Writ of Habeas Whattsit? Part I
Yes, that would be the writ habeas corpus. It’s a legal Latin phrase. I know, legal stuff, yuck! The legal dimension of warfare, however, creates the rules of engagement. The rules play a critical role in winning or losing a conflict. President Abraham Lincoln mastered the law of war. One fundamental legal weapon he skillfully wielded was the suspension of the writ of habeas corpus. Now, I’m no lawyer so this writ of habeas corpus series isn’t just for the legal beagle crowd; it’s for all students of history.[1] Let’s start with the basics.
A “writ” refers to a “command” of the court (or whoever is hearing the case). Habeas corpus (hay-be-ass core-pus) is literally defined as “that you have the body brought before us so that we can determine whether or not you’re holding him for good cause.” Loosely translated, you cannot be detained without lawful grounds.[2] Your sheriff’s deputy, who may also be your brother-in-law, can’t throw your body in the back of the squad car and keep you there without legal cause.
The phrase “writ of habeas corpus” originated in 1215. It was first mentioned in the 39th clause of the Magna Carta signed by King John of England. The clause states that “No man shall be arrested or imprisoned…except by the lawful judgment of his peers and by the law of the land.”[3] English courts started examining petitions for habeas corpus in 1600. It initially was employed to oppose the king’s “divine right to incarcerate people.” But there were many other authority figures who imprisoned individuals for various reasons during those times.[4] Hence, the term developed as the king’s way to demand account for a subject who was restrained of his liberty by other authorities.[5]
In the newly established Republic of the United States, the fourth Chief Justice of the U.S. Supreme Court, Chief Justice Marshall, emphasized the importance of writ of habeas corpus in 1830:
“. . . the ‘great object’ of the writ of habeas corpus ‘is the liberation of those who may be imprisoned without sufficient cause.’ The U.S. Supreme Court has recognized that the “writ of habeas corpus is the fundamental instrument for safeguarding individual freedom against arbitrary and lawless state action” and must be “administered with the initiative and flexibility essential to ensure that miscarriages of justice within its reach are surfaced and corrected.”[6]
The writ of habeas corpus is an important protection for all of us.
So, when the writ is suspended — and it can be legally suspended — it’s a big deal. It means those in authority can arrest and detain citizens without “sufficient cause”. Yep, so let’s say you are walking down the street, the authorities roll-up and suspect you are part of an insurgency group; they can throw you in the paddy wagon and jail you. This was what happened in the North during the Civil War.
[1] Thank you to my brother-in-law, Robert Greving. He read over the initial draft and helped with the Latin. He teaches Latin at The Heights and was in the JAG Corps.
[2] https://www.law.cornell.edu/wex/habeas_corpus.
[3] https://www.law.cornell.edu/wex/habeas_corpus.
[4] Such as those who imprisoned women for being “witches.”
[5] Ibid.
[6] Ibid.
Enjoy it while you’ve got it.
This is a compelling, thought-provoking article…
“All is fair in love and war” and “Might makes Right” are accepted recognition of the power of rebellion, revolution and total war in “wiping the slate clean and starting anew.”
As this researcher understands the American System of Governance, the President of the United States is authorized to wear two hats: he or she acts as Chief Executive and oversees the smooth running of Government; and in time of war or national emergency, the role of commander in chief of the nation’s armed forces may by necessity take priority.
Although the United States had suffered rebellion before – i.e. the Whiskey Rebellion – it was small and manageable and did not require the extraordinary measure of suspending the Writ of Habeas Corpus. But an even earlier rebellion – Shay’s of 1786 – resulted in recognition of the need for a more robust Federal Constitution.
One element of the Writ of Habeas Corpus requires that “local civilian courts must be used, whenever they are sitting.” Otherwise, military courts may have jurisdiction in times of emergency. During the early months of the Secession Crisis, aside from the peaceful surrender of Federal property, most “actions” of the leaders of the secession movement were statements broadcast by newspapers and boisterous decrees. But, once the Southern Consortium acted aggressively against Federal authority at Fort Sumter, the groundwork was laid for “institution of emergency powers” …one of which, due to localized interference with Federal measures to address the rebellion in Maryland, was the Suspension of the Writ of Habeas Corpus on 27 April 1861.
Was it legal? “Might makes Right.”
A sad case of ignoring the writ was that of Union General Charles Pomeroy Stone. After months in prison, he was released without a charge being made and a sullied reputation.
In April 1861 Lincoln declared that the writ was suspended in all areas of resistance to United States authority. Subsequently, Chief Justice Taney held that only Congress could suspend the Wit in Ex parte Merryman, 17 F. Cas. 144 (C.C.D. Md. 1861) (No. 9487). Although the Lincoln administration generally disregarded the Opinion, it was disturbing to the Congress. In 1863, it passed the Suspension of Habeas Corpus Act which in effect adopted the position that Congress must approve the suspension,
The issue also arose in the south, where the CS Congress took a much firmer stand, and in October 1862 enacted a law that precluded presidential suspension except with the consent of Congress. Davis invoked suspension twice, but both with Congressional appoval.
One might want to look at an Article (in two parts) “Unwhipped of Justice -The Conflict between John Bankhead Magruder and the Texas Supreme Court” in the Texas Supreme Court Historical Society Journal, Vol 13, Number 3, and Volume 13, Number 4. (2024) This deals with a near Constitutional crisis in a conflict between the military and the Civilian courts in Texas in 1864. Wound up with Magruder being held in Contempt.
See: https://www.texascourthistory.org/Content/Newsletters//TSCHS%20Spring%202024_final.pdf#%5B%7B%22num%22%3A132%2C%22gen%22%3A0%7D%2C%7B%22name%22%3A%22FitR%22%7D%2C-40%2C-1%2C653%2C792%5D(Part 1) and
https://www.texascourthistory.org/Content/Newsletters//TSCHS%20Summer%202024v21.pdf#%5B%7B%22num%22%3A142%2C%22gen%22%3A0%7D%2C%7B%22name%22%3A%22FitR%22%7D%2C-237%2C-80%2C849%2C792%5D (Part 2)
I look forward to seeing the rest of this article.
The “writ” process plays an important process in immigration proceedings – both procedurally and substantively.