Misplaced Pages

#550449

113-473: Fifteen years after the expulsion of the kings and establishment of the Roman Republic, the plebeians were burdened by crushing debt. A series of clashes between the people and the ruling patricians in 495 and 494 BC brought the plebeians to the brink of revolt, and there was talk of assassinating the consuls. Instead, on the advice of Lucius Sicinius Vellutus , the plebeians seceded en masse to

226-410: A "great and efficacious writ in all manner of illegal confinement". It is a summons with the force of a court order ; it is addressed to the custodian (a prison official, for example) and demands that a prisoner be brought before the court, and that the custodian present proof of authority, allowing the court to determine whether the custodian has lawful authority to detain the prisoner. If the custodian

339-598: A 14th-century Anglo-French document requiring a person be brought before a court or judge--especially to determine whether the person is being detained legally. Praecipimus tibi quod corpus A.B. in prisona nostra sub custodia tua detentum, ut dicitur, una cum die et causa captionis et detentionis suae, quocumque nomine praedictus A.B. censeatur in eadem, habeas coram nobis ... ad subjiciendum et recipiendum ea quae curia nostra de eo adtunc et ibidem ordinare contigerit in hac parte. Et hoc nullatenus omittatis periculo incumbente. Et habeas ibi hoc breve. We command you, that

452-436: A law permitting the intermarriage of patricians and plebeians, and allowing one of the consuls to be a plebeian. Rather than permit the election of a plebeian consul, the senate resolved upon the election of military tribunes with consular power , who might be elected from either order. Initially this compromise satisfied the plebeians, but in practice only patricians were elected. The regular election of military tribunes in

565-609: A meeting of the Curiate Assembly . To assist the king, a council advised the king during all trials, but this council had no power to control the king's decisions. Also, two criminal detectives ( Quaestores Parricidii ) were appointed by him as well as a two-man criminal court ( Duumviri Perduellionis ) which oversaw for cases of treason . Under the kings, the Senate and Curiate Assembly had very little power and authority; they were not independent bodies in that they possessed

678-405: A new king. The Senate would assemble and appoint one of its own members as the interrex to serve for five days to nominate the next king of Rome. After the five days, the interrex could appoint (with the Senate's consent) another senator for another five-day term. This process would continue until the election of a new king. Once the interrex found a suitable nominee for the kingship, he would bring

791-472: A person may not be subjected to any legal proceeding--such as arrest and imprisonment--without sufficient evidence having already been collected to show that there is a prima facie case to answer. The evidence must be collected beforehand because it must be available for exhibition in a public hearing within hours--or at most--days after arrest. Any charge leveled at the hearing thus must be based on evidence already collected, and an arrest and incarceration order

904-413: A plebeian. Although this law was occasionally violated by the election of two patrician consuls, Sextius himself was elected consul for 366, and Licinius in 364. At last, the plebeian tribunes had broken the patrician monopoly on the highest magistracies of the state. Following their victory in 367, the tribunes remained an important check on the power of the senate and the annual magistrates. In 287 BC,

1017-555: 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. During that case, these famous words are said to have been uttered: "... that

1130-480: A seat in the Senate. However, the Roman desire to prevent the kingship from becoming important went so far that, even in the area of religion, the king of sacrifices was formally, in all but protocol, subordinated to the first of the pontiffs , the pontifex maximus (whose position in origin, rather than with the name of priest, is better described as "minister of religion"), to the extent that at some point in history,

1243-720: A session of the Constituent Assembly , H.V. Kamath, a member, suggested the removal of specific references to writs in Article 32, expressing concern that such references could restrict judges from establishing new types of writs in the future, while Dr. B.R. Ambedkar , the Chairperson of the Drafting Committee, emphasized the significance of retaining references to the writs. Dr. B.R. Ambedkar noted that writs, including habeas corpus , are already part of

SECTION 10

#1732776322551

1356-631: A specific procedure for the High Court to enquire into the lawfulness of any person's detention. It does not mention the Latin term habeas corpus , but includes the English phrase "produce the body". Article 40.4.2° provides that a prisoner, or anyone acting on his behalf, may make a complaint to the High Court (or to any High Court judge) of unlawful detention. The court must then investigate

1469-570: A statutory basis for any infringements of the fundamental rights guaranteed by the Basic Law while also guaranteeing judicial review; article 20, paragraph 3, which guarantees the rule of law; and article 3 which guarantees equality. In particular, a constitutional obligation to grant remedies for improper detention is required by article 19, paragraph 4 of the Basic Law, which provides as follows: "Should any person's right be violated by public authority, he may have recourse to

1582-434: A substantial gain from his actions. In 48 BC, the senate bestowed the tribunicia potestas (tribunician power) on the dictator Gaius Julius Caesar , who, as a patrician, was ineligible to be elected one of the tribunes. When two of the elected tribunes attempted to obstruct his actions, Caesar had them impeached, and taken before the senate, where they were deprived of their powers. Never again did Caesar face opposition from

1695-411: A tribune could veto any action of the magistrates, senate, or other assemblies, he had to be physically present in order to do so. Because the sacrosanctity of the tribunes depended on the oath of the plebeians to defend them, their powers were limited to the boundaries of the city of Rome. A tribune traveling abroad could not rely on his authority to intervene on behalf of the plebeians. For this reason,

1808-442: A tribune, he could "interpose the sacrosanctity of his person" to prevent such action. Even a dictator (and presumably an interrex ) was not exempted from the veto power, although some sources may suggest the contrary. The tribunes could veto acts of the Roman senate. The tribune Tiberius Sempronius Gracchus imposed his veto on all government functions in 133 BC, when the senate attempted to block his agrarian reforms by imposing

1921-466: 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

2034-439: Is acting beyond their authority, then the prisoner must be released. Any prisoner, or another person acting on their behalf, may petition the court, or a judge, for a writ of habeas corpus . One reason for the writ to be sought by a person other than the prisoner is that the detainee might be held incommunicado . Most Continental European law-influenced jurisdictions provide a similar remedy for those unlawfully detained, but this

2147-434: Is not always called habeas corpus . For example, in some Spanish-speaking nations, the equivalent remedy for unlawful imprisonment is the amparo de libertad ("protection of freedom"). Habeas corpus has certain limitations. The petitioner must present a prima facie case that a person has been unlawfully restrained. As a procedural remedy , it applies when detention results from neglect of legal process, but not when

2260-491: Is not binding on the Defence Forces during a state of war or armed rebellion. The full text of Article 40.4.2° is as follows: Upon complaint being made by or on behalf of any person to the High Court or any judge thereof alleging that such person is being unlawfully detained, the High Court and any and every judge thereof to whom such complaint is made shall forthwith enquire into the said complaint and may order

2373-430: Is not lawful if not supported by sufficient evidence. 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

SECTION 20

#1732776322551

2486-594: 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

2599-516: Is the respondent must prove authority to do or not do something. Failing that, the court must decide for the petitioner , who may be any person, not just an interested party. This differs from a motion in a civil process in which the movant must have standing, and bears the burden of proof. The phrase is from the Latin habeās , second person singular present subjunctive active of habēre , "to have", "to hold"; and corpus , accusative singular of corpus , "body". In reference to more than one person,

2712-516: The Habeas Corpus Parliament – being dissolved by the king immediately afterwards. 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

2825-557: The Mons Sacer (the Sacred Mount), a hill outside of Rome. The senate dispatched Agrippa Menenius Lanatus , a former consul who was well liked by the plebeians, as an envoy. Menenius was well received, and told the fable of the belly and the limbs, likening the people to the limbs who chose not to support the belly, and thus starved themselves; just as the belly and the limbs, the city, he explained, could not survive without both

2938-519: The Regia or royal palace at the Forum Romanum, originally inhabited by the king of sacrifices, was ceded to the pontifex maximus . Significantly enough, one of his major public appearances was at the festival of Regifugium , where he impersonated the king being thrown out of the city. Further, the consuls retained religious roles which were considered so important that the office of interrex

3051-639: The Assize of Clarendon of 1166, a reissuance of rights during the reign of Henry II of England in the 12th century. The foundations for habeas corpus are "wrongly thought" to have originated in Magna Carta but in fact predate it. 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

3164-635: The Australian parliament passed the Australian Anti-Terrorism Act 2005 . Some legal experts questioned the constitutionality of the act, due in part to limitations it placed on habeas corpus . Habeas corpus rights are part of the English legal tradition inherited by Canada. The rights exist in the common law and have been enshrined in section 10(c) of the Charter of Rights and Freedoms , which states that "[e]veryone has

3277-574: The Basic Law for the Federal Republic of Germany provides that deprivations of liberty may be imposed only on the basis of a specific enabling statute that also must include procedural rules. Article 104, paragraph 2 requires that any arrested individual be brought before a judge by the end of the day following the day of the arrest. For those detained as criminal suspects, article 104, paragraph 3 specifically requires that

3390-454: The English courts in the name of the monarch to control inferior courts and public authorities within the kingdom. The most common of the other such prerogative writs are quo warranto , prohibito , mandamus , procedendo , and certiorari . The due process for such petitions is not simply civil or criminal, because they incorporate the presumption of non-authority. The official who

3503-410: The body of A.B. in our prison under your custody detained, as it is said, together with the day and cause of his taking and detention, by whatever name the said A.B. may be known therein, you have at our Court ... to undergo and to receive that which our Court shall then and there consider and order in that behalf. Hereof in no way fail, at your peril. And have you then there this writ. Victoria by

Tribune of the plebs - Misplaced Pages Continue

3616-406: The commander-in-chief of all Rome's forces. His executive power and his sole imperium allowed him to issue decrees with the force of law. Also, the laws that kept citizens safe from the misuse of magistrates holding imperium did not exist during the time of the kings. The king was also empowered to appoint or nominate all officeholders. He would appoint a tribunus celerum to serve both as

3729-423: The decemviri , or decemvirs, to serve for one year in place of the annual magistrates, and codify Roman law. The tribunate itself was suspended during this time. But when a second college of decemvirs appointed for the year 450 illegally continued their office into the following year, and the abuses of their authority became clear to the people, the decemvirate was abolished and the tribunate restored, together with

3842-525: The 18th day of January next, to undergo and receive all and singular such matters and things which our said Court shall then and there consider of in this behalf; and have there then this Writ. United States of America, Second Judicial Circuit, Southern District of New York , ss.: We command you that the body of Charles L. Craig , in your custody detained, as it is said, together with the day and cause of his caption and detention, you safely have before Honorable Martin T. Manton , United States Circuit Judge for

3955-709: The Chief Justice moving a habeas corpus petition. It was also filed by the Panthers Party to protest the imprisonment of Anna Hazare , a social activist. In the Republic of Ireland , the writ of habeas corpus is available at common law and under the Habeas Corpus Acts of 1782 and 1816. A remedy equivalent to habeas corpus is also guaranteed by Article 40 of the 1937 constitution . The article guarantees that "no citizen shall be deprived of his personal liberty save in accordance with law" and outlines

4068-632: The Constitution grants the Supreme Court the authority to issue them. The Indian judiciary, in a catena of cases, has effectively resorted to the writ of habeas corpus to secure release of a person from illegal detention. The Indian judiciary has dispensed with the traditional doctrine of locus standi , so that if a detained person is not in a position to file a petition, it can be moved on his behalf by any other person. The scope of habeas relief has expanded in recent times by actions of

4181-518: The Curiate Assembly, by voting in favour of the law, would grant it. In theory, the people of Rome elected their leader, but the Senate had most of the control over the process. Since Rome's records were destroyed in 390 BC when the city was sacked , it is impossible to know for certain how many kings actually ruled the city, or if any of the deeds attributed to the individual kings, by later writers, are accurate. Titus Tatius , King of

4294-745: The English Parliament (1679), in Catalonia , there are references from 1428 in the recurs de manifestació de persones (appeal of people's manifestation) collected in the Furs de les Corts of the Crown of Aragon and some references to this term in the Law of the Lordship of Biscay (1527). The writ of habeas corpus as a procedural remedy is part of Australia 's English law inheritance. In 2005,

4407-823: The French Constitution and regulated by the Penal Code. These safeguards are equivalent to those found under the Habeas-Corpus provisions found in Germany, the United States and several Commonwealth countries. The French system of accountability prescribes severe penalties for ministers, police officers and civil and judiciary authorities who either violate or fail to enforce the law. Article 7 of [1789] Declaration also provides that "No individual may be accused, arrested, or detained except where

4520-517: The French team subsequently championed the habeas corpus provisions enshrined in the European Convention for the Protection of Human Rights and Fundamental Freedoms . Germany has constitutional guarantees against improper detention and these have been implemented in statutory law in a manner that can be considered as equivalent to writs of habeas corpus . Article 104, paragraph 1 of

4633-689: The Grace of God, of the United Kingdom of Great Britain and Ireland Queen, Defender of the Faith, To J.K., Keeper of our Gaol, in the Island of Jersey , and to J.C. Viscount of said Island, Greeting. We command you that you have the body of C.C.W. detained in our prison under your custody, as it is said, together with the day and cause of his being taken and detained, by whatsoever name he may be called or known, in our Court before us, at Westminster , on

Tribune of the plebs - Misplaced Pages Continue

4746-569: The Indian judiciary. Usually, in most other jurisdictions, the writ is directed at police authorities. The extension to non-state authorities has its grounds in two cases: the 1898 Queen's Bench case of Ex Parte Daisy Hopkins , wherein the Proctor of Cambridge University did detain and arrest Hopkins without his jurisdiction, and Hopkins was released, and that of Somerset v Stewart , in which an African slave whose master had moved to London

4859-436: The Indian legal framework, but the existing writs are vulnerable to modifications through legislative changes, whereby the legislature, particularly with a strong majority, can amend the relevant laws, potentially leading to the suspension of writs like habeas corpus . However, following the Constitution's enactment, which includes explicit references to writs, these writs cannot be easily nullified by any legislative body because

4972-455: The Law of the land. However the preceding article of Magna Carta, nr 38, declares: No legal officer shall start proceedings against anyone [ not just freemen, this was even then a universal human right ] on his own mere say-so, without reliable witnesses having been brought for the purpose. - in the original Latin: Nullus balivus ponat aliquem ad legem, simplici sua loquela, sine testibus fidelibus ad hoc aductis Pursuant to that language,

5085-508: The Sabines, was also joint king of Rome with Romulus for five years, until his death. However, he is not traditionally counted among the seven kings of Rome. The overthrow of the Roman monarchy of Tarquinius Superbus led to a limited separation of the powers mentioned above. The actual title of king was retained for the rex sacrorum , who formally remained Rome's first priest. He was forbidden any political or military career, except for

5198-481: The Second Judicial Circuit, within the circuit and district aforesaid, to do and receive all and singular those things which the said judge shall then and there consider of him in this behalf; and have you then and there this writ. The full name of the writ is often used to distinguish it from similar ancient writs, also named habeas corpus . These include: Habeas corpus originally stems from

5311-471: The activities of the tribunes were normally confined to the city itself, and a one-mile radius beyond. In 471 BC the Lex Publilia transferred the election of the tribunes from comitia curiata to the comitia tributa , thus removing the influence of the patricians on their election. In 462, the tribune Gaius Terentillius Arsa alleged that the consular government had become even more oppressive than

5424-554: The air of England was too pure for slavery" (although it was the lawyers in argument who expressly used this phrase – referenced from a much earlier argument heard in the Star Chamber – and not Lord Mansfield himself). 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

5537-470: The annual magistrates. Among the laws codified by the decemvirs was one forbidding intermarriage between the patricians and the plebeians; the Twelve Tables of Roman law also codified that the consulate itself was closed to the plebeians. Worse still, in 448, two patricians were co-opted to fill vacant positions in the tribunate, although they proved to be of moderate views, and their year of office

5650-406: The applicant [i.e., the person seeking habeas corpus review] must establish that he or she has been deprived of liberty. Once a deprivation of liberty is proven, the applicant must raise a legitimate ground upon which to question its legality. If the applicant has raised such a ground, the onus shifts to the respondent authorities [i.e., the person or institution detaining the applicant] to show that

5763-419: The body ' ) is an equitable remedy by which a report can be made to a court alleging the unlawful detention or imprisonment of an individual, and requesting that the court order the individual's custodian (usually a prison official) to bring the prisoner to court, to determine whether their detention is lawful. The writ of habeas corpus was described in the eighteenth century by William Blackstone as

SECTION 50

#1732776322551

5876-417: The chief justice of Rome. Although he could assign pontiffs to act as minor judges in some cases, he had supreme authority in all cases brought before him, both civil and criminal. This made the king supreme in times of both war and peace. While some writers believed there was no appeal from the king's decisions, others believed that a proposal for appeal could be brought before the king by any patrician during

5989-419: The context of a sharp confrontation between King Charles II and Parliament , which was dominated by the then sharply oppositional, nascent Whig Party . The Whig leaders had good reasons to fear the king moving against them through the courts (as indeed happened in 1681) and regarded habeas corpus as safeguarding their own persons. The short-lived parliament which made this enactment came to be known as

6102-462: The courts. If no other jurisdiction has been established, recourse shall be to the ordinary courts." In the Republic of India , the Supreme Court and High Courts possess the authority to issue a writ of habeas corpus , as granted by Articles 32 and 226 of the Constitution of India, respectively. (1) The right to move the Supreme Court by appropriate proceedings for the enforcement of

6215-767: The deprivation of liberty was lawful. Suspension of the writ in Canadian history occurred at multiple times. During the October Crisis in 1970, the War Measures Act was invoked by the Governor General of Canada on the constitutional advice of Prime Minister Pierre Trudeau , who had received a request from the Quebec Cabinet. The Act was also used to justify German, Slavic, and Ukrainian Canadian internment during World War I , and

6328-642: The discretion to grant the writ even in the face of an alternative remedy (see May v Ferndale Institution ). Under the Criminal Code the writ is largely unavailable if a statutory right of appeal exists, whether or not this right has been exercised. As a fundamental human right in the 1789 Declaration of the Rights of Man and of the Citizen drafted by Lafayette in cooperation with Thomas Jefferson , safeguards against arbitrary detention are enshrined in

6441-429: The executive. According to tradition (which is disputed by historians for the first decades), the consulate was always entrusted to two persons to prevent autocracy. In case of emergencies, the power to appoint a dictator for a six-month term was introduced. Later, proconsuls and propraetors could be given an imperium by appointment of the Senate. Whoever used the imperium to victoriously lead an army could acquire

6554-514: The fifth king Tarquinius Priscus . Consequently, some have assumed that the Tarquins' attempt to institute a hereditary monarchy over this conjectured earlier elective monarchy resulted in the formation of the Republic . Early Rome was ruled by the king ( rex ). The king possessed absolute power over the people; no one could rule over him. The Senate was a weak oligarchy , capable of exercising only minor administrative powers, so that Rome

6667-476: The granting of this authority was a means of designating a favoured member of the imperial court as the emperor's intended successor. Agrippa , Drusus the Younger , Tiberius , Titus , Trajan , and Marcus Aurelius each received the tribunician power in this way. With the regular assumption of the tribunician power by the emperors and their heirs, the ancient authority of the tribunes dwindled away. Although

6780-582: The internment of German-Canadians, Italian-Canadians and Japanese-Canadians during World War II . The writ was suspended for several years following the Battle of Fort Erie (1866) during the Fenian Rising , though the suspension was only ever applied to suspects in the Thomas D'Arcy McGee assassination. The writ is available where there is no other adequate remedy. However, a superior court always has

6893-474: The judge must grant a hearing to the suspect in order to rule on the detention. Restrictions on the power of the authorities to arrest and detain individuals also emanate from article 2 paragraph 2 of the Basic Law which guarantees liberty and requires a statutory authorization for any deprivation of liberty. In addition, several other articles of the Basic Law have a bearing on the issue. The most important of these are article 19, which generally requires

SECTION 60

#1732776322551

7006-466: The king could not do without the approval of the Senate and Curiate Assembly was to declare war against a foreign nation. These issues effectively allowed the King to more or less rule by decree with the exception of the above-mentioned affairs. Whenever a Roman king died, Rome entered a period of interregnum . The supreme power in the state would be devolved to the Senate, which had the task of finding

7119-483: The king was a sufficient answer to a petition of habeas corpus . The cornerstone purpose of the writ of habeas corpus was to limit the king's Chancery's ability to undermine the surety of law by allowing courts of justice decisions to be overturned in favor and application of equity , a process managed by the Chancellor (a bishop) with the king's authority. The 1679 codification of habeas corpus took place in

7232-472: The kingship, the augur announced that the gods had given favourable tokens, thus confirming the King-elect's priestly character. Second, the imperium had to be conferred upon the King. The Curiate Assembly's vote only determined who was to be king, but that act did not bestow the powers of the king upon him. Accordingly, the king himself proposed to the Curiate Assembly a bill granting him imperium , and

7345-632: The law so prescribes, and in accordance with the procedure it has laid down." ... The Constitution further states that "No one may be arbitrarily detained. The judicial authority, guardian of individual liberty, ensures the observance of this principle under the condition specified by law." Its article 5 provides that everyone has the right to liberty and sets forth permissible circumstances under which people may be deprived of their liberty and procedural safeguards in case of detention. In particular, it states that "anyone deprived of his liberty by arrest or detention shall be entitled to take proceedings by which

7458-506: The lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful". France and the United States played a synergistic role in the international team, led by Eleanor Roosevelt, which crafted the Universal Declaration of Human Rights . The French judge and Nobel Peace Laureate René Cassin produced the first draft and argued against arbitrary detentions. René Cassin and

7571-538: The lawfulness of the process itself is in question. In some countries, the writ has been temporarily or permanently suspended on the basis of a war or state of emergency , for example with the Habeas Corpus Suspension Act 1794 in Britain and the Habeas Corpus Suspension Act (1863) in the United States. The right to petition for a writ of habeas corpus has nonetheless long been celebrated as

7684-428: 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. 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

7797-578: The legislation was practically passed from the Curiate Assembly to the Centuriate Assembly (and Tribal Assembly ), with the exception of the formality, more or less, of a lex curiata de imperio , which ratified the elections of the previous Centuriate Assembly. The consuls did, however, retain the power to rule by ordinance. Habeas corpus Habeas corpus ( / ˈ h eɪ b i ə s ˈ k ɔːr p ə s / ; from Medieval Latin , lit.   ' you should have

7910-466: 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

8023-406: The matter "forthwith" and may order that the defendant bring the prisoner before the court and give reasons for his detention. The court must immediately release the detainee unless it is satisfied that he is being held lawfully. The remedy is available not only to prisoners of the state, but also to persons unlawfully detained by any private party. However, the constitution provides that the procedure

8136-426: The monarchy that it had replaced. He urged the passage of a law appointing five commissioners to define and limit the powers of the consuls. By threat of war and plague, the issue was postponed for five contentious years, with the same college of tribunes elected each year. In 457, hoping to deprive the law's supporters of their impetus, the senate agreed to increase the number of tribunes to ten, provided that none of

8249-530: The most efficient safeguard of the liberty of the subject. The English jurist Albert Venn Dicey wrote that the British Habeas Corpus Acts "declare no principle and define no rights, but they are for practical purposes worth a hundred constitutional articles guaranteeing individual liberty". The writ of habeas corpus is one of what are called the "extraordinary", " common law ", or " prerogative writs ", which were historically issued by

8362-445: The nominee before the Senate and the Senate would examine him. If the Senate confirmed the nomination, the interrex would convene the Curiate Assembly and preside as its chairman during the election of the king. Once a candidate was proposed to the Curiate Assembly, the people of Rome could either accept or reject the King-elect. If accepted, the King-elect did not immediately take office: two additional acts had to take place before he

8475-441: The office of tribune endured throughout imperial times , its independence and most of its practical functions were lost. Together with the aedileship, it remained a step in the political career of many plebeians who aspired to sit in the senate, at least until the third century. There is evidence that the tribunate continued to exist as late as the fifth century AD. King of Rome The king of Rome ( Latin : rex Romae )

8588-481: The office was further impaired when, in 59 BC, the patrician Publius Clodius Pulcher , who aspired to hold the tribunician power, had himself adopted by a plebeian youth, and renounced his patrician status, in order to be elected tribune for the following year. Although considered outrageous at the time, Clodius' scheme was allowed to proceed, and he embarked on a program of legislation designed to outlaw his political opponents and confiscate their property, while realizing

8701-527: The official adoption of the Christian religion. To qualify for the office, patrician ancestry was necessary; however it was once performed by a member of a family otherwise known as plebeian , the Marcii , earning for himself and his descendants the cognomen Rex . As has been mentioned, the administrative functions in religion, including at some point the housing in the ancient royal court, were ceded to

8814-411: The patricians and plebeians working in concert. The plebeians agreed to negotiate for their return to the city; and their condition was that special tribunes should be appointed to represent the plebeians, and to protect them from the power of the consuls. No member of the senatorial class would be eligible for this office (in practice, this meant that only plebeians were eligible for the tribunate), and

8927-451: The person in whose custody such person is detained to produce the body of such person before the High Court on a named day and to certify in writing the grounds of his detention, and the High Court shall, upon the body of such person being produced before that Court and after giving the person in whose custody he is detained an opportunity of justifying the detention, order the release of such person from such detention unless satisfied that he

9040-406: The phrase is habeas corpora . Literally, the phrase means "[we command] that you should have the [detainee's] body [brought to court]"; that is, that the detainee be brought to court in person. The complete phrase habeas corpus [coram nobis] ad subjiciendum means "that you have the person [before us] for the purpose of subjecting (the case to examination)". Those are the words of writs included in

9153-436: The place of consuls prevented any plebeians from assuming the highest offices of state until the year 400, when four of the six military tribunes were plebeians. Plebeian military tribunes served in 399, 396, 383, and 379, but in all other years between 444 and 376 BC, every consul or military tribune with consular powers was a patrician. Beginning in 376, Gaius Licinius Calvus Stolo and Lucius Sextius Lateranus , tribunes of

9266-407: The plebeian tribunes and aediles. From the institution of the tribunate, any one of the tribunes of the plebs was entitled to preside over this assembly. The tribunes were entitled to propose legislation before the assembly. By the third century BC, the tribunes also had the right to call the senate to order, and lay proposals before it. Ius intercessionis , also called intercessio, the power of

9379-474: The plebs, used the veto power to prevent the election of any annual magistrates. Continuing in office each year, they frustrated the patricians, who, despite electing patrician military tribunes from 371 to 367, finally conceded the consulship, agreeing to the Licinian Rogations . Under this law, military tribunes with consular power were abolished, and one of the consuls elected each year was to be

9492-415: The republican times excepting the dictatorships are concerned, can hardly be translated to Roman conceptions , but most other powers—the imperium —were ceded to the consuls (the etymology suggests that these were originally the king's chief counsellors) and to the praetors ("leaders") after the creation of that office (about 367, according to Livy ); thereby at least roughly separating the judiciary from

9605-523: The right on arrest or detention ... to have the validity of the detention determined by way of habeas corpus and to be released if the detention is not lawful". The test for habeas corpus in Canada was established by the Supreme Court of Canada in Mission Institution v Khela , as follows: To be successful, an application for habeas corpus must satisfy the following criteria. First,

9718-412: The right to meet together and discuss questions of state. They could only be called together by the king and could only discuss the matters the king laid before them. While the Curiate Assembly did have the power to pass laws that the king had submitted, the Senate was effectively an honorable council. It could advise the king on his action but, by no means, could prevent him from acting. The only thing that

9831-424: The rights conferred by ( Part III ) is guaranteed. (2) The Supreme Court shall have power to issue directions or orders or writs, including writs in the nature of habeas corpus , mandamus, prohibition, quo warranto and certiorari, whichever may be appropriate, for the enforcement of any of the rights conferred by ( Part III ). (1) Notwithstanding anything in article 32, every High Court shall have power, throughout

9944-432: The senate formally recognized the plebiscita as laws with binding force. In 149 BC, men elected to the tribunate automatically entered the Senate. However, in 81 BC, the dictator Sulla , who considered the tribunate a threat to his power, deprived the tribunes of their powers to initiate legislation, and to veto acts of the senate. He also prohibited former tribunes from holding any other office, effectively preventing

10057-467: The situation, and determine the lawfulness of the magistrate's action. Any action taken in defiance of this right was illegal on its face. In effect, this gave the tribunes of the people unprecedented power to protect individuals from the arbitrary exercise of state power, and afforded Roman citizens a degree of liberty unequalled in the ancient world. If the tribune decided to act, he would impose his ius intercessionis ("right of intercession"). Although

10170-525: The state was vested in the king, whose position gave the following powers: Beyond his religious authority, the king was invested with the supreme military, executive, and judicial authority through the use of imperium . The imperium of the king was held for life and protected him from ever being brought to trial for his actions. As the sole holder of imperium in Rome at the time, the king possessed ultimate executive power and unchecked military authority as

10283-399: The supreme pontiff. In the late Republic, the previous role of the king in choosing new senators and dismissing people from the Senate was ceded to the censors . However, the role of choosing senators became rather limited as all magistrates down to the rank of quaestor eventually gained admission to the Senate after the office's expiration. The modern concept of a head of state, insofar as

10396-615: 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

10509-438: The territories in relation to which it exercises jurisdiction, to issue to any person or authority, including in appropriate cases, any Government, within those territories directions, orders or writs, including writs in the nature of habeas corpus , mandamus, prohibition, quo warranto and certiorari, or any of them, for the enforcement of any of the rights conferred by Part III and for any other purpose. On 9 December 1948, during

10622-403: The title of imperator , which later became chief title of the emperors, who were formally included in the system as proconsuls over most (and the strategically most important) parts of the empire, chief senators , and popular tribunes without the title. The republican idea that all promagisterial imperium ends upon entering the city was not observed in the emperors' case. At the same time,

10735-457: The tribune of Ramnes tribe in Rome and also as the commander of the king's personal bodyguard, the Celeres . The king was required to appoint the tribune upon entering office, and the tribune left office upon the king's death. The tribune was second in rank to the king and also possessed the power to convene the Curiate Assembly and lay legislation before it. Another officer appointed by the king

10848-431: The tribunes from the preceding years should be re-elected. However, the new tribunes continued to press for the adoption of Terentillus' law, until in 454 the senate agreed to appoint three commissioners to study Greek laws and institutions, and on their return help to resolve the strife between the orders. On the return of the envoys, the senate and the tribunes agreed to the appointment of a committee of ten men, known as

10961-463: The tribunes may have originally been two or five in number. If the former, the college of tribunes was expanded to five in 470 BC. Either way, the college was increased to ten in 457 BC, and remained at this number throughout Roman history. They were assisted by two aediles plebis , or plebeian aediles. Only plebeians were eligible for these offices, although there were at least two exceptions. Although sometimes referred to as plebeian magistrates,

11074-415: The tribunes of the people, like the plebeian aediles , who were created at the same time, were technically not magistrates, as they were elected by the plebeian assembly alone. However, they functioned very much like magistrates of the Roman state. They could convene the concilium plebis , which was entitled to pass legislation affecting the plebeians alone ( plebiscita ), and beginning in 493 BC to elect

11187-504: The tribunes should be sacrosanct; any person who laid hands on one of the tribunes would be outlawed, and the whole body of the plebeians entitled to kill such person without fear of penalty. The senate agreeing to these terms, the people returned to the city. The first tribuni plebis were Lucius Albinius Paterculus and Gaius Licinius , appointed for the year 493 BC. Soon afterward, the tribunes themselves appointed Sicinius and two others as their colleagues. The ancient sources indicate

11300-412: The tribunes to intercede on behalf of the plebeians and veto the actions of the magistrates, was unique in Roman history. Because they were not technically magistrates, and thus possessed no maior potestas , they relied on their sacrosanctity to obstruct actions unfavourable to the plebeians. Being sacrosanct, no person could harm the tribunes or interfere with their activities. To do so, or to disregard

11413-412: The tribunes; he held the tribunician power until his death in 44. In 23 BC, the senate bestowed the tribunician power on Caesar's nephew, Octavian , now styled Augustus . From this point, the tribunicia potestas became a pre-requisite for the emperors, most of whom received it from the senate upon claiming the throne, though some had already received this power during the reigns of their predecessors;

11526-441: The use of the tribunate as a stepping stone to higher office. Although the tribunes retained the power to intercede on behalf of individual citizens, most of their authority was lost under Sulla's reforms. Former tribunes were once again admitted to the annual magistracies beginning in 75 BC, and the tribunician authority was fully restored by the consuls Gnaeus Pompeius Magnus and Marcus Licinius Crassus in 70. The dignity of

11639-411: The veto of a tribune, was punishable by death, and the tribunes could order the death of persons who violated their sacrosanctity. This could be used as a protection when a tribune needed to arrest someone. This sacrosanctity also made the tribunes independent of all magistrates; no magistrate could veto the action of a tribune. If a magistrate, the senate, or any other assembly disregarded the orders of

11752-415: The veto of another tribune. Tribunes also possessed the authority to enforce the right of provocatio ad populum , a precursor of the modern right of habeas corpus . This entitled a citizen to appeal the actions of a magistrate by shouting appello tribunos! ("I call upon the tribunes") or provoco ad populum! ("I appeal to the people"). Once invoked, this right required one of the tribunes to assess

11865-757: Was freed by action of the writ. For example, in October 2009, the Karnataka High Court heard a habeas corpus petition filed by the parents of a girl who married a Muslim boy from Kannur district and was allegedly confined in a madrasa in Malapuram town. In 1976, the habeas writ was used in the Rajan case , a student victim of torture in local police custody during the nationwide Emergency in India. On 12 March 2014, Subrata Roy 's counsel approached

11978-585: Was held by the UK Supreme Court in 2012 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. Although the first recorded historical references come from Anglo-Saxon law in the 12th century and one of the first documents referring to this right is a law of

12091-402: Was invested with the full regal authority and power. First, it was necessary to obtain the divine will of the gods respecting his appointment by means of the auspices , since the king would serve as high priest of Rome. An augur performed this ceremony by conducting the King-elect to the citadel where he was placed on a stone seat as the people waited below. If the King-elect was found worthy of

12204-430: Was originally a citizen and migrant from a neighboring Etruscan city-state . The people of Rome, sitting as the Curiate Assembly, could then either accept or reject the nominated candidate-king. The king had twelve lictors wielding fasces , a curule chair which served as a throne, a purple toga picta , red shoes, and a white diadem worn on the head. Only the king could wear a purple toga. The supreme power of

12317-402: Was peaceful. To prevent future attempts by the patricians to influence the selection of tribunes, Lucius Trebonius Asper promulgated a law forbidding the tribunes to co-opt their colleagues, and requiring their election to continue until all of the seats were filled. But relations between the orders deteriorated, until in 445, the tribunes, led by Gaius Canuleius , were able to push through

12430-456: Was retained for the opening prayer of "electional" assemblies in case both consuls died in office, and the ritual of driving a nail into the temple of Jupiter sometimes even induced a dictatorship. The rex sacrorum was not elected publicly, but chosen by the pontifical college. The king of sacrifices retained some religious rites only he could perform, and acted as quasi- flamen to Janus . The position seems to have continued in existence until

12543-499: Was ruled by its king who was in effect an absolute monarch . The Senate's main function was to carry out and administer the wishes of the king. After Romulus, Rome's first legendary king, Roman kings were elected by the people of Rome, sitting as a Curiate Assembly , who voted on the candidate that had been nominated by a chosen member of the Senate called an interrex . Candidates for the throne could be chosen from any source. For example, one such candidate, Lucius Tarquinius Priscus ,

12656-416: Was the custos urbis , who acted as the warden of the city. When the king was absent from the city, the prefect held all of the king's powers, even to the point of being bestowed with imperium while inside the city. The king was the sole person empowered to appoint patricians to the Senate. The king's imperium both granted him military powers and qualified him to pronounce legal judgement in all cases as

12769-549: Was the ruler of the Roman Kingdom . According to legend , the first king of Rome was Romulus , who founded the city in 753 BC upon the Palatine Hill . Seven legendary kings are said to have ruled Rome until 509 BC, when the last king was overthrown. These kings ruled for an average of 35 years. The kings after Romulus were not known to be dynasts and no reference is made to the hereditary principle until after

#550449