Historical Aspects of Habeas Corpus

St. John's Law Review Volume 9 Number 1 Volume 9, December 1934, Number 1 Article 3 June 2014 Historical Aspects of Habeas Corpus Albert S. Glass Follow this and additional works at: https://scholarship.law.stjohns.edu/lawreview Recommended Citation Glass, Albert S. (1934) "Historical Aspects of Habeas Corpus," St. John's Law Review: Vol. 9 : No. 1 , Article 3. Available at: https://scholarship.law.stjohns.edu/lawreview/vol9/iss1/3 This Article is brought to you for free and open access by the Journals at St. John's Law Scholarship Repository. It has been accepted for inclusion in St. John's Law Review by an authorized editor of St. John's Law Scholarship Repository. For more information, please contact . HISTORICAL ASPECTS OF HABEAS CORPUS T HB history of mankind is a series of conflicts, sometimes sanguinary, sometimes bloodless, between ruling forces and the ruled. Over many centuries, the people have wrested, one by one, rights and privileges denied to them by sovereigns and retained control of them so that their liberty and wellbeing might be augmented. One of the most precious and most fought over principles of justice centers around what is called the writ of habeas corpus, the bulwark of personal liberty. It is the great heritage of Anglo-Saxons everywhere and through many vicissitudes and setbacks it has survived as a shield for the oppressed and a barrier to the exercise of tyrannical power. Many writers, in searching for the origin of this famous writ, have declared it to be lost in antiquity. That the writ, or some process similar to it, is of vast age is acknowledged. But, our real and direct knowledge of it comes to us first from Magna Carta, where the writ is indicated clearly. Evidence is not lacking, however, to indicate that the writ is neither of native British origin nor of Teutonic origin, but that it came from that fountain-head of modern jurisprudence, the Roman law. It would seem probable that Rome gave us this process, as it has given us so many other tenets of law. Roman legions and Roman law conquered most of the then known world. The legions withdrew when the Barbarians invaded the Empire, but the law remained, then, as today, the source of rights and duties of the common people. In the early days of Rome, the Tribunes, magistrates appointed to protect the plebeians against the oppressions, and injustices of the ruling patrician class, had great power given to them. This was vitally necessary, for the patricians, through their control of office, by virtue of wealth and birth, and through their interpretation of the laws, controlled not alone the affairs of the city but the lives and destinies of its people. The Tribunes were sole arbiters of the defendant's fate. They had complete power over the people. They could summon any citizen before them for trial, or could discharge ST. JOHN'S LAW REVIEW the debtor from arrest. Here, perhaps, because of the exigencies of the situation in which Rome found itself, lies the germ of that idea that justice shall not be delayed. In the condensation and codification of Roman court decisions known as the Pandects or the Digest which was compiled by order of Justinian, we find a writ so similar to habeas corpus that there can be no doubt that in Rome lies the true origin. A learned writer I on the subject says "The writ (of habeas corpus) is somewhat similar to the Praetorian Interdict of the Roman Civil Law "de honine libero exhibendo," in which the praetor ordered, when it was made to appear to him that a freeman was restrained of his liberty contrary to good faith, that he be liberated. Church I also conservatively states that in the Roman interdict or writ "de libero homine exhibendo" we may discern the origin of our writ of habeas corpus. The Pandects or Digest represents the sum total of Roman Legal achievement. It contains that which is known as the "Perpetual Edict" from the fact that these laws or policies of the current consul, contrary to the established custom, became a permanent part of Roman law. In the first line of the "Perpetual Edict" we have the praetor summoning before him the freeman who has been unlawfully detained, by means of the writ called "de homine libero exhibendo" (produce the person). The writ was devised so that every freeman unlawfully detained might be instantly produced before the praetor to inquire into his detention. The writ must have been used in England during the four centuries of Roman occupancy. After the Romans withdrew a period of confusion and chaos followed but the writ was revived and became an integral part of English law when order was once more established. Slavery, of course, prevailed in Rome as it did elsewhere. A Roman citizen or freeman alone could avail himself of the writ and the emphasis, therefore, was upon the status of the petitioner and nothing else. In the course of centuries and when class distinctions had been softened, if I MYERs, TREATiSE ON HABEAS CORPUS 11. 2 CHURCH, HABEAS CORPUS 2. HISTORY OF HABEAS CORPUS not entirely abolished by Christianity, more and more of the common people could invoke the protection of the writ. Six centuries elapsed between the coming of Augustine to Kent in 596 A. D. and the signing of Magna Carta in 1215. During those years the words "habeas corpus" were making their way into various writs, but it was not until many years later that they became a customary means of investigating imprisonment. A common writ of the Middle Ages was the capias or warrant of arrest. Capias was a process on an indictment when the person was in custody and in cases not otherwise provided for by statute. There were several forms of this writ, entitled according to the purpose for which they were intended. Capias ad respondendum was a judicial writ by which actions at law were frequently commenced and which commanded the sheriff to take the defendant and keep him safely so that he might have his body before the court on a certain day to answer the plaintiff. Capias utlagatum lay against a person who had been outlawed in an action, by which the sheriff was commanded to take him and keep him in custody until the day of the return and then present him to the court to be dealt with for his contempt. By virtue of the capias ad satisfaciendum the sheriff could bring the prisoner to court to satisfy a judgment against him. Blackstone mentions four writs, which at the beginning of the 13th century could be used to prevent unlawful imprisonment. They were writs of mainprize, de odio et atia, de homine replegiando and habeas corpus. The first writ mentioned early fell into disuse because of inherent defects. The writ "de odio et atia:"was invented by Henry II to remedy abuses caused by the prevailing custom of trial by combat. A newer method was that of indictment brought by the king upon presentment of a jury. The former method was notorious for the injustice it caused, since many charges were prompted by hatred and malice. By th (...truncated)