Legal scholar Amanda L. Tyler discusses the history and future of
habeas corpus in America and around the world.
The concept of habeas corpus--literally, to receive and hold the
body--empowers courts to protect the right of prisoners to know the
basis on which they are being held by the government and grant prisoners
their freedom when they are held unlawfully. It is no wonder that habeas
corpus has long been considered essential to freedom.
For nearly eight hundred years, the writ of habeas corpus has limited
the executive in the Anglo-American legal tradition from imprisoning
citizens and subjects with impunity. Writing in the eighteenth century,
the widely influential English jurist and commentator William Blackstone
declared the writ a "bulwark" of personal liberty. Across the Atlantic,
in the leadup to the American Revolution, the Continental Congress
declared that the habeas privilege and the right to trial by jury were
among the most important rights in a free society.
This Very Short Introduction chronicles the storied writ of habeas
corpus and how its common law and statutory origins spread from England
throughout the British Empire and beyond, witnessing its use today
around the world in nations as varied as Canada, Israel, India, and
South Korea. Beginning with the English origins of the writ, the book
traces its historical development both as a part of the common law and
as a parliamentary creation born out of the English Habeas Corpus Act of
1679, a statute that so dramatically limited the executive's power to
detain that Blackstone called it no less than a "second Magna Carta."
The book then takes the story forward to explore how the writ has
functioned in the centuries since, including its controversial
suspension by President Abraham Lincoln during the Civil War. It also
analyzes the major role habeas corpus has played in such issues as the
World War II incarceration of Japanese Americans and the US Supreme
Court's recognition during the War on Terror of the concept of a
"citizen enemy combatant." Looking ahead the story told in these pages
reveals the immense challenges that the habeas privilege faces today and
suggests that in confronting them, we would do well to remember how the
habeas privilege brought even the king of England to his knees before
the law.
