WHAT IS HABEAS CORPUS?
"Habeas Corpus is an ancient common law prerogative writ - a legal procedure to which you have an undeniable right" to petition a court "to issue the Extraordinary Writ of Habeas Corpus commanding one who is restraining liberty to forthwith produce before the court the person who is in custody and to show cause why the liberty of that person is being restrained. Absent a sufficient showing for a proper restraint of liberty, the court is duty bound to order the restraint eliminated and the person discharged."
http://www.habeascorpus.net/asp/WHEN DID IT START? Before 1215. The English codified it in 1679.
WHY DOES IT EXIST?
Habeas corpus guarantees that we cannot be secretly imprisoned or imprisoned without being charged for long periods of time. It is the most basic of our rights. Without habeas corpus, a dictator can imprison his or her enemies for no reason or any reason, without so much as informing the imprisoned person or his or her family or friends for life or as long as the dictator wants.
WHAT HAPPENS WHEN IT DOESN'T EXIST? (which countries do not have it)? Gulags, renditions, torture (because there is no procedure
requiring the authority that holds the prisoner to account for or give a reason for the imprisonment), endless, pointless imprisonments. Think Holocaust. Think Russian prison camps. Think the Argentinan football fields full of dissidents.
Since the history of Habeas Corpus is predominately English we must visit that history to gain understanding of American use of Habeas Corpus.
Countries with civil (as opposed to our English common law) traditions do not have habeas corpus. Most European countries have civil law which is derived ultimately from Roman law rather than English common law traditions. Remember the concentration camps? Remember the camps of Siberia? Habeas corpus protects us from those conditions.
More history:
ENGLISH HISTORY OF HABEAS CORPUS: The history of Habeas Corpus is ancient. It appears to be predominately of Anglo-Saxon common law origin. Clearly, it precedes Magna Carta in 1215. Although the precise origin of Habeas Corpus is uncertain in light of it’s antiquity, its principle effect was achieved in the middle ages by various writs, the sum collection of which gave a similar effect as the modern writ. Although practice surrounding the writ has evolved over time, Habeas Corpus has since the earliest times been employed to compel the appearance of a person who is in custody to be brought before a court. And while Habeas Corpus originally was the prerogative writ of the King and his courts, the passage of hundreds of years time has permitted it to evolve into a prerogative writ initiated by the person restrained, or someone acting in his interest rather than by the King or his courts. Magna Carta obliquely makes reference to Habeas Corpus through express reference to “the law of the land”. From Magna Carta the exact quote is: “...no free man shall be taken or imprisoned or disseised or exiled or in any way destroyed except by the lawful judgment of their peers or by the law of the land.” The practice and right of Habeas Corpus was settled practice and law at the time of Magna Carta and was thus a fundamental part of the unwritten common “law of the land” as was expressly recognized by Magna Carta.
http://www.habeascorpus.net/hcwrit.htmlhttp://www.habeascorpus.net/asp/"The frequent use of the great writ reflected the tension between common and civil law practice during the period 1485 thru 1509, generally the reign of Henry VII. At that time Habeas Corpus was employed to secure the liberty of those imprisoned by the Chancellor, the King’s Privy Counsel, the Courts of Admiralty, The Court of High Commission and its prerogative courts including its inquisitorial processes featured by the hated “star chamber court” at Westminster, so called because of the stars on its ceiling. Conversely, the common law preference of accusatorial processes had long been a fixture of Anglo-Saxon history. The modern writ of Habeas Corpus dates from this history. During this period, the sheer frequency of which Habeas Corpus was employed together with its procedure and results, established the Writ of Habeas Corpus as a powerful tool to check the power of the state and to preserve the rights of individuals against the arbitrary power of the King and his Counsel together with the King’s courts. It was the King’s prerogative courts which were given to inquisitorial practices while the parallel system of common law courts employed purely common law accusatorial practices. Thus the arbitrary character of civil law power devolved in England since William’s Norman intrusion was largely checked through employment of the Writ of Habeas Corpus by the first part of the sixteenth century. And Habeas Corpus saw frequent use and growth in prominence throughout the reign of Charles I which, in turn, found its bloody end on the chopping block in 1649."
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