THE GREAT WRIT OF HABEAS CORPUS (BY MELVIN PEREZ). The great writ has its origins in antiquity and its parameters have been shaped by suffering and deprivation. It is more than a privilege with which free men are endowed by Constitutional mandate. It is a writ of ancient right. The great writ, known commonly by the name of habeas corpus, was a high prerogative writ known to the common law, the object of which was the liberation of those who were imprisoned without sufficient cause. See Ex-parte Watkins, 3 Pet (28 U.S.) 193, 7 L.Ed. 650. It is a writ of inquiry upon matters of which the State itself is considered in aid of right and liberty. State v. Michel, 105 La. 741, text 747, 30 South. Rep. 122, 54 L.R.A. 927, Ex parte Coupland, 26 Tex. 386. The name of the writ is "habeas corpus ad subjiciendum et recipiendum." It is not an action or suit but is a summary remedy open to the person detained. It is civil rather that criminal in nature and is a legal and not equitable remedy. See Ex-parte Watkins, supra, Ex-parte Bollman, 4 French (8 U.S.) 75, 2 L.Ed. 554. [W]hile the writ had been used in England from remote antiquity it was often assailed by kings who sought tyrannical power and the benefits of the writ were in a great degree eluded by time-serving judges who assumed a discretionary power in awarding or refusing it and were disposed to support royal and ministerial usurpations. Owing to such abuses the writ became powerless to release persons imprisoned without any cause assigned. In the fight by the people against the abuses of the writ, petitions of rights were submitted to the king and during the reign of Charles 1, A.D. 1641, provisions were enacted intended to make the writ effectual. These activities were however vain. At last, in 1679, the Statute 31 Chas. 2 Chap. was enacted. The Act is known as the Habeas Corpus Act. That Act has been substantial incorporated into the jurisprudence of every State in the Union and the right to it secured by their Constitutions. The Constitution of the United States provides that the privilege of the writ of habeas corpus shall not be suspended except in certain circumstances. Art. 1, Sec. 9, par. 2, U.S. Constitution. The application for the writ may be made by an agent or friend, wife, husband, or the person detained himself, or by parent for his child, guardian for the ward, or special bail for his principal. In any event it must be a friendly person in the interest of the person illegally detained. State ex rel. Deeb v. Fabisinski, 111 Fla. 454, 460-461, 152 So. 207, rehearing denied 156 So. 261 (1933). It was early established that no formal application was required to invoke the jurisdiction of the courts in habeas corpus proceedings. "No formal application for habeas corpus is required." See, Martin v. State, 123 Fla. 143, 145, 166 So. 467 (1936). "The writ of habeas corpus is a writ of right. It is sometimes issued upon very informal application, Ex Parte Pells, 28 Fla. 67, 9 South. Rep 833." Ex Parte, Ernest Amos, 93 Fla. 5, 11, 112 So. 289 (1927). The most extreme statement of the rule is represented by the following quotation from Corpus Juris Secundum: [t]he writ may be issued by the court of its own motion in a proper case. 39A C.J.S., Habeas Corpus ss 167.a (1976). This quotation taken out of context is inserted here merely for contrast. As a general rule, a habeas corpus proceedings is an independent action, legal and civil in nature, designed to secure prompt determination as to the legality of restraint in some form. Crane v. Hayes, 253 So.2d 435, 439 (Fla. 1971). Habeas corpus, then, like the unicorn, is a unique animal. Public policy demands that it be readily, speedily and constantly available. The judiciary has been singularity zealous in responding to that policy. As was said in Anglin v Mayo, 88 So. 2d 918, 919-920 (Fla. 1956: [H]istorically, habeas corpus is a high prerogative writ. It is as old as the common law itself and is an integral part of our own Democratic process. The procedure for the granting of this particular writ is not to be circumscribed by hard and fast rules or technicalities which often accompany our consideration of other processes. If it appears to a court of competent jurisdiction that a man is being illegally restrained of his liberty, it is the responsibility of the court to brush aside formal technicalities and issue such appropriate orders as will do justice. In habeas corpus the niceties of the procedure are not anywhere near as important as the determination of the ultimate question as to the legality of the restraint. Now that you know the history and purpose of the great writ, use it accordingly. Best wishes in your legal projects. :-)



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