First hinted at in Magna Carta, but not secured in mainstream law until this Act of 1679 (which remains in force today), 'habeas corpus' has been an enduring part of British liberty, despite governments occasionally trying to disable it.
How did 'habeas corpus' come about?
The first statement of the principle that no one should be imprisoned unlawfully was in Magna Carta, reluctantly approved by King John in 1215. John soon rescinded Magna Carta's provisions, but by 1297 under Edward I they had been enshrined in law.
The first recorded use of the provision was in 1305, but habeas corpus as we mean it today didn't come into being until much later. In 1628, the noted jurist Sir Edward Coke made a speech to the House of Commons criticising the king, Charles I, for wielding too much power. Coke stirringly invoked Magna Carta again, but it was not until the Habeas Corpus Act was passed by Parliament in 1679 that the right was firmly guaranteed in law.
What does 'habeas corpus' actually mean?
Literally, 'habeas corpus' means 'you may have the body' (if legal procedures are satisfied). They are the opening Latin words of the writ in medieval times. It was originally a device to bring a prisoner into court, but it became used to fight against arbitrary detention by the authorities.
It is issued by a judge. It does not determine guilt or innocence, merely whether the person is legally imprisoned. If the charge is considered to be valid, the person must submit to trial. If not, the person goes free.
A landmark instance of its use was in the case of the slave Somerset, who had escaped while in England but was then recaptured. Anti-slavery groups organised a writ of habeas corpus. The judge ruled that all the time a slave was in England he was subject to English law, not colonial law, and as such could not be forcibly removed. Somerset was freed.
One of the most notable instances in modern times was when the political refugee Sun Yatsen used it in 1896 to escape his detention without charge by the Chinese legation in London. Though rarely used nowadays, it can theoretically be demanded by anyone who believes they are unlawfully detained.
Has habeas corpus ever been suspended?
Often. William Pitt, worried that the French Revolution might inspire rebellion in England, suspended habeas corpus in 1793 after France declared war on Britain; other restrictions on free speech and public meetings were imposed at the same time. Lord Liverpool's government did the same in 1817, also as part of a general clampdown, which resulted in a furious backlash from the press and public rioting.
Internment – detention without charge – was employed during World War I and II, and during the many periods of conflict in Ireland through the 20th century.
Detention without charge is back on the political agenda in the current rounds of anti-terror legislation.
There is the following exchange in George Bernard Shaw's play The Thing Happens, set in Britain in 2170 (part of the set of plays Back to Methuselah, 1920):
Burge-Lubin But the habeas corpus act!
Confucius The English always suspended it when it threatened to be of the slightest use.
What about habeas corpus in Scotland and Ireland?
Magna Carta never applied in Scotland, and the writ of habeas corpus has no meaning in Scotland. It was not until 1887 that the Criminal Procedure Scotland Act introduced the equivalent requirements for a prompt trial. Ireland had its own Habeas Corpus Act in 1782.
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