime then he has constitutional right to defend himself in the court of law.

When may the writ of habeas corpus be suspended?

It is specifically mentioned in Article 1, Section 9, Clause 2 of the Constitution of the United States that “The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion, the public safety may require it.

What happens when a writ of habeas corpus is granted?

A writ of habeas corpus is to bring a detainee before the court to determine whether the detention of the person is lawful or not. A habeas petition proceeds against the warden or police officer who detained the person in his custody.

What happens when a writ of habeas corpus is denied?

A petition of habeas corpus enables the court to probe out the reasons regarding the detention of an individual. After considering the reasons if the court finds that the detention is lawful then the Court may deny for issuance of the writ.

Why did lincoln suspend the writ of habeas corpus?

Lincoln suspended the writ of habeas corpus in Washington D.C. and Philadelphia because of the apprehension of the rebellion against the state and to give military authorities the power to silence dissenters. Under this order, commanders could arrest and detain individuals who were deemed threatening to military operations.

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?