Habeas corpus originally stems from the Assize of Clarendon, a re-issuance of rights during the reign of Henry II of England (b. 5 March 1133 ~ r. 19 December d. 1154 – 6 July 1189).
Assize of Clarendon -- 1166
The Assize of Clarendon was an 1166 act of Henry II of England that began the transformation of English law from such systems for deciding the prevailing party in a case, especially felonies, as trial by ordeal or trial by battle or trial by compurgation to an evidentiary model, in which evidence, inspection, and inquiry was made by laymen, knights or ordinary freemen, under oath. This act greatly fostered the methods that would eventually be known in common law countries as trial by jury.
The Assize of Clarendon did not lead to this change immediately, however; recourse to trial by combat was not officially rescinded until 1819.
The Assize takes its name from Clarendon Palace, Wiltshire, the royal hunting lodge at which it was promulgated.
https://en.wikipedia.org/wiki/Assize_of_Clarendon .
http://avalon.law.yale.edu/medieval/assizecl.asp .
Medieval Documents : 400 - 1399
http://avalon.law.yale.edu/subject_menus/medieval.asp
https://www.slideshare.net/georginablair/henry-ii-assizes
Common Law and Equity: A Very Short History
https://www.slideshare.net/mblemieux/common-law-and-equity-a-very-short-history
Assize of Clarendon -- 1166
The Assize of Clarendon was an 1166 act of Henry II of England that began the transformation of English law from such systems for deciding the prevailing party in a case, especially felonies, as trial by ordeal or trial by battle or trial by compurgation to an evidentiary model, in which evidence, inspection, and inquiry was made by laymen, knights or ordinary freemen, under oath. This act greatly fostered the methods that would eventually be known in common law countries as trial by jury.
The Assize of Clarendon did not lead to this change immediately, however; recourse to trial by combat was not officially rescinded until 1819.
The Assize takes its name from Clarendon Palace, Wiltshire, the royal hunting lodge at which it was promulgated.
https://en.wikipedia.org/wiki/Assize_of_Clarendon .
http://avalon.law.yale.edu/medieval/assizecl.asp .
Medieval Documents : 400 - 1399
http://avalon.law.yale.edu/subject_menus/medieval.asp
https://www.slideshare.net/georginablair/henry-ii-assizes
Common Law and Equity: A Very Short History
https://www.slideshare.net/mblemieux/common-law-and-equity-a-very-short-history
In the 17th century the foundations for habeas corpus were "wrongly thought" to have originated in Magna Carta. This charter declared that:
"No Freeman shall be taken or imprisoned, or be disseized of his 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."
William Blackstone cites the first recorded usage of habeas corpus ad subjiciendum in 1305, during the reign of King Edward I. However, other writs were issued with the same effect as early as the reign of Henry II in the 12th 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." 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.
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. In that case these famous words are said to have been uttered: "The air of England has long been too pure for a slave, and every man is free who breathes it". During the Seven Years' War and later conflicts, the Writ was used on behalf of soldiers and sailors pressed into military and naval service. 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 Wars and the 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.
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 bailed by order of the court without having to be produced before it. It is also possible for individuals held by the state to petition for judicial review, and individuals held by non-state entities to apply for an injunction. With the development of modern public law, applications for habeas corpus have been to some extent discouraged, in favour of applications for judicial review.
The writ, however, maintains its vigour, and was held by the UK Supreme Court to be available 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.
https://en.wikipedia.org/wiki/Habeas_corpus#Origins_in_England
http://legalhistorysources.com/Law508/CommonLawsEurope.htm
http://legalhistorysources.com/Law508/EnglishLawHistory.htm
Thirteenth-century text by English jurist Bracton, De legibus et consuetudinibus Angliae
Bracton's chief claim to fame is his association with the long treatise De legibus et consuetudinibus Angliae (On the Laws and Customs of England), which the noted legal historian F.W. Maitland described as "the crown and flower of English jurisprudence." The work (commonly known now simply as Bracton) attempts to describe rationally the whole of English law, a task that was not again undertaken until Blackstone's Commentaries on the Laws of England in the eighteenth century. The work is remarkable both for its wealth of detail and for its attempts to make sense out of English law largely in terms of the ius commune, the combination of Roman and canon law that was taught in the universities in Bracton's time.
While the attribution of the work to Bracton is of considerable antiquity, it now seems that the bulk of the work was written in the 1220s and 1230s by persons other than Bracton himself. It seems then to have been edited and partially updated in the late 1230s, with various additions being made to it between that time and the 1250s. The last owner of the original manuscript and the author of the later additions was probably Bracton.
http://www.law.harvard.edu/programs/ames_foundation/bracton.html
http://bracton.law.harvard.edu/
http://bracton.law.harvard.edu/Common/SearchPage.htm
Henry II - legal reforms
https://www.slideshare.net/georginablair/henry-ii-assizes
Medieval Documents : 400 - 1399
http://avalon.law.yale.edu/subject_menus/medieval.asp
https://www.slideshare.net/georginablair/henry-ii-assizes
Common Law and Equity: A Very Short History
https://www.slideshare.net/mblemieux/common-law-and-equity-a-very-short-history
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