5. Habeas corpus in the early United States

2021 ◽  
pp. 44-51
Author(s):  
Amanda L. Tyler
Keyword(s):  
United States ◽  
Common Law ◽  
Thomas Jefferson ◽  
Federal Courts ◽  
War Of 1812 ◽  
Habeas Corpus ◽  
Fugitive Slave ◽  
The Common ◽  
The Creation ◽  
Reconstruction Period

This chapter details the creation of American federal courts and their vesting with habeas jurisdiction. It likewise explores the failure of Thomas Jefferson to convince his Congress to enact a suspension to address the so-called Burr Conspiracy and how even the return of the British in the War of 1812 did not lead to a suspension, revealing an early reluctance to invoke the dramatic authority. The chapter concludes by exploring the continuing importance of the common law writ as a writ of liberty in slave cases, highlighting how judges in Northern abolitionist states used the common law writ to frustrate fugitive slave laws while often relying upon Lord Mansfield’s opinion in Somerset’s Case as support for a robust habeas writ in this context. The chapter concludes by noting that these cases laid the groundwork for a future expansive role for the writ that would come during the American Reconstruction period.

Introduction

2021 ◽  
pp. 1-6
Author(s):  
Amanda L. Tyler
Keyword(s):  
United States ◽  
Great Britain ◽  
Common Law ◽  
The United States ◽  
Habeas Corpus ◽  
American Law ◽  
History Of ◽  
The Common ◽  
Anglo American

The Introduction provides an overview of the history of the writ of habeas corpus and an overview of the book, which tells the story of what is sometimes known as “the Great Writ” as it has unfolded in Anglo-American law. The primary jurisdictions explored are Great Britain and the United States, yet many aspects of this story will ring familiar to those in other countries with a robust habeas tradition. The book chronicles the longstanding role of the common law writ of habeas corpus as a vehicle for reviewing detentions for conformity with underlying law, as well as the profound influence of the English Habeas Corpus Act of 1679 on Anglo-American law. The Introduction highlights how the writ has at times failed to live up to its glorification by Blackstone and others, while noting that at other times it has proven invaluable to protection of liberty, including as a vehicle for freeing slaves and persons confined solely based on a King’s whim.

Rediscovering Blackstone: wpływ Williama Blackstone’a na rozwój amerykańskiej nauki prawa w recepcji Alberta W. Alschulera

2017 ◽  
Vol 15 (2) ◽  
pp. 175-185
Author(s):  
Edyta Sokalska
Keyword(s):  
United States ◽  
18Th Century ◽  
Common Law ◽  
The United States ◽  
Law School ◽  
Large Measure ◽  
American Colonies ◽  
Late 18Th Century ◽  
American Law ◽  
The Common

The reception of common law in the United States was stimulated by a very popular and influential treatise Commentaries on the Laws of England by Sir William Blackstone, published in the late 18th century. The work of Blackstone strengthened the continued reception of the common law from the American colonies into the constituent states. Because of the large measure of sovereignty of the states, common law had not exactly developed in the same way in every state. Despite the fact that a single common law was originally exported from England to America, a great variety of factors had led to the development of different common law rules in different states. Albert W. Alschuler from University of Chicago Law School is one of the contemporary American professors of law. The part of his works can be assumed as academic historical-legal narrations, especially those concerning Blackstone: Rediscovering Blackstone and Sir William Blackstone and the Shaping of American Law. Alschuler argues that Blackstone’s Commentaries inspired the evolution of American and British law. He introduces not only the profile of William Blackstone, but also examines to which extent the concepts of Blackstone have become the basis for the development of the American legal thought.

Law and Lawyers in the United States: The Common Law under Stress

1967 ◽  
Vol 80 (4) ◽  
pp. 916
Author(s):  
Lord Denning ◽  
Erwin N. Griswold
Keyword(s):  
United States ◽  
Common Law ◽  
The United States ◽  
The Common

John Marshall’s Sea Mine

2018 ◽  
pp. 88-97
Author(s):  
Eric M. Freedman
Keyword(s):  
Life Expectancy ◽  
Constitutional Law ◽  
Thomas Jefferson ◽  
Federal Courts ◽  
The Other ◽  
British History ◽  
Habeas Corpus ◽  
Independent Judiciary ◽  
Political Background

The notion of an independent judiciary that restrained the other branches was an infant with a questionable life expectancy when John Marshall stated in placatory dicta in Ex Parte Bollman (1807)—quite wrongly as a matter of both British history and American constitutional law— that the federal courts had no inherent authority to issue the writ of habeas corpus in the absence of legislation. The Suspension Clause, he claimed, was merely precatory, an injunction to Congress to pass such legislation. The highly political case involved Erick Bollman and Samuel Swartwout, alleged members of the Aaron Burr conspiracy, and pitted prominent federalists such as petitioners’ counsel Robert Goodloe Harper and Charles Lee against the administration of Thomas Jefferson. After reviewing the factual and political background, this chapter details the arguments of counsel in favor of inherent judicial authority to grant the writ and Marshall’s rejection of them. Judicial autonomy was under threat at the time and Marshall was trying to defend it But his words were a judicial sea mine that created a long-term danger: Congress could by simple inaction evade the bedrock prohibition against suspension of the writ.

Knowing Habeas Corpus When You See It

2018 ◽  
pp. 9-11
Author(s):  
Eric M. Freedman
Keyword(s):  
Supreme Court ◽  
Common Law ◽  
Habeas Corpus ◽  
The Supreme Court ◽  
The Common ◽  
The Government ◽  
Enemy Combatant

Viewing habeas corpus through a legal lens frequently misleads. The common law “rule” against controverting the return to writs of habeas corpus was commonly evaded through devices permitting judicial examination of the underlying facts and law. In many cases concluding “writ denied,” the prisoner in fact obtained “habeas corpus without the writ.” Failure to understand this explains why the Fourth Circuit performed so badly in rejecting the challenge of Yaser Hamdi to his detention as an enemy combatant. The Supreme Court very properly reversed that decision in Hamdi v. Rumsfeld (2004), resulting in the prisoner’s speedy release when the government was confronted with having to actually prove in court the claims it had made on paper.

1. The English origins

2021 ◽  
pp. 7-17
Author(s):  
Amanda L. Tyler
Keyword(s):  
Seventeenth Century ◽  
Common Law ◽  
Habeas Corpus ◽  
Individual Liberty ◽  
Simple Idea ◽  
Magna Carta ◽  
The Common

This chapter traces the origins of the common law writ of habeas corpus, finding that it was born out of a simple idea: the need to serve the king and demand justification for the detention of one of his subjects. It was not so much for those courts to question the king himself, for he could do no wrong. This chapter details how all of this changed over the course of the seventeenth century, and specifically the important role that the English Habeas Corpus Act of 1679 played in this shift. As is also explored, Parliament’s objectives in passing the Habeas Corpus Act sprang from its intention to expand its power at the expense of the king much more so than a desire to protect individual liberty. But in time, Blackstone and others came to praise the Act as a “second Magna Carta” for curtailing the detention of so-called “state prisoners.”

The Diffuse and Second Look Models of Judicial Review

2021 ◽  
pp. 23-34
Author(s):  
Steven Gow Calabresi
Keyword(s):  
United States ◽  
Latin America ◽  
Judicial Review ◽  
Common Law ◽  
The United States ◽  
Constitutional Court ◽  
Bill Of Rights ◽  
The United Kingdom ◽  
Second Look ◽  
The Common

This chapter examines the two models of judicial review that exist in the common law countries: the Diffuse Model and the Second Look Model. The Diffuse Model of judicial review originated in the United States and has spread to India, Canada, Australia, the United Kingdom, most of the countries of Latin America, the Scandinavian countries (except for the Netherlands), and Japan. It is premised on the idea that a country’s written constitution is its supreme law and that courts, when deciding cases or controversies that are properly before them, are thus duty-bound to follow the constitution, which is supreme law, and not a contrary statute whenever those two items conflict. Meanwhile, the essence of the Second Look Model of judicial review is that a Supreme or Constitutional Court ought to have the power of judicial review, subject to some kind of legislative power of override. This, it is said, best harmonizes the advantages of a written constitution and a bill of rights enforced by courts with the imperatives of democratic self-government. The underlying goal is to obtain the advantages of both constitutional government and also of democratic government.

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