Habeas Corpus
the most extraordinary writ
by Joseph Dale Robertson
http://www.habeascorpus.net/
Habeas Corpus is an ancient common law
prerogative writ - a legal procedure to which you have an undeniable
right. It is an extraordinary remedy at law. Upon proper application,
or even on naked knowledge alone, a court is empowered, and is
duty bound, to issue the Extraordinary Writ of Habeas Corpus commanding
one who is restraining liberty to forthwith produce before the
court the person who is in custody and to show cause why the liberty
of that person is being restrained. Absent a sufficient showing
for a proper restraint of liberty, the court is duty bound to
order the restraint eliminated and the person discharged. Habeas
Corpus is fundamental to American and all other English common
law derivative systems of jurisprudence. It is the ultimate lawful
and peaceable remedy for adjudicating the providence of liberty's
restraint. Since the history of Habeas Corpus is predominately
English we must visit that history to gain understanding of American
use of Habeas Corpus.
ENGLISH HISTORY OF HABEAS CORPUS
The history of Habeas Corpus is ancient.
It appears to be predominately of Anglo-Saxon common law origin.
Clearly, it precedes Magna Carta in 1215. Although the precise
origin of Habeas Corpus is uncertain in light of it's antiquity,
its principle effect was achieved in the middle ages by various
writs, the sum collection of which gave a similar effect as the
modern writ. Although practice surrounding the writ has evolved
over time, Habeas Corpus has since the earliest times been employed
to compel the appearance of a person who is in custody to be brought
before a court. And while Habeas Corpus originally was the prerogative
writ of the King and his courts, the passage of hundreds of years
time has permitted it to evolve into a prerogative writ initiated
by the person restrained, or someone acting in his interest rather
than by the King or his courts. Magna Carta obliquely makes reference
to Habeas Corpus through express reference to "the law of
the land". From Magna Carta the exact quote is: "...no
free man shall be taken or imprisoned or disseised or exiled or
in any way destroyed except by the lawful judgment of their peers
or by the law of the land." The practice and right of Habeas
Corpus was settled practice and law at the time of Magna Carta
and was thus a fundamental part of the unwritten common "law
of the land" as was expressly recognized by Magna Carta.
CIVIL LAW VS. COMMON LAW
However, Habeas Corpus was generally unknown
to the various civil law systems of Europe which are generally
devolved from Roman and/or Justinian law. European civil law systems
tend to favor collective authority from the top down while the
Anglo-Saxon common law tends to favor the individual. Thus, it
is altogether understandable that the ultimate right to determine
the propriety of restraint upon the liberty of an individual is
an almost unique feature derived from the ancient Anglo-Saxon
common law of England. Indeed, the Magna Carta itself is arguably
a reaction to the incursion of European civil law into the English
common law legal system via William in 1066. The running tension
and contest between the civil law of the "Norman intruders"
intrusively confronting the ancient Anglo-Saxon common law continued
throughout the period 1066 to the 1640's when, following the English
Civil War, and the beheading of King Charles I in 1649, the people's
parliament clearly established the respective position of King
and citizen. In this crucible of contest, the confrontation of
top down authoritarian civil law principles clashed and continuously
competed with, but then yielded to, the ancient "good old"
common law of the land. In the final analysis, the strength and
resilience, and I might add common sense, of the evolved, time
tested, common law prevailed. The interest of the people as reflected
in their common law won a several centuries old contest with the
civil law brought to England by the Norman conquest. Habeas Corpus
is merely one feature, albeit it an important one, of the common
law. As a feature of common law, the right of Habeas Corpus reflects
the age old contest between the individual and the state. Habeas
Corpus empowers the individual in holding accountable the exercise
of the state's awesome power to restrain liberty.
The frequent use of the great writ reflected
the tension between common and civil law practice during the period
1485 thru 1509, generally the reign of Henry VII. At that time
Habeas Corpus was employed to secure the liberty of those imprisoned
by the Chancellor, the King's Privy Counsel, the Courts of Admiralty,
The Court of High Commission and its prerogative courts including
its inquisitorial processes featured by the hated "star chamber
court" at Westminster, so called because of the stars on
its ceiling. Conversely, the common law preference of accusatorial
processes had long been a fixture of Anglo-Saxon history. The
modern writ of Habeas Corpus dates from this history. During this
period, the sheer frequency of which Habeas Corpus was employed
together with its procedure and results, established the Writ
of Habeas Corpus as a powerful tool to check the power of the
state and to preserve the rights of individuals against the arbitrary
power of the King and his Counsel together with the King's courts.
It was the King's prerogative courts which were given to inquisitorial
practices while the parallel system of common law courts employed
purely common law accusatorial practices. Thus the arbitrary character
of civil law power devolved in England since William's Norman
intrusion was largely checked through employment of the Writ of
Habeas Corpus by the first part of the sixteenth century. And
Habeas Corpus saw frequent use and growth in prominence throughout
the reign of Charles I which, in turn, found its bloody end on
the chopping block in 1649.
THE HABEAS CORPUS ACT
The English common law practice and procedure
respecting Habeas Corpus was codified by Parliament in 1679 by
enactment of the Habeas Corpus Act. This historic act of the English
Parliament empowered English courts to issue Writs of Habeas Corpus
even during periods when the court was not in session and provided
significant penalties to the judge, personally, who disobeyed
the statute. And while great hypocrisy surrounded the practice
of the Habeas Corpus Act in the late 17th century, Habeas Corpus
was nevertheless establishing itself as the primary means by which
individual liberty was empowered at the expense of the arbitrary
exercise of power by the state. During the 19th century the Writ
of Habeas Corpus was further expanded to include those held by
a purely private process other than that of the state.
AMERICAN DEVELOPMENT OF HABEAS CORPUS
As with other features of English common
law and practice, by the time of the American Revolutionary War,
the Writ of Habeas Corpus was clearly established in all of the
British colonies in New England and was generally regarded as
part of the fundamental protections guaranteed by law to each
citizen. The American Constitution at Article I, Section 9 states
that: "The Privilege of the Writ of Habeas Corpus shall not
be suspended, unless when in Case of Rebellion or Invasion the
public Safety may require it." It is important to note that
the framers of the Constitution for the United States of America
choose to include in the body of the Constitution the Writ of
Habeas Corpus while other important individual rights, arguably
as an afterthought, were included in the first ten amendments
which were popularly called the Bill of Rights. The "afterthought",
that is to say the Bill of Rights, was not included even as amendments
until James Madison single handedly, but persistently and successfully,
argued before congress for its adoption and passage on 15 December
1791, some two years after the constitution was ratified. This
fact sheds light on the importance of the Writ of Habeas Corpus
as viewed by the framers of the American Constitution at the time
it was established.
CIVIL WAR & HABEAS CORPUS
The most famous American Habeas Corpus
action prior to the civil war was the case of Ex parte Dred Scott.
Dred Scott was a slave owned by a physician. Upon the death of
his master, it was promised that Dred Scott would be set free.
However, at that time Dred Scott was still being detained as a
slave. Dred Scott petitioned the Federal Court for a Writ of Habeas
Corpus. Habeas Corpus was granted by the Federal District Court
and subsequently upheld by the Federal Court of Appeals. However,
the Habeas Corpus was overturned by the United States Supreme
Court on the grounds that Dred Scott, as a slave, was not a "person"
as contemplated by the United States Constitution and therefore
did not have the right to petition the Federal Courts for a Writ
of Habeas Corpus. As to Dred Scott, the extraordinary writ, the
great writ as Sir William Blackstone put it, was effectively suspended.
This notable case remains as one of the most controversial Habeas
Corpus actions in American history.
As is generally known, the Writ of Habeas
Corpus was suspended by President Lincoln during the civil war.
Chief Justice Roger Tanney, in the case of Ex parte Merryman (See:
Ex parte Merryman, 17 Fed. Cas. No.9, 487, p.144 (1861)) strongly
excepted suspension of Habeas Corpus by a sitting president and
concluded that only the congress had the power of suspension under
Article I Section 9 of the constitution. The ruling of the Supreme
Court was apparently ignored by the President and the military
during the civil war. Congress later authorized the already presidential
suspension of the writ in 1863. After 1863, and acting on congressional
authorization, the military was permitted to temporarily hold
people who were to be turned over to and adjudicated by the civil
courts. After the assassination of President Lincoln, and in the
case of Ex parte Milligan (See: Ex parte Milligan, 71 U.S. (4
Wall.) 2, 18 L.Ed. 281 (1866)) the United States Supreme Court
granted the writ and once again established that only Congress
had the power to suspend the Writ of Habeas Corpus and that the
military had no jurisdiction over the trial of civilians in the
post civil war South.
THE MODERN WRIT OF HABEAS CORPUS
Today the Writ of Habeas Corpus is used
in many different ways. It applies to post conviction relief in
criminal matters even where the judgment of judge and jury is
final. It applies to those who are in police custody but who are
not charged with a crime. It applies to those who are awaiting
trial but who have not been able to make an excessive bail. It
applies to death row prisoners who challenge their death sentence.
It applies to prisoners who remain in custody after the expiration
of their lawful sentence. Additionally, Habeas Corpus applies
to both adults and children who are restrained of their liberty
in some meaningful manner but who are not in the actual custody
of police or other public authority. For example, Writs of Habeas
Corpus have been issued in civil cases on application of a parent
where a child's custody is being sought against the wishes of
the other parent who allegedly "restrains" the child.
It applies equally to those who have been held because of their
mental condition. And the writ applies equally for any other fact
or circumstance, civil or criminal, in which the liberty of someone
is restrained in any meaningful manner. Habeas Corpus extends
even to those who are already released from actual custody on
bail and who are contesting the manner and/or authority of the
restrictions which bail places on their liberty or the charge
for which they have been required to make bail. And although,
research by this writer has failed to reveal any cases to date,
home schooling contest are subject to the writ of Habeas Corpus.
Parents whose authority to home school their own children and
who are challenged by the state or other authority may properly
file a Writ of Habeas Corpus to adjudicate the dispute as in any
other child custody case. And, the writ may properly be signed
and filed by an attorney - or - by "any other person"
(See: Texas Code of Criminal Procedure, Article 11.12 and 11.13.)
who has knowledge of the improvident restraint of liberty. In
fact, there is legal precedent recognizing the duty of any citizen
to proceed by Writ of Habeas Corpus to notice a court and to invoke
the duty of the court as to Habeas Corpus when any illegal restraint
of any other citizen is observed.
CAVEAT & SUMMARY
On a more ominous note, the Writ of Habeas
Corpus is not without its detractors today. Movement is underway
throughout the United States and each of the states to curtail
the employment and exercise of Habeas Corpus. This questionable,
if not highly suspicious, exercise can be divided generally into
two camps. Congressional restrictions on the writ; and judicial
restrictions on the writ. For example, the United States Congress
enacted the anti terrorism act in April of 1996 which effectively
stripped the Supreme Court of its power to review lower federal
court rulings in Habeas Corpus cases. However, the Supreme Court
retained its power to review petitions for Habeas Corpus which
are directly submitted to the court. Additionally, and more disturbingly,
there is evidence that the Writ of Habeas Corpus has in some jurisdictions
been selectively suspended in certain types of cases.
For example, frequently State courts selectively
ignore, as a practical matter, the effect of the writ in cases
where citizens are charged with the "unauthorized practice
of law". In most of these jurisdictions, it is disturbing
to note that it is an agency of the state Supreme Court itself
which makes the complaint and then prosecutes the charge. In these
cases the supreme court is making the charge, prosecuting the
charge only to later sit in final adjudication of the charge before
their own court. The consolidation of power as reflected in this
practice against the liberty of individual citizens smacks of
star chamber practice and should be condemned by state legislators
as was the star chamber itself condemned by the English Parliament
in 1641. Additionally, many of these cases result in imprisonment
of the defendant in a purely civil case only to thereafter be
effectively denied review by the Writ of Habeas Corpus. Tragically,
in these cases the ordinary review by appeal is also denied leaving
the defendant with no adequate remedy under law. The Writ of Habeas
Corpus in such cases is simply "overruled" without comment
or findings or supporting law. It is precisely this practice which
was sought to be avoided by those constitutional provisions pertaining
to the separation of powers as well as the constitutional provisions
that the Writ of Habeas Corpus is never to be suspended. While
all states have constitutional provisions pertaining to the separation
of powers only a few states have provisions prohibiting the suspension
of Habeas Corpus. Nevertheless, the Extraordinary Writ of Habeas
Corpus remains as the final and most fundamental process by which
one may test the propriety of a restraint on individual liberty.
Civil
Liberties watch
Democracy in America
Home Page