Habeas Corpus in Colonial America

2012-07-09 10:08:05

‘‘Habeas corpus’’ (or ‘‘habeas corpus ad subjiciendum’’) is Latin for ‘‘[that] you have the body.’’ It is a writ issued by a court to a person having custody of another, commanding him/her to produce the detainee in order to determine the detention’s legality. The ‘‘Great Writ’’ is primarily used today to release individuals from unlawful imprisonment.

Although mentioned in the Magna Carta (1215), the writ was part of English common law long before that time. In 1679, Parliament codified the common law with the Habeas Corpus Act, which allowed courts to issue writs when not in session and provided penalties to judges who refused.

As with other American legal system features, the Great Writ’s use was accepted by the colonies by their adoption of English common law. By the time of the American Revolutionary War, the writ was part of every American colony’s common law, except for South Carolina, which re-enacted the English statute. In fact, the writ’s use as a safeguard for liberty was so important to the colonists that the British government’s refusal to issue writs was one of the grievances causing the Revolution. Accordingly, the Constitution of the United States provides that ‘‘[t]he 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’’ (Art. 1, sec. 9). Although a continual aspect of American common law, most colonies did not pass formal habeas corpus statutes until after the Revolution.


References and Further Reading

  • Carpenter, A.H. ‘‘Habeas Corpus in the Colonies.’’ American Historical Review 9 (January 1904).
  • Duker, William. A Constitutional History of Habeas Corpus. Westport, CT: Greenwood Press, 1980.
  • Longsdorf, George F. The Federal Habeas Corpus Acts: Original and Amended. 13 F.R.D. 407 (1953).
  • Oaks, Dallin, Legal History in the High Court—Habeas Corpus, Michigan Law Review 64 (1966).
  • Stoebuck, William B., Reception of English Common Law in the American Colonies, William and Mary Law Review 10 (1968).