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NIHIL NOVUM SUB SOLE

1001 deeds, sayings, curiosities and anecdotes of the ancient world

Writ of habeas corpus

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"Habeas corpus" is part of a broader Latin phrase: habeas corpus ad subiiciendum et recipiendum. Its literal translation would be "keep the body to put it in hand (of law) and re-take it.

Usually the sentence is translated as “bring the body here”,  "you can have your body", “You own your body”  almost unintelligible sentences precisely because they are   obvious .

Given its Latin form, you may think your origin  is in Roman law, so important to the West, but actually it has little or nothing to do directly with the Roman law, in which  it is not as such a phrase, but in it we can trace some remote and distant precedent.

Habeas corpus is actually the name of a famous English law, Habeas Corpus Act of May 26, 1679 issued by Charles II, and then  the Habeas Corpus Amendment Act;  it is specific for  the English  common law, and it is also an essential pillar in the defense of the English civil liberties and countries in which is applied the "common law." Precedents are some provisions of the Magna charta libertatum  of 1215.

In Spain there  is a precedent in the Aragonese law, with the Manifestation of people  which was sanctioned  by Alonso III in 1287. The Manifestation of people was a guarantee of personal liberty with a procedure that was pending before the Justice of Aragon, jurisdiction very similar to the current Constitutional Court. Its existence is dated in the Jurisdiction of Aragon since  1428, but then it disappeared when  the absolutism of kings was implanted.

The phrase is applied in law to demand the right of the detainee to be brought immediately before a judge or into court to decide on the appropriateness or otherwise of the detention. Therefore it is an instrument or mechanism to ensure freedom of individuals against the acts of public authorities.It was an instrument to avoid the injustices of the feudal lords against their subjects.

It regulates,  therefore, the right  to not to be arbitrarily detained without cause and therefore anyone who is arrested has the right to know why he was arrested and what he is accused.

Actually the phrase "habeas corpus ad subiiciendum" is an order or command that  is directed to jailer or authority who has arrested a person for the submission of him to the competent authority, to brought before a judge or into court, but it is not directed to the detainee, as often is interpreted.

In this sense the phrase is fully intelligible and explanatory translation of the phrase would be: "Take  the detainee's body to brought him into court and get him back."

The far  and no absolutely equivalent Roman precedent is found in the famous " interdictum de homine libero exhibendo" , which orders a man who unlawfully holds a free man as a slave to produce this man in court..

It is born from  the fact that a creditor debt was charged with by the debtor by reducing it to the status of slave; before the claim of the debtor or his family, the creditor must "submit"  the debtor before the praetor for  he  decide whether detention it was legal or not. The interdictum or injunction was saying by the Praetor, "if you have  the man, show me, submit him and  I can decide whether he should be deprived of liberty or not".

Digest, 43.29.0 About showing a free man

Dig. 43.29. 1pr. ... Praetor said: show me the free man whom  you hold with bad intent

Dig. 43.29.1.1 ... This injunction intends to defend freedom, ie, that free men are not held by anyone.

Dig. 43.29.0. De homine libero exhibendo.

Dig. 43.29.1pr. … Ait praetor: " quem liberum dolo malo retines, exhibeas".

Dig. 43.29.1.1 … Hoc interdictum proponitur tuendae libertatis causa, videlicet ne homines liberi retineantur a quoquam:

And it explains what is the meaning of “exhibere”  Provide public (ie in court) so that you can see and touch him."

Dig. 43.29.3.8 … The praetor said: show me him. To show means  present him to the public and provide an opportunity  for the man to be seen and touched:  exhibit means to have him beyond concealment.

Ait praetor " exhibeas". exhibere est in publicum producere et videndi tangendique hominis facultatem praebere: proprie autem exhibere est extra secretum habere.

As you see, it's not exactly like the concept of  Anglo-Saxon "habeas corpus", but its similarity allowed Niceto Alcalá Zamora say that the "habeas corpus" is an Anglo-Roman creation.

There are also other phrases in law with the component 'habeas corpus. "thus:

Habeas corpus ad respondendum: bring him into court to answer
Habeas corpus ad testificandum: bring him into court to testify
Habeas corpus ad prosequendum: bring him into court to continue
 

   
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