(Update, I had blogged on this subject before - here.)
The history of the development of Habeas Corpus (From BBC) - Habeas corpus is under attack, say critics of the government's anti-terror bill. But what is it and why is it so cherished?Habeas corpus (ad subjiciendum) is Latin for "you may have the body" (subject to examination). It is a writ which requires a person detained by the authorities be brought before a court of law so that the legality of the detention may be examined.
The name is taken from the opening words of the writ in medieval times.
Although rarely used nowadays, it can theoretically be demanded by anyone who believes they are unlawfully detained and it is issued by a judge.
It does not determine guilt or innocence, merely whether the person is legally imprisoned. It may also be writ against a private individual detaining another.
If the charge is considered to be valid, the person must submit to trial but if not, the person goes free.
The Habeas Corpus Act passed by Parliament in 1679 guaranteed this right in law, although its origins go back much further, probably to Anglo-Saxon times.
Sir William Blackstone, who wrote his famous Commentaries on the Laws of England in the 18th Century, recorded the first use of habeas corpus in 1305. But other writs with the same effect were used in the 12th Century, so it appears to have preceded Magna Carta in 1215.
Its original use was more straightforward - a writ to bring a prisoner into court to testify in a pending trial. But what began as a weapon for the king and the courts became - as the political climate changed - protection for the individual against arbitrary detention by the state.
It is thought to have been common law by the time of Magna Carta, which says in Article 39: "No freeman shall be taken or imprisoned or disseised or exiled or in any way destroyed, nor will we go upon him nor will we send upon him except upon the lawful judgement of his peers or the law of the land."
Over the next few hundred years, concern grew that kings would whimsically intervene on matters of detention, so it was enshrined in law in 1679. (more...)
