Outpost of Freedom
Constitution, Article I, Section 9, clause 2:
The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.
Unlike most protections afforded in the Constitution as rights, this one is clearly set out as a “privilege”. This is because it can be suspended under certain conditions, though it has to be so stated to the public, when it is suspended.
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The following is written as an explanation in response to a number of queries about my use of habeas corpus in an article entitled “What if I’m Arrested?“.
The article dealt with the circumstance surrounding a traffic ticket, though did not sufficiently support the reasoning behind the habeas corpus. This is to expound upon that “great writ”.
This does not mean that “habeas corpus” will only work on a traffic ticket. I have not had the opportunity to test it on a larger scale.
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Habeas corpus is a phrase that many of us learned in grade school. Not that we really knew what it meant, but we were told how important it was and why it was even included as protected by the Constitution. At best, we were told that it was “bring forth the body”, which, by definition, has some truth.
Today, the press only mentions habeas corpus when they are talking about death row decisions. This is a nice diversion, because, since we didn’t really know what it meant, we are now prone to accept that if we ever find ourselves on death row, we can recall that fine “great writ of liberty” and, perhaps, prolong our demise.
So, let’s start by looking at what the legal definition(s) of habeas corpus is (are):
From Black’s Law Dictionary, 5th Edition:
Habeas corpus acts. The English statutes of 31 Car. II, c. 2, is the original and prominent habeas corpus act. It was amended and supplemented by St. 56 Geo. III, c. 100. Similar statutes have been enacted in all of the United States. This act is regarded as the great constitutional guarantee of personal liberty. See Art. I, § 9, U.S. Const.; 28 U.S.C.A. §2241 et seq.
Habeas corpus ad deliberandum et recipiendum. A writ which is issued to remove, for trial, a person confined in one county to the county or place where the offense of which he is accused was committed. Thus, it has been granted to remove a person in custody for contempt to take his trial for perjury in another county.
Habeas corpus ad faciendum et recipiendum. A writ issuing in civil cases to remove the cause, as also the body of the defendant, from an inferior court to a superior court having jurisdiction, there are to be a disposed of. It is also called “habeas corpus cum causa“.
Habeas corpus ad prosequendum. A writ which is usually employed in civil cases to remove a person out of the custody of one court into that of another, in order that he may be sued and answer the action in the latter.
Habeas corpus ad satisfaciendum. An English practice, a writ which issues when a prisoner has had a judgment against them in an action, and the plaintiff is desirous to bring him up to some superior court, to charge him with process of execution.
Habeas corpus ad subjiciendum. A writ directed to the person detaining another, and commanding them to produce the body of the prisoner, or person detained. This is the most common form of habeas corpus writ, the purpose of which is to test the legality of the detention or imprisonment; not whether he is guilty or innocent. This writ is guaranteed by U.S. Const. Art I, §9, and by state constitutions. See also 28 U.S.C.A. §2241 et seq.
This is the well known remedy in England and the United States for deliverance from illegal confinement, called by Sir William Blackstone the most celebrated writ and the English law, and the great and efficacious writ, in all manner of illegal confinement. 3 Bl.Comm. 129. The “great writ of liberty”, issuing at common law out of the courts of Chancery, King’s Bench, Common Pleas, and Exchequer.
Habeas corpus ad testificandum. The writ, meaning you have the body to testify, used to bring up a prisoner detained in a jail or prison to give evidence before the court. Hottle v. District Court in and for Clinton County, 233 Iowa 904, 11 N.W.2d 30, 34; 3Bl.Comm. 130.
Now, I realize that this is getting rather confusing. However, if you read them all, as well as the first, which sets out that history of the series of acts that constitute habeas corpus, you might have noted that one stands out from the rest. If not, then, go back and reread Habeas corpus ad subjiciendum. In so doing, you will note that Blackstone defined it as “the great writ of liberty“. Darn, same language they used in school.
You will also note that, “the purpose of which is to test the legality of the detention“. So, it appears that, perhaps, this, as in the game “Monopoly”, just might be a “Get Out of Jail Free” card. Not quite!
Detention evokes an image of being constrained by chains, force, threat of force, or other means that keep you from doing what you wish to do. So, I’ll use an example of what I wrote about in What if I’m Arrested?. I was arrested. I posted bail and was free, so long as I appeared in court at the time and place directed. Though I was free to move about, while on bail, I was still, technically, detained. I was under detention! Likewise, if you have signed a traffic ticket, you have agreed to appear. If you ask the officer issuing the citation, “If I do not sign this, will you take me to jail?”, he will affirm that he will take you to jail. So, even though you may not have posted bail, you have, by your signature, bound yourself to self-imposed detention until such time as you appear.
New, if we understand just what “held to answer” (5th Amendment) means, that is that we are, technically detained, though perhaps not physically, when we are charged with a crime, we understand that the charge, requiring that you produce yourself at the required place and time, makes the detention a part of the charge, and the charge a part of the detention. Neither can exist without the other.
Now, with that in mind, let’s look at the matter of detention. When I did my “oral demand for habeas corpus” (What if I’m Arrested?), by challenging the court to produce the injured party, and demanding that that party be produced along with an affidavit or contract, I was challenging the detention associated with the charge. The judge, apparently, agreed and decided to “nolle prosequi” (not prosecute) the case. Thereby freeing me from both detention and charges.
Unlike the approach most often taken by those challenging jurisdiction (which this really was -jurisdiction over my body), who seek to get into common law courts, my approach was predicated on getting out of common law court by assuming that I was already in a common law court. This created no argument with the judge, only the decision to grant me that common law right, or not.