FOREWORD

• Jurisdiction: United States

Foreword

Why Is Habeas Corpus Important? By John C. Tucker

"Would you write a short introduction for our casebook about why habeas corpus is important?" Professor Lyon asked. "I'd be glad to," I said.

The problem, I soon realized, is how to write anything short about something as fundamental to our legal system as habeas corpus—the law which Blackstone described as "the stable bulwark of our liberties," and which American courts commonly refer to as simply "The Great Writ."

In talking about habeas corpus we can't avoid starting nearly 800 years ago at Run-nymede, with the most famous provision of Magna Carta: "No freeman shall be taken or imprisoned except by the lawful judgement of his peers or by the law of the land." Magna Carta Art. 39 (1215). For the next 467 years, English kings periodically ignored that stricture and imprisoned their subjects without due process of law, while English parliaments passed laws designed to prevent it—laws referred to by the Latin phrase "habeas corpus"—loosely, "you have the person, now show a legal justification for keeping him or let him go." Finally, the Habeas Corpus Act of 1679 (the statute Blackstone was talking about) pretty much settled the matter. Unless parliament passed a law temporarily suspending habeas, no citizen of England could be imprisoned without a formal charge and an opportunity to contest it.

Given the importance of habeas corpus as a check on the power of the English monarch, it is not surprising that the American colonists also saw it as their most important guarantee of due process, and were enraged when royal authorities sometimes refused to afford its protections to colonists who challenged their arbitrary conduct. Thus, in Federalist 84, Alexander Hamilton declared that habeas corpus was "the bulwark of the British Constitution" and essential to the protection of liberty in the new nation. Habeas corpus became the only English common-law process explicitly written into our own Constitution, and jurisdiction to enforce the Great Writ was granted to American courts in the first Judiciary Act in 1789, even before the adoption of the Bill of Rights.

From that time forward, the Great Writ has been seen as a cornerstone of American justice. As the Supreme Court declared in Fay v. Noia, "there is no higher duty than to maintain it unimpaired."

It was Gideon v. Wainwright, another habeas case, which, with the book and movie Gideon's Trumpet, became the most famous of the decisions which marked the...