From the beginning of government under the Constitution of 1789, Congress has assumed its power to establish inferior courts, its power to regulate the jurisdiction of federal courts and the power to regulate the issuance of writs.

The Thirteenth section of the Judiciary Act of 1789 authorized the circuit court to issue writs of prohibition to the district courts and the Supreme Court to issue such writs to the circuit courts.

Section 14 provided that all courts of the United States should “have power to issue writs of scire facias, habeas corpus, and all other writs not specially provided for by statute, which may be necessary for the exercise of their respective jurisdiction, and agreeable to the principles and usages of law”.

Even if the Act of 1789 left the power over writs subject to the common law, it is significant as a reflection of the belief, that an act of Congress is necessary to confer judicial power to issue writs.

Habeas Corpus, literally in Latin “you have the body” is a locution that represents a considerable right granted to individuals in America.

In many countries, authorities may take citizens and incarcerate them for months or years without charging them. Those incarcerated have no legal means by which they can protest or challenge the incarceration by filing a petition through a lawyer or even pro se. The creators of the U.S. Constitution intended to prohibit this kind of occurrence in the United States. Consequently, they included a clause in the Constitution that allows courts to issue writs of habeas corpus.

A writ of habeas corpus or the “Great writ” is a judicial mandate requiring that a prisoner be brought before the court to determine whether the government has the right to continue detaining them.

The Great Writ was one of the many imports from England, where Sir William Blackstone described it in his Commentaries on the Laws of England as “the glory of the English law”. The right of citizens to demand review of their incarceration was an essential protection against government abuse, which Blackstone noted, “does not always arise from the ill-nature, but sometimes from the mere inattention, of government”. The colonial governments agreed, and, despite the Crown’s position that habeas was not available in the colonies, writs of habeas corpus were issued before the Revolution.

A habeas corpus petition is a petition filed with a court by a person who objects to his own or another’s detention or imprisonment. The petition must show that the court ordering the detention or imprisonment made a legal or factual mistake.

The habeas petition must be in writing and signed and verified either by the petitioner seeking relief or by someone acting on his or her behalf. The petition must name the custodian as the respondent and state the facts concerning the applicant’s custody and include the legal basis for the request.

In family law, a parent who has been denied custody of his child by a trial court may file a habeas corpus petition.

Habeas corpus is used to determine preliminary matters in criminal cases, such as:

  • an adequate basis for detention;

  • removal to another federal district court;

  • the denial of bail or parole;

  • a claim of double jeopardy;

  • the failure to provide for a speedy trial or hearing

  • the legality of extradition to a foreign country.