Editing Habeas corpus (section)

===Origins in England===
{{Further|English law}}
''Habeas corpus'' originally stems from the [[Assize of Clarendon]] of 1166, a reissuance of rights during the reign of [[Henry II of England]] in the 12th century.<ref name=Clarendon1166>{{cite web |url=http://avalon.law.yale.edu/medieval/assizecl.asp |title=Assize of Clarendon, 1166 |date=1 December 1998 |publisher=Yale University}}</ref> The foundations for ''habeas corpus'' are "wrongly thought" to have originated in [[Magna Carta]] of 1215 but in fact predate it.<ref>{{cite book |last=Turner |first=Ralph V. |title=Magna Carta |publisher=Pearson |year=2003 |pages=162, 219}}</ref> This charter declared that:{{blockquote|No [[Estates of the realm|Freeman]] shall be taken or imprisoned, or be disseized of his [[Freehold (law)|Freehold]], or Liberties, or free Customs, or be outlawed, or exiled, or any other wise destroyed; nor will We not pass upon him, nor condemn him, but by lawful judgment of his Peers, or by the Law of the land.}}
However, the preceding article of Magna Carta, clause 38, declares:

{{verse translation|lang1=la|2=No legal officer shall start proceedings against anyone on his own mere say-so, without reliable witnesses having been brought for the purpose.|1=Nullus balivus ponat aliquem ad legem, simplici sua loquela, sine testibus fidelibus ad hoc aductis<ref name=Clarendon1166/>}}

(Notably, even then, this was considered a universal right: the text protects {{lang|la|aliquem}} 'anyone', rather than restricting the protection to freemen.) Pursuant to that language, a person may not be subjected to any legal proceeding – such as arrest and imprisonment – without sufficient evidence having already been collected to show that there is a ''prima facie'' case to answer. The evidence must be collected beforehand because it must be available for exhibition in a public hearing within hours – or at most days – after arrest. Any charge levelled at the hearing thus must be based on evidence already collected, and an arrest and incarceration order is not lawful if not supported by sufficient evidence.

[[William Blackstone]] cites the first recorded usage of ''habeas corpus ad subjiciendum'' in 1305, during the reign of [[Edward I of England|King Edward&nbsp;I]]. However, other [[writ]]s were issued with the same effect as early as the reign of [[Henry II of England|Henry&nbsp;II]] in the 12th&nbsp;century. Blackstone explained the basis of the writ, saying "[t]he king is at all times entitled to have an account, why the liberty of any of his subjects is restrained, wherever that restraint may be inflicted."{{refn|Blackstone (1768)<ref name=Blackstone1768>{{cite book |last1=Blackstone |first1=William |title=Commentaries on the Laws of England: A facsimile of the first edition of 1765–1769 |volume=3 |pages=129–137 |orig-year=1768 |year=1979 |place=Chicago |publisher=University of Chicago Press}}</ref> reproduced in ''The Founders' Constitution'' (2017).<ref>{{cite book  |title=The Founders' Constitution |volume=3 |at=Article&nbsp;1, Section&nbsp;9, Clause&nbsp;2, Document&nbsp;4 |url=http://press-pubs.uchicago.edu/founders/documents/a1_9_2s4.html |access-date=6 October 2017 |place=Chicago |publisher=University of Chicago Press |year=1979}}{{full citation needed|reason=Missing editor name|date=March 2020}}</ref>}} The procedure for issuing a writ of ''habeas corpus'' was first codified by the [[Habeas Corpus Act 1679]], following judicial rulings which had restricted the effectiveness of the writ. A previous law (the [[Habeas Corpus Act 1640]]) had been passed forty years earlier to overturn a ruling that the command of the king was a sufficient answer to a petition of ''habeas corpus''.<ref>{{cite journal |last=Cohen |first=Maxwell |year=1940 |title=Habeas Corpus Cum Causa – The emergence of the modern writ-II |journal=Canadian Bar Review |volume=18 |pages=172, 174–175 |url=http://heinonline.org/HOL/LandingPage?handle=hein.journals/canbarev18&div=24}}</ref><ref name=EB1911/> The cornerstone purpose of the ''writ of habeas corpus'' was to limit the king's Chancery's ability to undermine the surety of law by allowing courts of justice decisions to be overturned in favor and application of ''equity'', a process managed by the Chancellor (a bishop) with the king's authority.<ref>{{Cite web |url=https://www.americanbar.org/content/dam/aba/images/public_education/05_mar08_habeascorpus_landman.pdf |title=Understanding Habeas Corpus |last=Landman |first=James |website=American Bar Association}}</ref> 

The 1679 codification of ''habeas corpus'' took place in the context of a [[Exclusion crisis|sharp confrontation]] between King [[Charles II of England|Charles&nbsp;II]] and [[Parliament of England|Parliament]], which was dominated by the then sharply oppositional nascent [[Whigs (British political party)|Whig Party]]. The Whig leaders had good reasons to fear the king moving against them through the courts (as indeed happened in 1681) and regarded ''habeas corpus'' as safeguarding their own persons. The short-lived parliament<!-- lower case, referring to session, not institution --> which made this enactment came to be known as the ''[[Habeas Corpus Parliament]]'' – being dissolved by the king immediately afterwards.

Then, as now, the writ of ''habeas corpus'' was issued by a superior court in the name of the sovereign, and commanded the addressee (a lower court, sheriff, or private subject) to produce the prisoner before the royal courts of law. A ''habeas corpus'' petition could be made by the prisoner him or herself or by a third party on his or her behalf and, as a result of the Habeas Corpus Acts, could be made regardless of whether the court was in session, by presenting the petition to a judge. Since the 18th century the writ has also been used in cases of unlawful detention by private individuals, most famously in ''[[Somersett's Case]]'' (1772), where the black slave, Somersett, was ordered to be freed.<ref>{{cite book |first=Frederick Charles |last=Moncreiff |year=2006 |title=The Wit and Wisdom of the Bench and Bar |pages=85–86 |publisher=The Lawbook Exchange, Ltd.}}</ref> During that case, these famous words are said to have been uttered: "...&nbsp;that the air of England was too pure for slavery"<ref>{{cite court |litigants=Somerset v Stewart |year=1772 |court=Lofft 1 |reporter=98 ER 499, 501 |url=http://www.commonlii.org/uk/cases/EngR/1772/57.pdf}}</ref> (although it was the lawyers in argument who expressly used this phrase – referenced from a much earlier argument heard in the [[Star Chamber]] – and not Lord Mansfield himself). During the [[Seven Years' War]] and later conflicts, the writ was used on behalf of soldiers and sailors [[Impressment|pressed]] into military and naval service.<ref>{{cite journal |last=Costello |first=Kevin |year=2008 |title=Habeas Corpus and Military and Naval Impressment 1756–1816 |journal=The Journal of Legal History |volume=29 |issue=2 |page=215|doi=10.1080/01440360802196679 |hdl=10197/6059 |s2cid=143694900 |hdl-access=free }}</ref> The [[Habeas Corpus Act 1816]] introduced some changes and expanded the territoriality of the legislation.

The privilege of ''habeas corpus'' has been suspended or restricted several times during [[English history]], most recently during the 18th and 19th centuries. Although internment without trial has been authorised by statute since that time, for example during the two [[World War]]s and the [[The Troubles|Troubles]] in [[Northern Ireland]], the ''habeas corpus'' procedure has in modern times always technically remained available to such internees. However, as ''habeas corpus'' is only a procedural device to examine the lawfulness of a prisoner's detention, so long as the detention is in accordance with an [[Act of Parliament]], the petition for ''habeas corpus'' is unsuccessful. Since the passage of the [[Human Rights Act 1998]], the courts have been able to declare an Act of Parliament to be incompatible with the [[European Convention on Human Rights]], but such a declaration of incompatibility has no legal effect unless and until it is acted upon by the government.<ref>{{cite report |url=https://publications.parliament.uk/pa/jt200607/jtselect/jtrights/128/12807.htm |publisher=Parliament of the United Kingdom |department=Joint Committee on Human Rights |title=Sixteenth Report}}</ref>

The wording of the writ of ''habeas corpus'' implies that the prisoner is brought to the court for the legality of the imprisonment to be examined. However, rather than issuing the writ immediately and waiting for the return of the writ by the custodian, modern practice in England is for the original application to be followed by a hearing with both parties present to decide the legality of the detention, without any writ being issued. If the detention is held to be unlawful, the prisoner can usually then be released or [[bail]]ed by order of the court without having to be produced before it. With the development of modern public law, applications for ''habeas corpus'' have been to some extent discouraged, in favour of applications for [[judicial review]].<ref>Re: (Habeas Corpus) [1996] QB 599; Re B [1991] 1 FLR 106</ref> The writ, however, maintains its vigour, and was held by the UK Supreme Court in 2012 to be available [[Secretary of State for Foreign and Commonwealth Affairs v Rahmatullah|in respect of a prisoner captured by British forces in Afghanistan]], albeit that the Secretary of State made a valid return to the writ justifying the detention of the claimant.<ref>{{cite court |litigants=[[Secretary of State for Foreign and Commonwealth Affairs v Rahmatullah]] |year=2012 |court=UKSC |vol=48}}</ref>