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Date: Sat, 29 Mar 1997 00:13:15 -0800
To: (Recipient list suppressed)
From: Paul Andrew Mitchell [address in tool bar]
Subject: SLS: "The Most Extraordinary Writ," by Dale Robertson [DRAFT]
Cc: habeascorpus@hotmail.com
Dear Clients,
This is a first draft of Dale Robertson's excellent
essay entitled "The Most Extraordinary Writ."
Please contribute your comments, criticisms,
and updates; they will be most welcome,
and most appreciated.
/s/ Paul Mitchell
http://www.supremelaw.com
copy: Dale Robertson
[This text is formatted in Courier 11, non-proportional spacing.]
[D R A F T]
The Most Extraordinary Writ
by
Joseph Dale Robertson
c/o P.O. Box 724
Pinehurst 77362/tdc
TEXAS STATE
telephone: (713) 356-8843
e-mail: habeascorpus@hotmail.com
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
predominantly 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
predominantly 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 Taney, in the case of 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, 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 was condemned
by 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.
# # #
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