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Words of law is a regular feature of Massachusetts Law Updates, highlighting a particular word or phrase and its meaning in law.

Today’s phrase is habeas corpus.

habeas corpus. [Law Latin “that you have a body”] (18c) A writ employed to bring a person before a court, most frequently to ensure that that person’s imprisonment or detention is not illegal (habeas corpus ad subjiciendum). * In addition to being used to test the legality of an arrest or commitment, the writ may be used to obtain judicial review of (1) the regularity of the extradition process, (2) the right to or amount of bail, or (3) the jurisdiction of a court that has imposed a criminal sentence. – Abbr. H.C.—Sometimes shortened to habeas.—Also termed writ of habeas corpus; Great Writ.

“The writ of habeas corpus, by which the legal authority under which a person may be detained can be challenged, is of immemorial antiquity.  After a checkered career… it was firmly written into English law by the Habeas Corpus Act of 1679.  Today, it is said to be ‘perhaps the most important writ known to the constitutional law of England…’”  Charles Alan Wright, The Law of the Federal Courts  s.53, at 350 (5th ed. 1994)

 –  Black’s Law Dictionary, 10th ed., Bryan A. Garner, Editor in Chief, Thomson Reuters, 2014.

 

The U.S. Constitution states that “The 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.” (Article One, Section 9, Clause 2)

Accordingly, during the Civil War, Presidents Abraham Lincoln and Ulysses Grant suspended habeas corpus in some places and for some types of cases, and during World War II, President Franklin D. Roosevelt suspended habeas corpus.  President George W. Bush attempted to place detainees in the international “war on terror”outside the jurisdiction of habeas corpus by housing them at Guantanamo Bay, which is not technically U.S. territory (it is leased by the U.S. from the Cuban government pursuant to a 1903 agreement); but the Supreme Court of the United States overturned this in 2008 (Boumediene v. Bush, 553 U.S. 723).

Habeas corpus has also been used to challenge detention by the United States Bureau of Immigration and Customs Enforcement prior to a deportation hearing.

The Universal Declaration of Human Rights issued by the United Nations General Assembly in 1948 (Resolution 217) states that “everyone has the right to life, liberty and security of person” (Article 3).  While the UDHR is not legally binding, its articles have been incorporated in many international treaties, national constitutions, and laws. For example, the European Convention on Human Rights, Article 5, “Right to liberty and security”, provides that:” Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.” (article 5.4)

The Massachusetts Constitution (Part 2, Chapter 6, Article 7) states: “The privilege and benefit of the writ of habeas corpus shall be enjoyed in this commonwealth in the most free, easy, cheap, expeditious and ample manner; and shall not be suspended by the legislature, except upon the most urgent and pressing occasions, and for a limited time not exceeding twelve months.”

The privilege of the writ of habeas corpus appears in chapter 248 of the Massachusetts General Laws.

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