Habeas Corpus
Etymology
The phrase is from the Latin habeās, 2nd person singular present subjunctive active of habēre, "to have", "to hold"; and
corpus, accusative singular of corpus, "body".
In reference to more than one person, the phrase is habeas corpora.
Literally, the phrase means "[we command] that you should have the [detainee's] body [brought to court]"; that is, that the detainee be brought to court in person.
The complete phrase habeas corpus [coram nobis] ad subjiciendum means "that you have the person [before us] for the purpose of subjecting (the case to examination)".
These are words of writs included in a 14th-century Anglo-French document requiring a person to be brought before a court or judge, especially to determine if that person is being legally detained.[5]
Praecipimus tibi quod corpus A.B. in prisona nostra sub custodia tua detentum, ut dicitur, una cum die et causa captionis et detentionis suae, quocumque nomine praedictus A.B. censeatur in eadem, habeas coram nobis ... ad subjiciendum et recipiendum ea quae curia nostra de eo adtunc et ibidem ordinare contigerit in hac parte. Et hoc nullatenus omittatis periculo incumbente. Et habeas ibi hoc breve.[6]
We command you, that the body of A.B. in our prison under your custody detained, as it is said, together with the day and cause of his taking and detention, by whatever name the said A.B. may be known therein, you have at our Court ... to undergo and to receive that which our Court shall then and there consider and order in that behalf. Hereof in no way fail, at your peril. And have you then there this writ.[6]
Similarly named writs
The full name of the writ is often used to distinguish it from similar ancient writs, also named habeas corpus. These include:
- Habeas corpus ad deliberandum et recipiendum: a writ for bringing an accused from a different county into a court in the place where a crime had been committed for purposes of trial, or more literally to return holding the body for purposes of "deliberation and receipt" of a decision. ("Extradition")
- Habeas corpus ad faciendum et recipiendum (also called habeas corpus cum causa): a writ of a superior court to a custodian to return with the body being held by the order of a lower court "with reasons", for the purpose of "receiving" the decision of the superior court and of "doing" what it ordered.
- Habeas corpus ad prosequendum: a writ ordering return with a prisoner for the purpose of "prosecuting" him before the court.
- Habeas corpus ad respondendum: a writ ordering return to allow the prisoner to "answer" to new proceedings before the court.
- writ of habeas corpusHabeas corpus ad testificandum: a writ ordering return with the body of a prisoner for the purposes of "testifying".
The United States inherited habeas corpus from the English common law.
In England, the writ was issued in the name of the monarch.
When the original thirteen American colonies declared independence, and became a republic based on popular sovereignty, any person, in the name of the people, acquired authority to initiate such writs.
The U.S. Constitution specifically includes the habeas procedure in the Suspension Clause (Clause 2), located in Article One, Section 9.
This 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".[14]
The writ of habeas corpus ad subjiciendum is a civil, not criminal, ex parte proceeding in which a court inquires as to the legitimacy of a prisoner's custody.
Typically, habeas corpus proceedings are to determine whether the court that imposed sentence on the defendant had jurisdiction and authority to do so, or whether the defendant's sentence has expired.
Habeas corpus is also used as a legal avenue to challenge other types of custody such as pretrial detention or detention by the United States Bureau of Immigration and Customs Enforcement pursuant to a deportation proceeding.[60]
Presidents Abraham Lincoln and Ulysses Grant suspended habeas corpus during the Civil War and Reconstruction for some places or types of cases.[61][62]
During World War II, President Franklin D. Roosevelt suspended habeas corpus.
Following the September 11 attacks, President George W. Bush attempted to place Guantanamo Bay detainees outside of the jurisdiction of habeas corpus, but the Supreme Court of the United States overturned this action in Boumediene v. Bush.