NCJ Number
54744
Journal
New York University Law Review Volume: 53 Issue: 5 Dated: (NOVEMBER 1978) Pages: 983-1054
Date Published
1978
Length
72 pages
Annotation
IT IS ARGUED THAT THE WRIT OF HABEAS CORPUS BEGAN, NOT AS A PROTECTION OF LIBERTY, BUT AS A MEANS TO FACILITATE THE MONARCHICAL JUDICIAL PROCESS. ITS METAMORPHOSIS IN ENGLISH LAW IS TRACED.
Abstract
THE HISTORICAL DEVELOPMENT OF THE WRIT OF HABEAS CORPUS IS TRACED BACK TO EARLY ANGLO-SAXON ENGLAND. ITS ORIGINS ARE SEEN AS BEGINNING WHEN THE 'BLOOD-FEUD' SYSTEM WAS REPLACED BY WERGELD, COMPENSATION REPLACED REVENGE, AND PERSONS WERE HELD FOR A TRIAL TO DETERMINE THE AMOUNT OF COMPENSATION TO BE PAID. THE SYSTEM IS EXAMINED AS FOUND IN THE LAWS OF KING INE (688-725 A.D.). THIS HISTORY THEN FOLLOWS THE WRIT THROUGH THE CENTRALIZATION OF THE COURT SYSTEM BY THE NORMANS IN THE 11TH CENTURY. IT FINDS THAT THE WRIT OF HABEUS CORPUS WAS ORIGINALLY USED TO NOTIFY JUDGES THAT SOMEONE HAD BEEN ARRESTED AND THAT THEY NEEDED TO TRAVEL TO THE DISTRICT TO HOLD A TRIAL. IT WAS LIMITED TO OFFENSES AGAINST THE CROWN. THE STREAMLINING OF THE PROCESS WHICH TOOK PLACE IN THE 12TH AND 13TH CENTURIES IS TRACED, ALONG WITH THE DEVELOPMENT OF THE BAIL BOND SYSTEM. THE ORIGINS OF HABEAS CORPUS AD RESPONDENDUM AND CAPIAS OR ARREST ORDER, ARE EXPLAINED. IT WAS NOT UNTIL THE 14TH CENTURY THAT HABEAS CORPUS WAS USED TO SECURE THE SUBJECT'S LIBERTY. THIS DEVELOPMENT WAS THE RESULT OF POLITICAL STRUGGLES, CONFLICTS BETWEEN SUPERIOR COURTS AND LOCAL COURTS, AND NUMEROUS JUDICIAL DECISIONS. A DETAILED HISTORY OF THIS PERIOD IS GIVEN, ENDING WITH THE PASSAGE OF THE HABEAS CORPUS ACT IN ENGLAND IN 1679. PRESENT USE OF THE WRIT IS BRIEFLY SURVEYED. THE 543 FOOTNOTES CONTAIN EXTENSIVE REFERENCES. (GLR)