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Habeas Corpus Act, February 5, 1867
- The University of Tennessee Press
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HAbeAs corpus Act, februAry 5, 1867 U.S. Statutes at Large 14:385–87. This extension and elaboration of the Habeas Corpus Act of 1863 establishes what is essentially the modern basis of jurisdiction for habeas corpus. The “great writ” of liberty is both a procedural mechanism that begins a judicial inquiry into why a person is being held by public authorities and a traditional protection of liberty from arbitrary detention. It is not enough to demonstrate that the individual is being held appropriately; rather, the inquiry has to go to the substantive issues behind and supporting the detention of the individual. In the united States federal system, the question of the jurisdiction of habeas corpus was at issue prior to the Civil War. While federal courts had jurisdiction over federal prisoners and the state courts had jurisdiction over state prisoners, did the state courts have habeas corpus oversight of federal prisoners? The united States Supreme Court in Ableman v. Booth 21 Howard (62 u.S.) 506 (1859) held that state courts could not issue habeas corpus orders to release federal prisoners. If state courts could issue habeas corpus against federal prisoners, then state courts could frustrate the application of federal law within states. Though habeas corpus by the state against a federal holding of a person was not barred by this decision, the exceptions to this rule are few and far between. The other side of the coin is the ability of the federal courts to issue a habeas corpus for a person held by state law. Prior to this 1867 act, the federal courts did not have such power; but, this act and its general language extends federal court habeas corpus oversight “in all cases where any person may be restrained of his or her liberty in violation of the constitution, or of any treaty or law of the united States.” Thus, this broad jurisdiction extended to federal oversight of state prisoners and constitutes the basis of modern grounds for habeas corpus and forms one of the bulwarks of united States liberty. Documentary History of the American Civil War era 188 Chap. XXVIII.—An Act to amend “An act to establish the judicial Courts of the United States,” approved September twenty-forth, seventeen hundred and eighty-nine. Be it enacted by the Senate and the House of Representatives of the United States of America in Congress assembled, That the several courts of the united States, and the several justices and judges of such courts, within their respective jurisdictions , in addition to authority already conferred by law, shall have the power to grant writs of habeas corpus in all cases where any person may be restrained of his or her liberty in violation of the constitution, or of any treaty or law of the united States; and it shall be lawful for such person so restrained of his or her liberty to apply to either of said justices or judges for a writ of habeas corpus, which application shall be in writing and verified by affidavit, and shall set forth the facts concerning the detention of the party applying, in whose custody he or she is detained, and by virtue of what claim or authority, if known; and the said justice or judge to whom such application shall be made shall forthwith award a writ of habeas corpus, unless it shall appear from the petition itself that the party is not deprived of his or her liberty in contravention of the constitution or laws of the united States. Said writ shall be directed to the person in whose custody the party is detained, who shall make return of said writ and bring the party before the judge who granted the writ, and certify the true cause of the detention of such person within three days thereafter, unless such person be detained beyond the distance of twenty miles; and if beyond the distance of twenty miles and not above one hundred miles, then within ten days; and if beyond the distance of one hundred miles, then within twenty days. And upon the return of the writ of habeas corpus a day shall be set for the hearing of the cause, not exceeding five days thereafter, unless the party petitioning shall request a longer time. The petitioner may deny any of the material facts set forth in the return, or may allege any fact to show that the detention is in contravention of the constitution or laws of the united States...