Dimension I: Habeas Corpus as a Common Law Writ

29 Pages Posted: 4 Feb 2011 Last revised: 5 Aug 2015

See all articles by Eric M. Freedman

Eric M. Freedman

Hofstra University - Maurice A. Deane School of Law

Date Written: February 3, 2011


This article is the first part of a projected three-part work based on the extensive exploration of archival sources in America and England that has been conducted in the past several years by myself and other researchers.

It advances two key claims: First, in researching the history of habeas corpus we need to get beyond the label "habeas corpus." The constitutional importance of the writ is in its function not its name. Demands for release from unlawful imprisonment could be made in the seventeenth and eighteenth centuries by seeking a variety of writs or even by pleadings that asked for no particular writ at all. Hence for Suspension Clause purposes we should adopt a functional definition of "habeas corpus" to mean a demand, however denominated, challenging the legal basis of a detention and calling upon the custodian to justify it.

Second, the broader group of cases thus defined shares important features of judicial methodology. The judges worked vigorously (a) to resolve the case speedily on a fact-specific and pragmatic basis; and (b) with respect to those issues of law necessarily involved (I) to overcome any procedural barriers to a prompt merits ruling and (II) if a legal question seemed dis-positive, to frame it specifically and isolate it for adjudication.

I conclude by suggesting why historical research, legal scholarship, and judicial proceedings (including current ones involving Guantanamo) might benefit from applying these thoughts.

Keywords: Habeaus, colonial history, common law methodology, Guantanamo, 17th century legal history, 18th century legal history, American legal history, English legal history

Suggested Citation

Freedman, Eric M., Dimension I: Habeas Corpus as a Common Law Writ (February 3, 2011). 46 Harvard Civil Rights-Civil Liberties L. Rev. 591 (2011), Hofstra Univ. Legal Studies Research Paper No. 11-03, Available at SSRN: https://ssrn.com/abstract=1754656

Eric M. Freedman (Contact Author)

Hofstra University - Maurice A. Deane School of Law ( email )

121 Hofstra University
Hempstead, NY 11549
United States
516-463-5167 (Phone)
515-463-5129 (Fax)

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