Monday, December 7, 2009

Writ of Habeus Corpus

In 1641, the Star Chamber (Latin Camera stellata) was an English court of law sitting at the royal Palace of Westminster.
The court was set up to ensure the fair enforcement of laws against prominent people, those so powerful that ordinary courts could never convict them of their crimes.
Court sessions were held in secret, with no indictments, no right of appeal, no juries, and no witnesses.
Evidence was presented in writing.
And over time it evolved into a political weapon and became a symbol of the misuse and abuse of power by the English monarchy and courts.
King Henry VII used the power of Star Chamber to break the power of the landed gentry which had been such a cause of problems in the War of the Roses.

As the U.S Supreme Court described it, "the Star Chamber has, for centuries, symbolized disregard of basic individual rights. The Star Chamber not merely allowed, but required, defendants to have counsel. The defendant's answer to an indictment was not accepted unless it was signed by counsel. When counsel refused to sign the answer, for whatever reason, the defendant was considered to have confessed." Faretta v California, 422 U.S. 806, 821-22 (1975).
Too, the historical abuses of the Star Chamber are considered a primary motivating force behind the protections against compelled self-incrimination embodied in theFifth Amendment to the United States Constitution.
The meaning of "compelled testimony" under the Fifth Amendment—i.e., the conditions under which a defendant is allowed to "take the Fifth"—is thus often interpreted via reference to the inquisitorial methods of the Star Chamber.

Habeus Corpus
The foundations for Habeas Corpus were established by the Magna Carta of 1215. William Blackstone cites the first recorded usage of habeas corpus ad subjiciendum in 1305, during the reign of King Edward I.
However, other writs were issued with the same effect as early as the reign of Henry II in the 12th century. Blackstone explained the basis of the writ, saying:
"The King is at all times entitled to have an account, why the liberty of any of his subjects is restrained, wherever that restraint may be inflicted."

Therefore, in 1641, theLong Parliament led byJohn Pym and inflamed by the severe treatment of John Lilburne, as well as that of other religious dissenters such as William Prynne, Alexander Leighton, John Bastwick & Henry Burton, abolished the Star Chamber with an Act of Parliament, the Habeus Corpus Act 1640.

Then, as now, the writ of habeas corpus was issued by a superior court in the name of the Sovereign, and commanded the addressee (a lower court, sheriff, or private subject) to produce the prisoner before the Royal courts of law.

A habeas corpus petition could be made by the prisoner himself or by a third party on his behalf and, as a result of the Habeas Corpus Acts, could be made regardless of whether the court was in session, by presenting the petition to a judge.

Since the 18th century the writ has also been used in cases of unlawful detention by private individuals, most famously in Somersett's Case (1771), where the black slave Somersett was ordered to be freed, the famous words being quoted as:
"The air of England has long been too pure for a slave, and every man is free who breathes it."

A Writ of Habeus Corpus
Habeus Corpus means "You have the body."
In common usage, and whenever these words are used alone, they are understood to mean ""produce the body."
Therefore, when someone is arrested, this writ would be directed at the "jailor", commanding him to produce the body of the person being detained, with the day and cause of his capture and detention, to submit to and receive whatsoever the judge or court awarding the writ shall consider and determine as a judgment in the matter.
This then prevents a person from being held in illegal captivity, with no trial.
  • 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;
  • 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;
  • Habeas corpus ad satisfaciendum, a writ ordering return with the body of a prisoner for “satisfaction” or execution of a judgment of the issuing court; and
  • Habeas corpus ad testificandum, a writ ordering return with the body of a prisoner for the purposes of “testifying”.
Habeus Corpus in Australia
The writ of habeas corpus as a procedural remedy is part of Australia's English law inheritance.
In 2005, the Australian parliament passed the Australian Ant-Terrorism Act 2005. Some legal experts questioned the constitutionality of the act, due in part to limitations it placed on habeas corpus.

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