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.